January 3, 2023 | Vol. 346

(4 summaries)

Malpractice   Products Liab   Statute of Limitations   Respondeat Superior  

First Department
Individual doctors who treated plaintiff for post-vaccine injuries from 2-vaccines administered by non-moving defendant, and their employers, not included in the definition of ‘vaccine administrator or manufacturer’ of the National Childhood Vaccine Injury Act of 1986 (42 USC §300aa 10, et seq.) which limits liability claims to $1,000 and tolls the statute of limitations and granted dismissal of infant’s and parents’ claims on statute of limitations where action was commenced more than 2.5 years after infant reached majority. Batish v Gandhi    

Wrongful Death   Motion to Dismiss   Governmental Function   Special Duty   Notice of Claim   Amend Complaint   BP   NYC  

Second Department
NYC’s motion to dismiss for failure to state a cause of action granted where plaintiff alleged negligent response to a 911 call resulting in decedent’s death as EMT services and response to 911 calls are governmental functions and plaintiff did not allege a special duty in the Notice of Claim, Complaint, or BP. Lower court’s note that plaintiff intended to move to amend the Complaint to include special duty irrelevant as there was no evidence the motion was made and the Amended Complaint was served only in opposition to NYC’s motion. Cruz v City of New York    

MVA   Arbitration   Workers Comp   Statute of Limitations   Raised For First Time  

First Department
NYCTA’s petition for reimbursement of Worker’s Compensation payments to its bus driver injured by American Transit’s insured was timely brought where it accrued 5-days before the initial executive order tolling statutes of limitations for COVID, extended through 11/3/20, even though NYCTA mistakenly listed last extension as 8/5/20 as ‘petitioner’s argument may be considered on this appeal as an exception to the preservation rules, as it is a purely legal argument.’ Matter of New York City Tr. Auth. v American Tr. Ins. Co.    

Malpractice   Accepted Practice   Causation   Experts   Speculation   Conclusory  

First Department
Defendants granted summary judgment on their expert’s opinion of no departure for failing to diagnose a heroin overdose or to monitor decedent in the waiting room where he had normal vital signs and his only symptom was a rash on his arm. Plaintiff’s expert’s opinion did not raise an issue of fact without pointing to any specific departure from accepted practice by the physicians and giving only conclusory statements that hospital staff failed to monitor the patient without citing to any authority to support claim hospital staff had a duty to make sure patients didn’t sleep in the waiting room. Verrier v Robledo    

(17 summaries)

MVA   Rear End   Directed Verdict   Speculation  

Second Department
Defendant’s motion for judgment as a matter of law at close of plaintiff’s case granted where plaintiff testified he had no recollection after his vehicle was rear-ended and could not identify what vehicle struck him or even what color it was. Taking the evidence in the light most favorable to plaintiff, there was no rational path for a jury to find the moving defendant rear-ended plaintiff’s vehicle. Ebaid v Walsh    

Premises Liab   Set Aside Verdict   Dangerous Condition  

Second Department
Plaintiff’s motion to set aside verdict that found parking lot where plaintiff tripped dangerous and tenant-store negligent but not a proximate cause granted as against the weight of the evidence where the finding of negligence but not proximate cause could not be reached on a fair interpretation of the evidence. Casanova v Aaron B. Chevrolet Co., Inc.    

Discovery   HIPAA   Experts   Causation   Note of Issue  

First Department
Defendant’s failure to offer expert evidence that authorizations for plaintiff’s “overall health, habits, and activities” were material and necessary on issue of causation for plaintiff’s ability to recover from orthopedic injuries sustained in the accident rendered requests improper. Plaintiff’s claim of permanency did not make request relevant where defendant conceded plaintiff was not claiming his life expectancy was affected by his injuries. Defendant’s request to strike the Certificate of Readiness denied where there was no misrepresentation of a material fact in the certificate. Lindsay v CG Maiden Member, LLC    

Premises Liab   Assumption of Risk   Foreseeability  

First Department
Defendant granted summary judgment where plaintiff, experienced tennis coach, was injured while coaching adolescents on a rubber mat area with obvious depressions and defects that was not a tennis court as she assumed the risks of the defective rubber area even though she was not playing or engaging in an organized sport at the time of her accident and it was not necessary for her to foresee the exact manner of her injury. Oetiker v Hudson Riv. Park Trust    

Malpractice   Notice of Claim   BP   Raised For First Time  

First Department
Plaintiff’s new theory of departure from accepted practice for using incorrectly sized implant during second knee surgery for knee replacement raised for the first time in a supplemental BP providently stricken where the only claimed departure raised in the Notice of Claim, Complaint, and BP was an improperly performed original meniscectomy as the two surgeries were separate and distinct. Kisielewska v City of New York    

Premises Liab   Amend Complaint   Statute of Limitations   Duty  

Second Department
Plaintiffs’ motion to amend their Complaint to add a new defendant that owned 2-of-4 buildings in apartment complex where the injured plaintiff fell in the parking lot denied where brought beyond the statute of limitations and relation-backed theory could not apply as proposed-defendant and defendant each claimed the other was responsible for the parking lot so that their defenses did not stand or fall together, plaintiff did not show defendants were vicariously liable for each other, and plaintiffs were aware of the proposed defendant’s ownership of the 2-buildings and that it leased out parking spaces, eliminating any claim the proposed-defendant should have known it would be brought into the action but for a mistake.

Defendant, owner of the other 2-buildings met burden for summary judgment on proof it did not own or control the parking lot, but plaintiff-spouse’s affidavit stating he was a board member of the proposed-defendant and knew both owners controlled the parking lots and shared responsibility and hired contractors to maintain them raised issues of fact in opposition. Mitzmacher v Bay Country Owners    

Labor Law §240   Labor Law §200   Ladder   Premises Liab   Create Condition   Notice   Control   Feigned Issue  

Second Department
Defendants granted summary judgment dismissing Labor Law §§ 240(1), 200, and negligence claims of worker who fell from 3rd-rung of 6′ ladder while attaching a TV mounting bracket to a wall in the medical office. The activity was routine maintenance or ‘decorative modifications,’ not protected under §240, and was not an alteration under that section. Defendants did not have authority to control the means and methods of plaintiff’s work and they did not create or have actual or constructive notice of any dangerous premises or equipment defect on the §200 and negligence claims. Saitta v Marsah Props., LLC    

Premises Liab   Wet Floor   Unknown Cause   Notice   Recurring Condition  

Second Department
Supermarket failed to meet burden for summary judgment where its owner testified he was aware the freezer pipe underneath the unit where plaintiff fell would occasionally freeze and pool water and supermarket submitted plaintiff’s EBT testimony that she did not see what she fell on before she fell, but felt herself sitting in water and saw it was coming from underneath the freezer unit after her fall, establishing she could identify the cause of her fall by circumstantial evidence without speculation and raising an issue on whether the accident was caused by a recurring dangerous condition defendant was aware of. Jandly v New Carle Place Farm, Inc.    

3rd Party Contractor   Elevator   Duty  

Second Department
“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.” Separate motions for summary judgement by 2-elevator company defendants denied where neither vague maintenance records nor plaintiff’s testimony that no bell sounded before freight elevation door fell on his head established the door was properly functioning and they failed to show they made reasonable efforts to discover and correct a condition they should have found or otherwise lacked notice of the alleged defect. Sanchez v City of New York    

Premises Liab   Sidewalk   Create Condition   Notice   Recurring Condition  

Second Department
Plaintiff’s cross motion for summary judgment on liability denied as homeowners’ testimony they only occasionally saw river rocks from their driveway on the sidewalk did not establish a recurring dangerous condition routinely not addressed or that defendants had notice of the rock that caused plaintiff to fall and lack of proof as to how the rock got on sidewalk did not prima facie show defendants created the condition or that it was created by their special use of the area, necessary for liability on abutting landowner where there is no statutory duty with a private right of action. Lukovenko v Annonio    

Dram Shop   Premises Liab   Violent Propensity   Notice   Foreseeability  

First Department
Plaintiff failed to meet burden for summary judgment on drams hop claim against wedding caterer at Plaza Hotel where attendee-defendant took plaintiff into a stairwell and punched him in the face causing serious injuries based on testimony of plaintiff and his friend that the caterer served assailant alcohol while visibly intoxicated but question of fact remained from groom’s testimony that assailant was not visibly intoxicated or acting intoxicated. Without proof of why assailant punched plaintiff or was acting violently before the assault, plaintiff failed to show a ‘reasonable or practical connection’ between the service of alcohol and the assault.

Premises liability claim dismissed as caterer did not own the premises or stairs and there was no evidence assailant exhibited violent propensities that would alert anyone of the need to control the assailant. Lorenzo v Great Performances/Artists as Waitresses, Inc.    

Premises Liab   Motion to Dismiss   Personal Juridiction   Out of Possession  

First Department
Motion to dismiss for lack of personal jurisdiction by Massachusetts company with a scrap metal facility in NJ where plaintiff was injured while delivering scrap metal from NY granted as it was not incorporated and its principal place of business was not in NY (general jurisdiction CPLR §301) and it did not transact any business in NY related to the accident (specific jurisdiction CPLR §302). Plaintiff’s employer sold the scrap metal to the facility in NJ and payments were made through an electronic clearing house.

Property owner, Port Authority, granted summary judgment where lease showed it as an out-of-possession landlord. Limited right of reentry not relevant where plaintiff claimed accident was caused by transient conditions and there was no evidence of a significant structural or design defect. Brocco v Eastern Metal Recycling Terminal LLC    

MVA   Pileup   Workers Comp Defense   Renew   Reasonable Excuse  

Second Department
Submission of plaintiff’s EBT testimony taken after original motion for summary judgment by driver of middle vehicle with plaintiff as passenger in 6-vehicle pileup was sufficient to grant renewal as it was not available at time of original motion and testimony provided information sufficient to change the result, proving they were co-employees protected by WC exclusivity clause. Yue Liang Wang v Qiang Lin    

Premises Liab   Snow/Ice   Out of Possession  

Second Department
Landlords granted summary judgment where plaintiff-tenant who slipped on snow/ice in parking lot, not landlords, was responsible for snow/ice removal under the lease as defendants were out-of-possession landlords with no duty for snow removal by contract, statute, or course of conduct. Sweeney v Hoey    

Serious Injury   ROM   Causation  

Second Department
Defendant failed to meet burden for summary judgment on serious injury where one of its experts found significant limited ROM in plaintiff’s spine and defendant failed to show the injuries were not caused by the accident. Meyn v Monforte    

Premises Liab   Stairs   Dangerous Condition   Trivial   Notice   Waiver  

Second Department
Landlord failed to meet burden for summary judgment where plaintiff testified she slipped on worn patch of carpet while descending stairs in the residential building and neither defendant’s deposition testimony nor photographs established that the condition was not defective, dangerous, or trivial. Defendant did not argue lack of actual or constructive notice on the appeal although it was raised below. Francisco v Pulla    

MVA   Turning Vehicle   Causation   Hearsay   Admissibility   Survelliance Video  

Second Department
Owner/driver of vehicle that collided with vehicle making a left-turn with plaintiff as a passenger failed to meet burden for summary judgment as there can be more than 1-cause of an accident and uncertified police report and unauthenticated photos and dash cam were inadmissible hearsay and his affidavit failed to eliminate triable issues of whether he acted reasonably to avoid the accident even where he had the right of way. Rosa v Gordils    

(2 summaries)

Premises Liab   Unknown Cause   Speculation   Experts   Survelliance Video  

Second Department
Pharmacy granted summary judgment where plaintiff could not identify what caused her to fall in pharmacy without speculation and surveillance video and plaintiffs expert failed to raise an issue on causation. The Court does not give the details of the proofs. Cheprakova v Medicine Plaza, Inc.    

Premises Liab   Sidewalk   Snow/Ice   Create Condition   Unknown Cause  

Second Department
Homeowners failed to meet burden for summary judgment without proof that their snow removal efforts did not create or exacerbate the conditions that caused the injured-plaintiff to slip and fall on snow/ice on their sidewalk or that plaintiff could not identify what caused her to fall. The Court does not give the details of the proofs. Pozzulo v Botta    

About Matt McMahon

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