January 23, 2018 | Vol. 90

(7 summaries)

Med Mal   Spoliation   Set Aside Verdict   Punitive Damages   Materially Deviates   Pain/Suffering   Wrongful Death  


The First Department confirmed that punitive damages may be recovered against a doctor for altering or destroying medical records to evade potential medical malpractice liability. Motion to set aside $7.5 million punitive damages verdict by endocrinologist who typed out medical records only after plaintiff’s 6-year-old daughter died from undiagnosed Type 1 Diabetes and law firm requested records, then destroyed handwritten notes of 2 of the visits, granted only to the extent of ordering a new trial on punitive damages if plaintiff did not stipulate to reduce the punitive award to $500,000. There was proof that the doctor added information to the typed records that was not in the handwritten notes, including when the next follow up appointment was scheduled. The court found the punitive damages, reduced by the lower court to $1.2 million, deviated from reasonable compensation where the jury awarded $400,000 for pain/suffering and $100,000 for pecuniary loss. Gomez v Cabatic

Coverage   Bankruptcy  


Third-party claim by commercial tenant for liability to the extent of insurance coverage of the bankrupt landlord was not barred by a so ordered stipulation in the bankruptcy, or by bankruptcy law, since the insurance did not benefit the landlord and was not part of its bankruptcy estate. Calleja v AI 229 W. 42nd St. Prop. Owner, LLC

Med Mal   Collateral Estoppel  

Second Deptartment

Hospital granted summary judgment in Court of Claims on collateral estoppel where doctor employed by hospital was granted summary judgment without opposition in Supreme Court action. Hospital proved identity of issue where claim that doctor failed to monitor plaintiff’s decedent for blood clots before and after C-section was basis of both actions. Fact that plaintiff did not oppose motion in Supreme Court did not deprive him of full and fair opportunity to contest the prior determination. David v State of New York

Motion in Limine   CPLR §4401   Note of Issue   Premature Motion  


Motion in limine made pursuant to CPLR 4401 prior to a bench trial was an improper vehicle for seeking summary judgment and was untimely as beyond 120 days from the Note of Issue. CPLR 4401 could only be used after plaintiffs put in their case and was premature. Casalini v Alexander Wolf & Son

Asbestos   Spoliation  


Company that purchased asbestos containing pipe line product from Johns-Manville in the 1980’s was providently sanctioned with an adverse inference charge for destroying boxes of documents regarding the product line in the 1990’s, even though the first claim was not made till the 2000’s, on evidence company knew that the records might be needed for future litigation from knowledge of suits against Johns-Manville for other asbestos products, a litigation cooperation agreement with Johns-Manville, and memos showing discussions of the risks of continuing the product line and the possibility of carriers withdrawing insurance. Matter of New York City Asbestos Litig.

Discovery   Strike Answer   CPLR § 3126   Willful/Contumacious   Prejudice   Vacate Default   Compel Acceptance   Service   Raised For First Time   NYC  


Lower court providently struck the City’s Answer for failing to comply with multiple orders to produce information without redactions over the course of 3 years even if plaintiff did not show prejudice. Test is willful/contumacious, not prejudice. Motion to vacate default and compel plaintiff to accept Amended Answer by police officer who City did not originally Answer granted because motion for default was granted before his time to Answer expired calculating time based on completion of service by filing affidavit of service. Although raised for the first time on the appeal, it was proper since it was a matter of law on the face of the record which could not be avoided if raised below. Watson v City of New York

Defamation   Civil Rights Law §51  


Where model’s picture was used by NYS in an ad regarding rights of persons with HIV without her consent, the First Department thoroughly reviewed the “loathsome disease” category for “per se” claims, acknowledging that the term is archaic in suggesting an objective definition of “loathsome disease” instead of a societal state where “a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society.” In the context of the case, the court found that depicting plaintiff as having HIV made out a claim for liber “per se” which did not require proof of special damages.

Clarifying prior rulings from the First Department, the court adopted the standard set out by the Fourth Department that while the plaintiff must prove actual damage, it can be in the form of emotional harm and does not have to be pecuniary harm related to a loss of reputation based on Gertz v Robert Welch, Inc. 418 U.S. 323 (1974).

Civil Rights claim dismissed as public service ad was not a commercial enterprise. Nolan v State of New York

(17 summaries)

Premises Liab   Open/Obvious   Inherently Dangerous   3rd Party Contractor   Espinal  


Contractor’s removal of an oil tank exposed an opening in a metal plate in the floor underneath that caused plaintiff to fall, causing or exacerbating a dangerous condition and launching a force or instrumentality of harm [Espinal exception]. Given the location of the hole near other equipment thatneeded to be serviced, there was a question of fact whether the condition was “not inherently dangerous” even if it was open/obvious and even if the plaintiff was aware of the condition. There were 2 dissenters. Farrugia v 1440 Broadway Assoc.

Premises Liab   Dangerous Condition   Expert Aff  


By not submitting an expert opinion that door of trash compactor that closed on plaintiff’s thumb was not dangerous, defendant failed to meet its burden for summary judgment. Testimony of employees that it functioned properly did not establish that it was reasonably safe. Lugo v Belmont Blvd. Hous. Dev. Fund Co., Inc.

Med Mal   Statute of Limitations   Amend Complaint   Negligent Hiring  


Plaintiff’s fall from a hospital stretcher while being positioned by an x-ray technician as directed by a physician sounded in malpractice because it had a substantial relationship to medical treatment by a physician, not ordinary negligence, and was barred by the statute of limitations. This would also apply to the claim for negligent hiring and failing to establish a protocol that plaintiff sought to insert by an Amended Complaint. Relation back doctrine did not apply since the negligent hiring and failure to establish a protocol occurred from different facts and at different times than the allegations in the original Complaint. Lang-Salgado v Mount Sinai Med. Ctr., Inc.

Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Deptartment

Internist granted summary judgment on opinions of his expert that he did not depart from accepted practice in not diagnosing the plaintiff with hepatitis C and that the alleged departures were not the cause of the injuries. Plaintiff’s expert failed to lay a foundation for the expert’s opinions when opining outside of his/her area of expertise, failed to directly address the specific assertions of defendant’s expert, and was speculative and conclusory. Gullo v Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc.

Med Mal   Accepted Practice   Wrongful Death   Informed Consent  


Plaintiff’s expert general surgeon raised an issue of fact on accepted practice by opining that not addressing the root cause of plaintiff’s decedent’s rising blood pressure after a kidney transplant was a deviation. Funeral bill was sufficient to uphold wrongful death claim. By not opposing motion to dismiss lack of informed consent, plaintiff abandoned the claim. Jamie Ng v NYU Langone Med. Ctr.

Med Mal   Accepted Practice   Causation   Informed Consent   Expert Aff  


Plaintiff raised a question of fact in opposition to defendants’ initial showing of entitlement to summary judgment by orthopedist’s expert opinion that the defendant injected an excessive concentration of steroid which posed a known risk of tendon rupture in tendons near the small thumb joint. Plaintiff failed to raise an issue on informed consent. DePass v Mohrmann

Labor Law §240   Safety Devices   Gravity Risk  


Defendants’ motion for summary judgment on Labor Law §240(1) denied where plaintiff was pulled into a security cable around a hole for an elevator shaft as he pulled on a wood plank over unsecured cribbing he was dismantling, which was intended to protect workers from falling into the hole, when his foot slipped on an oily substance. The inadequate safety device consisted of the planking and cribbing, and the oily substance could be one of multiple causes of the accident. Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc.

Labor Law §240   Gravity Risk   Question of Fact  


Weight of rebar being passed by hand presented elevated gravity risk under Labor Law §240(1) even if it fell only a short distance before striking the plaintiff but medical records raised a question of fact whether accident happened as testified to by plaintiff. Gutierrez v Harco Consultants Corp.

Labor Law §240   Labor Law §200   Gravity Risk   Notice   Out of Possession  


Plaintiff granted summary judgment on Labor Law §240(1) against all defendants for gravity risk when 600lb 14’ I-beam he was helping to transport down a staircase without safety devices caused them to lose control of the descent injuring plaintiff’s foot. General contractor and tenant not entitled to summary judgment on Labor Law §200 and negligence where plaintiff raised issue that premises was defective from presence of debris on staircase, dim lighting, and lack of a handrail. Out of possession owner granted summary judgment on Labor Law §200 and negligence on proof that it did not have notice of condition and condition was not a structural or design defect violating a specific safety statute. Dirschneider v Rolex Realty Co. LLC

MVA   Rear End   Comparative Fault  

Second Deptartment

Plaintiff made out entitlement for summary judgment on her testimony that she put on her hazard lights and slowed down when she saw a vehicle stopped in front of her and was hit in the rear by the defendants’ truck, but defendants raised an issue of fact on plaintiff’s comparative fault. The court does not give the details of the defendants’ proofs. Sorocco v Meglio

Serious Injury   Preclusion   Reasonable Excuse   Meritorious Action   Sanctions  


Plaintiff’s excuse that his attorneys misconstrued conditional order of preclusion on lost earnings and 90-180-day claim was reasonable and there was no prejudice plaintiff provided extensive economic records and a deposition showing the claim to be meritorious within 2 weeks. Plaintiff’s failure to comply with prior discovery orders warranted a monetary sanction of $2,500. Arpaia v Herbst

Motion to Dismiss   Compel Acceptance   Reasonable Excuse   Meritorious Action  

Second Deptartment

Lower court improvidently exercised its discretion in denying defendant’s motion to dismiss for failure to timely serve Complaint in response to a demand for Complaint and in granting plaintiff’s cross motion to extend the time to serve the Complaint made about 1 year after it was supposed to be served. Plaintiff’s excuse that someone in attorney’s office filed the demand without showing it to the attorney was not a reasonable excuse for the delay and Complaint verified only by the attorney did not show that there was a meritorious action. Ganchrow v Kremer

Dental Mal   CPLR § 3126   Note of Issue   Meritorious Action   Prejudice  


Defendant’s motion to dismiss for failure to file a Note of Issue after a CPLR 3126 demand providently denied despite the inadequacy of plaintiff’s opposition, where the delay was minimal, there was no intent to abandon the case, and a meritorious action could be gleaned from the record. Gayle v Body

MVA   Serious Injury   Expert Aff   Preexisting   Degenerative  


Defendants granted summary judgment on serious injury for lumbar spine, knee, and shoulder injuries but not cervical spine injuries and plaintiff granted partial summary judgment on liability where car she was a passenger in was sideswiped by defendant who did not dispute her version of the accident. Unsworn report by biomedical engineer MD submitted by defendant, which was not admissible, was not objected to by plaintiff and considered. Plaintiff’s doctors failed to adequately address signs of degeneration and pre-existing conditions in lumbar spine, knee, and shoulder but there were no signs of preexisting degeneration in the cervical spine. Sanchez v Oxcin

Premises Liab   Sidewalk   Create Condition   Notice  


Adjoining landowner granted summary judgment on proof that it did not create metal protrusion and/or sign post stump on sidewalk because it did not work on sidewalk prior to accident, and did not have notice of defect because it was unaware of any complaints, accidents, or violations regarding the condition and plaintiff and NYC failed to raise a question in opposition. Schulman v City of New York

False Arrest   False Imprisonment   Malicious Prosecution   1983 Action   Probable Cause  


Defendants granted summary judgment on false arrest, false imprisonment, malicious prosecution, and 1983 action claims where there was probable cause for the arrest. Probable cause also defeats claims for ordinary negligence. Phin v City of New York

False Arrest   False Imprisonment   Probable Cause  

Second Deptartment

Probable cause for arrest for violating protective order based on protective order and statement from ex-wife that husband showed up at son’s baseball game and stared at her was a complete defense to claims of false arrest and imprisonment. Liotta v County of Suffolk

(1 summaries)

Set Aside Verdict  


Judgment on defendant’s verdict upheld finding that trial court’s comments and decision not to give missing document charge were not error and would have in any event been harmless error. The court does not give the details of the comments. Livingston v New York City Tr. Auth.

About Matt McMahon

Civil trials and appeals since 1984
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