July 28, 2020 | Vol. 221


MUST READS
(6 summaries)
NOTEWORTHYIF YOU MUST READ

MVA   Res Judicata   Collateral Estoppel   No-Fault  

First Department
In evaluating whether a prior declaratory judgment entered on default that found defendants’ insurer not required to provide no-fault benefits or bodily injury coverage to plaintiff, the First Department gives a detailed analysis of res judicata and collateral estoppel or claim preclusion and issue preclusion. The Court found that issue preclusion of collateral estoppel did not apply where the issue was determined on default and not litigated.

The claim preclusion of res judicata did not apply because the parties were not the same in the present and prior DJ action. While defendants were named by their carrier as nominal parties, the carrier made no claim against them and they had no interest in the outcome of that action. Only the carrier had potential liability to pay no-fault benefits. Likewise, the gratuitous finding that the carrier was not required to provide bodily injury coverage to plaintiff did not affect its obligation to provide coverage to the defendants.

The Court refused to follow and distinguished a Second Department case finding otherwise as that Court did not apply “the same parties” requirement for res judicata. Rojas v Romanoff



Med Mal   Informed Consent   Accepted Practice   Causation   Raised For First Time   Expert Aff  

Second Department
Plaintiffs’ failure to argue that their expert opined the OB/GYN’s departures caused the mother’s and child’s injuries in their brief in chief, raised only in their reply brief, was an abandonment of the claim and the court did not need to address the claims of departure in upholding summary judgment for the OB/GYN on causation. Hospitals’ and hospitals’ doctors’ OB/GYN expert’s opinion not probative where expert failed to lay foundation for opinions in the fields of pediatrics, orthopedics, or anesthesia. Statement that he oversaw thousands of cases of labor/delivery, postpartum, and neonatal care was insufficient to establish expertise in those areas. Orthopedist who saw plaintiff/mother once for postdelivery pelvic pain granted summary judgment of anesthesia claims, including lack of informed consent, on proof she did not participate in anesthesia. Roizman v Stromer


False Arrest   False Imprisonment   Motion to Dismiss   Preclusion   Probable Cause   Jury Charge   NYC  

Second Department
NYC’s oral motion to dismiss for failure to prosecute granted after plaintiffs refused to go forward with retrial based on court’s preclusion of evidence to establish police negligence in failing to investigate and corroborate confidential informant’s information used to obtain no-knock warrant. In a civil case plaintiffs must rebut presumption of probable cause from issued warrant “with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer.” It was error at first trial to charge and allow jury to determine whether police obtained “sufficient corroboration.” Ali v City of New York


Amend Complaint   Statute of Limitations  

Second Department
Plaintiff’s motion to amend Summons and Complaint to substitute correct name of defendant after statute of limitations ran denied under both CPLR §§ 305(c) and 3025(b). To amend under §305(c) the correct defendant had to be served, but misnamed, and the amendment used to correct a misnomer. It cannot be used to add or substitute a party after the statute of limitations and there was no proof that the named defendant and that sought to be substituted were the same or that the court had jurisdiction over the one sought to be substituted. Failure to provide the proposed amended Summons and Complaint required denial under §3025(b) and, in any event, was devoid of merit since the statute of limitations had run and plaintiff failed to show that the relation back doctrine applied. Nossov v Hunter Mtn.


MVA   Police   VTL §1104   Turning Vehicle   Reckless  

Second Department
Police officer responding to potential breaking and entering with lights and sirens on, who later turned off lights and sirens based on sergeant’s updates believing it was no longer a “high” priority, entitled to the protections of VTL §1104(b)(4)(directions of travel) when he made a sharp left hand turn striking the vehicle at a stop sign because “responding to a police call” meets the definition of responding to an emergency. Officer’s sharp turn may have been a momentary lapse in judgment but did not meet the reckless standard. Proce v Town of Stony Point


Sepulcher   Governmental Function   NYC  

Second Department
NYC denied summary judgment of right of sepulcher claim where ME discovered correct identity of plaintiff’s 16-year-old son more than 7-years after he was reported missing, through DNA project to identify missing persons, but did not inform plaintiff of the identification for more than 1-month or provide the location of his body in Potter’s Field for an additional 4-years. NYC’s duty to notify the next of kin is a ministerial function that creates a special duty, not a governmental duty such as the decision to perform an autopsy. Cansev v City of New York

NOTEWORTHY
(8 summaries)
MUST READSIF YOU MUST READ

Med Mal   Set Aside Verdict   Pain/Suffering   Loss of Services   Materially Deviates  

Second Department
Judgment on jury award of $800,000/$120,000 for past/future pain/suffering of 27-year-old who suffered 4th-degree perineal laceration during episiotomy with resulting rectovaginal tear from delayed diagnosis and repair, and $100,000 for husband’s past lost services, affirmed as award did not materially deviate from reasonable compensation and was not against the weight of the evidence. Arcos v Bar-Zvi


Labor Law §200   Create Condition   Notice   Discovery   Preclusion   Admissibility   Raised For First Time  

Second Department
Homeowner granted summary judgment of Labor Law §200 and negligence claims on proof he did not supervise work where plaintiff fell off deck while removing a window during renovation, and did not create or have notice of the fact that stairs and railing from deck had been removed. Defendant last visited property 2-days before accident when stairs and railing were present. Lower court should not have considered non-party affidavit where notice witnesses were requested by defendant, plaintiff failed to notice witness prior to opposition, and nothing during discovery would have alerted defendants to the witness. Casilari v Condon


Med Mal   Motion in Limine   Preclusion   Frye   Appealable Order  

Second Department
Appeal from denial of motion to preclude plaintiff’s expert from testifying at trial or for a Frye hearing dismissed as such an evidentiary ruling is at most an advisory opinion that is not appealable by right or permission. Thornhill v Degen


MVA   Motion to Dismiss   Forum non conveniens   Service   CPLR §306-b   Reasonable Excuse   Meritorious Action   Prejudice   Statute of Limitations  

Second Department
Motion to dismiss on forum non conveniens by Owner/Driver of car plaintiff was passenger in when struck by codefendant’s car in Queens granted on condition they stipulate to accept service of NJ action and waive jurisdiction and statute of limitation defenses or motion denied and plaintiff’s motion to extend time to serve one defendant granted, and service on other defendant deemed timely nunc pro tunc. Only contact with NY was situs of accident and weighed against fact all parties resided and all medical treatment was in NJ, NJ was a more proper venue. Plaintiff quickly moved for extension to serve all defendants under CPLR 306-b once jurisdiction was raised, all carriers were aware of claim before 120-days, there was proof of a meritorious action, and defendants were not prejudiced by delay.

Case against codefendant that collided with car plaintiff was in severed and plaintiff’s time to server extended under CPLR 306-b. Lower court did not have authority to dismiss on forum non conveniens sua sponte. DelGrosso v Carroll



MVA   Directed Verdict   Set Aside Verdict   There to be Seen  

Second Department
Defendant’s motion for directed verdict and to set aside as against weight of evidence denied where there was rational path for jury to find defendant’s vehicle, which had the right-of-way entering intersection, failed to see car plaintiff was a passenger in, already in the intersection, and jury could find defendant negligent based on plaintiff’s testimony that defendant impacted the middle and rear of their car with heavy force as supported by photographs. Guo v Efkarpidis


Premises Liab   Slip/Trip   Wet Floor   3rd Party Contractor   Control   Create Condition   Notice  

Second Department
Mall tenant granted summary judgment on proof that Pine Sol spilled on floor seconds before plaintiff slipped on it was in common area and that janitor who spilled Pine Sol was an independent contractor whom they did not control, was paid in cash without benefits or witholding, had no fixed schedule, and she chose what cleaning agents to use. Mall owners/managers granted summary judgment on proof they did not create the condition or have notice of it within a reasonable time to correct. Athenas v Simon Prop. Group, LP


Premises Liab   Slip/Trip   Sidewalk   Duty   Create Condition   Expert Aff   Conclusory   Speculation  

Second Department
Abutting landowners granted summary judgment on proof that City of Rye never sent them a notice to repair sidewalk required for imposition of tort liability under the local law. Plaintiff’s expert’s opinion that defect was created by defendants’ use of a hand shovel for snow removal was conclusory and speculative and at most proved that the condition was created by wear and tear over time and not an affirmative act of negligence. DeBorba v City of Rye


Serious Injury   Causation   Burden of Proof  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof, but plaintiff raised issue in opposition. Because defendants did not meet burden of showing injuries were not caused by accident, burden never shifted to plaintiff who was not required to prove causation. Hong Ki Kim v Desmond

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Uninsured   Stay Arb  

Second Department
Finding after framed issue hearing that car owner involved in accident did not give garage in Pa permission to have prospective buyer drive car and take it to NY resolved issue of applicability of UM coverage and UM carrier’s petition to permanently stay arbitration denied. Matter of Allstate Ins. Co. v Jae Kan Shim

About Matt McMahon

Civil trials and appeals since 1984
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