June 14, 2022 | Vol. 317

(4 summaries)


SCOTUS ruled in a 7/2 decision that state Medicaid plans can collect past medical expenses from a plaintiff’s designated recovery for both past and future medical expenses by verdict or settlement allowing Florida to collect $300,000, its presumptive percentage (37.5%) for past/future medical expenses on a $800,000 settlement, even though only $35,367.52 was designated for past medical expenses finding that the federal statutes, including Medicaid’s anti-lien provision, distinguish only between medical and non-medical and not past and future recovery amounts. The dissent would have found the language of the complicated statutes taken together prohibited state Medicaid programs from collecting future amounts they may not ever have to make relying on the Court’s prior ruling in Ahlborn.

Even though Florida claimed its statute would not permit recovery of medical expenses paid prior to the underlying accident, this issue was not addressed by the majority leaving it uncertain whether states can recover from past/future medical expense recovery in a lawsuit for all accident and non-accident medical expenses paid. As noted by the dissent, Congress may best address the propriety of the Court’s ruling and the unresolved issues. Gallardo v. Marstiller    

Comment: After the 2006 Ahlborn decision, NY DSS directed it’s offices to pursue only the designated past medical expense portion of a settlement or judgment. It is likely to modify that advice to pursue both designated past and future medical expenses but unclear if it will attempt to collect non-accident related medical expenses.

Malpractice   Duty   Accepted Practice   Experts   Conclusory   Appealable Order  

Second Department
Surgical oncologist failed to establish that his duty did not extend to allegations of failure to provide chemotherapy and inadequate post-surgical treatment where he told plaintiff she dd not need chemotherapy after her bilateral mastectomy and referred her to a medical oncologist because he involved himself in the chemotherapy decision. The extent of a doctor’s duty is a question for the court, and ‘not an appropriate subject for expert opinion.’ Defendants’ expert’s opinion of no departure was conclusory where it did not explain the applicable standard of care or address plaintiff’s specific allegations of departures.

Appeal from denial of motion to reargue dismissed as no appeal lies from denial of reargument. McCarthy v Ashikari    

Asbestos   Motion to Dismiss   Personal Juridiction   Premature Motion  

First Department
Plaintiff failed to show the necessary nexus between the transaction of business in NY of defendant, manufacturer of asbestos-insulated valves, and his inhaling asbestos fibers in San Francisco during replacement of a U.S. Navy ship’s boilers while in dry dock which he claimed caused colon cancer. Moving defendant never had offices in NY and plaintiffs’ evidence did not support claim it ever sold the valves to the boiler manufacturer, that it sold the valves to the boiler manufacturer while that manufacturer was domiciled in NY, or that the boiler manufacturer ever sold its boilers to the U.S. Navy.

Plaintiffs’ claim that the motion to dismiss for lack of personal jurisdiction was premature rejected where it could have obtained records of when the boiler manufacturer was domiciled in NY from the New York Secretary of State and they failed to explain their failure or inability to produce records from either manufacturer. Matter of New York City Asbestos Litig.    

Malpractice   Motion to Dismiss   Causation   Preclusion  

Second Department
Motion to dismiss legal malpractice action for failure to state a cause of action granted on proof plaintiff had time to appeal but did not appeal order precluding plaintiff’s experts from testifying in underlying malpractice action and dismissing case for failure to serve a 202.17 notice of the experts’ physical examinations and that the appeal would likely have been successful as the court improvidently precluded the experts from testifying instead of limiting their testimony to records reviewed. Therefore, plaintiff could not prove defendants were the proximate cause of his damages. Rabasco v Buckheit & Whelan, P.C.    

(10 summaries)

Vacate Jud   Settlement  

Second Department
NYCTA’s motion to vacate amended judgment that included $75,755.21 past lost wages and $17,627.85 medical expenses based of the parties’ stipulation to these damages during trial, not included in the original judgment, denied where transcript excerpts submitted by NYCTA were insufficient to rebut the lower court’s determination of the parties’ stipulation. Vargas v New York City Tr. Auth.    

Labor Law §200   Control   Causation   Indemnity   Premature Motion   NYC  

First Department
NYC’s motion to dismiss Labor Law §200 and negligence claims where plaintiff’s decedent was killed when a defectively built concrete form that was not inspected before pouring the concrete collapsed as testimony of employees of the safety engineer and the engineering consultant codefendants that they were directly supervised by NYC’s onsite employee, one of them had advised the NYC supervisor the form had not been inspected, and the NYC supervisor ordered the pour anyway, raised questions of whether NYC had authority to stop the pour and whether its failure to stop the pour was a proximate cause of the accident.

NYC’s motion for summary judgment on common-law indemnification against GC denied as premature for issues of NYC’s negligence but conditionally granted on contractual-indemnity where agreement only required accident arise out of GC’s work. “Indemnification to the ‘fullest extent of the law,’” does not violate GOL §5-322.1 as it is not seeking indemnification for NYC’s own negligence. NYC also entitled to conditional contractual-indemnity against safety engineer whose contract had similar language to the GCs and consulting engineer which incorporated safety engineer’s indemnity agreement. Winkler v Halmar Intl., LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Homeowner Exception   Control   Notice  

Second Department
As owner of 1-family home with a detached garage converted to a meditation room, Buddhist organization was entitled to homeowner exception to Labor Law §§240(1) and 241(6) where painter fell from ladder owned by defendant and testimony of defendant’s employee and plaintiff established defendant did not direct work as it did not control the means and methods of plaintiff’s work. Defendant denied summary judgment on Labor Law §200 without proof it did not have actual or constructive notice that its ladder was defective. Reinoso v Han Ma Um Zen Ctr. of N.Y., Inc.    

Labor Law §240   Scaffold   Sole Cause   Experts  

First Department
Plaintiff granted summary judgment on proof 400-pound granite panel fell on him because it lacked a safety device. Defendant failed to raise an issue on sole cause without evidence disputing plaintiff’s testimony that a supervisor refused his request for a safety device or disputing plaintiff’s expert’s opinion that a baker scaffold was inadequate for the job. Defendant’s affidavit that a baker scaffold was available was insufficient to raise an issue where it did not dispute that the scaffold was in Queens and never brought to the job site in Manhattan. Roman v Zapco 1500 Inv., L.P.    

Labor Law §240   Labor Law §200   Recalcitrant Worker   Sole Cause   Control  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where GC did not dispute beam fell on plaintiff from lack or inadequacy of safety devices and plaintiff could not be sole proximate cause where there were no adequate safety devices. GC failed to submit evidence to support claim plaintiff was a recalcitrant worker for failing to heed its instructions to stop work until it obtained an adequate safety device or rebut plaintiff’s testimony that his crew was already raising the beam when he arrived. Zherka v Hudson Meridian Constr. Group LLC    

Premises Liab   Wet Floor   Assumption of Risk  

Second Department
Plaintiff’s awareness that HOA’s gym floor could get wet from condensation and fact he had previously dry-mopped the floor before playing basketball established the condensation he slipped on while playing was an inherent risk he assumed by engaging in the recreational activity, entitling defendants to summary judgment. Lungen v Harbors Haverstraw Homeowners Assn., Inc.    

Premises Liab   Workers Comp Defense   Alter Ego  

Second Department
Building owner failed to show it was alter ego of management company that employed real estate agent injured at owner’s building as proof of agreement to manage day to day operation of property and management company’s conclusory affidavit that its relationship to the owner conformed to the agreement was insufficient to demonstrate the entities operated as a single integrated entity or one exercised complete domination and control over the other’s day-to-day operations. Savino v 700 Victory Blvd., LLC    

Serious Injury   Causation   ROM   Experts   Uncertified Records  

First Department
Moving defendant met burden for summary judgment on serious injury of knee injury by reports of multiple medical specialists that plaintiff had no limited ROM, no evidence of trauma to the knee on examination or MRI, no knee complaints in the emergency room, and that her subsequent knee surgery was unnecessary. Plaintiff’s submission of uncertified medical records failed to raise an issue in opposition and, in any event, did not show qualitative or quantitative limitations contemporaneous to her accident. Non-moving defendants granted summary judgment as well. Natera v Veloz Livery Rentals Inc.    

Premises Liab   Question of Fact   Notice  

First Department
Plaintiff’s testimony that ceiling collapsed on her was itself sufficient to raise issue of how accident occurred and inconsistencies in the differing versions only went to weight of evidence for a jury’s consideration. Plaintiff’s testimony that her roommate called the super about a leak in the ceiling on 2-days immediately before the accident, and that super came and said he could not do anything, raised an issue on notice. Breton v Dishi    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Store granted summary judgment where plaintiff’s testimony that she saw flattened cardboard box in aisle and decided to step on it to reach an item established that the condition was open/obvious and not inherently dangerous. DiScalo v Mannix Family Mkt. @ Forest & Richmond Ave, LLC    

(1 summaries)

Serious Injury   Causation  

Second Department
Plaintiff raised issues of fact on serious injury and causation in opposition to defendants’ showing of prima facie entitlement to summary judgment on serious injury and causation. The Court does not give the details of the proofs. Rodriguez v Frederick    

About Matt McMahon

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