July 11, 2017 | Vol. 62

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Negligent Hiring   Amend Complaint  

Second Deptartment

Plaintiff’s motion to amend Complaint to include allegations of negligent hiring, retention, and supervision after doctor’s motion to disqualify hospital’s attorney revealed his disciplinary history in 5 states prior to being hired by the hospital as well as 6 pending malpractice suits, granted as the hospital failed to show that the amendment was palpably devoid of merit. Gomez v Buena Vida Corp.


Serious Injury   Causation   ROM   Expert Aff   BP   Raised For First Time  

First

In reversing denial of defendant’s motion for summary judgment on serious injury where defendant’s orthopedist found no limited ROM in the arm or wrist, and plaintiff’s claims of carpal tunnel syndrome were not in the BP or raised prior to his opposition to the defendant’s motion, the court explained from its prior decisions that failure to treat for a condition for more than 15 months after the initial emergency room visit was too long to establish a qualitative assessment of an injury soon after the accident and establish causation. In prior case law, the court had held that 5 1/2 months was too long to establish causation. Santos v Traylor-Pagan


Set Aside Verdict   VTL §1104   Police   NYC  

Second Deptartment

Judgment on jury verdict in favor of defendant where police captain was following the car in which the plaintiffs were occupants, in the course of his duties, affirmed as the jury could reach their verdict on a fair interpretation of the evidence finding that the police captain did not act with reckless disregard. Trial court properly excluded NYPD patrol guide as it imposed a standard higher than that imposed by law. Johnson v City of New York


Med Mal   Wrongful Death   Pain/Suffering   Late Notice of Claim  

Second Deptartment

Motion to dismiss pain/suffering claim on argument that Notice of Claim filed by the decedent’s wife as “proposed guardian” before his death denied. The Notice of Claim can be filed by any interested party which in this case included the wife and, therefore, was valid. Matter of Dolce v State of New York


Premises Liab   Sanctions  

Second Deptartment

The lower court providently exercised its discretion in denying the defendant fuel company’s motions for sanctions under 22 NYCRR 130-1.1(c), while granting summary judgment to the defendant, finding that the plaintiff brought the action for nuisance based on a new theory but did not support that theory with evidence in admissible form. The high burden of showing frivolity for sanctions is that the position taken must lack any merit in law and cannot be supported by an argument for an extension of existing law. The lower court found a lack of evidence, not a lack of merit or an argument for an extension of existing law. West Hempstead Water Dist. v Buckeye Pipeline Co., L.P.

NOTEWORTHY
(9 summaries)
MUST READS IF YOU MUST READ

Lead Poisoning   Set Aside Verdict   Causation   Juror Confusion  

Second Deptartment

The jury awarded $250,000 for past pain and suffering after finding the building owner negligent but that the building owner’s negligence was not a substantial factor in causing the injuries. Before discharging the jury, the court reinstructed the jury explaining that to award damages they would have to answer “yes” to the substantial factor question. During the second deliberation, the jury asked for further instructions on how to answer the damage question if they chose to find that the negligence was not a substantial factor. The trial court instructed them to follow the instructions on the sheet and they then answered the substantial factor question “yes”. The Appellate Division found that the second verdict was unreliable based on the failure of the trial judge to give further instructions and could be the result of juror confusion or frustration and remanded the case for a new trial rather than reinstating the first verdict. Cleveland v Djeu


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Sanitation worker’s proffered excuse that he was unaware of the need to file a Notice of Claim was not a reasonable excuse. Line of duty reports had details of the injury when petitioner fell from the step but not the essential elements of the allegations such as that the step was dangerous or defective, and supervisor noted in report that the step was not defective, therefore, reports did not give actual notice within 90 days or reasonable time thereafter. Petitioner’s attorney’s argument that the municipality was not prejudiced because they were fully aware of the accident was not evidence or a “plausible argument” establishing lack of prejudice. Petition for leave to serve late Notice of Claim denied. Matter of Maldonado v City of New York


Labor Law §240   Ladder   Renew   Reargument  

Second Deptartment

Grant of summary judgment to plaintiff based on his testimony that he was standing on a ladder which gave out beneath him causing him to fall reversed on motion to renew/reargue where defendants’ testimony showed that plaintiff’s employer did not begin work at the defendants’ location until 3 weeks after the accident mentioned in a hospital report. Patriarca v Oreckinto


Premises Liab   Snow/Ice   Slip/Trip   CPLR § 3126   Strike Answer   Willful/Contumacious   3rd Party Contractor   Raised For First Time  

Second Deptartment

Plaintiff’s motion to strike defendants’ Answers for willful/contumacious failure to comply with discovery orders granted in case where condominium resident slipped on ice on 2 separate days outside of her townhouse. Snow removal contractor’s motion to strike defendants’ Answers also granted. Repeated delays and failures to comply with discovery orders and insufficient responses showed willful/contumacious behavior warranting striking of the Answers. Snow removal contractor granted summary judgment against plaintiff on proof that there was no privity and, therefore, it owed plaintiff no duty. Studer v Newpointe Estates Condominium


Serious Injury   ROM   Preexisting   Expert Aff  

First

Plaintiff failed to introduce any medical evidence in opposition to the findings of the defendants’ doctors of pre-existing degeneration in her shoulder, cervical, and lumbar spine which was also noted in her own MRI reports, and offered only the report of a doctor who examined her the day after her accident in opposition to the defendants’ orthopedist’s opinion that her knee condition was caused by arthritis and not trauma and that she showed no limited ROM after her surgery. Santos v Manga


Serious Injury   Unaffirmed Report   ROM   Expert Aff  

First

Defendant met its burden for summary judgment on serious injury by competent medical evidence that plaintiff’s claims of headaches and pain did not constitute a serious injury and plaintiff’s physician’s unaffirmed report opining that the accident exacerbated the chronic condition, and failure to compare ROM to normal ROM, was insufficient to raise a question of fact. Campbell v Wendt


Battery   Defamation   Motion to Dismiss  

Second Deptartment

Defendants’ motion to dismiss battery claim denied where plaintiff alleged that condominium board member yelled at her saying that she wasn’t allowed in the pool because her maintenance fees were overdue and then grabbed her by the arm without provocation or permission which stated a cause of action for battery. Motion to dismiss defamation claim granted where plaintiff’s allegation was that notices posted showing that she was in arrears were true. Gutierrez v McGrath Mgt. Servs., Inc.


Serious Injury   BP  

Second Deptartment

Defendants failed to meet their initial burden by addressing the plaintiff’s claims in the BP on the 90/180-day category by competent medical evidence and it was unnecessary to consider the plaintiff’s opposition. Fils-Aime v Colombo


Serious Injury   BP  

Second Deptartment

Defendants failed to meet their initial burden by addressing the plaintiff’s claims in the BP on the 90/180-day category by competent medical evidence and it was unnecessary to consider the plaintiff’s opposition. Lerner v Shah

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

The plaintiff raised a triable issue of fact by competent medical evidence in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Heeja Yoon-Jeong v Bhandari

About Matt McMahon

Civil trials and appeals since 1984

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