January 25, 2022 | Vol. 297

(3 summaries)

Child Victims Act   Amend Complaint   Conclusory  

First Department
Brief attorney affirmation with vague claim 33-Child Victims Act victims “might suffer further mental harm should their identities be revealed” insufficient to permit them to proceed under pseudonyms. First Department has held courts “should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it” which requires facts specific to each plaintiff showing they will be harmed if their identity is revealed. Twersky v Yeshiva Univ.    

Malpractice   Informed Consent   Directed Verdict   Accepted Practice   Causation   Experts  

Second Department
Plaintiff’s motion to set aside verdict finding defendant did not depart from accepted practice when he prescribed oral contraceptive Ortho Tri-Cyclen Lo without looking at prior records which were in process of being converted to EMR on plaintiff’s representation she was seeking a refill, and not providing informed consent as he would’ve already done so if it had been a refill, denied as there was a rational path for verdict where defendant testified plaintiff did not disclose prior history of stroke when he took new medical history when prescribing the contraceptive due to inaccessibility of her prior records and would not have prescribed the medication had she disclosed her prior history. Plaintiff suffered a stroke. Questions of credibility of lay and expert witnesses were for jury to decide and verdict was not against weight of the evidence. Anarumo v Herzog    

Products Liab   Circumstantial Evidence   Design Defect   Warnings   Inherently Dangerous   Experts   Conclusory  

Second Department
Products liability can be proven by circumstantial evidence that excludes all causes other than product defect raising inference accident could only have occurred due to some defect in the product.”

Manufacturer and QVC failed to meet burden for summary judgment of design defect claims on expert’s conclusory opinion hoverboard plaintiff fell from was not defective without discussing the design, industry standards, costs, or whether any complaint had been received. Opinion fall was caused by “user error” refuted by plaintiff’s testimony suggesting she used hoverboard as intended and, in any event, a jury could find hoverboard so inherently dangerous it should not have been put in stream of commerce. QVC failed to show it was only a “casual seller” of hoverboards.

Defendants denied summary judgment of inadequate warning claims where questions remained of whether more prominent and specific warnings of risks and instructions would have avoided the accident. Summary judgment dismissing implied warranty claims denied for failure to show product was “minimally safe for its expected purpose,” but granted for express warranty claim on proof there was no express warranty.

Defendants’ expert’s opinion hoverboard performed normally on inspection and plaintiff’s testimony that both she and daughter previously used the hoverboard without incident met burden for summary judgment dismissing manufacturing defect claims and plaintiffs’ circumstantial evidence did not raise issue as it did not show hoverboard failed to perform as intended or exclude all other causes. LaScala v QVC    

(7 summaries)

Premises Liab   Res Ipsa Loquitor   Speculation  

First Department
Resident of halfway house granted summary judgment against management company on res ipsa loquitor where drain grate she stepped on in bathroom collapsed as she reached for a towel causing her foot to fall into the drain as management company had exclusive control of the grate, grates don’t collapse absent negligence, and plaintiff did not contribute to her own fall. Argument that access to bathroom by other residents took away exclusive control was speculative. Valdez v Upper Creston, LLC    

Discovery   Good Faith Aff   Indemnity   Hearsay  

Second Department
Elevator company’s motion to compel plaintiffs to provide a medical report or expert opinion diagnosing TBI injury alleged in BP, where it did not see diagnosis of TBI in medical records, denied for failure to provide a good faith affirmation attesting that elevator’s counsel conferred with plaintiffs’ attorney to resolve matter before bringing the motion. Winter v ESRT Empire State Bldg., LLC    

Comment: Cross motion by building owner and manager for summary judgment on contractual indemnity claim against elevator company conditionally granted on broad language of agreement and proof building owner/manager had no notice of defect. Statement that unidentified guard told plaintiff he was struck by same freight elevator door a week before was hearsay and not considered. Winter v ESRT Empire State Bldg., LLC

Discovery   Preclusion   NYC  

First Department
Lower court providently precluded plaintiff from seeking discovery already obtained in federal action, under stipulation to not duplicate discovery. Eisner v City of New York    

Premises Liab   Sidewalk   Trivial   Notice   Last Inspection  

First Department
Building owner failed to meet burden for summary judgment on claim sidewalk crack plaintiff tripped on was trivial without measurements or expert opinion that surrounding conditions did not enhance risk or proof it lacked constructive notice without firsthand knowledge of last time area was inspected. Photographs and testimony of building manager that she would have told tenant to repair sidewalk if she knew of hazardous condition and that she inspected area intermittently over many years left questions on notice and hazardous condition.

Building next door granted summary judgment on proof accident did not happen outside its storefront. Powell v BLDG 874 Flatbush LLC    

MVA   Bus   Premature Motion  

Second Department
Plaintiff granted summary judgment on his uncontroverted 50H testimony he was stopped for 5-7 seconds when he saw bus coming in opposite direction cross double yellow line and strike front-driver’s side of his taxi. Defendants’ claim motion was premature rejected where they offered no explanation for not submitting the bus driver’s affidavit and attorney made only conclusory statements discovery would reveal information necessary to oppose the motion. Shah v MTA Bus Co.    

Vacate Default   Service   Personal Juridiction   CPLR §306-b   Reasonable Excuse  

First Department
Pro se plaintiff’s motion to vacate order denying extension of time to serve under CPLR §306-b and dismissing case providently denied where plaintiff waited until and after 120-days in that action and second action based on same claims to seek extension without making any attempt at service. Such lack of diligence eliminates “good cause” for extension and would not justify extension in interests of justice. Holland v Thiam    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Hospital and OB/GYN doctor granted summary judgment on testimony, medical records, and defendants’ detailed expert’s opinion that they did not depart from accepted practice during delivery of baby and what they believed to be the full placenta, and were not the cause of any injuries, where plaintiff refused to allow them to examine her uterus after giving birth and she signed herself out of the hospital AMA, returning 2-weeks later with placenta increta. Plaintiff’s expert failed to raise an issue where the opinions were conclusory, did not address specific opinions of defendants’ expert, and were not supported by the record. Audette v Toussaint-Milord    

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About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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