January 21, 2020 | Vol. 194

(5 summaries)

Med Mal   Duty   Accepted Practice   Causation   Intervening Cause   Foreseeability  

Second Department
In reversing summary judgment for OB/GYN who performed 4-ultrasounds on plaintiff’s decedent, including one 2-days before decedent’s death from uterine rupture during vaginal birth after C-section at home with midwife, and who did not advise plaintiff’s decedent or midwife that home delivery was contraindicated given suspected large fetal size, advanced maternal age, that pregnancy was past due date, and that uterine rupture during a home delivery would result in death, the Second Department examined when a physician’s duty may be limited. Through his own affidavit defendant attempted to limit his duty to maternal-fetal medicine and interpretation of ultrasounds but the Court found that as a board certified obstetrician whom the midwife indicated she considered a “collaborating physician” under Education Law, his duty extended to advising both decedent and the midwife not to proceed with homebirth given the risks and that his duty could not be avoided by the existence of a broader obligation of the midwife. The Court also found questions of fact on whether plaintiff’s decedent would have heeded the OB/GYN’s warnings and the fact decedent was a doula and that she and the midwife had some awareness of the risks was not an intervening cause since the OB/GYN was the only physician that would have advised against proceeding with homebirth. Romanelli v Jones

Labor Law §240   Labor Law §241  

First Department
The First Department again rejected Port Authority’s claim that as a bistate entity approved by a federal compact it could not be held liable under Labor Law §§240(1) or 241(6), since the compact clause of the U.S. Constitution does not apply to workplace safety statute for work done in New York. Rosario v Port Auth. of N.Y. & N.J.

Med Mal   Accepted Practice   Expert Aff   Conclusory   Respondeat Superior  

Second Department
Hospital and doctors failed to meet initial burden for summary judgment by conclusory expert opinion that measures undertaken were “appropriate” and care and treatment was at all times within good and accepted medical practice and evidence submitted showed that 1-doctor was an employee of the hospital and 2-others were brought in by hospital to render care and treatment to plaintiff’s decedent. Hospital was required to rebut respondeat superior allegations in Complaint and BP which they failed to do. Mitchell v Goncalves

MVA   SUM   Stay Arb  

Second Department
Carrier’s motion to stay arbitration claiming that truck driver who was away from truck for several hours before returning and stepping down from ramp where he retrieved an object denied as he was “upon” the vehicle within the language of the SUM endorsement consistent with Ins. Law §3420(f)(3). Matter of Utica Mut. Assur. Co. v Steward

MVA   Motion to Dismiss   Statute of Limitations  

Second Department
18-month extension of statute of limitations upon defendant’s decedent’s death on date of accident applied even where plaintiff’s attorney was aware of appointment of defendant as administratrix, making suit brought almost 4.5 years after accident timely. Szarka v Paratore

(16 summaries)

Labor Law §241   Industrial Code   Question of Fact  

First Department
The “integral-to-work” defense is available for industrial code §23-1.7(e)(1) and §23-1.7(e)(2) (tripping hazards) but defendants failed to show that boards being placed and removed each day were “Masonite” and intended as a protective structure integral to the work where supervisor only testified it might have been a protective covering but that no renovation work was being done when the plaintiff, a painter, was injured. Krzyzanowski v City of New York

Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Create Condition   Notice   Control  

Second Department
Single family homeowner who contracted with cousin for tree removal granted summary judgment, where worker was injured when cousin moved a tree on top of tree plaintiff was working on causing branch to snap back and hit plaintiff, under l-2-family home exception to Labor Law §§240(1) and 241(6). Providing plans, checking on progress, and visiting worksite were insufficient to establish homeowner directed or controlled work. Labor Law §200 and negligence claims dismissed on proof that homeowner did not create the condition or have notice of it and did not have authority to control the work. There was no allegation that defendant’s chain saw that plaintiff was using was defective. Campanello v Cinquemani

Med Mal   Accepted Practice   Expert Aff  

Second Department
Cardiologist who performed emergency catherization through plaintiff’s right femoral artery and vein denied summary judgment where plaintiff developed staphlococcus aureus in previously replaced hip requiring 2-surgeries to replace infected hip, based on conflicting expert opinions on departure and causation as to cardiologist. Because plaintiff’s expert failed to establish familiarity with orthopedic and internal medicine standards, plaintiff failed to raise issue in opposition to remaining defendants’ entitlement to summary judgment. Samer v Desai

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First Department
Defendant doctors granted summary judgment on proof they comported with accepted practice and plaintiff’s expert’s opinions were conclusory and not supported by the record. Hospital also granted summary judgment on proof that doctor was an attending, not an employee, and plaintiff’s expert gave no opinions against hospital. Negron v Shou

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Create Condition   Raised For First Time  

Second Department
Tenant of building next to parking lot where plaintiff’s decedent tripped and fell on parking lot apron granted summary judgment where its obligation to maintain parking lot and sidewalk for NYCTA who owned the parking lot, under its lease with the adjacent landowner, did not create a duty to passersby under administrative code §7-210 because it did not create the condition or make special use of the parking lot apron. Plaintiff’s claim that agreement between NYCTA and former adjacent landowner entirely displaced the landowner’s duty to maintain the property was not considered as raised for the first time on appeal. Maltese v Metropolitan Transp. Auth.

Labor Law §200   Labor Law §240   Industrial Code   Create Condition   Notice  

First Department
Defendants entitled to summary judgment on Labor Law §200 and negligence where plaintiff knelt on a single screw lying on the floor in the area where he was installing cabinets because they did not create the condition, have notice of it, or control the means or methods of plaintiff’s work. Industrial code §§ 23-1.7(e)(1) and (e)(2) did not apply because a single screw was not an accumulation of debris and screw was neither sharp nor protruding from the floor. Mooney v BP/CG Ctr. II, LLC

Med Mal   Venue   Raised For First Time  

Second Department
Defendants’ motion to change venue from Kings to Nassau County based solely on attorney’s affirmation that none of the defendants resided in Kings County denied for failure to establish by admissible evidence that none of the defendants resided in Kings County. Affidavit of 2 of the doctors in reply that they did not reside in Kings County did not meet the burden since the other doctors could have resided in Kings County. Harvey v Ogunfowora

Med Mal   Venue  

Second Department
Motion to change venue from Kings to Richmond County by 1-of-6 doctors who remained in case originally brought against 112 defendants based on defendants’ addresses denied where doctor failed to meet burden of showing that one of the other defendants did not reside in Kings County and failed to meet burden for change of venue for convenience of witnesses. Burden never shifted to plaintiff to show Kings was proper venue. Williams v Staten Is. Univ. Hosp.

Highway Design   Governmental Immunity   Causation  

First Department
Wrongful death action claiming State failed to replace median barriers with concrete barriers during sign project resulting in claimant’s decedents’ deaths when car jumped curb crossing into lane, where replacement of 250′ of barriers to install signs was not a significant repair or reconstruction of the Parkway and State had qualified immunity for its highway safety planning decision. Median was not a proximate cause of decedents’ deaths and claimant’s expert’s opinion was flawed in that it relied on offending driver’s testimony that court found incredible. Noorzi v State of New York

Med Mal   Accepted Practice   Causation  

First Department
Pro se plaintiff’s claims that defendants caused his corneal edema and vision loss were insufficient to raise issue in opposition to defendants’ proof that they complied with accepted medical practice. Claim that 1-defendant fraudulently represented herself to have a MD degree did not change outcome where she had received foreign MD degree, was awarded domestic DO, and was fully licensed to practice medicine in New York. An allegation of such professional misconduct, if any, does not give rise to a private cause of action. Kaspiev v Pankova

Labor Law §240   Labor Law §241   Ladder   Scaffold   Industrial Code   Causation   Agent   Comparative Fault  

First Department
Question of fact remained on Labor Law §240(1) where nondefective ladder was properly erected and provided adequate protection before plaintiff received a shock causing him to fall on whether a scaffold would have prevented the fall. Plaintiff entitled to summary judgment on Labor Law §241(6) on industrial code §23-1.13(b)(2), (3) and (4) against electrical contractor, which was an agent of the owner as it was delegated duty to control electrical work, because it failed to deenergize the junction box even if plaintiff was negligent in moving it as it was supposed to have no electricity. The court also decided various indemnity issues. Higgins v TST 375 Hudson, L.L.C.

Malicious Prosecution   Vacate Default   Reasonable Excuse   Meritorious Defense   Prejudice   Willful/Contumacious  

Second Department
Plaintiff’s motion for default judgment against 1-defendant who defaulted and opposed motion with pro se affidavit stating that he never received Summons with Notice and only received motion for default 7-days before return date denied on finding that default was not willful, short delay did not prejudice plaintiff, and defendant had a potentially meritorious defense. Nowakowski v Stages

Comment: In a second near identical action, defendants‘ motion to dismiss which was not filed within the time to Answer did not extend time to Answer but plaintiff on motion for default failed to show that corporate defendant was properly served and default against noncorporate defendant was denied where default was not willful, plaintiff was not prejudiced especially since he waited 4-months after motion to dismiss to bring motion for default, and defendant had a potentially meritorious defense. Nowakowski v Broadway Stages

Labor Law §240   Gravity Risk  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where he lost control of heavy form handed him by workers on scaffold above causing him to fall backwards. Argument that protruding nail scratched him before he lost control did not take matter out of Labor Law §240. Gutierrez v 610 Lexington Prop., LLC

Serious Injury   ROM   Preexisting   Degenerative   Causation   Expert Aff   Speculation  

First Department
NYCTA granted summary judgment on serious injury where examining orthopedist and neurologist showed only minimal findings including minimal loss of ROM in lumbar spine and radiologist opined that MRI showed pre-existing degenerative condition and no causal relation to accident. Fact that examining physicians did not address MRI findings of herniations and bulges did not negate their opinions. Plaintiff’s medical reports and affirmations were too speculative to establish a causal relationship. Oliveras v New York City Tr. Auth.

MVA   Bus   There to be Seen  

First Department
NYC granted summary judgment on proof that plaintiff’s passenger opened door when it was not safe to do so in violation of VTL §1214. Plaintiff’s claim that bus driver failed to see what was there to be seen, claiming passenger was closing door at time it was struck, did not raise issue of fact where plaintiff did not know how far door was open at impact and claim that bus struck front passenger bumper was not supported by photographs and could not have occurred under defendant driver’s testimony. Smith v City of New York

Motion to Dismiss   Personal Juridiction   Service   Court of Claims  

First Department
CUNY’s motion to dismiss for improper service granted where plaintiff’s receipt for certified mail, return receipt requested was poof only of an attempt to effectuate service by certified mail, return receipt requested, not proof of service by certified mail return receipt requested. Rodriguez v City Univ. of N.Y.

(1 summaries)

Negligent Supervision   Dangerous Condition  

First Department
School granted summary judgment on proof it provided adequate supervision and there was no dangerous condition. Plaintiff failed to raise an issue of fact in opposition. The court does not give the details of the proofs. J.A.L.D. v Brightside Academy, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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