June 14, 2016 | Vol. 6

MUST READS
(7 summaries)

Med Mal   Late Notice of Claim   C-section   Accepted Practice  

Court of Appeals

Plaintiff claimed that doctors caused significant, fetal and respiratory distress and seizure disorder by not performing an emergency C-section and intubating the baby after birth. Plaintiff served a notice of claim 1 year and 7 months after the birth, brought suit against HHC 3 years and 2 months after the birth and moved for leave to serve a late notice of claim more than 5 years after the birth. The 90 days to serve the notice of claim for malpractice runs from original negligent act or omission.

Relying on the Court of Appeals decision in Williams v. Nassau County Medical Center, plaintiff and the dissent in the Appellate Division argued that the medical records showed that HHC had actual notice of the essential facts within 90 days because its own records showed an injury which might “suggest” malpractice. In finding that the Appellate Division did not abuse its discretion in upholding the denial of the motion for leave to serve a late notice of claim, the Court of Appeals made clear that the Williams decision does not define actual notice of the essential facts as an injury which would “merely suggest” malpractice. The record must show facts sufficient to give actual notice that the medical staff “by its acts or omissions, inflicted an injury on plaintiff.” Wally G. v. New York Ciy Health and Cospitals Corp.


Stay Arb   SUM   Duplicate Recovery  

Second Deptartment

Limiting the application of its decision in Weiss v Tri-State Consumer Ins. Co., the Second Department, overturned a permanent stay of arbitration. Plaintiff’s decedent carried a $250,000 SUM policy, other driver had a $50,000 policy which was tendered and accepted with SUM carrier’s consent. Police department which was chasing other driver settled for $450,000 under its “public risk professional policy” and Geico sought to reduce the SUM coverage by both settlements. Estate argued that condition 11(e) of the SUM endorsement only applied to avoid duplicate recovery for the same injuries and since the injuries far exceeded both settlement amounts, the estate could have received $250,000 from the other driver, if the other driver had the same coverage as the SUM policy, as well as the $450,000 from the police department. To the extent that the court’s decision in Weiss has been interpreted otherwise, the Court specifically declared that it should no longer be followed and allowed the matter to proceed to arbitration for a determination of the full amount of the decedent’s bodily injury claims. Matter of Government Empls. Ins. Co. v Sherlock


Materially Deviates   Photographs   Subsequent Repairs  

Second Deptartment

Verdict of $5,000,000 past and $11,000,000 future pain and suffering for 69-year-old injured when she fell downstairs at a subway station was set aside unless plaintiff stipulates to accept $2,000,000 and $3,000,000 respectively. Plaintiff sustained comminuted left acetabular fracture, traumatic brain injury, and post-traumatic seizure disorder. Photographs taken shortly after the accident but after white concrete had covered hole were admissible based on testimony that they fairly and accurately depicted location and that the condition was worse than that portrayed in the photographs. Argument that photograph showed subsequent repairs was raised for first time of on appeal and not reviewable.

Alcantara v New York City Tr. Auth.


CPLR §4404(a)   Set Aside Verdict   Juror Confusion   Juror Affidavit  

Second Deptartment

Plaintiff’s use of a post discharge juror affidavit to attack the verdict is “patently improper” where the record doesn’t show external influence, juror confusion or ministerial error in reporting the verdict. Plaintiff conceded that there was no evidence on the record of juror confusion. Jurors never requested a read back of testimony or court’s instructions and jury found the defendant negligent but not a substantial factor in causing the accident which could have been reached on a fair interpretation of the evidence. Motion properly denied. Young Mee Oh v Koon


Un-notarized Aff   Renew  

Second Deptartment

Plaintiff’s motion to renew after grant of summary judgment to defendant on serious injury should have been granted upon attorney’s affirmation that he inadvertently attached an un-notarized copy of the chiropractor’s affidavit and submitted the notarized one on the motion to renew. CPLR 2221(e) does not disqualify an affidavit submitted on the original motion and rejected solely because it was not in admissible form. Plaintiff’s chiropractor’s affidavit raised triable issue of fact regarding permanent consequential and significant limitation. The court did not give the details of the medical proofs. Defina v Daniel

Comment: A common sense rule to fix a simple error.


Late Notice of Claim   Reasonable Excuse   Actual Knowledge  

First

Grant of permission to file a late notice of claim upheld where municipality had actual notice of the events within 90 days by an accident/crime investigation report created on the date of the accident which set forth the location, time, identity of the bus operator who set up the ramp from which the petitioner’s wheelchair fell, a witness’ information, and the investigating supervisor’s conclusion that the ramp was situated on the street and not the curb. Respondent’s conclusory allegations of prejudice without showing that the supervisor or witness is unavailable was insufficient. Bass v New York City Tr. Auth.

Comment: The key piece of information in this case appeared to be the defendant supervisor’s conclusion that the ramp was situated on the street and not the curb which would give the essential details of the elements of the cause of action.


Palpably Improper   Discovery   CPLR §3124  

Second Deptartment

Plaintiff’s request to defendant Verizon for documents recording easement granted to the New York Telephone Company more than 11 years prior to the accident was palpably improper and court properly denied motion. Diaz v City of New York

NOTEWORTHY
(31 summaries)

Dental Mal   Ostensible Agency  

First

Questions of fact existed regarding whether orthodontic care rendered by dentists at two similarly named entities, one in New York and one in New Jersey, both addresses listed on business card, created vicarious liability through ostensible agency where plaintiff went to defendant from advertisement which did not identify the specific corporation and records from both entities were combined. Hampton v Universal Dental


Labor Law §240   Labor Law §200   Sole Cause   Indemnity   Elevator   Repair  

First

Questions of fact existed regarding whether orthodontic care rendered by dentists at two similarly named entities, one in New York and one in New Jersey, both addresses listed on business card, created vicarious liability through ostensible agency where plaintiff went to defendant from advertisement which did not identify the specific corporation and records from both entities were combined. Hampton v Universal Dental


Med Mal   Hemorrhage   Set Aside Verdict   Accepted Practice  

First

The jury’s finding that the defendant did not deviate from accepted medical practice by using an Aliss clamp and packing the uterus to lesson uncontrolled postpartum hemorrhaging was not against the weight of the evidence as the jury could have credited defendant’s expert that performing an exploratory laparotomy and interrupting the packing would be harmful to the plaintiff in her already unstable condition. Sanchez v New York & Presbyt. Hosp.


Prior Written Notice   Burden of Proof   Slip/Trip  

Second Deptartment

Municipality denied summary judgment for trip and fall in parking lot where it failed to show that it did not have written notice, did not create the condition, and did not make special use of the parking lot, only recognized exceptions to written notice statutes. Since defendant never met its initial burden of proof, burden never shifted to defend plaintiff. Breest v Long Is. R.R.


Premises Liab   Lease   Repair  

First

Building owner was granted summary judgment where bar lease only required owner to make structural repairs and window leak which caused pooling of water alleged to cause plaintiff’s accident was nonstructural. Because owner had no duty, notice was immaterial. Syrko v Jertom Inc.


Stairs   Handrail  

First

Summary judgment upheld for defendant in slip and fall on stairs where defendant provided pictures and expert Aff showing that 2” differential between the first and second risers was consistent with accepted custom and standards and plaintiff went up the stairs moments before without a problem. Plaintiff’s expert affidavits failed to raise issue of fact because they did not cite to specific, applicable safety standards or practices and there was no showing that the building code required handrails. Griffith v ETH NEP, L.P.


Independant Contractor  

First

MTA failed to make out its burden for summary judgment. While it showed that 2 of its contractors did no work at the location where a repaved trench for the 2nd Ave Subway project collapsed injuring the plaintiff, the record showed 10 contracts on the project and MTA failed to put forth evidence that they were not involved. Sears v S3 Tunnel Constr. AJV


Stay Arb   20 Day Limitation  

Second Deptartment

Carrier failed to move to stay arbitration within 20 days after service of an intention to arbitrate which complied with the requirements of CPLR §7503(C). Only exception for allowing motion to stay after 20 days would be that there was no agreement to arbitrate. Carrier’s argument that the other vehicle was an ATV does not go to issue of whether there was an agreement to arbitrate. Service on PO Box used for no-fault papers was sufficient and claims rep showed that it was received well within the 20 day period. Matter of Progressive Cas. Ins. Co. v Garcia


Nonnegligent Explanation   Set Aside Verdict   Judicial Admissions   Brake Failure  

First

Judgment in favor of defendant upheld. Jury could rationally credit defendant driver’s statement that accident was the result of unanticipated brake failure and court properly admitted evidence of nonnegligent cause of the accident finding that counsel statements and pleadings were not conclusive but alternative under CPLR §3014. Gray Line N.Y. Tours, Inc. v Big Apple Moving & Stor., Inc.


Pedestrian   Crosswalk   Turning Vehicle  

Second Deptartment

Plaintiff entitled to summary judgment on evidence that she was crossing street within a crosswalk with the pedestrian signal in her favor when defendant made a turn and failed to yield the right-of-way. She looked in all directions before entering the intersection exercising due care. Gomez v Novak


Labor Law §240   Safety Devices   Sole Witness  

First

Lower court should have granted summary judgment to plaintiff who was injured when the rope he was using to lift a guide rail up an elevator shaft got stuck, he slacked the rope to try and free it, and lost control of the rope entangling his leg in the coiled rope on the platform. His expert showed that there should have been a separate receptacle for the coiled rope which would have prevented the accident and a locking or breaking mechanism to prevent loss of control of the rope. Defendant’s claim that the receptacle was available and not used was unavailing as was their claim that the breaking or locking mechanism was impractical. Fact that the plaintiff was the only direct witness does not preclude summary judgment. Nerney v 1 World Trade Ctr. LLC


CPLR Art. 75   Vacate Arb  

Second Deptartment

An arbitration award is irrational if there is no proof to justify the award. Review of arbitration award is extremely limited and party seeking to vacate award for faces a heavy burden. Award may not be vacated unless 1) it violates strong public policy, 2) it is irrational, or 3) it clearly exceeds a specifically enumerated limitation from the arbitration agreement, which must be proved by clear and convincing evidence. Arbitrator is not bound by principles of substantive law or rules of evidence but may be apply his/her own sense of law and equity to make justice. Petitioner failed to show by clear and convincing evidence that the award was irrational. Matter of Fagan v Village of Harriman


Out of Possession   Premises Liab   Raised For First Time  

First

Landlord met her burden for summary judgment by showing that she was an out of position landlord, that the leak in the kitchen sink pipe was not a significant structural or design defect and that plaintiff failed to cite any specific statutory safety provision that was violated. Plaintiff’s objections to defects in defendant’s affidavit were not raised until appeal and could have been cured if raised below. DeJesus v Tavares


De Minimus  

Second Deptartment

Defendant denied summary judgment where evidence taken as a whole did not show the defect was trivial as a matter of law. There is no minimum height or depth of the defect in order to be actionable. Evidence viewed in the light most favorable to the plaintiff leaves a question of fact regarding dimensions of defect. Baird v Four Winds Hosp.


Police   Intoxication   Bicycle   Serious Injury   Admissable Form  

First

Police officer’s observation in police report that plaintiff smelled of alcohol and appeared to be intoxicated was admissible because it was based on observation and not hearsay. Question of fact as to whether plaintiff’s intoxication contributed to his inability to stop his bicycle in time to avoid colliding with the defendant’s opening door. Plaintiff’s motion for serious injury was properly denied since the medical records were not in admissible form and plaintiff’s affidavit that he suffered a broken clavicle would be hearsay. Bhowmik v Santana


CPLR Art. 16   Verdict Sheet   Set Aside Verdict  

First

Plaintiff’s testimony of the driver’s inattention and defendant’s sudden recall despite no memory at EBT supported jury determination finding 60% against NYCTA and 40% against nonparty, an unidentified driver. It was error for the judge to include the unidentified driver on the verdict sheet but the error was harmless since there is no evidence of jury confusion or compromise verdict and Article 16 didn’t apply to motor vehicle accident. Quinn v New York City Tr. Auth.


No-Fault   EUO   Condition Precedent  

First

Failure to comply with EUO or IME request is a breach of a condition precedent disqualifying the insured from receiving no-fault benefits. Insured, who had assigned his rights to his provider, failed to show for 3 scheduled EUO appointments. Initial EUO appointment was scheduled before receipt of the NF3, which the majority found was acceptable and the dissent argued was invalid. Mapfre Ins. Co. of N.Y. v Manoo


Serious Injury   Treatment Gap  

First

Claims of permanent consequential and significant limitation for right knee and lumbar spine are reinstated based on plaintiff’s expert’s affidavit and MRI reports showing persisting limitations in ROM and objective medical evidence of injury to the right knee and spine. Given that plaintiff was only 20 years old with no prior knee or back symptoms, doctor’s opinion that injuries were directly caused by the accident was sufficient to raise an issue of fact as to causation. Plaintiff overcame gap in treatment by showing that he could not afford to treat after no-fault denial. Plaintiff failed to raise issue regarding cervical spine but is entitled to recover for all injuries once he meets threshold. Santana v Centeno


Snow/Ice   Create Condition  

Second Deptartment

Defendant submitted proof that he did not own, occupy, control, or make special use of premises but transcript of his EBT, submitted by him, raised triable issues as to whether he personally created the condition that caused the plaintiff to slip and fall in the parking light lot of a planet fitness. Robinson v Viani

Comment: The Court found that the lower court had improperly granted plaintiff’s motion to reargue and renew since plaintiff relied on the documents not included in the original motion and failed to show that the court overlooked or misapprehended the facts or the law. Renewal was also improper for plaintiff’s failure to show an excuse for not including the new facts in the original motion which appeared to have been available. Robinson v Viani.


Serious Injury   Expert Aff  

First

Defendant’s examining orthopedist’s affirmation established initial entitlement by showing normal ROM, negative test results and a diagnosis of resolved sprains in both knees together with plaintiff’s EBT transcript showing that she had been diagnosed and treated for arthritis in her right knee months before the accident. Plaintiff’s doctor found only slight limitations in ROM in one knee which was insufficient to show serious injury. Plaintiff’s radiologist reports comparing MRIs before and after the accident did not provide evidence that injuries were distinct from pre-existing condition and her medical expert failed to describe the tests he used to measure ROM limitations. Aflalo v Alvarez


False Arrest   Malicious Prosecution   Motion to Dismiss   Probable Cause  

Second Deptartment

Lower court searched record on plaintiff’s cross-motion for summary judgment to defendant’s motion to dismiss finding that there was probable cause for arrest and prosecution based on sworn statement of the estrained wife. Summary judgment for defendant upheld. Masciello v Incorporated Vil. of Lloyd Harbor


Battery   Vicarious Liab   Negligent Hiring   Violent Propensity  

First

Summary judgment properly denied where issues of fact existed as to whether the defendant was the assailant’s putative employer and either vicariously liable for her actions or for negligent hiring and retention, whether she was building superintendent or otherwise employee. Lopez v Kancherla


VTL §1214   Opening Door  

First

Lower court properly granted plaintiff partial summary judgment on plaintiff’s affidavit that defendant’s rear door opened without warning in violation of VTL § 1214 (door opening) and that he was unable to avoid the accident, as well as the affidavit of the police officer regarding report which contained defendant’s admission that the rear door swung open wider than normal causing plaintiff to strike it. Tavarez v Herrasme


50-H   Adjournment   Reschedule  

First

Defendant’s motion to dismiss for failure to appear at a 50-H hearing was properly denied where defendant granted an adjournment and did not set a subsequent date or seek to reschedule. Anderson v Liberty Lines Tr., Inc.


Serious Injury   ROM   Expert Aff  

First

One plaintiff overcame defendant’s expert’s affidavits by MRI showing ligament tears confirmed by surgeon during arthroscopic surgery which plaintiff’s doctor opined were causally related to the accident with persisting limitations in use. Second plaintiff overcame defendant’s showing as to her lumbar spine with MRI and treating physician’s affidavit of limitation of ROM related to the accident. Second plaintiff’s claim for ankle injury should have been dismissed since the evidence showed that it was a congenital defect. Defendant’s reliance on studies to show only minor limitations was misplaced as they did not explain what the numbers meant and the ROM measurements demonstrated limited ROM in relation to the normal values provided. Anthony P. v Abdou


Serious Injury   CPLR §4401   CPLR §4404(a)  

Second Deptartment

Lower court’s denial of defendant’s motion for judgment as a matter of law at the end of plaintiff’s case and to set aside the verdict as against the weight after a jury returned a verdict of $60,000 for past and $30,000 for future pain and suffering reversed. Taking the evidence in the light most favorable to the plaintiff, there was no rational process by which the jury could find that the right shoulder injury constituted a significant limitation as there was no objective evidence as to the extent of the alleged limitation. Wong v Cruz


Coverage   Consolidation   Common Questions   Prejudice  

First

Motion to consolidate declaratory judgment action for insurance coverage with personal injury action was properly denied since they do not involve common questions of law or fact. Insurance carrier is inherently prejudiced by litigating insurance coverage claim with underlying personal injury action. Long delay in bringing motion to consolidate would significantly prejudice the plaintiff in the personal injury action. McGinty v Structure-Tone


Judgment Notwithstanding   Hit and Run   Sole Witness  

First

Appellate Division reversed the lower court’s grant of judgment notwithstanding the verdict after a jury verdict for defendant. The fact that the plaintiff was the only witness to testify in the hit-and-run accident did not require a verdict in his favor especially given the inconsistencies in his testimony and deficiencies in his proof. Jenkins v Motor Veh. Acc. Indem. Corp.


Serious Injury   Unaffirmed Report   Degenerative   Reargument  

First

Lower court properly granted reargument on showing that un-affirmed report of CT scan was relied upon by the defendant’s experts but report did not adequately address defendant’s expert’s findings of degenerative changes in the cervical and lumbar spine.

Francis v Nelson


Consolidation   Subrogation  

Second Deptartment

It was proper for defendant in both personal injury and subrogation claim under APIP to move for consolidation since there were similar questions of fact and law. Lower court mistook moving party, order reversed and consolidation granted. Nesbitt v Town of Carmel


Stay Arb   Hit and Run   Set Aside Verdict  

First

JHO’s finding that accident was hit-and-run covered by the insurance policy was against the weight of the evidence based on respondent’s admissions in the police report and his medical records. Denial of stay reversed and permanent stay granted. Matter of IDS Prop. Cas. Ins. Co. v Jagsarran

IF YOU MUST READ
(3 summaries)

Indemnity  

First

Defendant/third-party plaintiff’s motion for summary judgment on contractual indemnity claim was properly denied where there was no proof as to when the agreement was signed or whether it was supposed to take effect retroactively. Juarez v Rye Depot Plaza, LLC


Serious Injury  

Second Deptartment

Reversal of lower court’s grant of summary judgment on serious injury, finding that although defendant made out its prima facie entitlement, plaintiff raised an issue of fact regarding the shoulder injury. The court did not give specifics of the medical proofs. Campos v Sabella


Serious Injury  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment for permanent consequential and significant limitation of cervical and lumbar spine and left shoulder, and 90/180 days. Plaintiff failed to raise triable issue. Court did not give details of proof submitted. Marrow v Torres

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed