June 1, 2021 | Vol. 264

(6 summaries)

Malpractice   Set Aside Verdict   Accepted Practice   Causation   Experts   Survelliance Video  

First Department
Verdict for defendant-neurosurgeon set where “the evidence so preponderated in favor of plaintiff” based on defendant-neurosurgeon’s expert’s testimony contradicting defendant on whether grafts were appropriate and whether subsidence and pseudoarthrosis from grafts were intended results or an indication of procedure’s failure, defendant’s expert’s concession he could not determine intent of the “uncommon” procedure where he himself had not performed it in that way in 25 years and that plaintiff’s results were not optimal or even good, and the consistent testimony of plaintiff’s and codefendants’ experts that neurosurgeon’s plan of stabilizing spine while preserving movement was irreconcilably contradictory. Defendant’s claim of no cognizable injury rejected as erosion from grafts required subsequent fusion. Surveillance tapes showing plaintiff walking without cane or obvious pain did not nullify plaintiff’s testimony as a matter of law. Nozhnik v NJS Carpentry, Inc.    

Malpractice   Causation   Experts   Frye   Preclusion  

Second Department
It was error to preclude plaintiff’s treating physician, noticed as expert, from testifying at trial and to grant defendants summary judgment after Frye hearing where plaintiff’s expert’s opinion that defendants’ departure in allowing toxic gadolinium to leak in high concentration caused plaintiff’s injuries, including progressive fibrosing disease, ‘had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch’ even without medical literature unequivocally establishing gadolinium can cause fibrosing disease absent renal insufficiency. Lack of direct medical literature goes to credibility, not admissibility. Farrell v Lichtenberger    

Public Health §2801-d   Strike Answer   CPLR § 3126   Discovery   Willful/Contumacious   Spoliation   Sanctions  

Second Department
Lower court improvidently denied plaintiff’s motion to strike residential rehab facility’s Answer where defendants failed to respond to multiple discovery demands going back 7-years and most of a preliminary conference order. Defendants’ argument that they turned over all documents to company that purchased facility rejected where sale was 2.5-years after plaintiff’s first discovery demands and purchaser claimed defendants retained records, establishing repeated refusal to comply was willful/contumacious. Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC    

Comment: Plaintiff’s motion for spoliation sanctions and sanctions for attorneys’ frivolous conduct denied without proof defendants intentionally or negligently disposed of documents or they were lost or destroyed, and that defense counsels’ actions were without merit or taken primarily to delay litigation, harass, or maliciously injure. Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC.


First Department
Motion to consolidate 17-cases of persons injured when terrorist drove rented truck into people along West Side Hwy. with 1-case against owner of school bus terrorist struck, injuring driver and passengers, granted as common questions of law and fact would result in judicial economy and school bus defendant failed to show prejudice of a substantial right. School bus defendant need only attend depositions relevant to its case and any potential jury confusion can be addressed by trial court’s instructions. Matter of Oct. 31, 2017 Terrorist Attack/Lower Manhattan Litig.    

Default Judgment   Service   Notice  

First Department
Plaintiff was not required to give defendant notice of motion for default judgment where defendant failed to answer after Summons/Complaint was served on Secretary of State and additional service of pleadings was made by first-class mail pursuant to CPLR §3215(g)(4). Plaintiff’s failure to file affidavit of mailing insufficient to deny default judgment where there was clear proof of mailing. Taylor v Behavioral Solutions NY, Inc.    

Malpractice   Set Aside Verdict   Accepted Practice   Causation  

Second Department
Verdict finding ER doctor departed from accepted practice by sending decedent with history and complaint of chest pain home without a cardiology consult but that the departure was not a substantial factor in causing decedent’s death 3-weeks later was not against weight of the evidence as issues of departure and causation were not inextricably interwoven and there was no evidence decedent followed the discharge instruction to follow with his primary doctor within 1-2 days of discharge. Kelly v New York City Health & Hosps. Corp.    

(15 summaries)

Premises Liab   Stairs   Out of Possession   Create Condition   Notice   Last Inspection   Indemnity  

First Department
Out of possession owner denied summary judgment despite absence of structural or design defect violating code where lease gave it right to enter to maintain electrical, plumbing, mechanical systems and keep them in good repair and it failed to show it did not create wet condition on stairs plaintiff slipped on. Tenant denied summary judgment based on employee’s vague testimony of last inspection without evidence of maintenance and inspection prior to the accident. Owner’s motion for summary judgment on common-law and contractual indemnity denied where above questions remained. Mollette v 111 John Realty Corp.    

Labor Law §240   Labor Law §200   Labor Law §241   Scaffold   Agent   Homeowner Exception   Control   Notice   Industrial Code  

First Department
Worker injured when scaffold he was on collapsed while working on house, and 1-defendant construction company, denied summary judgment on Labor Law §240(1) as that contractor did not control injury producing work and question remained of whether it was the GC where plaintiff submitted proof beyond a mere work permit. That contractor granted summary judgment of Labor Law §200 and negligence claim as it did control work regardless of whether it was GC. Complaint against officer of that contractor dismissed without evidence to pierce corporate veil.

One homeowner granted summary judgment of §§ 240 and 241 claims under homeowner’s exception where she lacked authority to supervise work but denied summary judgment of §200 and negligence claims without proof she did not have actual or constructive notice of dangerous condition. Other homeowner and his company denied summary judgment of §§240, 200 for questions of whether he or his company were the GC or controlled the work and whether company’s workers dug near scaffold and created the dangerous condition.

Labor Law §241(6) claims against all defendants dismissed as industrial code provisions relied upon by plaintiff were insufficiently concrete or specific. Alberto v DiSano Demolition Co., Inc.    

Asbestos   Products Liab   Causation   Experts  

Second Department
Plaintiffs’ experts raised issues in opposition on general and specific causation by opinions that plaintiff was exposed to a sufficient quantity of chrysotile asbestos to cause her peritoneal mesothelioma, supported by studies, medical literature, and through a scientific method. She was exposed while helping her father while he was cutting and installing defendant’s flooring products, and greeting him after work, over 8-years. Conflicting interpretations of underlying studies and literature raise issues of credibility for a jury. Pistone v American Biltrite, Inc.    

Asbestos   Products Liab   Causation   Espinal  

First Department
Contractor that provided fireproofing failed to meet burden of showing materials “could not have contributed to plaintiff’s injury, where it submitted decedent’s testimony which identified defendant’s fireproofing as source of his exposure. Plaintiff’s failure to specifically include defendant in interrogatories insufficient to meet defendant’s burden and documentation, testimony of one of defendant’s suppliers, and defendant’s knowledge of hazards associated with its product were sufficient to raise an issue in opposition as well as raise question of whether defendant launched an instrumentality of harm. Matter of New York City Asbestos Litig.    


First Department
Nursing home’s motion to change venue from Bronx to Westchester County granted where admission form specified Westchester Supreme or SDNY, White Plains, venue. Plaintiff’s conclusory claim agreement violated public policy rejected without proof of fraud, overreaching, or that it would deprive her of her day in court. Hendricks v Wayne Ctr. for Nursing & Rehabilitation    

3rd Party Contractor   Espinal   Admissibility  

First Department
Window company that repaired window after plaintiff complained to landlord that bottom stuck denied summary judgment where top sash slammed onto plaintiff’s fingers as he unlocked the window on question of whether repair launched an instrumentality of harm under Espinal. Repairman’s testimony of habit of yanking top of window open/closed with suction to check balances admissible and fact he wrote ticket to order balances, but no one later worked on window raised issues. Bonnett v Rose Assoc., Inc    

MVA   Turning Vehicle   Question of Fact  

Second Department
Defendant-driver of vehicle plaintiff was in, and plaintiff, made out prima facie entitlement to summary judgment on their affidavits stating their vehicle was parked at a complete stop when it struck by codefendants’ vehicle, but codefendants raised issue by their driver’s affidavit stating he checked it was clear before starting right hand turn and plaintiff’s vehicle aggressively tried to pass him. Failure to include certificate of conformity for codefendants’ driver’s affidavit was not fatal to admissibility. Wise v Boyd Bros. Transp., Inc.    

Premises Liab   Snow/Ice   Storm in Progress   Experts   Speculation  

Second Department
Plaintiff’s concession that it snowed until 8 PM before his fall at 1 AM, and defendants’ experts’ opinions that snow, sleet, and freezing rain fell until 11:50 PM, entitled defendants to summary judgment on storm in progress as they were not required to clear sidewalk until 10 AM under administrative code § 16-123(a). Defendants also showed they did not create the condition by any snow removal efforts. Plaintiff could not rely on his or cousin’s testimony where neither could remember if it snowed day before plaintiff’s fall. Cousin’s claim he saw snow piled on the side of sidewalk with plaintiff kneeling by curb after the accident was speculative as plaintiff never claimed he tripped or slipped on a pile of snow. Eduardo v Webster Equities LLC    

Negligent Supervision   Premises Liab   Foreseeability   Intervening Cause   Create Condition   Notice   Experts   NYC  

First Department
NYC and agency that placed infant in foster home granted summary judgment where baby was burned when she climbed into bathtub with handheld shower as they were not aware of the dangerous condition and scalding hot water was an intervening cause as it was not a foreseeable risk of placing 5-children in the foster home. Homeowner denied summary judgment where he had replaced the hot water heater and there were conflicting expert opinions of whether the water exceeded safety practices in the plumbing industry. H.M. v City of New York    

MVA   Rear End   Premature Motion  

Second Department
Plaintiff granted summary judgment prior to discovery on proof defendants’ vehicle rear ended her vehicle while she was stopped in traffic. Defendants’ claim motion was premature denied without an evidentiary basis suggesting discovery might lead to relevant information or that facts necessary to oppose motion were within plaintiff’s exclusive knowledge. Martin v County of Westchester    

Labor Law §240   Scaffold   Safety Devices   Sole Cause   Comparative Fault  

First Department
Worker injured when platform of Baker scaffold collapsed as he reached to drill into a stud granted summary judgment on Labor Law §240(1) and employer’s sole cause argument rejected without proof scaffold was adequate safety device regardless of claim plaintiff failed to follow safety instructions and attempted to move scaffold while standing on it as employer’s foreman was aware workers moved scaffolds that way. Hernandez v 767 Fifth Partners, LLC    

Labor Law §200   Labor Law §240   Speculation   Indemnity  

First Department
Plumbing contractor granted summary judgment of Labor Law §200 and negligence claims where plaintiff tripped on uncovered holes used to run pipes, wires, and other services on proof it completed all work in area 1-week before accident and safety contractor saw holes covered on inspection the day before the accident. Plaintiff’s argument plumbing contractor was only one with reason to remove covering was mere speculation. Labor Law §241(6) claim dismissed as abandoned and cross claims for common law indemnity and contribution dismissed as plumbing contractor was not liable to plaintiff. Digirolomo v 160 Madison Ave LLC    

Premises Liab   MVA   Design Defect   Causation   Speculation   Amend Complaint  

Second Department
Defendants granted summary judgment where infant-plaintiff was struck by car while crossing supermarket exit/entrance lanes as plaintiff’s expert’s opinion parking lot was defectively designed was speculative without basing opinion on industrywide standards or accepted practices. Claim defendants’ telling infant-plaintiff to ride scooter in area that required him to cross exit/entrance lanes was negligence rejected as it only furnished occasion for the accident. Plaintiff’s motion to amend Complaint rejected as patently devoid of merit. Landsman v Tolo    

Note of Issue   Amend BP   Untimely   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s motion to vacate Note of Issue and amend BP to include new injury, brought 7-months after Note of Issue, denied as untimely without proof of unusual or unanticipated circumstances. Plaintiff failed to give a reasonable excuse for delay in amending BP or show amendment had merit. Cesarz v O’Reilly    

Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Plaintiff’s motion to vacate default in opposing defendant’s motion granted as plaintiff demonstrated reasonable excuse by law office failure for miscommunications between incoming/outgoing counsel and delay in file transfer. Defendant did not contest finding of meritorious action. Romero v 437 Prospect Assoc., LTD.    

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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