Med Mal Vacate Jud
 Judgment based on defense verdict in medical malpractice action vacated and remanded for new trial where trial court erred in dismissing juror and seating alternate after receiving a note that the juror was unable to “come to a fair decision due to emotional stress,” over objection, without questioning the juror required by CPLR 4106 as amended in 2013. Garbie v Ahmad
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Med Mal Set Aside Verdict Accepted Practice Causation Admissibility Preclusion
Verdict awarding $250,000/$350,000 past/future lost earnings and $500,000/ $1,500,000 past/future pain/ suffering and apportioning fault 15% against anesthesiologist and 85% against physician’s assistant and hospital set aside in the interest of justice where trial court precluded defendants from cross-examining plaintiff’s experts on culpability of non-party doctors who performed subsequent surgery since jury could have found their departures responsible for the injuries. Plaintiff’s experts should have been precluded from giving opinions on emergency room accepted practices where anesthesiologist did not have specific knowledge or experience in emergency medicine and pediatrician’s limited experience was more than 30-years earlier and too remote to qualify as an expert in that field.
Hospital and PA’s motion on grounds that verdict was against weight of the evidence properly denied. Daniele v Pain Mgt. Ctr. of Long Is.
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Labor Law §241 Labor Law §200 Labor Law §240 Set Aside Verdict Directed Verdict Industrial Code Causation Jury Charge Untimely Appealable Order
Lower court providently instructed jury to reconsider its verdict after finding that defendants’ violation of industrial code §12-1.8(c)(1)(iii) (requiring fire extinguisher within 50′) was not a substantial factor in causing plaintiff’s burns when his pants caught fire while he was using a portable saw to cut through metal rebar and apportioning 40/60% fault to defendants/plaintiff. The jury’s second verdict not apportioning fault was internally consistent with its right to alter its verdict to its real intention. Plaintiff’s motion for a directed verdict and to set aside verdict as against the weight of the evidence denied where there was a valid line of reasoning for jury to find no proximate cause and issues of liability and causation were not inextricably interwoven.
Defendants’ motion for summary judgment on Labor Law §200 properly considered where a separate codefendant made a timely motion on that ground. Owner and GC met burden for summary judgment on proof that they did not control means and methods of work and plaintiff’s claim that there was a dangerous premises condition was raised for the first time on appeal. Evidentiary rulings during the trial were provident exercises of discretion and did not affect a substantial right of the plaintiff. Sikorjak v City of New York
Comment: Appeal from order dismissing Labor Law §200 claim dismissed as superseded by the judgment appealed from. Sikorjak v City of New York.
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MVA Set Aside Verdict Pain/Suffering
Jury’s verdict awarding only $12,500 past pain/suffering and $0 future pain/suffering after finding plaintiff sustained a permanent consequential limitation from accident was inconsistent and inadequate and remanded for new trial. Award of no future damages against the weight of the evidence and inconsistent with the jury’s finding of a proximately caused permanent consequential limitation. Past pain/suffering award was so low as to indicate an impermissible compromise verdict. Avissato v McDaniel
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Premises Liab Slip/Trip Stairs Create Condition Notice Last Inspection Causation Speculation
 Defendant proved it did not create condition or have actual notice but failed to show last time stairs were inspected for constructive notice. Plaintiff’s testimony that stairs were not wet when she left apartment an hour before fall, however, showed lack of constructive notice. Argument that absence of handrails raised issue of fact was speculative without proof that handrails had any part in her fall. Perez v River Park Bronx Apts., Inc.
Comment:
The court’s reasoning that the 1-hour window when the wet condition could have been created meant that it might have been created only minutes before the accident could be made where the last inspection was weeks before the accident. In either instance, the lack of testimony as to the last time the area was inspected fails to eliminate the issue of constructive notice under the courts’ consistent ruling on last inspection and this decision is a departure from those consistent ruling. This decision seems to suggest that an hour may be an insufficient period of time to discover and remedy a condition as opposed to cases where an inspection or reasonable action such as placing mats an hour before an accident may be deemed reasonable with no duty to continuously monitor the area. |
Vacate Default Reasonable Excuse Meritorious Action
Plaintiff’s motion to vacate prior order granting dismissal on his default in appearing at court conference denied where plaintiff failed to show a meritorious action, even if plaintiff showed a reasonable excuse for failing to show at the conference. Diaz v Perlson
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Med Mal Medical Indemnity Fund Motion to Dismiss
Motion to dismiss petition challenging New York State Medical Indemnity Fund’s decision denying infant-plaintiff/petitioner’s enrollment providently denied where petition stated a cause of action under Article 78 but grant of petition reversed because CPLR §7804(f) requires that respondent be allowed to Answer after a motion to dismiss is denied. Matter of Irfan v Vullo
Comment: This is the first appellate decision allowing a challenge to the “Fund’s” determination of eligibility to go forward. The “Fund” covers health care costs for birth-related neurological injuries. Codified in Public Health Law §§ 2999-g, h, i, and j, it was established in 2011 and modified in 2017. The lower court’s decision, available on NYSCEF under index # 517286/2016, gives an excellent history of the Fund and the issues. |
Severance Prejudice
Plaintiff’s motion to sever third-party actions granted where discovery in main action was complete but barely started in third-party actions and 180-day stay for liquidation/reorganization of carrier for 1-third-party would unduly prejudice plaintiff. Drir v U-9 Rest. Assoc., Inc.
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Premises Liab Building Security Assault Wrongful Death Causation
NYCHA made out prima facie entitlement to summary judgment by proof that lock on door intruder gained access from before shooting and killing plaintiffs’ decedent who was making a Meals on Wheels delivery was not defective, but plaintiff raised question of fact on whether intruder gained access through a negligently maintained entrance. Court does not give the details of plaintiffs’ proofs. Building must provide minimal security to tenants and their guests but can only be liable on proof that assailant was an “intruder” who gained access through negligently maintained entrance. Aminova v New York City Hous. Auth.
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Slip/Trip Pothole Law Prior Written Notice Highway Design Qualified Immunity NYC
Where plaintiff tripped and fell placing tip of her cane into small hole in a manhole cover, NYC entitled to summary judgment on proof that it made an adequate study and there was a reasonable basis for its design. Plaintiff failed to show prior similar accidents or violation of a mandatory statute to raise issue of fact. Even if it was a dangerous condition under pothole law, there were no repairs or complaints regarding the condition in the 2-years after it was installed. Carlebach v City of New York
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Labor Law §241 Labor Law §200 Industrial Code Notice Control Comparative Fault
Con Ed failed to make out prima facie entitlement to summary judgment where worker was injured when excavator fell into a creek. It failed to demonstrate that industrial codes §23-4.2(c)(supervision of excavation work), §§23-4.2(a) & 23-4.4(a)(proper footing and equipment for excavation work), and §§23-9.4(c) & 23-9.5(a)(shoring and sheeting for excavation work) were not applicable to the work and were not violated. It needed to address plaintiff’s claims of both a dangerous premises condition and the means and methods of work. Fact that Con Ed maintained a trailer on the site with a representative present and did not show that the representative was unaware of the planned work failed to eliminate the issue of notice. Its contract with plaintiff’s employer gave it authority to supervise and halt work for dangerous conditions and allowed Con Ed to have representative on site failing to eliminate all questions regarding its ability to control the means and methods of work. Whether it actually exercised that authority is irrelevant as was any claim of comparative fault which does not preclude finding of defendant’s liability. Moscati v Consolidated Edison Co. of N.Y., Inc.
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Labor Law §240 Labor Law §241 Labor Law §200 Agent Reargument
Motions to reargue opposition to construction manager’s motion for summary judgment that had been granted by lower court granted and construction manager’s motion for summary judgment denied. A construction manager is not usually liable under Labor Law §§240-241-200 unless acting as an agent of the owner or tenant. The agreement between the construction manager and tenant stated that construction manager was acting as agent of the tenant and further provided that the construction manager would issue “directives, clarifications and notices,” and monitor the site during construction raising issues of fact on agency. Maurisaca v Bowery at Spring Partners, L.P.
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Med Mal Statute of Limitations Accepted Practice
Anesthesia practice granted summary judgment on statute of limitations where it was served after statute ran and timely served employee was granted summary judgment on finding of no departure. Lower court’s denial of motion based on question of fact as to departure of non-party co-employee improper because relation back theory cannot be based on a co-employee who was not served within the statute of limitations. Ferrara v Jerome Zisfein
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Dental Mal Accepted Practice Causation Informed Consent Expert Aff Conclusory
Defendant failed to meet burden for summary judgment where his affidavit opining that he complied with accepted practice was conclusory and did not refer to specific standards of care. His request to have Court search record and reverse lower court’s previous denial of his motion to dismiss informed consent claim denied where he did not appeal from the prior order. Plaintiff’s cross motion for summary judgment denied where his experts failed to opine that the surgeries were either contraindicated or not acceptable to achieve better occlusion and there was no evidence that failure to consult with another dentist or periodontist proximately caused the injuries. Pino v Behrman
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Late Notice of Claim Actual Knowledge Prejudice
Worker’s Compensation claim defended by NYC law department at WC Board did not give actual knowledge of claim within 90-days or reasonable time thereafter because it didn’t alert HHC that injuries were from their negligence. Petitioner’s 2-conversations with employee at Department of Corrections expressing her intention to bring lawsuit did not provide actual knowledge to Department of Corrections because it did not connect her assault by inmate to department’s negligence. 7-month delay prejudiced respondents’ ability to investigate who was present and collect testimony from witnesses. Matter of Rodriguez v City of New York
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Motion to Dismiss Workers Comp Defense Grave Injury Indemnity
Third-party defendant, plaintiff’s employer’s motion to dismiss granted where there was no evidence of grave injury necessary to sustain a claim of common law contribution or indemnity and contract did not expressly provide that employer would indemnify building owner for type of injuries sustained by plaintiff – elevator mechanic. Cassese v SVJ Joralemon, LLC
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Workers Comp Defense Grave Injury
Employer, third-party defendant, granted summary judgment under worker compensation defense on proof that plaintiff had not sustained a “grave injury” defined as a brain injury from an external force resulting in permanent inability to work. He went for cognitive therapy only once a month, was able to drive, and obtain his GED and there was no medical testimony that he was unable to work in any capacity. Depression and post-concussion syndrome do not make out grave injury. Alulema v ZEV Elec. Corp.
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Premises Liab Slip/Trip Stairs Control Premature Motion
Contract between defendant and NYC regarding transitional hotel for homeless where plaintiff tripped on landing defect falling down stairs insufficient to prove moving defendant lacked any authority to control premises and its employees. Testimony that a co-defendant was responsible for premises was insufficient to prove lack of ownership, management, or control where witness did not know any of the details of the building. Motion was also premature as both NYC and moving defendant had not provided responses to discovery demands on ownership, management and control. Reid v City of New York
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Premises Liab Discovery CPLR §3124 Privilege
After an in-camera inspection of records, required by Civil Rights L §50-a(1), of police officers injured by carbon monoxide when they responded to restaurant court found that most of requested items were irrelevant to action but ordered 9 additional records be disclosed in addition to the 13 ordered disclosed by lower court. Fezza v Legal Sea Foods, LLC
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MVA Rear End Pileup Nonnegligent Explanation
Third car’s claim that second car’s stopping short caused him to hit second car. pushing it into plaintiff’s first car, did not provide a nonnegligent explanation where he failed to explain why he did not maintain sufficient distance from second car which had to stop. Little v Morillo
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Dogbite Set Aside Verdict Vicious Propensity
Judgement on defense verdict finding dog that bit owner’s grandson on face when he got off chair holding pancakes affirmed because jury could rationally find that owner didn’t have notice of vicious propensities. Jury could infer that habit of taking food from people and jumping to get food, viewed by family as annoying rather than vicious, did not show viciousness. M.B. v Hanson
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Unknown Cause
General contractor for road construction project granted summary judgment on proof that plaintiff administrator could not identify the cause of decedent’s accident and plaintiff failed to raise an issue of fact in opposition. Martinez v City of New York
Comment: Case against state defendants dismissed on the same grounds. Martinez v State of New York. |
Med Mal Accepted Practice Causation Expert Aff Conclusory
Expert’s conclusory opinion that defendant did not depart from accepted practice and was not a cause of the injuries after summarizing facts insufficient to meet burden for summary judgment. The court does not give the details of the proofs. Wei Lin v Sang Kim
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Late Notice of Claim Malicious Prosecution 1983 Action Conclusory
Lower court properly denied motion to deem late Notice of Claim timely served on all claims except malicious prosecution which was timely served given that cause of action didn’t accrue until dismissal of the charges. 1983 action does not require a Notice of Claim but plaintiff’s conclusory allegations that the constitutional violations were the result of an official policy were insufficient. Rochester v City of New York
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Serious Injury ROM
Defendants failed to meet burden for summary judgment on serious injury where their radiologist opined that both plaintiffs sustained herniated cervical discs and their orthopedist did not measure the ROM in either plaintiff’s cervical spine. Hodge v St. Eloi
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Med Mal Appealable Order
Plaintiff’s appeal from amended order dismissing case on collateral estoppel based on findings in plaintiff’s related federal action dismissed where plaintiff failed to include all of the papers considered by the lower court, including the defendants motion papers, in the record. It is up to the appellant to provide a complete record. Babayev v Kreitzman
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