June 11, 2019 | Vol. 162

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Coverage  

First Department

Stay of medical malpractice case of woman with advanced breast cancer from failure to inform her of results of mammogram or refer her to specialist, imposed by South Carolina court’s orders in liquidation of Oceanus which insured one defendant, lifted as Oceanus was a risk retention group not covered under Uniform Insurers Liquidation Act. SC law not entitled to Full Faith and Credit Clause of US Constitution where it violates NY’s own legitimate public policy. Federal Liability Risk Retention Act does not require a stay as plaintiff received no benefit from risk retention group and did not assume its risks, but defendant did. Caimares v Erickson


MVA   Set Aside Verdict   Directed Verdict   Jury Misconduct   Hearsay  

Second Department

Plaintiff’s motion to set aside verdict or for judgment as a matter of law denied where there was a rational path for jury to find defendants were not negligent in rear ending plaintiff on testimony that plaintiff abruptly stopped short. Hearsay statement of juror in attorney affirmation inadmissible and could not be used to impeach verdict and even if it was admissible would not have risen to the “level of improper influence or prejudice a party’s substantial right.” Khaydarov v AK1 Group, Inc.


Med Mal   IME/DME   Accepted Practice   Causation   Expert Aff  

First Department

IME/DME doctor’s expert’s opinion that shoulder examination was performed within accepted practice based on defendant’s testimony of his custom and practice did not eliminate question of accepted practice where defendant testified that his examination “varied depending on the examinee.” Expert failed to address plaintiff’s treating doctor’s statements and MRI reports showing differences consistent with a new injury after the examination and plaintiff’s testimony that defendant forced her arm over her head causing the injury. Goldson v Mann


Workers Comp Defense   Raised For First Time  

Second Department

Moving defendant submitted reply affidavit showing it changed its name from Bright Star Courier to BrightStar Messenger Center LLC before plaintiff’s accident, but it failed to meet its burden in its initial moving papers which could not be made up for in a reply. Motion to dismiss under workers comp exclusivity provision denied. Matthews v Bright Star Messenger Ctr., LLC


Med Mal   Late Notice of Claim   Prejudice   Reasonable Excuse  

First Department

HHC’s possession of medical records showing infant-petitioner had seizures and “extensive areas of infarct” where her head got wedged into mother’s pelvis during prolonged second stage, confirmed by MRI, gave it actual knowledge of the essential elements and they did not show prejudice from late Notice of Claim. Petitioner did not need an expert as the essential elements were discernible on the face of the record. Matter of Katshana H. v New York City Health & Hosps. Corp.


Med Mal   Late Notice of Claim   Untimely   Estoppel  

Second Department

HHC’s motion to dismiss for failure to serve timely Notice of Claim granted and plaintiff’s cross motion to serve a late Notice of Claim or deem late Notice of Claim timely served denied where Notice of Claim served on HHC without leave of court a year after 90-day time expired and motion for leave to serve late Notice of Claim not made for 17-years after original 90-day period. Fact that HHC litigated case was not sufficient grounds for estoppel. Townsend v City of New York


MVA   Serious Injury   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department

$30,000/$0 past/future pain/suffering for first plaintiff with damage to rotator cuff and knee requiring physical therapy and arthroscopic knee surgery materially deviated to the extent a new trial was ordered unless defendants stipulated to increase past pain/suffering to $75,000 but $0 award for future pain/suffering upheld where jury found he sustained serious injury only under 90/180-day category. $10,000/$20,000 past/future pain/suffering verdict for second plaintiff who suffered knee injury requiring physical therapy and arthroscopic surgery materially deviated to the extent a new trial was ordered unless defendants stipulated to increase award to $50,000/$150,000. Coleman v Karimov


Venue   Reasonable Excuse  

First Department

Defendants’ motion to change venue from Bronx to Nassau made 3-years after Answer granted where plaintiff consistently misrepresented her address and listed Nassau address under the penalties of perjury on bankruptcy form filed the same year as the action. Algarin v Sackin

NOTEWORTHY
(29 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Out of Possession   Create Condition   Notice   Foreseeability   Assumption of Risk  

First Department

Out of possession landlord who had tree removed and stacked along fence line years before accident did not have actual or constructive notice that infant-plaintiff and friends would move logs into a line and jump from one to another where he received no complaints and never saw them anyplace than fence line, without which it was unforeseeable that kids would use the logs in this way. Plaintiffs also failed to show that infant was not aware of the risks of his actions. S.-B. v Radincic


MVA   Bus   Set Aside Verdict   Directed Verdict  

Second Department

Plaintiff’s motion to set aside judgment on verdict for defendants as against weight of evidence and for judgment as a matter of law denied where there was a valid line of reasoning and permissible inferences for jury to find for bus driver and owner on causation based on conflicting testimony regarding speed of the bus and whether taxi suddenly cut in front of bus and jury could reach its verdict on fair interpretation of the evidence. Coleman v MCIZ Corp.


Premises Liab   Negligent Supervision   Assumption of Risk  

Second Department

School granted summary judgment where 11th grader was injured playing floor hockey in gym where bleaches acted as boundaries and she was knocked by another player and hit her head on metal railing. Infant-plaintiff played floor hockey at the school before and gym teacher testified that even when bleaches were not fully extended, they were used as boundary lines, making out primary assumption of risk. Plaintiff’s expert’s affidavit failed to raise issues of fact where it did not identify safety standards applicable to floor hockey, and SUNY guidelines for concussion management were promulgated after accident and plaintiff did not show that defendants failed to follow any of the guidelines. Krzenski v Southampton Union Free Sch. Dist.


Premises Liab   Create Condition  

Second Department

Tenant who owned store abutting sidewalk where plaintiff fell denied summary judgment where it failed to show it did not create the condition on the sidewalk as alleged in the Complaint and BP even if it showed it had no duty to maintain the sidewalk. Rivera v City of New York


Negligent Supervision   Causation  

Second Department

School district failed to meet burden of showing adequate supervision or that plaintiff’s fall when she attempted to jump over chain as other students did happened in such a short period of time that no degree of supervision could have prevented accident where gym teacher instructed students to run around perimeter of school building instead of grassy area they usually ran around. B.T. v Bethpage Union Free Sch. Dist.


Labor Law §200   Ladder   Control   Sole Cause  

First Department

Condominium and management company granted summary judgment of Labor Law §200 claim where fall from non-defective ladder on level floor resulted from plaintiff’s positioning and use of ladder and defendants had no supervisory control or input into its placement or use. Bonventre v Soho Mews Condominium


Labor Law §200   Labor Law §240   Labor Law §241   Motion to Dismiss   Control   Industrial Code   Gravity Risk  

Second Department

Motion to dismiss Labor Law §§240(1), 241(6), and 200 and negligence actions by owner and general contractor of building under construction granted except as to Labor Law §200 and negligence claims which, as amplified by plaintiff’s affidavit, pleaded that defendants directed plaintiff’s work, instructing him to move a ceiling light fixture by cutting into sheetrock with portable saw that kicked when it hit something raising issues on the means and methods of the work being performed. Labor Law §240(1) and 241(6) claims dismissed where plaintiff did not allege gravity risk or violation of an industrial code. Soller v Dahan


Negligent Supervision   Discovery   Dangerous Propensities  

Second Department

BOE’s motion to review and vacate order under CPLR 3104(d) requiring them to provide 1-year of records regarding student’s assaults to sexual assaults or assaults against infant-plaintiff denied where all assaults within that period would be relevant to establishing DOE’s notice of sexual assaulting student’s dangerous propensities. M.C. v City of New York


Premises Liab   Slip/Trip   Sidewalk  

Second Department

Adjoining landowner granted summary judgment where plaintiff tripped in sidewalk hole caused by asphalt filled trench as part of gas main replacement by National Grid which was liable under administrative code §19-110 for any damages from its negligence. Maldonado v 527 Lincoln Place, LLC


Amend Complaint   GML §205-e   BP  

First Department

Claim of land based boat-mechanic for NYPD under GML § 205-e based on Jones Act dismissed as he was not a “seaman” under the act but amplification of statutes, ordinances, rules, and/or regulations in supplemental BP that did not add new theory should have been considered and summary judgment denied. Sagarese v City of New York


Premises Liab   Open/Obvious   Warnings  

Second Department

Medical practice failed to show presence of patients in chairs in hallway between reception area and bathroom was open/obvious and did not create a tripping hazard, failing to meet its initial burden for summary judgment. Shermazanova v Amerihealth Med., P.C.


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiff’s attorney’s detailed explanation of law office failure for not appearing at conference, including a confusing comment on ELaw notice regarding whether conference had been adjourned and explanation that they attempted on several occasions to contact park clerk whom they were only able to reach on day of appearance and were told that case was dismissed provided a reasonable excuse for not appearing and the motion to vacate under CPLR §5015(a)(1) granted where plaintiff also showed a meritorious action. Diamond v Leone


Premises Liab   Slip/Trip   Sidewalk   Duty   § 7-210   Premature Motion  

Second Department

Moving defendant granted summary judgment on proof that codefendants were owner and manager of property abutting sidewalk where plaintiff tripped and fell and that moving defendant had not owned or managed property for years before plaintiff’s accident. Plaintiff failed to raise issue of fact in opposition or show what discovery would be necessary to oppose motion. Umanskaya v 4050 Nostrand Ave. Condominium


MVA   Emergency Doctrine  

Second Department

Plaintiff denied summary judgment in crossover accident on defendant’s 50-H testimony and certified police report showing that defendant’s tire went into a partially open manhole cover raising issue of whether defendant acted reasonably in light of emergency. Tejada v Cedeno


Premises Liab   Slip/Trip   Stairs   Unknown Cause   Expert Aff   Speculation  

First Department

Building owner granted summary judgment where plaintiff could not identify what caused her to trip or show any defect on 2-steps leading to building entrance and photographs did not show any defects. Eyewitness did not see the fall and plaintiff’s expert’s opinions of building codes and other codes based on ANSI standards was inadmissible where unsworn and otherwise conclusory and speculative. Glueck v Starbucks Corp.


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Last Inspection   Unknown Cause  

First Department

Defendants granted summary judgment on proof that superintendent inspected vestibule at end of his shift, received no complaints thereafter, and plaintiff could not identify what caused her to fall where she did not see water on fall and video showed others using area without problem. Fact it had rained for several hours does not establish constructive notice of water on floor nor is general awareness of a recurring condition constructive notice. Manderson v Phipps Houses Servs., Inc.


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice  

Second Department

Defendants failed to show they did not create or have notice of ice on driveway where tenant slipped on day after it snowed and neighbor, pursuant to agreement, had plowed snow into a 5′-7′ mound at end of driveway and defendant’s testimony, submitted on the motion, acknowledged seeing mound of snow and no salt on driveway and admitted neighbor was not instructed to salt driveway. Last time owner inspected driveway was before snow fall and provided no proof as to the condition after it was plowed. Ghent v Santiago


MVA   Serious Injury   ROM   Expert Aff  

Second Department

Plaintiffs’ chiropractor who examined them 4-years after accident finding up to 40% restrictions of ROM raised issue of fact in opposition to defendant’s showing of entitlement to summary judgment on orthopedist’s examination 3-years after accident showing normal ROM but conceding injuries identified in records were caused by the accident.

The Court noted that defendant should not have made separate motions 1-day apart on liability and serious injury. Delp v Guerra


Serious Injury   Expert Aff  

First Department

Defendants’ emergency medicine expert’s opinion that emergency room records were inconsistent with plaintiff’s claimed injuries met prima facie burden but plaintiff’s medical records and orthopedic surgeon’s opinion based on review of records, his own records, MRI, and observations during shoulder surgery raised issue of fact on serious injury, causation, and permanency. 90/180-day category dismissed where plaintiff testified he missed only 3-weeks of work. Streety v Toure


Construction Liab.   Indemnity   Sole Cause   Control  

First Department

Employer of scaffold worker who fell 20’ from partially dismantled catwalk granted summary judgment on building owner’s third-party claim for contractual indemnity where contract excepted indemnity where accident caused by indemnitee’s sole negligence. Neither plaintiff nor employer where aware that catwalk had been partially dismantled, and owner placed no warnings. Ability to control work irrelevant where liability based on condition of premises. Powers v Plaza Tower, LLC


Discovery   CPLR § 3126   Strike Answer   Preclusion  

Second Department

Defendant’s repeated failure to comply with discovery demands requiring 2-motions justified conditional order striking Answer if full discovery not completed by a specified date. Kayantas v Restaurant Depot, LLC


MVA   Bus  

Second Department

Bus company granted summary judgment on plaintiff’s testimony that van was constantly jostled up and down putting pressure on his lower back without moving his body and that when van hit expansion joint he felt a crack in his neck establishing that the movement was not unusual or violent. Petrie v Golden Touch Transp. of NY, Inc.


MVA   Rear End   Nonnegligent Explanation  

Second Department

Injured plaintiff stopped at light when struck in the rear by defendants’ vehicle granted summary judgment where defendants failed to show that their claim that they skidded on a wet metal grate was an unavoidable known condition. Morgan v Flippen


MVA   There to be Seen   Sole Cause  

Second Department

Defendant who entered intersection with no traffic device granted summary judgment where passenger of vehicle entering intersection with stop sign was injured, showing driver of plaintiff’s vehicle was sole cause of accident for failing to see what was there to be seen and yield the right-of-way. Shepherd v Bliss


Premises Liab   Sanctions  

Second Department

Third-party’s motion for sanctions under CPLR §8303-a and 22 NYCRR §130-1.1 denied where plaintiff’s affidavit filed in response to motion for summary judgment by third-party plaintiff stated that he was injured when hit by boxes being carried by third-party defendant and defendants’ stipulation to discontinue against third-party defendant shortly after plaintiff’s deposition where he acknowledged that the affidavit was incorrect and that he was not struck by the third-party defendant but injured by a defective door, was reasonable. Robinson v In & Out Deli, Inc.


Attorney Fees  

Second Department

Initial attorney who represented plaintiff for 4-months, started action, made and responded to discovery demands entitled to $5000, about 22% of contingency fee, where subsequent attorney handled case for 2-years and settled it after jury selection for $70,000. Kokkalis v Arnstein


Legal Mal   Med Mal   Motion to Dismiss   Personal Juridiction  

First Department

Defendants’ motion to dismiss on personal jurisdiction providently denied with leave to renew after further discovery. Leili v Romanello


Motion to Dismiss   Personal Juridiction  

First Department

Lumber company located in NJ where plaintiff brought products that injured her in NJ did not have activities in NY with a sufficient nexus to the injury for personal jurisdiction. Aston v Algoma Hardwoods, Inc.


Serious Injury   ROM   Expert Aff  

Second Department

Defendants failed to meet initial burden on serious injury where examining doctor found limitations of ROM in plaintiff’s shoulder and failed to show that injury was not caused by the accident. Manton v Lape

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Stairs   Create Condition   Notice  

Second Department

Defendant showed it did not create nor have constructive or actual notice of waxy substance on stairs in plaintiff’s apartment building where she fell entitling defendant to summary judgment. The court does not give the details of the proofs. Pilgrim v Avenue D Realty Co.


Serious Injury  

Second Department

Plaintiff raised issue of fact in opposition to defendants’ showing of prima facie entitlement to summary judgment on her lumbar injuries. The court does not get the details of the proofs. Lynch v DiFilippi

About Matt McMahon

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