July 7, 2020 | Vol. 218

(6 summaries)

Med Mal   Accepted Practice   Causation   Question of Fact   Expert Aff  

Second Department
Internist, ER doctors, and hospital granted summary judgement where defendants’ expert conceded endocarditis was necessary condition in differential diagnosis for 14-year-old with fever and history of recent of dental work but opined it was not necessary to rule it out because it was rare and not strongly suspected despite plaintiff’s expert’s contrary opinion that it was required to be ruled out by an echocardiogram, finding no issue of fact on departure. Echocardiogram performed 3-days after initial ER visit and 4-days after internist learned history of dental work showed vegetation that would have required 72-hours to develop and could not be treated with antibiotics alone at time of initial ER visit establishing departures were not cause of need for surgery. Plaintiffs’ expert opined that if echocardiogram was performed when internist learned of history of dental work endocarditis would have been treatable by antibiotics alone at that time but did not address defendants’ experts’ opinion that it could not be treated with antibiotics alone at time of first ER visit. Lyakhovich v Vernov

Wrongful Death   Forum non conveniens   Statute of Limitations  

Second Department
Motion to dismiss on forum non conveniens by Port Authority, Port Authority police, and defendant airlines granted where accident occurred in New Jersey, plaintiff’s decedent lived and received medical treatment in New Jersey, plaintiff resided in Georgia, and no known witnesses resided in New York on the conditions that 1) defendants accept service of new Complaint alleging same causes of action in New Jersey, and 2) they wave all defenses to statute of limitations that were not barred under New York law at time action was commenced in New York. Sikinyi v Port Auth. of N.Y. & N.J.

Comment: CPLR §327(a) gives court broad power to condition dismissal “on any conditions that may be just.”

Med Mal   Emotional Harm   Wrongful Death  

Second Department
Defendants granted summary judgment of emotional distress claim on proof infant was born with a heartbeat, albeit under 60-BPM, which meets definition of live birth under PHL §4130(1) even though infant did not breathe, was never conscious, and considered legally brain-dead. There is no recovery for emotional distress for in utero fetal injury resulting in a live birth. Court noted that unavailability of both an emotional distress and wrongful death claim is ‘an inherent aspect of wrongful death actions rather than a specific problem with prenatal medical malpractice actions.’ Waring v Matalon

Premises Liab   Causation   Expert Aff   Frye  

Second Department
Condominium failed to meet burden for summary judgment where neuropsychologist report claiming no scientific support for causal connection between mold and neurological symptoms failed to address specific toxin alleged present in plaintiff’s urine samples and plaintiff claimed more than neurological injuries. Whether specific contaminants can cause physical injuries does not require a novel scientific theory and defendants’ request for a Frye hearing denied. Davydov v Board of Mgrs. of Forestal Condominium

Med Mal   Informed Consent   Accepted Practice   Causation   Uncertified Records   Admissibility   Expert Aff  

First Department
Dentist granted summary judgment on expert opinion that he properly diagnosed tooth infection, referred patient to oral surgeon, and prescribed Clindamycin but both he and oral surgeon failed to show they obtained informed consent where C. Diff is a rare but known risk of Clindamycin. Instructing plaintiff to contact her primary doctor if she experienced side effect does not satisfy informed consent. Oral surgeon’s own affidavit broadly stating she complied with accepted practice and that Clindamycin did not cause plaintiff’s injuries did not detail what accepted standards were and failed to give evidence that Clindamycin was not a cause of the injuries.

Defendant properly relied on uncertified medical records as business records kept in the ordinary course of business and relevant to the care and treatment of the patient. Plaintiff relied on the same records in opposition. Viera v Khasdan

MVA   Police   VTL §1104   Reckless   NYC  

Second Department
NYC and police officer denied summary judgment on questions of fact of whether officer entering intersection against red light in response to radio call for assistance acted with reckless disregard. Calixto v City of New York

Comment: While the Court does not detail the factor raising an issue on reckless disregard, from the motion record the fact the officer did not turn on lights/sirens before entering the intersection, not necessary for application of VTL §1104 for police, was the factor requiring denial of summary judgment.

(13 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Recalcitrant Worker   Sole Cause   Last Inspection   Indemnity  

First Department
Summary judgment for plaintiff and defendant on Labor Law §§240(1) and 241(6) precluded by question of fact of instructions to use safety harness and whether plaintiff followed instructions which could establish plaintiff was “a recalcitrant worker and, thus, the sole proximate cause of his accident.” Defendant denied summary judgment on Labor Law §200 and negligence without proof of last time area was inspected. Pointing to gaps in plaintiff’s proof does not meet defendant’s burden of proof. Third-party defendant granted summary judgment on contractual indemnity where agreement was entered into after accident without clear evidence of pre-accident agreement intended to be included in post-accident policy. Kolakowski v 10839 Assoc.

Med Mal   Informed Consent   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Expert Aff   Speculation  

Second Department
Jury verdict of $1,134,228.04 finding defendants only departed from accepted practice by failing to inform plaintiff of dural patch applied during functional endoscopic sinus surgery and in postop care, including failing to order CT scan, reversed and defendants granted directed verdict where there was no rational path for jury to find plaintiff’s injuries, including loss of smell, subsequent surgery to drain a sinus cyst, and repair of bone where dural patch was applied, were proximately caused by the departures. Plaintiff’s expert established departure from accepted practice but attributed injuries to the way the surgery was performed which the jury found was not departure. Berger v Shen

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

Second Department
Plaintiff’s expert raised issue in opposition to defendant’s showing of entitlement to summary judgment with opinion that defendant’s failure to debride wound and sealed it with glue like substance that caused infection, deterioration of tissue requiring amputation of index finger was a departure. Conflicting expert opinions preclude summary judgment. Plaintiff’s theory that defendants went beyond consent presented a new theory raised for the first time in opposition where not detailed in pleadings or addressed at defendant’s deposition. Defendant granted summary judgment on informed consent. Larcy v Kamler

MVA   Police   VTL §1104   Reckless   Expert Aff   Conclusory   Speculation  

Second Department
Municipality and police granted summary judgment under VTL §1104 where plaintiffs and plaintiffs’ decedents were injured by vehicle that went through red light at high speed while trying to avoid being pulled over by police with lights/sirens on. Engaging emergency lights/sirens and attempting to pull over vehicle speeding towards red light is not, as a matter of law, reckless. Plaintiffs’ expert’s opinions were conclusory and speculative and along with excerpts of police manual did not raise issues of fact. Wonderly v City of Poughkeepsie

Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   § 7-210   Duty   3rd Party Contractor   Create Condition  

First Department
Rite aid obligated under its lease to clear snow from adjacent sidewalk including “key transit stops” and its snow removal contractor denied summary judgment where plaintiff slipped on snow on sidewalk after exiting a bus as they failed to prove claim that fall was in a bus stop they were not required to maintain under administrative code §7-210. Administrative code §16-124.1 does not define precise dimensions of a bus stop. They also failed to show their snow removal efforts did not create the dangerous condition. Smoot v Rite Aid

Premises Liab   Motion to Dismiss  

Second Department
Motion to dismiss by flag football league and school district based on written waiver of right to sue for ordinary negligence denied where plaintiff alleged he paid fee to participate in league and league paid school to use field making waiver void under GOL §5-326. Defendants’ reply that school district was not paid for use of field only raised question of fact. Marc v Middle Country Cent. Sch. Dist.

MVA   Consolidation   Venue  

Second Department
Motion to consolidate Queens case with Nassau case for joint trial in Nassau County granted to the extent of ordering joint trial but case transferred to Queens County as case there was commenced first invoking jurisdiction as required by CPLR §602(a) absent special circumstances. Jimenez v Benson

Labor Law §240   Safety Devices   Causation   Sole Cause   Agent   Control  

Second Department
Building owner and contractor hired to renovate exterior balconies, including one plaintiff fell 30′ from, raised issues of fact in opposition to plaintiff’s prima facie showing that hook holding safety cable to wall failed causing him to fall by proof questioning whether hook failed and whether plaintiff acted outside his authority by working on balcony precluding summary judgment for plaintiff. Subcontractor granted summary judgment on proof it was not a statutory agent with authority to control and supervise work plaintiff was performing. Yaguachi v Park City 3 & 4 Apts., Inc.

Premises Liab   Slip/Trip   Stairs   3rd Party Contractor   Duty   Espinal  

First Department
Contractor hired to repair step plaintiff fell on denied summary judgment where question of fact remained on whether its welding caused he stair to be loose, launching instrumentality of harm under Espinal. Stair repair was not completed until after plaintiff’s fall. Moran v 2085 LLC

Premises Liab   Elevator   Discovery  

Second Department
Building owner’s motion for protective order preventing deposition of second witness denied where plaintiff showed original witnesses lacked sufficient knowledge of the events and witnesses sought to be deposed would likely have information material and necessary. Grandelli v Hope St. Holdings, LLC

MVA   Bus   Sole Cause  

First Department
Defendants entitled to summary judgment on proof that plaintiff opened passenger door into passing bus after front of bus passed in violation of VTL §1214. Gonzalez v O Tembelis Trans, Inc.

MVA   Turning Vehicle   Bicycle   Question of Fact  

Second Department
Plaintiff failed to meet burden for summary judgment by submitting depositions with conflicting versions of how accident occurred leaving questions of fact. Sanders v Sangemino

MVA   Motion to Dismiss   Negligent Hiring   Premature Motion  

First Department
Company plaintiff claimed employed driver of livery cab who struck her granted dismissal for failure to state a cause of action where cab driver admitted he owned, operated, and controlled the cab and Complaint failed to allege negligent propensities of driver or company’s knowledge of same, necessary for both negligent hiring and negligent entrustment. Plaintiff failed to provide proof of these elements in opposition and claim that motion was premature rejected. Kornfeld v Zheng

(1 summaries)

Premises Liab   Slip/Trip   Stairs   Open/Obvious   Inherently Dangerous  

Second Department
Landowner granted summary judgment where plaintiff tripped on flowerpot while descending exterior stairs on proof condition was open/obvious and not inherently dangerous as a matter of law. The court does not give the details of the proofs. Spina v Brookwood Ronkonkoma, LLC

About Matt McMahon

Civil trials and appeals since 1984
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