July 12, 2022 | Vol. 321

(3 summaries)

Sepulcher   Discovery   Privilege  

Second Department
On right of Sepulcher claim, plaintiffs’ motion to compel hospital to provide portions of guest relations records regarding request for autopsy and lack of authorization for release of father’s body to funeral home which NYCHHC withheld as privileged by quality-assurance review providently granted after in camera review of the unredacted records as duplicated records reviewed by a committee are not necessarily privileged and the quality management director’s affidavit, privilege log, and in camera review were insufficient to show the documents were “generated by or at the behest” of the quality-assurance committee. Plaintiffs’ motion to compel nonparty EBT of former guest relations worker and continued deposition of guest relations worker still employed by NYCHHC granted, and NYCHHC’s cross-motion for protective order denied, as the testimony was not privileged. Hernandez v City of New York    

Malpractice   Set Aside Verdict   Directed Verdict   Loss of Chance   Judgment Rule   Jury Charge  

Second Department
While verdict finding defendant departed from accepted practice for failing to perform addition biopsies after a bronchoscopy showed no malignancy and awarding $2,717,303.11 was founded on legally sufficient evidence showing loss of chance of a better outcome where decedent was later diagnosed with and died of lymphoma, verdict set aside in the interest of justice and new trial ordered for trial court’s error in precluding defendant from cross-examining plaintiff’s expert on whether several other doctors also departed by failing to perform the additional tests before decedent’s lymphoma was diagnosed which could have resulted in Article 16 offset of damages, depriving defendant of a substantial right.

Lower court properly declined judgment rule charge (PJI 2:150) which is only available in narrow circumstance where “physician considered and chose among several medically acceptable treatment alternatives’ as defendant did not choose between medically acceptable choices. First interrogatory on verdict sheet accurately described alleged departure and was not a general verdict as plaintiff did not have multiple theories. Fact interrogatory encompassed period after decedent’s surgery, when defendant’s departure could no not have occurred, was harmless where it did not cause jury confusion. Schuster v Sourour    

Discovery   Privilege   BP  

Second Department
Defendants’ motion to compel plaintiff to provide authorizations for WC and medical records for prior injuries denied where they involved different body parts, plaintiff did not make broad allegations of injury or mental anguish, claim exacerbation of prior injuries, and expressly disavowed loss of enjoyment of life, mental anguish, future earnings, and wage capacity. Plaintiff did not place either his entire medical condition or the prior injuries and treatment in controversy. Froehlich v Kimco Realty Corporation    

(8 summaries)

Sidewalk   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Petitioner failed to meet burden for leave to file late Notice of Claim where she conceded NYC did not have actual knowledge of the essential elements of her claim before filing the petition for leave 16-months after the accident, attorney’s lack of due diligence in discovering NYC’s responsibility was not a reasonable excuse, petitioner failed to explain delay in seeking leave after attorney discovered the error, and failed to provide evidence or a plausible argument that NYC was not prejudiced where photographs attached to petition were not dated or authenticated. Mtr of Shavreshyan v City of New York    

Labor Law §240   Safety Devices   Sole Cause   Agent   Control   Premature Motion   Indemnity  

Second Department
Worker who fell 15′ when he stepped on unsecured beam that flipped over while doing framing work granted summary judgment under Labor Law §240(1) on his testimony and affidavit and affidavit of coworker eyewitness who witnessed the accident and averred they were not provided harnesses or fall protection. Original framing subcontractor was owner agent where it had authority to supervise work plaintiff’ was engaged in and could not avoid responsibility by delegating it to another subcontractor, plaintiff’s employer. Defendants’ claim motion was premature as impleaded plaintiff’s employer had not been deposed and original framing contractor’s representative testified plaintiff’s employer was responsible for providing harnesses, there were tie-off points, and he saw employer’s workers using harnesses rejected where representative was not on site for 2-3 weeks before the accident and did not witness the accident. Mogrovejo v HG Housing Development Fund Company, Inc.    

Comment: Owners and GC granted summary judgment of their contractual indemnity claims against original framing subcontractor where language provided indemnity to the fullest extent possible arising out of the work, including work of subcontractors, and owners and GC could not be negligent as they did not have authority to supervise plaintiff’s work. Mogrovejo v HG Housing Development Fund Company, Inc.

Labor Law §240   Gravity Risk   Control   Indemnity  

Second Department
Laborer who fell through unprotected opening in floor while preparing to lift 20′ metal beam, held on to sides of opening but let go of beam which then fell on his head granted summary judgment on Labor Law §240(1) as opening presented a gravity risk and beam needed to be adequately secured.

Owner failed to eliminate question of its own negligence on indemnity claim where plaintiff testified owner was supervising his work on day of accident. Owner’s motion for summary judgment of indemnity claim against GC denied and GC not required to provide defense while question remained. Rodriguez v Waterfront Plaza, LLC    

MVA   Workers Comp Defense   Res Judicata   Collateral Estoppel  

Second Department
School bus owner and its driver denied summary judgment on claim they were entitled to exclusivity clause of workers compensation as the employer/coworker of plaintiff-bus matron who was injured when their bus struck another vehicle where they gave conflicting evidence of who employed the matron and driver. These defendants not barred by collateral estoppel or res judicata from litigating this issue as there was no proof the issue was disputed and decided by the WCB. Calixte v City of New York    

MVA   Graves Amendment  

Second Department
Plaintiff failed to meet burden for summary judgment against corporate owner of vehicle he was a passenger in when it collided with codefendants’ vehicle as plaintiff failed to address issue of applicability of Graves Amendment and burden never shifted to defendant-owner. Pierrelouis v Kuten    

Premises Liab   Unknown Cause   Experts  

Second Department
Homeowner granted summary judgment on plaintiff’s testimony that showed he could not identify where he fell on brick pathway or what defect caused him to fall. Plaintiff’s expert failed to raise issue on causation with unspecified defects observed 4-years after the accident. Mercurio v Dayton    

MVA   Rear End   Sole Cause   There to be Seen  

Second Department
Third vehicle that collided with second vehicle pushing it into plaintiff’s vehicle denied summary judgment on claim second vehicle’s sudden switch into lane was sole cause of the accident as there can be multiple causes and moving defendants failed to eliminate question of whether their driver was negligent for failing to see the second car move into the lane in time to avoid the accident. Suchit v Shaikh    

MVA   There to be Seen   Sole Cause  

Second Department
Motion for summary judgment by owner and driver of vehicle that struck Lyft vehicle that had double-parked to let passengers out, injuring Lyft driver, granted as Lyft passenger’s failure to see defendant’s vehicle using ordinary senses before opening rear passenger door when it was not safe, violating VTL §1214, was sole cause of the accident. Elmekki v Covington    

(2 summaries)

Serious Injury   Raised For First Time  

Second Department
Moving-defendants met burden for summary judgment by competent medical evidence that plaintiff did not sustain a serious injury and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Plaintiff’s claim motion should have been denied for failure to attach codefendant’s Answer not considered where raised for first time on Appeal. Norwood v Perez    

Premature Motion   Discovery  

Second Department
Plaintiff’s motion for summary judgment denied with leave to renew after completion of discovery. The Court does not give the details of the proofs. Goldfinger v Freeland    

About Matt McMahon

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