January 28, 2020 | Vol. 195


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ



Med Mal   Public Health §2801-d   Wrongful Death   Set Aside Verdict   Prejudice  

Second Department
$1,102,000 judgment reversed and remanded for new trial based on plaintiff’s counsel’s comments during summation “characterizing the defendant as a ‘corporation’ that has ‘two lawyers,’ a ‘tech person,’ ‘general counsel,’ and ‘video people.’ Counsel also improperly accused the defendant of willfully depriving the plaintiff of evidence that would have been harmful to the defendant’s case, accused the defendant’s witnesses of having ‘changed’ their testimony after their depositions or pretrial affirmations, which were not in evidence, ‘because they saw that they couldn’t win,’ and improperly argued that the defendant failed to call certain witnesses, who were not under the defendant’s control” depriving defendant of a fair trial. Nieves v Clove Lakes Health Care & Rehabilitation, Inc.


Med Mal   Informed Consent   Accepted Practice   Set Aside Verdict   Admissibility   Preclusion  

First Department
Trial court properly precluded plaintiff’s expert from testifying that one treatment option “should have been recommended” as that is not the proper test for determining accepted practice or lack of informed consent, nor does expert’s opinion that one treatment option is preferable establish a departure from accepted medical practice. Defense verdict upheld. Lampkowski v Parra


Med Mal   Accepted Practice   Expert Aff  

Second Department
Plastic surgeon who performed surgery to correct abdominal bulge and remove previous C-section scars and OB/GYN who performed tubal ligation on same day both denied summary judgment. OB/GYN’s inaudible operative report was insufficient to establish how he performed procedure and he testified he did not remember specifically, rendering his expert’s opinion that it was performed in good and accepted medical practice pure speculation. Plaintiff’s plastic surgery expert raised issue on plastic surgeon’s aftercare requiring denial of summary judgment based on conflicting expert opinions. Gentile v Malihan

Comment: In the age of electronic medical records, this case points to the value of obtaining the actual recordings of dictated reports and notes as part of discovery.

Negligent Supervision   Amend BP  

Second Department
School district denied summary judgment where student died from medical condition during school trip to California while under supervision of school chaperones as the “reasonably prudent parent” standard applicable during school hours and not the less rigorous “reasonably prudent person” standard applicable during extracurricular activities applied because the school took the place of the parents in the situation. Plaintiff’s cross motion to amend BP to include violation of DOE regulation denied where it was not included in the notice of claim, complaint, or original BP. Tutaj v Seaford Union Free Sch. Dist.


Med Mal   Accepted Practice   Expert Aff   Unaffirmed Report   Admissibility   Conclusory   Speculation  

Second Department
Affirmation of plaintiff’s out of state dental expert was considered inadmissible unaffirmed report since CPLR §2106 only allows doctors and dentists licensed in NY to submit affirmations. In any event the affirmation failed to address the specific opinions of that defendant’s expert and was therefore conclusory. Plaintiff’s same expert’s Affidavit submitted in opposition to second dentist’s motion was conclusory and speculative where it did not set out the applicable standard of care. Nelson v Lighter

NOTEWORTHY
(14 summaries)
MUST READSIF YOU MUST READ

Motion to Dismiss   CPLR § 3126   Willful/Contumacious   Reasonable Excuse  

First Department
Case dismissed for willful/contumacious failure to comply with repeated discovery demands and orders under CPLR §3126, even though later provided, because plaintiff failed to appear at a court ordered deposition and significantly delayed the process of the action. Repeated failures to comply without reasonable explanation is proof of willful/contumacious refusal to comply. Vega v Beacon 109 207-209 LLC


Set Aside Verdict   Pain/Suffering  

Second Department
On plaintiff’s appeal from judgment based on verdict after damage only trial in amount of $1,496,449.80 for past/future pain/suffering and lost earnings and medical expenses after collateral source reduction, pain/suffering awards were not against the weight of the evidence given conflicting expert opinions and evidence regarding plaintiff’s condition and prior condition. Smith v City of New York


Assault   1983 Action   Collateral Estoppel   NYC  

First Department
NYC granted summary judgment on proof that issue of whether excessive force was used was determined against plaintiff in criminal action and plaintiff failed to show he did not have full and fair opportunity to litigate issue. Remaining issues of excessive force and respondeat superior dismissed for lack of competent proof that force was unreasonable. Myers v City of New York


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation   Amend BP  

Second Department
Hospital defendants made out entitlement to summary judgment on accepted practice and causation regarding treatment of infant for viral encephalitis. Plaintiff’s expert raised issue on accepted practice but failed to rebut hospitals’ expert’s opinion that viral encephalitis is incurable and nothing can be done to prevent a mild case from progressing to a severe case giving only conclusory opinions on causation. Pediatricians’ expert made out entitlement to summary judgment on accepted practice and causation for treatment before infant was admitted to the hospital and plaintiff’s expert did not address treatment before hospital admission and gave only conclusory opinions on causation failing raise issue of fact. Extension of dates of alleged malpractice of pediatricians to include time infant was in hospital in a second amended BP, properly considered a supplemental BP, not considered due to inexcusable delay for asserting new theories. Feng Xie v New York City Health & Hosps. Corp.


Med Mal   Public Health §2801-d   Wrongful Death   Accepted Practice   Expert Aff   Conclusory   Speculation  

Second Department
Nursing home and doctor granted summary judgment where plaintiff’s expert’s opinions were not supported by the record and therefore conclusory and speculative and, as to Public Health Law §2801-d, made only conclusory allegations of regulatory violations contradicted by the record. Schwartz v Partridge


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   Storm in Progress   Expert Aff  

First Department
In response to defendants’ showing that there was a storm in progress and insufficient time for snow removal, plaintiff raised issue of fact by witnesses and expert affidavit that condition plaintiff slipped on was from prior storm and whether defendants created icy/slushy condition through negligent removal of prior snowfall. Berganzo v Bronx Realty Group LLC


Med Mal   Accepted Practice   Respondeat Superior   Reargument  

Second Department
Plaintiff’s motion to reargue based on court’s failure to consider unredacted expert’s affidavit submitted by mail providently granted and on reargument hospital denied summary judgment on respondeat superior claim where it failed to show that voluntary attending who treated plaintiff in emergency room came from a private physician in order to take it out of the exception to the rule that hospitals are not responsible for attending physicians except for patients seeking treatment in and emergency room from a physician not of their own choosing or that hospital did not control the physician. Fuessel v Chin


MVA   Labor Law §241   Labor Law §200   Industrial Code   Control   Intervening Cause  

Second Department
Town entitled to summary judgment where plaintiff who was installing gas lines in roads owned by the town was struck by a vehicle on Labor Law §241(6) based on industrial code §23-1.29(a) on proof that traffic was controlled by a designated person, on Labor Law §200 on proof that town did not have authority to control plaintiff’s work, and on proof that the offending motorist was a superseding cause of the accident. Babcock v Orange & Rockland Utils., Inc.


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Last Inspection  

First Department
Restaurant granted summary judgment on proof it did not create condition or have notice of it based on waitress’ testimony that there was no water on the floor when she checked it 5-10 minutes before accident and plaintiff, her daughter, and daughter’s fiancé did not see anyone spill water or see any water on the floor before the fall establishing that it was not sufficiently noticeable to give constructive notice. Plaintiff and daughter’s testimony that water was dirty with footprints was insufficient to overcome proof that water was not sufficiently visible. Kennedy v 30W26 Land, L.P.


Serious Injury   ROM   Preexisting   Expert Aff  

First Department
Plaintiff raised issue of fact on significant limitation category for cervical spine by affirmed radiologist report showing herniated and bulging discs and physicians’ records demonstrating significant loss of ROM shortly after accident, 9-months later, and recently and opinion that injuries were causally related based on plaintiff’s young age, and lack of prior symptoms or treatment. Plaintiff failed to raise issue on hip injury where she had normal ROM 4-months after accident and failed to show that tendinitis was not pre-existing degenerative condition. She would not be able to recover for hip injury at trial because she failed to rebut proof of no causation. 90/180 day category properly dismissed where she was confined to bed/home for only 5-days. Bianchi v Mason


Labor Law §240   Ladder  

Second Department
Plaintiff’s testimony that ladder he was provided lacked rubber feet and slid away from wall where it was leaning causing him to fall to the ground sufficient for summary judgment on Labor Law §240(1) against building owner. Chapa v Bayles Props., Inc.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Dangerous Condition   Last Inspection   Expert Aff  

First Department
Defendants granted summary judgment on finding that cobblestone is not an inherently dangerous condition, that code provisions relied upon by plaintiff’s expert were inapplicable, and that defendants showed cobblestone sidewalk complied with approval for nonconforming sidewalk and relative NYC standards regarding gaps of approximately 1″ between stones which were 1 1/8″, and assistant manager testified that he observed no problems or missing stones when he inspected the sidewalk weekly or biweekly and had received no complaints. Giraldo v Brookfield Fin. Props., L.P.


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

First Department
NYC granted summary judgment on proof that it did not own property abutting the sidewalk where plaintiff fell and that the property was not a single-family home with 3 or fewer residences. Co-Defendant’s argument that NYC failed to maintain area around plates and grates not considered as raised for the first time on appeal. Crimlis v City of New York


Serious Injury   Preexisting   Degenerative   ROM   Expert Aff   Conclusory  

First Department
Defendants met burden for summary judgment on serious injury by IME/DME’s finding of no loss of ROM, emergency room doctor’s opinion that emergency room records were not consistent with trauma to knee, radiologist’s opinion that MRIs showed pre-existing degenerative condition, and plaintiff’s operative report showing degenerative conditions. Plaintiff’s physician found recent significant loss of ROM but failed to address degenerative findings making only conclusory statement as to causation. Rosario v Gonzalez

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Premises Liab   Slip/Trip   Stairs   Set Aside Verdict  

First Department
Lower court providently denied plaintiff’s motion to set aside verdict where plaintiff fell down a flight of stairs sustaining traumatic brain injury and loss of memory. The court does not give details of the proofs. Schloss v Tears Realty Corp.

About Matt McMahon

Civil trials and appeals since 1984
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