| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In a case of first impression for the Second Department, the Court held that $1 mil jury award for “pre-impact terror,” listed as a separate item of emotional pain/suffering on the verdict sheet, to cover from the moment decedent believed he was going to die until his death was inappropriate in this malpractice and wrongful death case as the emotional pain/suffering was after the “impact,” i.e. the heart attach, not pre-impact and, in any event, was duplicative of the $1 mil jury award for pain/suffering and loss of enjoyment of life between the decedent’s heart attack and death. “[F]ear of death may be considered as a ‘permissible factor’ when assessing the pain and suffering and loss of enjoyment of life resulting from medical malpractice.”Defendants’ Motion for judgment as a matter of law denied where there was a valid line of reasoning for the jury to find the residents departed from accepted practice by failing to report correct ECG interpretations to the attending, order repeat ECG and enzyme tests, and order a timely cardiology consult and the cardiology fellow failing to call the attending to request emergency catheterization and transfer to an ICU which were independent acts of negligence not at the direction of an attending. Verdict not against the weight of the evidence where there were conflicting expert opinions. Molina v Goldberg ✉ |
 Defendants’ motion to dismiss on claim of immunity for injuries caused by treatment affected by providing health care services in response to the COVID outbreak denied for failure to “conclusively” show the non-COVID patient who fell while trying to go to the bathroom and sustained an intracranial bleed, not just patients in general, was affected by their response to the outbreak. Defendants submitted affidavits showing how staff shortages and additional time to don PPE reduced the ability to monitor patients, which the Court noted may ultimately entitle them to the immunity, but did not meet their burden on a motion to dismiss of conclusively establishing the defense. In dicta, the Court noted the plaintiff would have been entitled to discovery to challenge the defendants’ affidavits. Holder v Jacob ✉ |
| Appeal from order denying plaintiffs’ motion to compel 1-defendant ob/gyn to answer EBT questions regarding her interpretation of the fetal heart tracings her attorney directed her not to answer deemed an application for leave to appeal from the order, leave granted, and order reversed as that defendant reviewed the tracings while plaintiffs were in the hospital, gave her opinion regarding the tracings and monitored them with the other defendant ob/gyn before assisting in the c-section, establishing the questions referred to her treatment of plaintiffs and were not ‘solely on the alleged negligence of the codefendant.’ G.M. v Dworkin ✉ |
| NOTEWORTHY (11 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Defendants, premises and bar owner where plaintiff was assaulted, providently precluded from testifying or offering evidence at trial or an affidavit in response to dispositive motions for failure to provide discovery in response to a discovery order or within 20-days as required by a conditional order of preclusion as the order became absolute on noncompliance and defendants offered no reasonable excuse for not complying or a meritorious defense. Marzilliano v Place to Beach ✉ |
| NYCTA’s motion to vacate prior order granting plaintiff leave to amend the Complaint to add NYCTA as a defendant denied where it did not request dismissal on statute of limitations, even though it was raised as a defense in its Answer, as ‘[a] court may grant relief not specifically requested in the notice of motion, pursuant to a general prayer for relief contained in the notice of motion, if the relief is warranted by the facts plainly appearing on the papers on both sides, and if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party’ and the lower court providently exercised its discretion in denying the motion. Caesar v Metropolitan Transp. Auth. ✉ |
| Plaintiff’s motion to vacate order dismissing action for plaintiff’s failure to appear at a pretrial conference providently denied where he may have provided a reasonable excuse of law office failure for not appearing at the conference but not for the 21-month delay in moving to vacate. The Court did not need to consider whether plaintiff had a meritorious action. Gyu U. Cho v Ibrahina ✉ |
| Plaintiff’s motion to vacate her voluntary dismissal of MVA action against NYCTA without prejudice (CPLR §3217) denied without any valid ground to vacate for law office failure or in the interests of justice where the motion was filed 2-years after the discontinuance. Riley v New York City Tr. Auth. ✉ |
| Defendants met burden for summary judgment on their experts’ opinions they did not depart from accepted practice but failed to show the alleged departures were not a cause of decedent’s injuries and death where their opinions on causation were conclusory. Plaintiff’s expert’s opinion the defendants departed from accepted practice by not properly conducting a differential diagnosis and performing an ECG when decedent presented with intermittent joint pain and a history of hypertension and Hashimoto’s disease raised issues in opposition and the expert internist was qualified to give an opinion on symptomology, diagnosis, and accepted practice for heart disease by 35-years of experience. Plaintiff’s motion to amend the Complaint to add additional malpractice dates granted as not devoid of merit, they would not result in surprise or prejudice, and plaintiff raised issues of fact on the application of the continuous treatment doctrine for dates beyond the statute of limitations. Rosenzweig v Hadpawat ✉ |
| Plaintiff raised issues in opposition to defendants’ motion for summary judgment on her expert’s opinion the defendant-ophthalmologist departed from accepted practice and was a cause of her corneal decompensation requiring a corneal transplant for not using an available BSS Plus intraocular irrigating solution during cataract surgery and by failing to treat her corneal edema or refer her to a cornea specialist 6-months after the surgery. Plaintiff did not raise a new theory of liability in opposition. Gardiola v Sung Chui Park ✉ |
| Supermarket granted summary judgment dismissing plaintiff’s claim that cashier injured her by contacting her as she walked to her cart by stepping backwards in a bent position which was an ‘[occurrence] which one might consider sufficiently recurring as to be incidental to the usual routine of life in our society’ and not negligence. Simmons v Stop & Shop Supermarket Co., LLC ✉ |
| Plaintiff granted summary judgment on her testimony she slipped on wet floor in hallway outside her apartment, observed rainwater leaking in from a terrace door for years, and NYCHA’s building caretaker testimony she was aware of the leaking condition for at least a year, took no remedial actions other than spot mopping, and conceded the recurring leak was a slip and fall hazard, giving NYCHA constructive notice of each recurrence of the condition. Graham v New York City Hous. Auth. ✉ |
| Building owner and management company failed to meet burden for summary judgment dismissing plaintiff’s claim for trip and fall on worn carpet in lobby on claim they were out-of-possession landlords as the tenant who leased the whole building was obligated to maintain the lobby under the lease where defendants had an office in the building they used every work day, their employee used the same lobby, and that employee would report any defects to the building’s security for the tenant to remedy. Grullon v 57-115 Assoc., L.P. ✉ |
| Defendant granted summary judgment on his testimony he was travelling in left-most lane when codefendants’ vehicle in which plaintiff was a passenger struck his passenger side door and codefendant-driver and plaintiff testified they never saw moving-defendant’s vehicle before their driver’s side bumper crossed from the middle to left lane and struck moving defendant’s passenger door and that after the accident moving defendant’s vehicle was completely within his lane and codefendants’ vehicle was in the middle lane with the front bumper in the left lane. Glover v Teresa Limo, Inc. ✉ |
| Owner and driver of truck with 50’ beam sticking 2’-3’ from the rear flatbed granted summary judgment on proof it was stopped at a red light when plaintiffs ran into the beam while making a left turn, establishing plaintiffs’ driver was the sole cause of the accident. Joo Seng Saw v Longley ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||