June 21, 2016 | Vol. 7

MUST READS
(6 summaries)

No-Fault   Coverage   Subrogation   Clawback  

Court of Appeals

Healthcare carrier incorrectly paid bills which should’ve been submitted to no-fault even after it learned of mistake. It sought to recover for bills it paid from no-fault carrier and asserted a lien on the insured’s personal injury action (subject of a different action). Court of Appeals agreed with courts below that healthcare carrier had no right to seek subrogation against no-fault carrier since under no-fault rules and regulations only the insured or health provider with an assignment from the insured can seek reimbursement. Healthcare provider was neither. In a concurring opinion it was noted that the healthcare carrier could seek reimbursement from the medical providers directly, especially under typical “clawback” provisions in their contracts, and thus had an adequate remedy at law. Dissent opined that equitable subrogation applied. Aetna Health Plans v. Hanover Insurance Company


Med Mal   Accepted Practice   Duty   Medical Consultants  

Second Deptartment

Court reversed lower court’s denial of summary judgment to radiologist and neurosurgery consultant. Plaintiff did not argue that radiologist misinterpreted report but rather that he should have ordered a diffusion additional MRI. Similarly, plaintiff did not argue that neurosurgeon’s opinion that neurosurgery was not required was incorrect, but that neurosurgeon should have physically examined patient and corrected failure to order or administer steroid treatment. The duty of the neurosurgeon and radiologist was limited to the task they undertook and they did not assume a general duty to diagnose or treat the plaintiff. Meade v Yland


Errata Sheet   Spoliation   Unknown Cause  

First

Lower court properly ignored EBT errata sheet, which was timely served, pursuant to CPLR §3116(a) because there was no explanation of why plaintiff was making changes. Plaintiff was unable to identify what caused him to fall downstairs which entitled defendant to summary judgment. Sanction for spoliation was not appropriate for failing to preserve video footage because plaintiff could not establish that it left him ‘”prejudicially bereft of appropriate means to [present] a claim with incisive evidence….’ Cataudella v 17 John St. Assoc., LLC

Comment: CPLR §3116(a) requires that the witness provide “a statement of the reasons given by the witness for making [changes],” to the EBT. Failure to do so is likely to cause a problem only on a summary judgment motion or at trial where the errata sheet can be precluded on this ground.


Med Mal   Positioning   Accepted Practice  

First

Defendant granted summary judgment on her testimony, medical records and expert affidavit that she properly positioned plaintiff during pelvic reconstruction surgery and took proper precautions to avoid nerve compression. Plaintiff’s neurological injury is a known and accepted complication of the surgery in the absence of malpractice. Plaintiff’s expert failed to explain how defendants positioning plaintiff departed from accepted practice. Conclusory opinion that equipment used by defendant caused injury without explanation of how was insufficient to raise question of fact. Pancila v Romanzi


Noseworthy   Amnesia   Hearsay   Harmless Error   Set Aside Verdict   Pedestrian   Bifurcation  

Second Deptartment

Motion to set aside verdict in favor of defendant as against weight of the evidence denied. Plaintiff, a pedestrian, claims to have been hit by a bus but had no recollection of the impact. Court properly denied motion to unify trial where plaintiff failed to show how his injuries were intertwined with liability. Plaintiff’s recollection of the events up to the moment of impact and lack of medical evidence connecting the claimed amnesia to the defendant’s fault defeated request for Noseworthy charge of lesser quality of proof. Hearsay statement by unidentified declarant noted by bus driver in an accident report to the effect that pedestrian was walking with a bottle up to his mouth was improperly admitted into evidence as it did not meet any exception to hearsay but court found it harmless error because it believed that the result would have been the same. Parris v New York City Tr. Auth.

Comment: It is not clear whether the plaintiff made an attempt to show that his injuries caused the amnesia and would have been necessarily intertwined with the liability in order to show entitlement to the Noseworthy charge. Since the hearsay improperly admitted would tend to lead a jury to conclude that the plaintiff was drinking or drunk, it is difficult to understand how that would not be prejudicial error but the full details were not included in the decision.


Labor Law §240   Labor Law §241   Labor Law §200   Cleaning  

First

Complaint properly dismissed where plaintiff was engaged to clean kitchens in co-ops which were 90% constructed, prior to occupancy. Plaintiff stood on kitchen counter to clean cabinets and fell when she stepped back onto an A-frame ladder. Her cleaning did not fit within the definition of “cleaning” in §240(1), it also did not involve inherently hazardous construction, excavation or demolition necessary for §241(6), and evidence that defendant exercised general oversight was insufficient to show control over means or methods of work for label law §200. Morales v Avalon Bay Communities, Inc.

Comment: Cleaning is one of the more intricate activities to determine under § 240(1). The cleaning does not have to be related to construction but it cannot be routine, ordinary maintenance, involve insignificant elevation risk similar to household cleaning. Having to clean something 30’ up would general fall under § 240(1) if it could not be reached without using a scaffold, ladder, or elevated platform. Both exterior and interior window cleaning may fall under the statute if it necessarily involves and elevated risk. In addition to § 240(1), window washers have specific (but not absolute) protection under Labor Law § 202. Whether an activity falls under § 240(1) is a question of law for the Court.

NOTEWORTHY
(25 summaries)

Med Mal   Res Ipsa Loquitor   Frye   Hepatitis   Colonoscopy  

Second Deptartment

Patient developed hepatitis C after colonoscopy. Board of Health report confirmed that patient immediately before plaintiff had hepatitis C. Plaintiff had no signs of hepatitis C prior to the colonoscopy and was diagnosed with hepatitis C 6 weeks after colonoscopy which is normal incubation period. Lower court properly found that plaintiff raised the question of fact by its expert’s affidavit, relying on res ipsa loquitur, that hepatitis C does not normally occur absent negligence during colonoscopy because it can only be transmitted by introducing infected blood into the body of the recipient. Denial of frye hearing was not reviewable as evidentiary rulings made in advance of trial, constituting advisory opinions, are not appealable. Plaintiff’s allegations, if proved, could provide basis for award of punitive damages. Gonzalez v Arya


Former Employee   Interested Witness   PJI   Harmless Error  

First

Judgment after verdict for defendant reversed where trial court refused to give interested witness charge for former employee who was alleged to have created the icing condition by hosing down the sidewalk on a freezing day. Given the pivotal role of the witness, failure to give the charge was not harmless error. Jett v City of New York


Graves Amendment   Motion to Dismiss  

Second Deptartment

U-Haul moved to dismiss under the Graves Amendment and based on affidavit of its investigator who after speaking with driver of the rented truck believed the accident was staged. While Graves Amendment protects LEASING company which is only a technical owner, it does not absolve leasing company from active negligence in failing to maintain vehicle. U-Haul failed to demonstrate its freedom from negligence and its investigator’s affidavit submitted on its motion to dismiss for failure to state of course of action cannot be used to determine whether there is evidentiary support for the complaint where it has not been converted to a motion for summary judgment. Anglero v Hanif


Med Mal   CPLR § 3126   Willful/Contumacious   Discovery  

Second Deptartment

In Med Mal, wrongful death case, the court reversed the lower court’s denial of separate motions to dismiss for failing to comply with discovery finding that 2 years of failing to comply with any discovery, despite court orders, and failing to respond to the separate motions to dismiss, evinces willful and contumacious failure which justifies dismissal. Field v Bao


Med Mal   Foreign Object   Fixation Device   Statute of Limitations   Raised For First Time  

First

Defendant’s motions to dismiss complaint as time-barred upheld. Plaintiff conceded that catheter cuff was inserted into his chest to facilitate hemodialysis was a fixation device but argued that when it was inadvertently left in his chest after the catheter was removed it became a foreign object. Claim that foreign object toll applied was raised for first time on appeal and unpreserved. Foreign object rule does not apply to fixation devices and cannot be converted to a foreign object by its continued inadvertent presence. Knox v St. Luke’s Hosp.


Labor Law §241   Eye Protection   Safety Goggles   Comparative Fault  

First

Plaintiff injured when debris flew into his eyes while he was grinding stone without protective goggles was entitled to liability under Labor Law §241(6) for violation of 12 NYCRR §23-1.8(a) “eye protection”. Plaintiff was aware of need for safety goggles, and had asked for them, but was told to begin work and they would be provided later. Bundo v 10-12 Cooper Sq., Inc.


Exclusive Remedy  

Court of Appeals

Lower court granted defendant summary judgment as to 2 plaintiffs because there was no evidence of elevated lead levels after defendants took ownership building in 2007 but denied summary judgment as to 3rd plaintiff finding question of fact of potential exposure after defendant took over management. The court reversed finding that the plaintiff failed to show how his existing injuries at the time that defendant took ownership and management were made significantly worse during their tenure. Arelie F. v Cathedral Props., LLC


Out of Possession   Create Condition   Radiator  

Second Deptartment

Out of possession landlord can only be held liable if it maintains control and is contractually or statutorily obligated to repair, or has voluntary assumed duty. Liability may attach, however, if out of possession landlord affirmatively created the dangerous condition. Defendant showed it owed no duty to provide a radiator cover but failed to show that it did not cause the radiator to be defective, broken, and overheated. Summary judgment denied. Gowen v Gabrielle Realty Holdings, LLC


Recent Inspection   Notice   Survelliance Video  

First

Defendant made out its prima facie entitlement to summary judgment on bar owner’s testimony that he personally inspected the bathrooms and areas outside them 20 to 30 minutes prior to plaintiff’s slip and fall outside of women’s bathroom, and found them clean, dry, and free of debris. Plaintiff submitted her testimony and testimony of several other witnesses that there was appreciable amount of dirty water from the woman’s room and debris tracked over a large area outside of the women’s bathroom raising triable issue of fact as well as credibility issues among the witnesses. Video footage from surveillance camera did not give definitive resolution of the conditions of the floor. Brothers v 574 9th Ave. Rest. Corp.


Assault   Vacate Jud   Fraud  

First

Defendant’s motion to vacate judgment based on new evidence contradicting plaintiff’s testimony during the trial was properly denied. Evidence did not refute jury’s essential finding that an assault occurred and even if it amounted to fraud, vacature was not warranted because it was not material to the jury’s verdict and would not have changed the result. Ryan v Zherka


Serious Injury   ROM   Burden of Proof  

Second Deptartment

Defendant defeated its initial burden on it submission of its examining orthopedist’s affidavit which found significant limitations of ROM but opined that they were feigned. Defendant also included plaintiff’s treating physician’s report showing significant limitations in cervical and lumbar spine causally related to the accident. Salvemini v Twinco Supply Corp.


Serious Injury   Degenerative   ROM  

First

Court revived claim of serious injury under significant limitation of shoulder based on treating orthopedic surgeon’s report with quantified limited rom, positive impingement signs proceeding shoulder surgeries, and observation of tears during arthroscopy. Treating surgeon also sufficiently addressed causation issue based on his own treatment, review of MRIs, records, observations during surgery, and history by plaintiff. Other claims of serious injury were properly denied. Burgos v Diop


Rear End   Nonnegligent Explanation  

Second Deptartment

Summary judgment for plaintiff appropriate where plaintiff testified they were stopped for 10 seconds before being hit in the rear and defendant stated that the light had turned green and he thought that the plaintiff was going to move, so he did not step on his break until it was too late and he skidded on wet pavement. While sudden stops can supply a non-negligent explanation, a driver must anticipate stops and when the plaintiff’s vehicle is stopped, failing to stop in time to avoid an accident is not a non-negligent explanation. De Castillo v Sormeley


Property Damage   Fire   Last Inspection  

First

Summary judgment properly denied to defendant supermarket where fire report indicated that fire started within supermarket and spread throughout the building via “open voids,” leading to the demolishment of plaintiff’s adjoining building. Defendant failed to show that it maintained a working sprinkler system or other fire safety system to control spread of the fire and that it did not create or have constructive notice of the open voids. Market made renovations before the fire but presented no evidence regarding the last inspection before the fire. A&M E. Broadway LLC v Hong Kong Supermarket, Inc.


Premises Liab   Prior Written Notice   Create Condition  

Second Deptartment

Sponsor of event where plaintiff was injured when his bike, being ridden on a grass path, struck a dock did not have ownership, operation or control of dock and thus had no duty to plaintiff. County’s cross motion was properly denied where they failed to show that county was free from negligence in creating the condition, providing proper lighting, that condition was open and obvious and not inherently dangerous, that plaintiff could not identify the cause of the accident, that plaintiff was the sole proximate cause of his accident, or that the county did not have a duty to keep the premises in a reasonably safe condition, even where there was no prior written notice. Creutzberger v County of Suffolk


Rear End   Nonnegligent Explanation   Snow/Ice   Skidding  

Second Deptartment

Plaintiff who was allegedly injured when his car was hit in the rear, failed to meet his burden of proof by excluding all non-negligent explanations for the rear end hit. Plaintiff included the police accident report which had defendant’s statement that he could not stop in time because of snow and ice. Non-negligent explanation can include mechanical failure, sudden stop of forward vehicle, unavoidable skidding or any other reasonable cause. Without deposition testimony, failed plaintiff failed to exclude all possible non-negligent causes. Orcel v Haber


Vicarious Liab   Independant Contractor   Ostensible Agency  

First

Plaintiff’s claims against delivery company based on ostensible agency and VTL §388, negligent hiring and retention were properly dismissed as there was no showing that plaintiff relied on delivery company’s logo on it’s truck or drivers shirt, that delivery company had any reason to suspect driver’s qualifications, and clear evidence that delivery company did not own truck. There was a question of fact, however, regarding whether driver was independent contractor or employee, despite a contract for an independent contractor, based on requirement to maintain insurance dictated by delivery company, delivery process being controlled by delivery company dispatcher, use of delivery company’s forms, requirement that driver wear the delivery company’s shirt and have logo on truck. Cross v Supersonic Motor Messenger Courier, Inc.


Amend Notice of Claim  

First

Summary judgment properly granted to transit authority where testimony showed that lift mechanism alleged in notice of claim was not involved and notice of claim did not allege a sudden jerk which appeared to be the cause of the accident. Plaintiff did not move to amend the theory of liability within one year and 90 days. GML §50-E(6), which permits amendment of a notice of claim at any time, is for good faith, non-prejudicial, technical defects or omissions, not substantive changes in theory of liability. Mendoza-Jimenez v New York City Tr. Auth.


Renew   Summary Jud   Without Prejudice  

Second Deptartment

Lower court improperly denied defendant’s motion to renew opposition to plaintiffs grant of summary judgment. Plaintiff submitted affidavit claiming that she crossed in crosswalk after looking both ways, was hit from behind by the defendant’s bus after she passed the halfway point of the street, and police report which had her admission that she had crossed diagonally. The lower court granted summary judgment where defendant did not include an affidavit in their opposition papers but without prejudice to defendant’s renewal upon papers including an affidavit. In motion for renewal, defendant included bus driver’s affidavit which raised triable issue of fact as to how the accident happened and whether plaintiff was partially at fault.

Milkins v New York City Tr. Auth.


Defamation   Public Figure   Actual Malice   Service  

First

Defendant, Village Voice’s motion to dismiss for failing to serve a complaint should have been granted as plaintiff offered no reasonable excuse for not serving the complaint or proof of a meritorious action. Complaint did not contain evidentiary facts sufficient to establish a prima facie case. It did not allege facts showing that the defendant acted with actual malice against plaintiff, a public figure. Gear Up, Inc. v City of New York


Late Notice of Claim   Renew   Motion to Dismiss  

Second Deptartment

Plaintiff’s motion for leave to serve a late notice of claim 14 months after the accident had been denied but plaintiff filed and served a summons and complaint anyway. Town moved to dismiss for failure to comply with GML §50-E(5) and plaintiff cross moved to renew its prior motion for leave to serve a late notice of claim. Denial of cross motion was appropriate because newly included evidence would not have changed the court’s opinion and town was properly granted dismissal. Bertolotti v Town of Islip


Workers Comp   General Release   Raised For First Time  

First

Plaintiff’s release pursuant to WCL § 32 only released claims against his employer and not plaintiff’s personal injury claims against defendants. The subsequent release with the employer broadly released all claims, but only as to the employer and not defendants. Questions regarding whether the release affects third-party action was not raised in the motion court and is not part of the appeal. Masi v Cassone Trailer & Container Co.


Venue   Documentary Evidence  

First

Lower court improvidently exercised its discretion by denying defendant’s motion to change venue and granting plaintiff’s motion to retain venue in the Bronx without a hearing. Defendant’s documentary proof clearly established that at the time of the accident the plaintiff was a resident of Westchester County and plaintiff’s affidavit and affidavit of his fiancée that he lived in a Bronx co-op they owned together, while some proof, was not of the clear documentary proof provided by the defendant. Hearing required. Crovato v H&M Hennes & Mauritz, L.P.


Venue  

First

Defendant’s proof that plaintiff gave a Richmond address when seeking treatment at Lincoln Hospital did not prove where plaintiff resided when action was commenced five months later. Change of venue from Bronx was improper. Mejia v J. Crew Operating Corp.


Confirm Arb   Sunday Proceedings  

Second Deptartment

Motor vehicle arbitration held on a Sunday cannot be confirmed and must be dismissed as violative of Jud Law § 5 which cannot be waived. Arbitration was illegal and void. Matter of Leifer v Gross

IF YOU MUST READ
(6 summaries)

Gender Discrimination   Fines  

Second Deptartment

NYS Division of Human Rights brought action to enforce determination that complainant was subjected to hostile work environment based on her sex and constructively discharged, awarding her back pay of $13,000 when she was paid less than other employees, $10,668.60 back pay when she was unemployed, $23,700.06 back pay for period where she was unable to find work at comparable salary, $50,000 in compensatory damage for anguish and humiliation, and civil fine and penalty against employer of $75,000, with interest at 9% from date of offense. Determination was based on substantial evidence and award was similar to comparable awards for similar injuries. Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp.


Duty to Defend  

Second Deptartment

Insurer sought declaratory judgment under “insured versus insured” policy exclusion. Motion was denied and defendant’s cross motion was granted on grounds that exclusion did not make it clear that an employee of the defendant who was injured in slip and fall in the parking lot was defined as “an insured” under the policy. Boro Park Land Co., LLC v Princeton Excess Surplus Lines Ins. Co.


Pedestrian   Turning Vehicle   Crossing Roadway  

Second Deptartment

Plaintiff failed to meet her burden of proof by excluding all possibility of her comparative fault. She failed to show that she exercisex due care crossing the street. Summary judgment denied. The court does not give details of what proof was put forth. Roberts v Zirkind


Vacate Default   Reasonable Excuse   Meritorious Defense  

First

Court improperly denied defendant’s motion to vacate default where defendant put forth reasonable excuse and established potentially meritorious defenses. Decision does not set forth the details of the case or the meritorious defenses. McDermott v Chapski


Serious Injury  

Second Deptartment

Defendant failed to meet its burden of showing the plaintiff did not sustain a serious injury and, therefore denial of motion for summary judgment was proper without regard to plaintiff’s opposition papers. The court does not give the details of the proofs. Hilaire v Trotta


Serious Injury  

Second Deptartment

Defendant met its prima facie burden on competent evidence that the plaintiff did not sustain a serious injury to his shoulder and plaintiff failed to raise an issue of fact. The court does not give the details of the purse. Washington v Pichardo

About Matt McMahon

Civil trials and appeals since 1984
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