July 5, 2022 | Vol. 320

(4 summaries)

Malpractice   Emotional Harm  

Second Department
Defendants met burden for summary judgment dismissing mother’s emotional harm causes of action on proof the infant generated a heartbeat from 20-minutes of resuscitation efforts after delivery by C-section but plaintiffs raised an issue of whether the infant was stillborn by proof infant was floppy with no spontaneous respiratory response on delivery, Apgar score of 0 at 1, 5, 10, and 15-minutes, lacked any other indicia of life, and was declared deceased 2-hours after being removed from a ventilator. Khanra v Mogilyansky    

Building Security   Assault   Foreseeability   Intervening Cause  

Second Department
Building owner, management company, and contracted security company failed to meet burden for summary judgment where assailant and accomplice gained access to apartment building by following behind woman and her children who had to buzz remote security to open door, security opened the door without any communication because the intercom was inoperable, and security officers failed to follow proper screening of visitors. Defendants’ argument it was a targeted attack breaking the chain of causation rejected as a jury could find lack of proper screening made entry of intruders to harm a building residents by piggy-backing foreseeable. Carmona v Sea Park E., L.P.    

Malpractice   Attorney Fees   Statute of Limitations   Res Judicata   Collateral Estoppel  

First Department
Proof that injured-plaintiff’s TBI rendered him incapacitated, finding he was incapacitated under Mental Health Law §81, and setting aside Peachtree litigation loans due to his incapacity were not conclusive of issue of insanity toll on defendants’ motion for summary judgment on statute of limitations. Issue of insanity toll should be decided at trial of the legal malpractice and subsequent law firm’s petition for a determination that substituted attorney was fired for cause as the issue of sanity is the same in both cases and resolving the matter at a pre-trial hearing could deprive the parties of their right to trial by jury.

Lower court should not have considered whether fee petition would not be barred by res judicata or collateral estoppel after it denied defendants’ motion for summary judgment on the legal malpractice claim. Matter of Verdugo v Smiley & Smiley, LLP    

Malpractice   Accepted Practice   Causation   Intervening Cause   Amend Complaint   Reasonable Excuse   Meritorious Action  

First Department
Radiologist granted summary judgment on expert’s opinion he did not depart from accepted practice by limiting his examination to shoulder and arm as plaintiff made no prostate or urinary tract complaints and radiologist referred plaintiff to a specialist when an upper extremity CT-scan showed a lung abnormality. Plaintiff’s expert general practitioner failed to lay a foundation to render opinions and failed to address defendant’s expert’s opinions. His opinion that failure to give a PSA test led to a delayed prostate cancer diagnosis did not raise an issue on causation as it was not connected to plaintiff’s paralysis and radiologist referred plaintiff to a specialist for possible metastatic cancer.

Remaining defendants’ claim that even if they departed from accepted practice, low mean arterial pressure maintained by defendant-anesthesiologist during MRI was an intervening cause rejected where additional testing was foreseeable from internist’s admitted failure to timely diagnose spinal tumors and expert opined the delay may have led to spinal infarct during the MRI which also raised causation issue for oncologist’s failure to timely diagnose and treat plaintiff’s cancer.

Plaintiff’s motion to amend Complaint to add allegation of hospital anesthesiologist’s malpractice during MRI providently granted where plaintiff did not initially realize he had an incomplete copy of the hospital record, hospital failed to show prejudice, and defendants’ experts’ showed the claim was meritorious. Greenspan v Stand-Up MRI of Manhattan, P.C.    

(14 summaries)

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Conclusory  

Second Department
Petitioner’s motion to deem Notice of Claim served 95-days after city’s first responders treated him, causing him to go into anaphylactic shock, granted as service 5-days after the 90-day period gave city actual knowledge “within a reasonable time” after the 90-days which also met petitioner’s initial burden of showing no prejudice to city. City attorney’s conclusory argument did not meet its burden of providing particularize evidence of prejudice from delay. Lack of a reasonable excuse insufficient to deny petition. Matter of Gabriel v City of Long Beach    

MVA   Consolidation   Prejudice  

Second Department
Plaintiff’s motion to consolidate 2-cases where he was injured in separate MVAs on allegations that injuries from the first accident were aggravated by the second accident granted only to the extent of ordering a joint trial in the interest of judicial economy and avoiding inconsistent verdicts. Defendants failed to show prejudice to a substantial right by joint trial. Consolidation for all purposes inappropriate where cases involve different defendants. Frank v Y. Mommy Taxi, Inc.    

MVA   Discovery   IME/DME   CPLR § 3101(d)   BP  

Second Department
Defendants’ motion for further IME/DME by an OB/GYN denied where plaintiff’s CPLR §3101(d) response indicating expert would testify that her orthopedic injuries would potentially make it difficult/impossible to carry a fetus did not allege new injuries and defendants failed to show why an OB/GYN examination would be necessary. Plaintiff provided authorizations for her OB/GYN records. Andrade v Frog Hollow Indus., Inc.    

Premises Liab   Compel Acceptance   Reasonable Excuse   Meritorious Defense  

Second Department
Motion to compel acceptance of Answer denied as defense counsel’s excuse that delay was caused by insurance carrier was insufficient to provide a reasonable excuse. Without a reasonable excuse, Court did not need to look at issue of meritorious defense. Goldstein v Ilaz    

MVA   Motion to Dismiss   Vacate Default   Estate   Untimely   Reasonable Excuse   Conclusory  

Second Department
Plaintiff’s motion to vacate order granting defendant’s unopposed motion to dismiss for failure to timely substitute estate after defendant died denied as untimely where brought 3-years after service of the order of dismissal with Notice of Entry which is required to be filed with 1-year of service with Notice of Entry. Plaintiff’s conclusory claim of law office failure did not provide a reasonable excuse for delay in bringing the motion. Mazin v Dangelo    

Labor Law §241   Control   Sole Cause   Question of Fact  

First Department
Lather foreman who slipped and fell on plywood floor of gantry that was slippery from rain as he and coworkers lowered rebar to floor below denied summary judgment where proof could be interpreted to find plaintiff was following supervisor’s orders when he slipped or that he could stop the work for safety reasons and as an experienced foreman was the sole cause of his fall for continuing to work despite the slippery condition. Plaintiff’s evidence was that he was directed by his higher foreman who told him where to work and what to do, rejected plaintiff’s request to use a crane to move the rebar, and shut down the work because of the rain about 1-hour after plaintiff fell. Owner’s evidence was that plaintiff was a foreman with 30-years’ experience, supervised his crew, held safety meetings including one that day, and owner’s assistant superintendent stated that someone with plaintiff’s experience would refuse to continue working under the conditions that day. There were 2-dissenters. Sutherland v Tutor Perini Bldg. Corp.    


Second Department
Nursing home’s motion to compel plaintiff to serve a malpractice Certificate of Merit and to move the action to the malpractice part denied as allegations that defendant failed to properly secure plaintiff’s decedent or use proper wheelchair restraints while decedent was being transferred in an ambulette do not involve issues of medical competence or judgment linked to decedent’s treatment and, therefore, the action sounds in negligence not malpractice. Kaziyeva v Temana Assoc., Inc.    

MVA   Turning Vehicle   Admissibility   Hearsay   Admission   Uncertified Records  

Second Department
Plaintiff granted summary judgment on her affidavit that defendants’ truck made a left-hand turn from the second lane, partially entered her lane, and struck her vehicle which was stopped in the first turning-lane. Photograph showing plaintiff’s car up to 1-car length from intersection did not raise a triable issue as it did not contradict that truck crossed into plaintiff’s lane and struck her stopped vehicle.

Defendant-driver’s unsworn statement inadmissible. Uncertified police report inadmissible and plaintiff’s statement in report not admissible as an admission or as admissible hearsay in opposition to a motion as it would be the only proof in opposition. Defendants failed to explain failure to submit police report in admissible form. Pena v KST Trucking, Inc.    

Premises Liab   § 7-210   Duty   Create Condition  

Second Department
Abutting landowner and management company granted summary judgment where plaintiff tripped on Belgian block around tree well as abutting landowner does not have a duty to maintain tree wells under administrative code §7-210 and defendants proved they did not create the condition or cause plaintiff to fall through a special use. Ivry v City of New York    

Premises Liab   Assault   Discovery  

First Department
Plaintiff’s motion to compel discovery from defendant-Equinox granted to the extent of ordering a 6-year lookback period but denied as to discovery for all Equinox NYC locations other than where plaintiff was allegedly sexually assaulted in a steam room as they are not a unified complex but individual facilities. Demand for legal file from other lawsuit against Equinox denied as plaintiff had already obtained sufficient information from that lawsuit and the events were too remote. Crandall v Equinox Holdings, Inc.    

Premises Liab   Assault   Unknown Cause  

Second Department
Defendants granted summary judgment dismissing slip and fall claim where plaintiff testified he could not recall how or where he slipped and assault claim dismissed where he could not recall an altercation or being hit as plaintiff could not establish causation without speculation. Barnett v Fusco    

MVA   Bus   Turning Vehicle   Emergency Doctrine   Causation  

Second Department
NYCTA and its bus driver failed to eliminate all questions of whether they were negligent and a cause of the accident where bus drove into intersection from bus stop hitting plaintiff’s rear passenger door with the left front corner of the bus as plaintiff made a right hand turn. Defendants not entitled to emergency doctrine where jury could find their driver partially at fault. Mohammed v City of New York    

MVA   Pileup   Causation  

First Department
Third vehicle granted summary judgment where all parties agreed impact between first and second vehicles happened before third vehicle struck second vehicle, plaintiff testified there was only 1-impact, and second driver testified he was stopped when struck by third vehicle and was not pushed into first vehicle. Velasquez v Miranda    

MVA   Bus  

Second Department
NYCTA granted summary judgment on plaintiff’s testimony showing that stop that caused plaintiff to fall on the bus was not “unusual or violent” or different than the normal jerks and jolts on city buses. The Court does not give the details of the proofs. Gordon v New York City Tr. Auth.    

(2 summaries)

MVA   Vacate Default   Serious Injury   Reasonable Excuse   Meritorious Action  

Second Department
While defendants did not dispute plaintiff provided a reasonable excuse for not opposing their motion for summary judgment on serious injury, plaintiff’s motion to vacate the default denied where he failed to show a meritorious action. The Court does not give the details of the proofs. Gerontianos v Rodgers    

MVA   Question of Fact  

Second Department
Plaintiff failed to meet burden for summary judgment for MVA where defendant-driver’s testimony, submitted on plaintiff’s motion, raised issues of fact. The Court does not give the details of the proofs. Walker v Ryder Truck Rental & Leasing    

About Matt McMahon

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