January 3, 2017 | Vol. 35

(5 summaries)

Serious Injury   Directed Verdict   Set Aside Verdict   Missing Witness Charge   Pain/Suffering  

Second Deptartment

The jury found that the plaintiff did not sustain serious injuries under the consequential permanent or significant limitation categories but did meet the 90/180 day serious injury threshold. There was conflicting testimony from plaintiff’s treating orthopedist, who operated on the plaintiff’s shoulder, and defendant radiologist and examining orthopedist. Plaintiff moved for a directed verdict on serious injury at the conclusion of her case which was properly denied as there existed a valid line of reasoning upon which a jury could find that she did not sustain a serious injury. Plaintiff’s motion to set aside the verdict as against the weight of the evidence was properly denied on the same grounds. Plaintiff’s motion for additur of the jury’s award of $25,000 for past pain and suffering and $0 for future pain and suffering was properly denied as it did not materially deviate from similar awards since the jury found a serious injury only under the 90/180 day category.

The appellate court found the lower court’s missing witness charge regarding plaintiff’s prior treating physician who was not called at the trial appropriate. Plaintiff’s claim that the verdict was inconsistent was not preserved because plaintiff failed to raise this issue before the jury was discharged. Iovino v Kaplan

Comment: In support of its holding that the defendant was entitled to a missing witness charge for failure to produce a prior treating doctor, the Appellate Division sites its decision in O’Brien v. Barretta, 1 A.D.3d 330 (2nd Dept. 2003). The O’Brien decision, however, did not deal with a prior treating physician and there does not appear to be any other case which holds that the failure to have a prior treating physician testify entitles a defendant to a missing witness charge. This could be a powerful tool for defendants and a nightmare for plaintiffs. As discussed at length in the O’Brien decision, having the physician’s records in evidence and being able to show that the physician’s testimony would be merely cumulative is a wise precaution for plaintiffs.

Med Mal   Estate   Reasonable Excuse   Prejudice  


Lower court should have granted plaintiff’s motion to substitute the administrator of the estate after the plaintiff died. There was a 21-month delay in getting the Letters of Administration and the defendant’s cross moved to dismiss the action for failure to timely substitute under CPLR 1021. Under CPLR 1021 the court was required to order the persons interested in the estate to show cause why the case should not be dismissed and, therefore, the lower court lacked the authority to dismiss the action. Since determination of the case will be based largely on medical records and not eyewitness testimony, there is no prejudice to the defendants in the delay. Velez v New York Presbyt. Hosp.

Serious Injury   ROM   BP   Expert Aff  


Defendant made out prima facie entitlement to summary judgment regarding knee injury by their doctor’s report showing no objective evidence of disability and full range of motion but plaintiff’s orthopedist raised an issue of fact by showing persistent limited range of motion in the knee based on his review of MRI films and observations during surgery, and addressed presence of arthritis and pointed to specific medical evidence of trauma. Defendant made out prima facie entitlement to summary judgment on 90/180 day category by relying on plaintiff’s admission in her BP that she was confined to bed and home for only one week and plaintiff failed to raise a triable issue of fact in opposition. Brownie v Redman

Comment: This decision gives an easy way for defendants to make out a prima facie case on 90/180 day category by relying solely on plaintiff’s BP. Plaintiffs should consider including in their response to the hospital, bed, and home demand language that “in addition” the plaintiff was unable to engage in his/her usual and customary daily activities for more than 90 days within the first 180 days after the accident.

Med Mal   Duty   Accepted Practice   Wrongful Death   Expert Aff   Conclusory  


Primary care physician and practice owed no duty to the plaintiff regarding his prescription of Plavix which had been prescribed by a co-defendant cardiologist. It is for the court to decide whether a duty exists. For physicians that duty is limited to the medical functions undertaken by the physician and relied upon by the patient. The primary care physician was not involved with the patient’s prescription for Plavix or the decision to stop the Plavix for several days in contemplation of a kidney biopsy. The plaintiff’s decedent was not restarted on the Plavix after his biopsy was canceled and died of a heart attack a day later.

Defendant cardiologist, who initially prescribed the Plavix three years before plaintiff’s death, met his burden of showing that he did not depart from accepted practice through his expert’s affidavit that accepted practice was to maintain the patient on Plavix for only one year after the stent placement and that there was no evidence that failure to resume the Plavix caused the plaintiff’s decedent’s heart attack. Plaintiff’s expert’s affidavit was conclusory because it opined, in circular fashion, that the plaintiff had to be kept on Plavix indefinitely because the defendant cardiologist had prescribed it without a limit, and failed to address the cardiologist-defendant’s expert’s opinion that the Plavix remained 70% effective for three days after it was stopped. Plaintiff’s expert failed to explain how a 4-day lapse in Plavix caused the decedent’s death. Burns v Goyal

Strike Note of Issue   Note of Issue  

Second Deptartment

When a note of issue is vacated upon consent the plaintiff is in the same position he/she was in as if no note of issue was filed and does not have to show entitlement to restore it to the calendar under CPLR §3404. Absent a 90-day notice to prosecute under CPLR §3126, the case is not subject to dismissal if not restored within a year. Ortiz v Wakefern Food Corp.

(19 summaries)

Highway Design   Qualified Immunity   Sole Cause  

Second Deptartment

Plaintiff was injured in a one car accident when her car veered off the highway striking a concrete drainage structure in the center median not protected by guard rails. Defendant County was not entitled to qualified immunity because it failed to show that it conducted a study which entertained and passed on the very same question of risk alleged by the plaintiff. The County also failed to show that it did not have a duty to place guard rails near the concrete structure as part of its duty to maintain its highway in a reasonably safe manner. The County failed to eliminate all triable issues of fact as to whether its negligence was one of the causes of the accident or added to the plaintiff’s injuries. Bednoski v County of Suffolk

Premises Liab   Directed Verdict   Set Aside Verdict   Materially Deviates  

Second Deptartment

Jury returned a verdict in favor of plaintiff finding defendant 100% at fault where plaintiff was injured while taking a shower when the hot water knob fell off, spewing hot water on plaintiff, and causing her to fall and sustain injuries. Plaintiff had complained about the knob being loose and leaking on several occasions prior to the accident and, therefore, defendant was not entitled to a directed verdict on liability as there was a rational basis for the jury to find that the defendant owner had notice of the condition and failed to correct it.

The jury awarded $275,000 for past pain-and-suffering and $800,000 for future pain and suffering, $75,000 for past medical expenses and $750,000 for future medical expenses. The parties agreed to reduce the award for past medical expenses to 45,000, future medical expenses to $140,000, and future pain-and-suffering to $500,000 pursuant to the lower court’s grant of the motion to set aside the verdict if the parties did not stipulate to these reductions with the defendant reserving its right to further dispute the amounts on appeal. The appellate court found the lower court erred in allowing the plaintiff’s expert to testify regarding the future need for wrist surgery costing $80,000 which was not included in the pleadings, expert report, or expert disclosures, and defendant’s expert did not have an opportunity to rebut the plaintiff’s expert’s testimony since defendant’s expert testified out of order and the award for future medical expenses was reduced from $140,000-$80,000. Floyd v 1710 Realty, LLC

Comment: This is the rare case where taking a treating or expert witness out of order can result in prejudice but should always be considered before seeking or agreeing to take a witness out of order.

Med Mal   Late Notice of Claim   Reasonable Excuse   Prejudice  

Second Deptartment

Plaintiff who served a Notice of Claim 2 years and 7 months after the infant plaintiff was born by emergency C-section at 26 weeks was not entitled to leave to serve a late Notice of Claim or to have it deemed timely served nunc pro tunc, because the records relied upon by the plaintiff to show that the hospital had actual knowledge of the essential facts within 90 days or a reasonable time thereafter did not suggest that the premature birth was due to a failure to treat an asymptomatic cervical polyp or friable cervix during the pregnancy, the plaintiff failed to offer a reasonable excuse for the delay, and failed to show that the defendants were not prejudiced by the delay, including the fact that 3 of the mother’s 8 doctors had left the hospital’s employ. Raut v New York City Health & Hosps. Corp.

MVA   Notice of Claim   Premature Motion   Statute of Limitations   Amend Complaint  

Second Deptartment

Defendants’ motion for summary judgment for failure to serve a Notice of Claim in favor of defendant driver, who was driving a truck licensed to LIPA but who was employed by National Grid, should have been denied as premature and plaintiff’s cross motion to amend his complaint to assert claims directly against National Grid granted even though the statute of limitations had expired. LIPA had not revealed that the driver of the truck registered to them was employed by National Grid which is not a municipal company. Plaintiff showed that it would be necessary to conduct discovery regarding the relationship between LIPA and National Grid and the work being performed by the defendant driver at the time of the accident. Plaintiff met the criteria for the relation back doctrine by showing that the claims against National Grid arose out of the same accident alleged in the original complaint, National Grid, was or could be united in interest with the original party, LIPA, and that National Grid knew or should have known that an action would be brought against it. Marrone v Miloscio

MVA   Rear End   Pileup   Comparative Fault  

Second Deptartment

Defendant, driver of 2nd car, was entitled to summary judgment against the plaintiff and 3rd car defendant’s cross-claims, on her affidavit showing she had stopped behind the plaintiff’s vehicle, which was stopped in traffic, when she was hit in the rear by the 3rd car and propelled into the plaintiff’s car. Second car driver’s affidavit also established plaintiff’s entitlement to summary judgment against the 3rd car defendant by showing that the plaintiff’s vehicle was stopped before being struck and, was therefore free from fault. Morales v Amar

Legal Mal   Discovery   Willful/Contumacious   Sanctions   Vacate Jud  


Plaintiff in legal malpractice action provided relevant documents in response to discovery demands intermingled with approximately 30,000 pages of irrelevant documents and was ordered to provide a searchable electronic version of the discovery responses. Plaintiff’s failure to comply with the order after ample time was properly deemed willful but because of partial compliance, dismissing the complaint was unwarranted. The appellate court reinstated the complaint and substituted a fine of $10,000 payable to defendant. Arbor Realty Funding, LLC v Herrick, Feinstein LLP

Premises Liab   Sidewalk   § 7-210   Create Condition   Notice  

Second Deptartment

Abutting landowner properly denied summary judgment where proof submitted by defendant showed that he had notice of the defect 4 years before the accident. Abutting landowner failed to show as a matter of law that the condition was created by the City through an affirmative act of negligence when it replaced the sidewalk flags in 2009. Nisimova v City of New York

Strike Answer   Missing Witness Charge   Conditional Order   CPLR § 3101(d)   Motion in Limine  


Police officer who allegedly pushed plaintiff out of a bathroom window was entitled to judgment dismissing case against him despite the trial court’s grant of a motion in limine striking the officer’s Answer for failure to comply with a conditional order of preclusion requiring him to produce his memo book 30 days before trial. The question of whether the officer pushed the plaintiff out of the window was put to the jury, without objection from plaintiff, and the jury found against the plaintiff and awarded no damages. The officer found the memo book at the beginning of the trial and made a showing of why he could not find it before, eliminating any claim that his noncompliance was willful or contumacious necessary for the extreme sanction of striking his Answer.

The lower court did not err in allowing defendant’s toxicologist to testify where the 3101(d) notice was served 34 days before trial because the timing of the notice was neither willful nor prejudicial to the plaintiff who was aware that his alcohol content would be an issue during the trial. Plaintiff was not entitled to a missing evidence charge for admission of a copy of the aided report as opposed to the original where plaintiff addressed the production of a copy versus the original at trial. Haynes v City of New York

Labor Law §240   Labor Law §241   Ladder   Industrial Code   Comparative Fault   Sole Cause  

Second Deptartment

Plaintiff’s testimony that the ladder he fell from while painting a co-op at the defendant owner’s building had a defective supporting bracket which would unlock without warning made out his entitlement to summary judgment as against the owner on his Labor Law §240 (1) claim, even if his actions were the sole cause of the accident. Plaintiff, however, did not make out entitlement on his Labor Law §241(6) claim because he failed to eliminate triable issues regarding his comparative fault. Cardenas v 111-127 Cabrini Apts. Corp.

Labor Law §241   Labor Law §200   Unknown Cause   Feigned Issue   Proximate Cause  


Defendants entitled to summary judgment where plaintiff was not sure what caused him to slip and fall on stairs between plaza and garage where he was doing construction work. The lower court properly refused to consider the plaintiff’s affidavit which was tailored solely to defeat summary judgment and included claims not testified to by the plaintiff. Plaintiff’s own testimony showed that he was not certain how much dust was on the stairs or where it was on the stairs and, therefore, he was unable to show what caused his fall. Claim that an unsteady rusty handrail caused his injuries was of no avail since plaintiff’s testified that he slipped because he lost his balance and was unable to grab the handrail. Vazquez v Takara Condominium

MVA   Traffic Signs   Comparative Fault   Sole Cause  

Second Deptartment

Plaintiff who was driving on a road without a stop sign and was struck by defendant’s vehicle traveling on a perpendicular road with a stop sign was not entitled to summary judgment because the only proof she submitted was a brief affidavit stating that defendant went through the stop sign without sufficient details such as the position of her car at the time she observed the defendant’s vehicle and when it was struck. Plaintiff failed to meet her burden of proof for summary judgment regardless of the opposition papers. Kanfer v Wong

Negligent Supervision   Burden of Proof  

Second Deptartment

Defendant school not entitled to summary judgment based on plaintiff’s deposition, submitted on their motion, where plaintiff testified that the student who fell on him had been running around the gym throwing basketballs at a student for 10 minutes before the plaintiff’s accident. Roth v Central Islip Union Free Sch. Dist.

Negligent Supervision   Proximate Cause   Burden of Proof  

Second Deptartment

The infant plaintiff was injured while using a suspension bridge in a school playground where other students were jumping up and down on the bridge. Defendant was not entitled to summary judgment because viewing the evidence in the light most favorable to plaintiff defendant failed to show as a matter of law that it properly supervised the infant plaintiff or that it’s alleged negligent supervision was not a proximate cause of the injuries. The court does not give the details of the proofs. J.M. v North Babylon Union Free Sch. Dist.

Premises Liab   Elevator   Expert Aff   Create Condition   Notice   Res Ipsa Loquitor  


Defendant and third-party defendant entitled to summary judgment on showing that elevator operated normally before and after plaintiff was injured when the closing elevator door struck her on the shoulder. Plaintiff did not submit an expert affidavit and failed to show any defect in the elevator. Res ipsa loquitor did not apply because the defendant owner had given over all maintenance control of the elevator to the third-party defendant maintenance company. Sanchez v New Scandic Wall Ltd. Partnership

Med Mal   Missing Witness Charge   IME/DME   Appealable Order  

Second Deptartment

There is no appeal from an order which defers the determination of an issue (missing witness charge for not calling an IME/DME doctor) to the trial judge. Defendant failed to show such unusual and unanticipated circumstances to justify a second IME/DME after the note of issue was filed. Winer v Aliani

Premises Liab   Slip/Trip   Set Aside Verdict  


Lower court properly denied plaintiff’s motion to set aside the defense verdict in a case where plaintiff climbed to the top of an 18’ art installation called “The Drop,” began dancing, and fell off when other people did the same. The jury’s finding that the defendant did not fail to maintain the area in a reasonably safe manner was based on a reasonable interpretation of the evidence. Solomon v City of New York

Premises Liab   Sidewalk   Discovery   CPLR § 3126   Preclusion   Motion to Dismiss  

Second Deptartment

The lower court providently exercised its discretion in deeming the issue of liability resolved against the defendant for refusal to appear for deposition ignoring numerous court orders. Defendant failed to give a reasonable excuse for failure to appear. Rogers v Howard Realty Estates, Inc.

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Deptartment

Plaintiff slipped and fell on snow and ice accumulated on a stair landing of her co-op as she was leaving her home. Defendant was entitled to summary judgment on proof that it did not have a reasonable time after the storm stopped to correct the condition. The court does not give the details of the proofs. Baolin Liu v Westchester Prop. Mgt. Group, Inc.

Serious Injury   Raised For First Time  

Second Deptartment

Moving defendant made out its prima facie entitlement to summary judgment on serious injury by submitting competent medical evidence that injury to Plaintiff’s knee did not constitute a serious injury under the consequential permanent or significant limitation categories and that any injury to the knee was not caused by the accident. Plaintiff failed to raise an issue of fact as to the knee injury and plaintiff’s claims regarding her lumbar spine and left shoulder were not raised below and not considered. The court does not give the details of the proofs. Cruz v Ava Serv. Corp.

(1 summaries)

MVA   Rear End   Proximate Cause  

Second Deptartment

Ambulette, whose driver testified that he was stopped at the time his ambulette was struck in the rear by a second ambulette, was not entitled to summary judgment. The owner and driver made out their prima facie entitlement to summary judgment but plaintiff raised an issue of fact as to whether that ambulette was otherwise negligent and a proximate cause of the accident. The court does not give the details of the proofs. Graham v Courtesy Transp. Servs., Inc.

About Matt McMahon

Civil trials and appeals since 1984
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