June 18, 2019 | Vol. 163

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Causation   Accepted Practice   Informed Consent   Foreseeability   Expert Aff   Conclusory  

First Department

Doctor who prescribed opioids and Xanax for 14-months without checking with plaintiff’s decedent’s orthopedist or obtaining prior medical records failed to meet burden for summary judgment on causation where decedent’s medical records showed evidence of opioid seeking behavior and illicit drug use which was not unforeseeable. Policy argument that all doctors would have to become detectives before prescribing opioids missed point that failure to obtain medical records, speak with decedent’s orthopedist, and heed signs of opioid abuse raises an issue on deviation from accepted practice. Defendants’ expert’s opinions on informed consent were conclusory as they did not specify what risks should have been disclosed before prescribing opioids and Xanax. Halloran v Kiri

Comment: This is a case of first impression in the appellate courts providing a malpractice cause of action for victims of opioid over-prescription which given the opioid crisis is likely to be further expanded or defined as new cases make their way to the appellate courts.


Legal Mal   Vacate Default  

Second Department

Defendant’s failure to appeal lower court’s refusal to sign OSC under CPLR §5704 left it with no remedy as court’s decision on the merits after refusing to sign OSC was a nullity. Second OSC signed by a different judge who refused to decide issue on the merits because it had already been decided by the first judge, should have been decided on the merits because first judge’s decision without a motion pending was a nullity. Defendant should have appealed the refusal to sign the OSC instead of bringing the second OSC. Cypress Hills Mgt., Inc. v Lempenski


Labor Law §240   Labor Law §241   Ladder   Industrial Code  

Second Department

Plaintiff’s testimony that some lighting poles he was working on when he fell from 8′ A-frame ladder required only tightening or light bulb replacement but others required more intensive work raised issue on whether work was repair or routine maintenance for Labor Law §240(1) which also precluded summary judgment on Labor Law §241(6). Lower court should not have granted defendants’ summary judgment on Labor Law §200 and negligence but providently denied plaintiff’s motion for summary judgment. Wass v County of Nassau


Products Liab   Discovery  

Second Department

Cheese manufacturer’s motion to permit invasive testing on plastic piece plaintiff choked on denied where defendant did not contest plaintiff’s expert’s opinion that adequate nondestructive tests for detecting chemical composition were available. Doerrer v Schreiber Foods, Inc.


MVA   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department

Police report stating intersection where car and school bus that plaintiff was a passenger on collided was missing a stop sign, attached to plaintiff’s original timely served Notice of Claim naming NYC and DOE, gave NYC and DOT actual knowledge of the essential elements of the claim that accident was caused by missing stop sign within 90-days. With actual knowledge the DOT was not prejudiced and plaintiff’s failure to offer a reasonable excuse was not determinative. M.L. v City of New York


Premises Liab   Elevator   Motion to Dismiss   Collateral Estoppel   Res Ipsa Loquitor   NYC  

Second Department

DOE’s motion to dismiss for teacher’s failure to exhaust administrative remedies by not appealing denial of line of duty leave under collection bargaining agreement denied as suit for personal injuries not covered under agreement. Collateral estoppel inapplicable because issue of personal injuries was not necessarily decided by line of duty denial and res judicata inapplicable because plaintiff could not seek damages for pain/suffering in administrative proceeding. Shortt v City of New York


Products Liab   Asbestos   Warnings  

Court of Appeals

In a 4/2 decision, the Court found that a “coke oven” and “coke oven battery” were products for purposes of a product liability duty to warn even though installation of ovens and batteries entailed thousands of hours of construction because they served a single purpose, were constructed using defendant’s proprietary schematics and components, and defendant was in the best position to know and warn of the risks of inhaling coke fumes without a respirator which caused plaintiff’s decedent’s death. Matter of Eighth Jud. Dist. Asbestos Litig.


Uninsured   Stay Arb   Collateral Estoppel  

Second Department

Carrier who was not party to action against driver of vehicle where driver was found not liable was not barred under collateral estoppel from claiming vehicle that struck insured was not uninsured because it was neither a party nor in privity with a party to that action. Matter of Country-Wide Ins. Co. v Hills

NOTEWORTHY
(25 summaries)
MUST READS IF YOU MUST READ

Late Notice of Claim   Motion to Dismiss   Notice   Reasonable Excuse   Prejudice  

Second Department

Plaintiff’s motion to serve late Notice of Claim or deem Notice of Claim timely served denied where police report stated there were no injuries and defendants were not apprised of essential elements including claim of injury from police report. Plaintiff also failed to show reasonable excuse for delay or that defendants would not be prejudiced by allowing service of late Notice of Claim. Defendants’ unopposed motion for summary judgment for failure to serve a Notice of Claim granted. Coronel v New Jersey Tr. Corp.


Motion to Dismiss   Personal Juridiction  

First Department

Where a plaintiff affirmatively pleads specific or general jurisdiction, denial of those allegations is sufficient to preserve affirmative defense of lack of specific or general jurisdiction. Defendant denied plaintiff’s specific jurisdiction allegations but admitted plaintiff’s general jurisdiction allegations acknowledging that it was a foreign corporation authorized to do business in New York, which when pleaded pre-Daimler AG v Bauman, 571 US 117 (2014) was sufficient for general jurisdiction waving defense of general jurisdiction. Matter of New York City Asbestos Litig.


Construction Liab.   Motion to Dismiss   Statute of Limitations  

Second Department

Motions to dismiss plaintiff’s amended Complaint adding construction manager and site safety consultant after statute of limitations expired granted where plaintiff failed to show relation back doctrine applied. Even though claims against original defendants and added defendants, first added as third-party defendants, arose from same occurrence, plaintiff was unable to show added defendants were vicariously liable for original defendants’ actions which would make their defenses the same and invoke the relation-back doctrine, or that absent an excusable mistake the added defendants should have known that they would be added to the suit. Weckbecker v Skanska USA Civ. Northeast, Inc.


Serious Injury   ROM   Expert Aff  

First Department

Defendant met its burden on serious injury by neurologist’s finding of normal ROM, no negative spine tests, and finding that any injuries had resolved. Plaintiff could not raise issue of fact in opposition where lack of treatment for 6-months after accident meant there were no contemporaneous treatment or evaluation to establish serious injury. Plaintiff and orthopedist failed to explain separate 2-year gaps in treatment. Jackson v Doe


Premises Liab   Workers Comp Defense   Alter Ego  

First Department

Warehouse defendant’s motion for summary judgment on exclusivity provision of workers comp. denied on testimony and affidavit of warehouse supervisor stating that plaintiff reported to his employer for assignment every day and that warehouse supervisor did not give plaintiff instructions or check on him throughout the time he was at the warehouse but only met with him once to show him what needed to be done, failing to show that plaintiff was special employee of warehouse or that warehouse was alter ego of plaintiff’s employer. Arias v Anjo Mfg. Co., Inc.


Labor Law §240   Labor Law §241   Labor Law §200   Notice   Workers Comp Defense  

First Department

Injured project manager for glass company that had not been hired for casino construction project at Aqueduct raceway was not protected by Labor Law §§ =240(1), 241(6), & 200 because he was not “employed” at the construction project when he fell through a glass floor. Lessee of casino construction and construction manager failed to show that they did not have control over worksite or actual or constructive notice of the condition and NYRA, sub-tenant of casino tenant, failed to show it did not have control over area where it submitted conflicting evidence of its role and presence of its employees on site or that it did not have notice of the condition. Claim by plaintiff’s employer that third-party action should be dismissed on exclusivity of workers comp. was not properly before the Court. Daeira v Genting N.Y., LLC


Notice of Claim   Late Notice of Claim   Court of Claims   Prejudice  

Second Department

State was not prejudiced by unverified Notice of Claim which should be treated the same as an unverified Complaint and may be corrected pursuant to CPLR §2001. Motion to serve late Notice of Claim, including verification, granted where original Notice of Claim, rejected by defendant, gave actual knowledge and State was not prejudiced. Ordentlich v State of New York


Labor Law §240   Agent   Control  

Second Department

Kitchen plumbing supply salesman assigned to run thermostat cables through second story wall granted summary judgment on Labor Law §240(1) where he stepped on Styrofoam cover over rectangular duct causing him to fall 15′ but denied summary judgment against plumbing supply company absent proof it was an agent of the owner because it had the right to insist on safety practices, it had responsibility to supervise all work at the site, or was granted authority by the owner to supervise the work where the accident occurred. Motion against owner brought before discovery was not premature where owner could not identify what discovery was necessary to respond to the motion. Yiming Zhou v 828 Hamilton, Inc.


Premises Liab   Law of the Case   3rd Party Contractor   Espinal  

Second Department

Order granting summary judgment to various defendants was not law of the case as to remaining defendant because facts and duty relative to remaining defendant were different but remaining defendant granted summary judgment on proof it was a 3rd-party-contractor and did not launch an instrumentality of harm. Fidler v Gordon-Herricks Corp.


Labor Law §241   Industrial Code   Safety Devices  

First Department

Industrial code §23-1.5(c)(3) requiring damaged safety devices be immediately repaired or removed was specific enough for Labor Law §241(6) where grinder without safety guard kicked back injuring plaintiff. Defendant denied summary judgment. Contreras v 3335 Decatur Ave. Corp.


MVA   Bicycle   Question of Fact   Note of Issue   Preclusion  

First Department

Bicyclist struck by car denied summary judgment on unopposed motion where plaintiff’s affidavit conflicted with his EBT testimony that he did not know the location of the intersection and did not see defendants’ vehicle until he was on the ground. Plaintiff’s motion to preclude defendants from offering testimony at trial or opposing motion denied where filing of Notice of Issue waived preclusion. Court would not take judicial notice of Google maps where plaintiff was unable to identify the intersection at EBT. Williams v Laura Livery Corp.


MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department

Jury verdict awarding $250,000/$111,500 past/future pain/suffering did not materially deviate from reasonable compensation where plaintiff had a pre-existing back condition. Murphy v Fordzu

Comment: The jury’s award of $111,500 for future pain and suffering was stated to be for 1-year on the verdict sheet but apparently matched defendants’ argument to the jury that they should award $5000 a year for plaintiff’s life expectancy of 23.5 years. No objection to the verdict was made before jury was discharged.


Premises Liab   Create Condition   Notice  

First Department

Plaintiff failed to raise issue of fact in opposition to NYCTA’s prima facie showing that it did not create condition causing puddle to form on landing where plaintiff fell and that it did not have notice that drain had clogged, and plaintiff did not show that it was a recurring condition. Robinson v City of New York


Labor Law §240   Comparative Fault   Sole Cause   Recalcitrant Worker  

Second Department

Plaintiff’s motion and defendants’ cross motion for summary judgment on Labor Law §240(1) denied where plaintiff failed to show that ladder was inadequate for task and defendants failed to show plaintiff was sole cause of the accident on their claim that he improperly positioned the ladder, didn’t ask a coworker to cut a bracket for him, and failed to ask for scaffold instead of ladder. The lower court incorrectly found contributory negligence created issue for jury but had the correct result. Orellana v 7 W. 34th St., LLC


Med Mal   Motion to Dismiss   Untimely   Reasonable Excuse   Meritorious Action   Expert Aff  

Second Department

Defendants’ motion to dismiss for failure to timely serve a Complaint after a demand, served only in response to defendants’ motion 2-months after the demand granted, and lower court sua sponte grant of extension to serve complaint and compel defendants to accepted reversed where plaintiff did not provide an expert opinion to show a meritorious action even if she showed a reasonable excuse for the delay. Percival v Northwell Health Sys.


MVA   Rear End   Comparative Fault   Hearsay   Admissibility  

Second Department

Bus driver who parked disabled bus on berm when he was rear-ended by tractor-trailer whose driver admitted in police report that he “must have fallen asleep” granted summary judgment as comparative fault is no longer a reason to deny partial summary judgment. Truck driver’s statement in please report admissible as an admission. Yong Dong Liu v Lowe


Premises Liab   Slip/Trip   Stairs   Duty  

Second Department

Tenant who subleted apartment to plaintiff who fell on interior staircase granted summary judgment because tenant only owes duty to maintain rented area, not common areas, and owner and tenant testified tenant was not responsible for maintaining stairs and had not done any work on the stairs. Knight v 177 W. 26 Realty, LLC


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice  

Second Department

Village with prior written notice law granted summary judgment on proof it did not create raised manhole plaintiff tripped on and did not receive a special benefit from sewer drains it led to. Garcia v Thomas


Discovery   CPLR § 3126   Privilege  

First Department

Defendant’s motion to strike Complaint for failure to provide Social Security records from 30-years earlier involving arthritis in plaintiff’s hands providently denied and plaintiff’s motion for protective order granted as overly broad and unduly burdensome. Plaintiff’s back injuries from accident did not put her 30-year-old hand arthritis medical condition in issue where she did not claim an aggravation of the condition and defendant was sufficiently protected against claims of reduction of ADLs from arthritis where court ordered plaintiff to provide 3-years of treatment records for arthritis. Pellot v Tivat Realty LLC


MVA   Rear End   Set Aside Verdict   Emergency Doctrine   Jury Charge  

Second Department

Lower court erred in not giving emergency doctrine charge where there was evidence that co-defendant’s car cut into defendant’s lane and stopped short to avoid mattresses strewn on road. Kabir v Yousuf


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Control  

Second Department

Homeowner whose 1-family house was being converted to a 2-family house when construction worker fell from the ladder during construction entitled to summary judgment under the 1-2 family exception for Labor Law §§240(1) & 241(6) and on Labor Law §200 and negligence where accident was from means and methods of work and homeowner proved he did not have control of work being performed. Chavez-Lezama v Kun Gao


Premises Liab   Discovery  

Second Department

Lower court improvidently exercised discretion in denying plaintiff’s motion to compel inspection of drains on defendants’ premises where source of water forming black ice that plaintiff slipped on was a central issue in case and inspection routinely granted under CPLR §312
0(1)(ii). Zupnick v City of New Rochelle

Comment: Motion for summary judgment before different judge denied as defendants failed to meet their initial burden. The court does not give the details of the proofs. Zupnick v City of New Rochelle.


Motion to Dismiss   Personal Juridiction  

Second Department

NJ driver’s motion to dismiss granted where accident happened in NJ, driver lived in PA, and he had not contacted business in NY. NJ corporation’s motion denied where principal admitted it had 4-locations in NY and did not submit trip logs, manifests or documents supporting claim that load was being transported solely in NJ, raising question of fact on long-arm jurisdiction. Qudsi v Larios


Serious Injury   Expert Aff  

First Department

First plaintiff failed to raise issue of fact where treating orthopedist found only minor limitations of ROM. Second plaintiff raised issue of fact based on orthopedist’s recent examination finding limitations of ROM, positive clinical results, MRI with bulging and herniated discs with nerve impingement. Unaffirmed MRI report admissible on motion where it was not the only evidence. Treating orthopedist did not have to show limitations on initial exam, symptoms were sufficient. Denial of no-fault adequately explained gap in treatment. Riollano v Leavey


Med Mal   Venue  

Second Department

Defendants’ motion to change venue from Kings to Suffolk County denied where Kings was a proper venue based on 1-defendant’s principal office for the practice of medicine in Kings County. Fact that that defendant resided in Suffolk County irrelevant. Bostick v Safa

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Stay Arb   IME/DME   Untimely  

First Department

Carrier’s motion to stay arbitration filed 3-months after receiving demand untimely where it was required to be served within 20-days. Issue of submitting to IME was condition precedent not a question of whether parties agreed to arbitration, the only exception to the 20-day limitation period. Matter of GEICO Gen. Ins. Co. v Glazer


MVA   Bus  

Second Department

Defendants failed to show that bus did not stop unusually and violently by deposition testimony and video submitted on their motion. The court does not give the details of the proofs. San Andres v County of Westchester

About Matt McMahon

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