July 5, 2016 | Vol. 9

MUST READS
(5 summaries)

Products Liab   Warnings   Asbestos   Stream of Commerce  

Court of Appeals

A product can be defective because of design, manufacture, or inadequate warning. When proceeding under the inadequate warning portion of product liability, liability carries the same requirements as negligence, including the existence of a duty. In this lengthy opinion, the Court of Appeals looked at 2 asbestos cases where it was claimed that the manufacturer failed to give warnings on its high temperature steam valves, manufactured without asbestos, that were packed with an intended to be used with asbestos gaskets and insulation. The manufacturer argued that liability for failing to warn of a third-party manufacturer’s part can only be found where it would be physically impossible to use the manufacturer’s product without the harmful third party product. Rejecting that argument, the Court clarified its prior rulings and decisions among the Appellate Divisions by stating the rule as follows:

“[T]he manufacturer of a product has a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer’s product to function as intended.“

Weighing the criteria for imposing strict liability upon manufacturers, the Court found that the defendant manufacturer’s encouragement of use of asbestos products with its valves placed it in a superior position to warn of the dangers of use of the asbestos third-party products at little cost. Especially where it manufacturers a durable product to be used with fungible products that wear out often. The manufacturer indirectly placed the asbestos into the stream of commerce by its intention that their valves be used with the asbestos products. The Matter of New York City Asbestos Litigation Doris Kay Dummitt v. A.W. Chesterton The Matter of Eighth Judicial District Asbestos Litigation Joann H. Suttner v. A.W. Chesterton Company


OPMC   Propensity   Med Mal   Accepted Practice   Intervening Cause  

Court of Appeals

Psychiatrist admitted prior to trial that he departed from accepted practice by prescribing Paxil without examining or monitoring the patient for more than 10 years. His defense relied on his argument that subsequent treatment constituted an intervening cause and, therefore, his departure could not be a proximate cause of the plaintiff’s decedent’s suicide. The concession of departure appeared to be motivated by the trial court’s denial of a motion in limine to preclude evidence of an OPMC Consent Order where defendant agreed not to contest findings of negligence for 12 of 13 patients (excluding plaintiff’s decedent) for similarly failing to monitor patients. The trial court, over defendant’s objection, admitted the OPMC Consent Order and plaintiff’s counsel used it extensively on cross-examination and summation. The jury found the psychiatrist and subsequent treating psychiatrist negligent but that only the appealing psychiatrist’s departure was a proximate cause of the suicide.

It was reversible error to admit the OPMC consent order which, although presumptive evidence of the facts contained therein, did not pertain to the defendant’s treatment of plaintiff’s decedent. Collateral evidence to attack a party’s credibility should not be admitted as it distracts the jury from the real issues. In addition, as used by the plaintiff’s attorney, it had the effect of proving defendant’s liability by propensity which is impermissible except in very limited circumstances not present in the case. Judgment was reversed and a new trial ordered.

The Court further found that subsequent treatment is not that type of “extraordinary” unforeseeable circumstances which would break the chain of causation and, therefore, it did not constitute an intervening cause. Janice Mazella v. William Beals, M.D.


Drug Testing   Federal Regulations   Fraud  

Court of Appeals

Plaintiff, a pilot and physician authorized to conduct Aviation Medical Examinations, appeared for a mandatory urine drug screening. His initial sample was too small to be tested. Under federal regulations there is a specific protocol for “shy bladder” situations where the examinee is not allowed to leave the test area before giving a full sample. Leaving without giving a full sample is considered a “refusal to test.” The examiner did not explain the refusal to test condition or other “shy bladder” instructions before the plaintiff left. There was conflicting testimony as to why the examiner did not give the required instructions, but it was not contested that the instructions were not given.

The plaintiff’s pilot and AME licenses were revoked and the revocation upheld twice on administrative appeals and overturned twice by the District Court. Eventually his licenses were reinstated but he sued the lab which took the test and the company which acted as the Medical Review Officer for both negligence and fraud. The Second Circuit certified 2 questions to the Court of Appeals, 1) Does a lab have a duty under New York tort law to comply with federal regulations? and 2) Can the reliance element of fraud be fulfilled by a third party’s (FAA) reliance on the misstatement to the detriment of the plaintiff?

The Court found that while a lab testing company owes a duty to comply with applicable industry standards and practices necessary to ensure safe and accurate testing, it does not have a duty, under New York tort law, to comply with ministerial federal rules or regulations which do not affect the safety or accuracy of the testing.

Settling a question with conflicting decisions in various jurisdictions and among the New York Appellate Divisions, the Court stated that a third party’s reliance on a misstatement to the detriment of the plaintiff cannot fulfill the reliance portion of a cause of action for fraud. It must be the plaintiff who, directly or indirectly through a third-party, relies on the misstatement to his or her detriment.

There were 2 dissents on the issue of duty and 1 dissent on the issue of reliance. Doctor Fred L. Pasternack v. Laboratory Corporation of America Holdings


Consolidation   Asbestos   Materially Deviates  

Court of Appeals

Over defendant’s objections the lower court ordered the joint trial of 10 cases into separate trials, one containing 7 cases of mesothelioma and the other containing 3 cases of lung cancer. Before the mesothelioma trial began, 5 of the 7 cases settled. After a verdict in plaintiffs’ favor, defendant argued that a joint trial of just the 2 mesothelioma cases was improper in post-trial motions. The Court of Appeals, agreeing with the dissent in the Appellate Division, found that the issue was not preserved and that the defendant did not put forth the proper record because the objection had not been made prior to the joint trial of the two mesothelioma cases.

While the court of appeals does not have authority to review excessiveness of verdicts, the Court noted that neither CPLR §5501(c) nor CPLR R 5522 require the Appellate Division to expressly compare the award to prior written decisions. Ruby E. Konstantin v. 630 Third Avenue Associates


Litigation Loans  

First

Assignee of litigation loans had standing to intervene in action regarding the split of attorney’s fee fee in tort action. The First Department specifically acknowledged that while fee sharing agreements with non-attorneys is prohibited, litigation loans by law firms secured by accounts receivables are permitted, citing the New York County case of Hamilton Capital VII, LLC v Khorrami, LLP. Heer v North Moore St. Developers, L.L.C.

NOTEWORTHY
(26 summaries)

Legal Mal   Spoliation   Motion to Dismiss   Gross Negligence  

First

Lower court granted defendant leave to renew motion for spoliation on evidence of new witnesses, not previously disclosed, that his records had been destroyed due to not issuing a litigation hold for two years after plaintiff was aware of the need to preserve the records, and upon renewal, dismissed the action for spoliation. The appellate division modified to the original sanction of a negative inference charge and monetary sanction of $10,000. Where the destruction is intentional or the product of gross negligence, relevance of the lost or destroyed evidence is presumed. However, a spoliation sanction must be balanced under the circumstances with dismissal of a complaint warranted only when the evidence was the sole means for the defendant to make out their defense. There was sufficient discovery provided for the defendant to make out a defense without the destroyed information and, therefore, a negative inference was the appropriate sanction. Arbor Realty Funding, LLC v Herrick, Feinstein LLP


Materially Deviates   Set Aside Verdict   Asbestos   Attorney Fees   Indemnity   Labor Law §200   Control  

First

$3,500,000 award for future pain and suffering upheld as it does not materially deviate from awards for similar injuries. Jury’s finding against national grid under Labor Law §200 was appropriate where national grid’s predecessor, Lilco, issued specific directives for installation of asbestos containing concrete and insulation and ensured that the instructions were followed, establishing control over the methods and manner of work. Contractual indemnification clause provided for indemnification whether or not Lilco was negligent. Lower court’s denial of attorney’s fees was modified to permit attorney’s fees for defending action but not for pursuing contractual indemnity claim. Matter of New York City Asbestos Litig.


Labor Law §240   Labor Law §241  

Second Deptartment

Homeowner who bought house to renovate and sell, as he had done with 15 other homes, was not entitled to summary judgment on homeowner’s exception for the plaintiff’s injury while using a table saw during the renovation. Homes being renovated for resale or rental are not entitled to the homeowner’s exception. If the owner lives in the property being renovated, then applicability of the homeowner’s exception is dependent upon the circumstances and intentions at the time of the renovations. In this case, the property owner did not live in the house until after the renovations and listed it for sale four months later even though he typically lives in them for 2 to 4 years before selling them. He sold early because of plans to move closer to where his daughter would be going to school. Under the circumstances, defendant failed to show prima facie entitlement to summary judgment on homeowner’s exception. Credibility issues would be determined by trier of the facts. Batzin v Ferrone


Labor Law   Preclusion   Summary Jud   Good Faith Aff   Discovery  

Second Deptartment

Lower court should have granted defendant summary judgment where, after failing to comply with numerous discovery orders including a conditional order of preclusion, the defendant moved for summary judgment and plaintiff did not oppose the motion. 22 NYCRR 202.7(a)(2) (good faith affirmation) applies only to motions for disclosure and not motions for summary judgment. Piemonte v JSF Realty, LLC


CPLR § 3126   Vacate Default   Note of Issue  

Second Deptartment

Lower court improvidently exercised its discretion in denying plaintiff’s motion to vacate the dismissal for failure to file a note of issue on the date contained in the court’s order. While reasonable excuse and meritorious defense prohibit a court from dismissing case under §3126, they are not absolutely necessary to vacate dismissal. Attorney’s affirmation that he did not receive order with note of issue date and fact that he promptly moved to restore after it was marked disposed should have resulted in vacating the dismissal. Bell v United Parcel Serv., Inc.


Labor Law §240   Ladder  

Second Deptartment

Plaintiff’s motion for summary judgment on §240 (1) claim should have been granted on showing that the only ladder he was provided was not secured allowing the ladder and him to fall. Since no other safety devices were provided, plaintiff’s use of the ladder could not be the sole proximate cause of the fall. Baugh v New York City Sch. Constr. Auth.


Turning Vehicle   Parked Vehicle   Foreseeability  

First

Plaintiff was severely injured when an ambulance made a left-hand turn from the middle lane of the roadway in order to maneuver around a UPS truck which was parked in the left-hand lane waiting for a space at a loading dock. Summary judgment for UPS was properly denied as ‘owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact that the issues of foreseeability and proximate cause.” Bautista v Grand Ambulette Serv., Inc.


Med Mal   Judgment Rule   Emergency Doctrine   Intoxication  

First

Medical defendants granted summary judgment upon showing that they did not depart from accepted medical practice by maintaining patient on Zosyn, an antibiotic effective against E. coli, the only organism on plaintiff’s wound cultures. Plaintiff’s expert’s affirmation was conclusory, stating that the patient should have been switched from Zosyn to fluoroquinolone and that is what caused plaintiff’s leg amputation. Plaintiffs expert did not address defendant’s expert’s opinion that an organism is often sensitive to more than one antibiotic and that the choice of an antibiotic is a matter of physician judgment.

Initial injury occurred when plaintiff who was severely intoxicated suddenly appeared in the defendant driver’s lane of traffic without sufficient time for the driver to take evasive action or apply brakes or horn in the two or three seconds before impact. Pripkhan v Karmon


Med Mal   Certificate of Merit   Res Ipsa Loquitor   BP  

Second Deptartment

Plaintiff filed a certificate of merit with the complaint stating that he was relying solely on res ipsa loquitur, CPLR §3012-a(c) instead of a certificate of merit under CPLR §3012-a(a). Lower court properly struck certificate of merit as failure to diagnose and treat fracture of knee was not the type of “factually simple medical malpractice cases which require no expert,” and granted conditional order dismissing the case against the hospital if plaintiff did not file a correct certificate of merit.

Summary judgment for 2 doctors who moved to dismiss claiming that plaintiff failed to sufficiently reply to their demands for bills of particular was reversed as the bills of particulars provided general statements of the acts and omissions of each defendant, set forth the condition that the defendants failed to diagnose and treat and, therefore plaintiff did not willfully fail to disclose information or comply with the court order. Monzon v Chiaramonte


Med Mal   Accepted Practice   Expert Aff  

First

Hospital and doctor granted summary judgment by showing that they did not deviate from standard of care. Plaintiff’s evidence, including an expert’s affirmation stating only that Eculizumab was “a promising new therapy…. [that] should have been known to her physicians and used by them,” fell short of showing that it was a standard of care for treatment of atypical hemolytic uremic syndrome (aHUS). Literature submitted by plaintiff which similarly referred to the drug as a promising therapy which is not FDA approved for use with aHUS, without controlled studies or establish protocols, did not raise question of fact. Castillo v Mount Sinai Hosp.


Dental Mal   Set Aside Verdict   Law of the Case   Untimely  

Second Deptartment

After jury returned a verdict in favor of the plaintiff in case alleging malpractice and lack of informed consent for root canal and related procedures, the defendant moved to set aside the verdict and for a directed verdict. While that motion was pending, plaintiff entered judgment. Defendant appealed the judgment but the appeal was dismissed as untimely and defendant’s motion to file a late notice of appeal was denied. Subsequently the lower court granted the motion to set aside the verdict. Plaintiff appealed arguing that the dismissal of the appeal from the judgment was law of the case taking the power to decide the motion to set aside away from the lower court. Appellate court noted that dismissal of appeal as untimely, as opposed to for failure to prosecute, is not on the merits, and affirmed the lower court. Mosby v Parilla


Med Mal   Informed Consent  

First

Claims that ophthalmologist departed from accepted medical practice during cataract extraction surgery were properly dismissed as proof showed that arterial occlusion from the procedure was the result of “sickling,” a condition not disclosed to the doctor by the patient, and not a retrobulbar hemorrhage which was not shown on the MRI. Claim for lack of informed consent, however, was reinstated because plaintiff raised an issue of fact as to whether doctor informed her of the potential complications and alternatives to anesthetic injection. Gallimore v Allison


Premature Motion   Discovery  

Second Deptartment

Lower court correctly denied summary judgment on grounds that motion was premature in that depositions had not yet taken place. Parties are entitled to reasonable opportunity to conduct discovery before summary judgment motions. Court should not, however, have denied the motion “in all respects,” but should have denied without prejudice to renewal after discovery. Order modified accordingly. Herrera v Gargiso


Building Security   Circumstantial Evidence  

First

Lower court’s grant of summary judgment in favor of defendant reversed. Plaintiff raised a question of fact regarding intruders gaining access through broken door locks by plaintiff’s testimony that he lived in the building from more than 25 years and did not recognize the assailants whose faces were not concealed. Patton v New York City Hous. Auth.


3rd Party Contractor   Espinal   Slip/Trip   BP  

Second Deptartment

Plaintiff sued homeowner’s contractor for trip and fall on top step of external stairway and improperly secured handrail. All third-party contractor needs to prove for prima facie entitlement to summary judgment is that the exceptions to the rule that a third-party contractor is not liable to the general public which are pled in the bill of particulars do not apply. Contractor proved that the condition of the stairs and handrail, even if defective, were no worse than before their work. Plaintiff failed to show that dangerous condition was created or exacerbated by the contractor’s work. Barone v Nickerson


Premises Liab   Suicide   Wrongful Death   Intervening Cause  

Second Deptartment

Hotel owners entitled to summary judgment where plaintiff’s decedent climbed a parapet wall of a 10 story hotel and jumped. Plaintiff’s decedent’s actions constituted a superseding cause relieving the hotel owner of liability. Estate of Morgana v Staten Is. Hotel


Notice   Dangerous Condition  

First

The court reversed the lower court’s denial of Costco’s motion for summary judgment of plaintiff’s claim that he was injured when one of the wheels of a shopping cart fell off causing him to fall. He had been using the shopping cart for 10 minutes before one of the wheels began to wobble and it was another 10 minutes until the wheel fell off. Consequently, the defendant could not have had notice. Neither the plaintiff nor his wife notified a Costco employee of the problem with the cart. Rejaee v Costco Price Club


Pileup   Nonnegligent Explanation   Rear End  

Second Deptartment

Lower court’s grant of summary judgment against middle car of three car pileup was modified to deny summary judgment based on middle car defendant’s testimony that they too were stopped when they were hit in the rear by the third car and propelled into the plaintiff’s car. Middle car was not entitled to summary judgment because of plaintiff’s testimony that he felt 2 impacts. Mahieddine-Benziane v O’Connor


Premises Liab   Abutting Landowner   Slip/Trip  

Second Deptartment

Plaintiff was not entitled to summary judgment against abutting landowner for trip and fall on concrete slab not replaced by homeowner (3 of 4 were replaced by homeowner). Village requirement that landowner keep sidewalk in good repair does not impose tort liability and plaintiff did not show that abutting landowner created the condition or that it was caused by homeowner’s special use. Obee v Ricotta


Turning Vehicle   Emergency Doctrine  

First

Defendant entitled to summary judgment upon his testimony that he was entering the intersection, with plaintiff as his passenger, when an oncoming car made a left turn directly in front of him and he was unable to stop before impact. Plaintiff’s claim that defendant failed to slow when going through the intersection was conclusory. Revels v Schoeps


Turning Vehicle   Sole Cause  

Second Deptartment

Third-party defendant was entitled to summary judgment where testimony of plaintiff, passenger in third-party defendant’s car, defendant, and third-party defendant driver showed that the defendant failed to yield the right-of-way to the third-party defendant’s vehicle which was already in the intersection and, therefore, was the sole proximate cause of the accident. Defendant’s testimony that he stopped at the light before entering the intersection failed to rebut the evidence that he failed to yield the right-of-way. Nohs v DiRaimondo


Assumption of Risk   Products Liab  

First

Plaintiff was an experienced treadmill user who had used the sports club facility 5 times a week and the treadmills at least 10 times. She was, therefore, familiar with the use and operation of treadmills and assumed the obvious and inherent risks of using them. On her products liability claim, she failed to show how the product was defective. Her claim that the function stopping the treadmill after 30 second of nonuse was rebutted by defendant’s showing that it complied with industry standards. Ingram v Life Fitness


Premises Liab   Unknown Cause  

Second Deptartment

Defendant should have been granted summary judgment based on plaintiff’s deposition testimony showing that she could not identify what caused her to fall as she stepped from a treadmill in a fitness club where she was a member. Rozen v Joan & Alan Bernikow Jewish Community Ctr. of Staten Is.


Premises Liab   Slip/Trip   Unknown Cause  

Second Deptartment

Restaurant entitled to summary judgment on plaintiff’s EBT testimony that she did not know what caused her to fall when she stepped from carpeted area to tile area at Houlihan Restaurant. Cohen v A.C.E. Rest. Group of N.Y., LLC


Dental Mal   CPLR § 3126   Strike Answer  

Second Deptartment

Lower court providently exercised its discretion in not striking defendant’s Answer. To strike an Answer, defendant’s failure to go forward with discovery must be shown to be willful, intentional, and contumacious which can be inferred from repeated failures to go forward. Here numerous adjournments were sought and requested by the parties and granted by the court negating any inference of intentional or contumacious conduct. Henry v Datson


Sepulcher   Privity  

First

Lower court denied plaintiff’s motions for default, summary judgment, and disqualification of attorney and granted defendant’s motion for summary judgment. Plaintiff was the decedent’s granddaughter. Nearest next of kin were decedent’s children who elected the granddaughter to act as their agent for funeral arrangements, but that did not elevate her to the next of kin for a right of sepulcher action. Turner v Owens Funeral Home, Inc.

IF YOU MUST READ
(7 summaries)

Duty   Unopposed Motion  

First

Defendant, which participated in renovation of garden but had no involvement with it after the renovation, owed no duty to maintain the premises in a reasonably safe condition. Defendant entitled to summary judgment on assistant director’s testimony that it did not create the tripping hazard (rebar sticking out from a concrete slab), that it assisted in clearing tripping hazards, and that he did not see wires or rebar sticking out of concrete during the renovation project. Plaintiff could not say how long the condition existed for. Motion was unopposed by plaintiff and codefendants. Sewesky v City of New York


Coverage   Reasonable Excuse   Taped Conversation  

Second Deptartment

Lower court improperly granted judgment in favor of third-party defendant finding no duty to defend or indemnify where insured did not give carrier notice of claim until three years after the accident. Insured rebutted carrier’s prima facie case by showing that they did not know about the accident until they received the summons and complaint. Transcript of recorded conversation between carrier’s investigator and building superintendent was inadmissible as it was not verified or certified and it did not resolve the issue of when the insured first new of the accident. Osorio v Bowne Realty Assoc., LLC


Sanctions  

First

In employment discrimination case, Supreme Court granted sanctions against defendant for submitting two motions without an affidavit from a person with knowledge. Appellate Division reversed finding that the court did not meet the requirements of 22 NYCRR 130-1.2 which requires that the conduct found to be frivolous and reason for imposing legal fees or costs be set out. Moreover, an affidavit by someone with knowledge was provided albeit in a reply. Pusterla v Manipal Educ. Ams., LLC


Coverage  

First

Summary judgment for carrier declaring it had no obligation to cover based on owner’s admission to investigator that it was a three family dwelling and not the two family dwelling covered upheld. Almonte v CastlePoint Ins. Co.


Legal Mal   Statute of Limitations   Continuous Representation  

First

Action commenced 7 1/2 years after last representation by defendant was dismissed on Statute of Limitations. Plaintiff failed to make showing that action was tolled by any continuous representation. Buday v Gottlieb, Rackman & Reisman, P.C.


Serious Injury  

Second Deptartment

Lower court grant of summary judgment on serious injury to defendants reversed. Plaintiff raised a triable issue of fact as to serious injury of her left shoulder. The court does not give the details of the proofs. Hyun Hee Jung v Motaleb


Serious Injury  

Second Deptartment

Grant of summary judgment to defendant on serious injury grounds reversed. Defendant failed to meet its initial burden and it is unnecessary to review plaintiff’s opposition. The court does not give any details of the proofs. Lomnicki v Briere

About Matt McMahon

Civil trials and appeals since 1984

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