January 17, 2017 | Vol. 37

MUST READS
(6 summaries)

Med Mal   CPLR § 3101(d)   Set Aside Verdict   Preclusion  

Second Deptartment

Defendant doctor served a 3101(d) a month before trial indicating that the neuroradiology expert would testify at trial that plaintiff’s decedent’s stroke was not caused by discontinuing anticoagulants on plaintiff’s discharge from the hospital after treatment for A-fib. The stoke occurred 4 hours after discharge. Plaintiff sought further discovery regarding the expert opinion and made a motion to preclude after opening where attorneys for defendants stated that the neuroradiologist would testify that the stroke was caused by a dislodged calcium deposit and not a blood clot. The motion was denied, the jury returned a verdict in favor of the defendants, and the lower court denied plaintiff’s motion to set aside the verdict.

The appellate division reversed finding that the defendant’s 3101(d) did not sufficiently apprise the plaintiff of the anticipated testimony of the expert by concealing the undisclosed causation theory. It was not sufficient that a CT scan report mentioned a “clot or calcium” or that one of the defendants mentioned calcium in his EBT. An undisclosed theory is not admissible because it is mentioned in a medical record and the failure to disclose the causation theory deprived the plaintiff of the ability to prepare for trial and cannot be seen as harmless even where the jury did not get to the question of causation.

Denial of the motion to set aside the verdict as to the hospital was a provident exercise of discretion as the only hospital employee was the doctor who admitted the plaintiff’s decedent to the ICU without any further involvement in his care. Rocco v Ahmed


Wrongful Death  

Second Deptartment

Plaintiff’s decedent died without spouse or children and her father was both the sole distributee and administrator of her estate. Defendants moved to dismiss the wrongful death claim arguing that there was no pecuniary loss. The lower court granted the motion and the appellate division reversed finding that defendant did not eliminate all triable issues as to whether the decedent’s death frustrated her father’s reasonable expectation of future assistance or support. Hart v Transel El. & Elec., Inc.


Notice of Claim   Slip/Trip   Snow/Ice   Estoppel   NYC  

First

The lower court properly denied plaintiff’s successive motions to renew opposition to motion dismissing action where it was undisputed that plaintiff did not serve a Notice of Claim on the Department of Education or include them as a party in the suit. Defendant, New York City, answered the complaint 5 months before the end of the 1 year and 90 day statute of limitations admitting that it owned the school property but denying that it managed or controlled the schoolyard or had a duty to keep it free from snow and ice. The denial in the Answer put plaintiff on notice that NYC was not the correct party and, therefore, she cannot claim justifiable reliance for equitable estoppel. Oquendo v City of New York


Statute of Limitations  

Second Deptartment

Plaintiff sued their home contractor in both contract and negligence for injuries from exposure to mold. The contractual cause of action began to accrue upon completion of the performance, which was more than 6 years before the action was commenced. Negligence actions have a 3 year statute of limitations but the cause of action for exposure to toxic substances does not accrue until the person exhibits symptoms related to the exposure (CPLR 214-c). Defendant showed that all of the plaintiffs exhibited symptoms of exposure to mold more than 3 years before the action was commenced. The action was barred by statute of limitations. Kamath v Building New Lifestyles, Ltd.


Workers Comp Defense   Alter Ego  

Second Deptartment

Defendant failed to meet its burden on summary judgment motion of showing that it was the alter ego of the plaintiff’s employer and entitled to the workers compensation defense where evidence showed that the 2 companies, while related and sharing some officers, had different purposes, bank accounts, workers compensation policies, and filed separate tax returns. To be an alter ego, defendant must show that it controls the other company or that they are operated as one company. Salcedo v Demon Trucking, Inc.


Grave Injury   Workers Comp Defense   Alter Ego  

First

Parking lot owner, third-party defendant, was not entitled to summary judgment on worker compensation defense but there existed facts as to whether it was the alter ego of the plaintiff’s employer. The amputation of a toe is not a “grave injury” under WCL §11. Nunez v Park Plus, Inc.

NOTEWORTHY
(23 summaries)

Med Mal   Set Aside Verdict   Materially Deviates   Pain/Suffering  

First

The lower court properly denied defendant’s motion to set aside the verdict where the jury awarded $150,000 for past pain-and-suffering and $250,000 for future pain-and-suffering as a result of the defendant cutting the infant plaintiff’s face during an incision of the uterus resulting in a 3 cm scar. $400,000 does not materially deviate from reasonable compensation. Pina v Chuang


Premises Liab   Stairs   De Minimus   Directed Verdict   Notice  

Second Deptartment

The lower court improperly granted defendant, NYCTA’s motion for a directed verdict (CPLR 4401) at the close of the plaintiff’s evidence where the plaintiff testified that the defect on the stairs which caused his fall was 5″ long, 3″ wide, and 2″ deep and a photograph taken around the time of the accident created a question of whether the defendant had constructive notice of the defect. To grant the directed verdict there had to have been no rational basis upon which a jury could have found for the plaintiff. Given the testimony and photograph, a jury could have found a rational path to a verdict in favor of plaintiff. Pitt v New York City Tr. Auth.


Labor Law §240   Premature Motion   Uncertified Records   Sole Cause  

First

One day after defendant failed to provide disclosure pursuant to a preliminary conference order plaintiff moved for summary judgment on Labor Law §240. The lower court denied the motion with leave to renew after the completion of discovery and the Appellate Division reversed and granted summary judgment.

Plaintiff was injured while installing tiles on the exterior of defendant’s restaurant when the unsecured ladder he was on shifted and tilted as he attempted to step onto an unsecured baker scaffold. Defendants’ main opposition was that the motion was premature based on uncertified reports and records showing that there may not have been ladders or scaffolds at the site, that plaintiff may have given a different version of the accident, and that he may have ignored specific instructions. Defendant’s burden was to prove that further discovery was necessary by showing the specific questions which needed to be addressed by discovery. Uncertified reports can be used for this purpose but only if they are not the only evidence relied upon. Here, the uncertified reports were the only evidence relied upon by the defendants and even if considered would not have provided a defense to the strict liability for failure to provide necessary safety devices, which was uncontested, under labor law §240 (1). Without providing safety devices, plaintiff could not be the sole cause of his accident. Erkan v McDonald’s Corp.


MVA   Rear End   Comparative Fault   Nonnegligent Explanation  

Second Deptartment

In reversing the lower court and granting summary judgment to plaintiff, the Appellate Division found that defendants’ claim that plaintiff stopped short as the light turned orange did not provide a nonnegligent explanation. Affidavits of both drivers stating that the plaintiff was stopped when she was rear ended by the defendant’s car showed both that defendants were negligent and plaintiff free from comparative negligence. Parshina v Celestin


Med Mal   Expert Aff   Accepted Practice   CPLR § 3101(d)  

First

Defendant made out prima facie entitlement to summary judgment but plaintiff raised issue of fact by her expert’s report opining that doctor departed from accepted practice by not contacting the plaintiff immediately after receiving the results of her BhCG test given the plaintiff’s symptoms which indicated the possibility of an ectopic pregnancy and a history of prior ectopic pregnancy, and that the failure to follow up immediately with the plaintiff deprived her of timely methotrexate treatment to avoid a ruptured of her remaining fallopian tube. Defendant’s argument that the plaintiff was solely at fault for failing to keep a follow-up appointment 2 days after the initial treatment was not dispositive as there was no proof that the appointment was ever made.

Defendants’ claim that plaintiff’s expert’s report should have been ignored since the expert’s name was redacted was unavailing since the redaction was permitted under CPLR 3101[d][1][i] and defendant did not object to the report. Plaintiff’s expert’s report also raised a question of fact as to the hospital’s departure for failing to provide plaintiff with the option of immediate surgical intervention, i.e. a diagnostic laparoscopy, when she returned to the hospital. Two judges dissented. Torres v Cergnul


Med Mal   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Deptartment

The lower court providently exercised its discretion in denying plaintiff’s motion for leave to serve a late Notice of Claim, or deem the Notice of Claim timely served, and granted the HHC defendants’ motion for summary judgment. Plaintiff did not serve a Notice of Claim on the HHC defendants until 3 1/2 years after the alleged malpractice during her birth and follow-up care and did not move for leave to serve a late Notice of Claim for 7 1/2 years after her birth. Plaintiff failed to show that the records gave actual notice of the essential facts giving rise to the claim within 90 days or a reasonable time thereafter, failed to proffer a reasonable excuse for the delay which was not caused by infancy, and failed to show that the defendants were not prejudiced. Hudson v Patel


Labor Law §241   Industrial Code   Proximate Cause  

Second Deptartment

Defendant was entitled to summary judgment on Labor Law §241(6) claim where he was allegedly injured when his coworker dropped a plywood board as they were constructing a rolling scaffold where industrial code provision relied upon by plaintiff §23-5.1(f)(scaffold maintenance and repair) was not sufficiently specific, §23-5.18(g)(scaffold footing) was not applicable, §23-5.18(e)(casters) was not violated, and that any alleged violation of §23-5.1(h)(moving the scaffold) was not a proximate cause of the accident. Pontes v F&S Contr., LLC


Premises Liab   Wet Floor   Storm in Progress   Last Inspection   Handrail   Building Code   Notice  

First

Defendant building was entitled to summary judgment on claim that it had constructive notice of condition where evidence showed that it rained before the accident until after the accident and that plaintiff’s porter had inspected the area 15 minutes before the plaintiff fell, did not see any wetness on the floor, and a floor mat had been placed for people to wipe their feet. Summary judgment should have been denied, however, on claim that the staircase had no handrail which was required since it was an interior stair providing ingress/egress under Administrative Code §§ 27-232, 27-375. Lee v Alma Realty Corp.


Med Mal   Accepted Practice   Expert Aff   Conclusory  

First

Defendant pediatricians were entitled to summary judgment based on depositions, medical records, and their experts’ affirmations showing that they did not depart from accepted medical practice in the treatment of the infant plaintiff who was later discovered to have a medulloblastoma. Plaintiff’s expert’s affirmation did not raise an issue of fact as it was conclusory, misstated the facts upon which the opinion was based, relied on facts not in evidence, and was not substantiated by scientific data or medical facts. Pediatric gastroenterologists established that they determined the cause of the infant plaintiff’s vomiting to be gastroenterological and plaintiff’s expert pediatrician, hematologist, and oncologist’s opinions were conclusory and speculative. G.L. v Harawitz


Premises Liab   Escalator   Create Condition   Notice   Last Inspection  

Second Deptartment

Department store and its escalator maintenance company were both entitled to summary judgment upon proof that they neither created the condition, a metal bar sticking out from the escalator which caused the plaintiff to fall, nor had actual or constructive notice of the same. Defendant and third-party defendants showed through the testimony of their employees and escalator maintenance logs that there were no prior complaints and that store employee had inspected the area on the morning of the accident and that it was in working order. Plaintiff failed to raise a triable issue in opposition. Isaacs v Federated Dept. Stores, Inc.


Labor Law §200   Labor Law §241   Control   Industrial Code  

First

Safety consultant was not entitled to summary judgment on Labor Law §200 and common-law negligence claims as there was a question of fact regarding whether under their agreement they had supervisory authority and control of the plaintiff at the time of his injury. Safety consultant’s principal testified that their only responsibility was to consult and make recommendations to the foreman, but the terms of the agreement stated that they were to “[t]ake necessary and timely corrective actions to eliminate all unsafe acts and/or conditions,” and “[p]erform all related tasks necessary to achieve the highest degree of safety.” The foreman did not testify regarding his understanding of the safety consultant’s responsibilities. Summary judgment was also properly denied on Labor Law §241(6) based on industrial code provision regarding slipping hazards. Oliveri v City of New York


Labor Law §240   Ladder   Sole Cause  

First

Plaintiff was entitled to summary judgment on Labor Law §240(1) on testimony that an old wooden ladder attached to a wall between a church choir loft and attic shifted, causing him to fall as he descended from the attic to the ladder. The pastor testified that the ladder was as much as 150 years old.

An affidavit from the plaintiff’s employer stating that the plaintiff told him a week after the accident that he was carrying something in one hand and fell when he missed the rung of the ladder with the other hand did not contradict the plaintiff’s testimony and plaintiff denied making the statement. Further statements by the plaintiff’s employer regarding available safety equipment were vague and did not state that the plaintiff was instructed not to use the old ladder and therefore plaintiff could not be the sole proximate cause of the accident. Garcia v Church of St. Joseph of the Holy Family of the City of N.Y.


Serious Injury   Vacate Default   Reasonable Excuse   Meritorious Action   ROM  

Second Deptartment

The lower court should have granted the plaintiff’s motion to vacate his default in opposing the defendants’ motion for summary judgment based on serious injury and should have denied the defendants’ motion for summary judgment. The plaintiff had obtained two extensions of defendants’ motion in order to obtain affirmed reports from plaintiff’s treating physicians. Plaintiff served and filed opposition papers 5 days after the time allotted in the second court ordered extension and the lower court refused to consider plaintiff’s papers, granting defendants’ motion on default. The Appellate Division found that the plaintiff showed a reasonable excuse for the short delay, difficulty obtaining affirmed reports from plaintiff’s radiologist and chiropractor, and a meritorious action, and that plaintiff sustained a serious injury. In addition, the lower court should have denied the defendants’ motion for failure to meet its burden on the motion. Their expert orthopedist recorded his findings of range of motion but failed to compare these to normal range of motion. Paul v Weatherwax


Food Poisoning   Burden of Proof   Causation  

First

Restaurant failed to show that the oysters consumed by the plaintiff at its restaurant were not tainted and did not cause the plaintiff’s illness where stool sample was positive for Vibrio, a bacteria found in undercooked seafood or seawater. Defendant conceded that it’s proof of non-contamination wasn’t dispositive. Defendant also failed to show that plaintiff’s proof that all other causes were sufficiently remote or technical to allow a jury to reach a verdict without speculation was misplaced. Harris v Morton’s Rest. Group, Inc.


Premises Liab   § 7-210   Open/Obvious   Inherently Dangerous   Tripping Hazard  

First

Defendants made out a prima facie case for summary judgment on proof that the condition on the sidewalk abutting their property was open and obvious and not inherently dangerous. Plaintiff, however, raised an issue of fact as to whether the low-lying tripping condition dangerously narrowed the passable area of the sidewalk and was adequately visible at night. Stolzman v City of New York


Labor Law   Indemnity   Control   Agent  

First

All but one co-defendant were entitled to summary judgment on cross-claims by showing that they had left the work area free of debris and had not been present at the jobsite for several days before the accident. Owner could not assert Labor Law claim against electrical subcontractor because subcontractor did not have authority to control or supervise the injury producing work. There was an issue of fact as to the HVAC subcontractor through conflicting evidence showing that they were present on the site and had done some work which may have created the conditions causing the plaintiff’s fall. Orofino v 388 Realty Owners, LLC


Asbestos   Labor Law §200   Control   Set Aside Verdict   Materially Deviates   Loss of Services  

First

Lower court improperly set aside plaintiff’s verdict and granted a directed verdict in favor of Con Edison where evidence showed that Con Edison required the specific damage producing condition, i.e. asbestos containing concrete and insulation, in its specifications thus giving it the power and authority to control the injury producing activity. The Appellate Division ordered a new trial on damages unless plaintiff stipulated to reduce the loss of consortium claim to $360,000. There was one dissent. Matter of New York Asbestos Litig.


MVA   Turning Vehicle   VTL §1141   Comparative Fault   Vicarious Liab  

Second Deptartment

Plaintiff passenger was entitled to summary judgment on proof that car she was in was driving within the speed limit through green light when defendants’ vehicle traveling in the opposite direction made an unexpected left turn and struck the car plaintiff was in on the driver side. Violation of VTL §1141 (left turning vehicle) is negligence per se and there was no evidence that the plaintiff passenger was comparatively at fault. Plaintiff driver who did not put in an affidavit in support was not entitled to summary judgment as the affidavit of the plaintiff passenger did not address the issue of the driver’s comparative fault. Even with a violation of VTL §1141, the plaintiff driver had an obligation to use reasonable care before entering the intersection. Neither plaintiff was entitled to summary judgment against defendant owner’s husband as there was no proof that he was an owner of the car. Al-Mamar v Terrones


MVA   Turning Vehicle   Bus   There to be Seen  

Second Deptartment

Defendants’ bus was making a left-hand turn from a left-hand turn only lane when he collided with a vehicle operated by the plaintiff traveling in the opposite direction. While the defendants may have had the right-of-way, they failed to eliminate all triable issues of fact including whether their driver’s negligence contributed to the accident by failing to see what was there to be seen and avoiding the collision. Blair v Coleman


Premises Liab   Open/Obvious   Warnings  

First

Plaintiff was properly granted summary judgment, and defendant denied summary judgment, on proof that defendant’s employees leaned a 7′ wood panel against a wall without securing it or creating a barrier. Defendant’s argument that the defect was open and obvious would only eliminate the duty to warn, not the duty to maintain the premises in a safe condition and was, in any event, not raised below. Polini v Schindler El. Corp.


Premises Liab   Stairs   Slip/Trip   Building Code  

Second Deptartment

Defendants not entitled to summary judgement in case where plaintiff claimed to slip and fall due to the use of improper paint on exterior stairs in violation of Administrative Code §§ 27-375 and 27-376. Defendants failed to address the claimed violations or show that they were inapplicable. Stevens v Benjamin


Serious Injury   Causation   Preexisting   ROM  

First

Defendant entitled to summary judgment based on radiologist’s opinion upon review of CT scans that lumbar condition was pre-existing and degenerative and plaintiff’s testimony and records showing a long history of degenerative lumbar conditions, including prior surgery. Plaintiff’s neurologist’s opinion that accident exacerbated plaintiff’s condition was conclusory since the neurologist failed to address the documented pre-existing conditions’ contribution to the plaintiff’s injuries or provide objective medical basis for determining that they were caused by the accident. It was not necessary for the defendant to show that their radiologist examined the plaintiff. They were able to show no serious injury through causation without addressing range of motion. Westerband v Buitraso


Uninsured   Stay Arb  

Second Deptartment

Carrier should have been granted permanent stay of arbitration of its insured’s uninsured motorist claim based on the result of a framed issue hearing which found that the offending vehicle’s carrier had not given proper notification of cancellation and, therefore, the offending vehicle was not uninsured. Matter of Global Liberty Ins. of N.Y. v Cedillo

IF YOU MUST READ
(3 summaries)

Defamation   Privilege   Motion to Dismiss  

First

Defendant hospital and physicians were entitled to dismissal of defamation action based on absolute privilege. Plaintiff alleged that the defendants made defamatory statements to a FDA investigator which resulted in the termination of her job and the research protocol she was involved in. Even if the statements were defamatory, given the public need for the unfettered exchange of information necessary to protect public health when conducting research protocols, such statements are afforded an absolute privilege. There was one dissent. Stega v New York Downtown Hosp.


Serious Injury  

Second Deptartment

Defendants failed to meet their initial burden on serious injury grounds in that they failed to address the plaintiff’s claim under the 90/180 day category contained in the BP regardless of the plaintiff’s opposition. The court did not give the details of the proofs. Goehringer v Turrisi


Serious Injury  

Second Deptartment

Defendants met their initial burden of showing that plaintiff’s cervical injury did not constitute a serious injury by competent medical evidence but plaintiff raised a triable issue of fact in opposition. The court did not give the details of the proofs. Burke v I Om Atif Hacking Corp.

About Matt McMahon

Civil trials and appeals since 1984
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