June 22, 2021 | Vol. 267

(4 summaries)

Malpractice   Public Health §2801-d   Directed Verdict   Set Aside Verdict   Pain/Suffering   Jury Charge  

First Department
$2.5 million pain/suffering verdict remanded for new trial where lower court did not charge requirement that decedent “experienced some level of cognitive awareness” of pain/suffering on belief rule did not apply to PHL §2801-d. The First Department found was no logical reason not to apply rule to PHL §2801-d which created “a separate cause of action, not a separate category of damages.” Jury could find conscious awareness on evidence presented but did not have opportunity to consider issue without proper instruction.

Lower court properly granted directed verdict on PHL §2801-d where decedent found unresponsive from low blood sugar in morning, was unmonitored for hours, not taken to hospital until evening, and plaintiff’s expert testified nursing home departed from standard of care and its own protocols, causing brain injury and death. Defendant failed to offer an expert opinion. Smith v Northern Manhattan Nursing Home, Inc.    

Snow/Ice   Notice of Claim   Amend Complaint   Amend BP   Raised For First Time   NYC  

First Department
Plaintiff’s claim that defendants’ employee directed her around snowplow into mound that caused her to fall was insufficient to raise issue in opposition to defendants’ entitlement to summary judgment where not raised in Notice of Claim, Complaint, BP, or plaintiff’s testimony. NYC not required to show prejudice where new claim would not have justified amendment of Notice of Claim even if it had been included in pleadings. Wilson v City of New York    

MVA   Reckless   VTL §1104   GML §205-a-e  

Second Department
Volunteer firemen granted summary judgment dismissing claim on proof he did not drive recklessly under VTL §1104 and GML §205-b but fire district denied summary judgment as it is potentially liable for volunteer firemen’s ordinary negligence under GML §205-b. Anderson v Commack Fire Dist.    

Labor Law §240   Scaffold   Comparative Fault   Admissibility  

First Department
Plaintiff’s testimony he fell 20’ from scaffold when planks broke or came loose made out entitlement to summary judgment on Labor Law §240(1) and differences in details of fall were irrelevant as they did not obviate failure to provide adequate safety device. Plaintiff’s removal of nails in some planks was at most comparative fault.

Medical report with plaintiff’s statement inadmissible without proof it was translated by a proper translator and was accurate. Sanchez v 1 Burgess Rd., LLC    

(11 summaries)

Labor Law §240   Ladder   Sole Cause   Recalcitrant Worker   Comparative Fault   Experts   Speculation  

First Department
Plaintiff’s unrebutted testimony ladder wobbled as he stood with 1-foot on top and other on next rung while installing sprinkler cover, causing him to fall, met burden for summary judgment on Labor Law §240(1). Plaintiff’s use of ladder was at most comparative fault not a defense under §240 where defendants did not offer evidence plaintiff was instructed not to stand on ladder that way and plaintiff could not read warning labels on ladder because they were in English. Defendants’ expert’s opinion was speculative without examining the ladder. Hoxhaj v West 30th HL LLC    

Malpractice   Accepted Practice   Causation   Experts   Speculation   Conclusory  

Second Department
Defendants’ experts’ opinions of no departure from accepted practice in treatment of infectious endocarditis, or causation of CVA, met burden for summary judgment and plaintiffs’ expert’s opinions failed to raise issue without differentiating allegations against each defendant and where not supported by record rendering them speculative and conclusory. The Court does not give the details of the proofs. Lowell v Flom    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Hearsay  

First Department
Jury’s finding that defense attorney in underlying medical malpractice case did not depart from standard of care by not calling their expert witness on proof he could not locate her was not utterly irrational or against weight of evidence.

Pro se defendant’s hearsay statement about conversations with the expert were in response to plaintiff’s questions and plaintiff was allowed to testify to her hearsay statements with the expert. Plaintiff properly denied directed verdict where evidence against her in medical malpractice case was compelling. Warren v Silas    

Labor Law §240   Safety Devices   Sole Cause   Experts  

First Department
Proof that sidewalk bridge plaintiff was working on bent downward causing him to fall entitled plaintiff to summary judgment on Labor Law §240(1) where there was no lifeline for plaintiff to attach safety line. Defendant’s expert’s opinion was too vague to raise issue where it did not refer to evidence in the record or show where plaintiff could have tied off safety line. Gomez v Trinity Ctr. LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Industrial Code   Causation   Premature Motion   NYC  

First Department
Defendants denied summary judgment of Labor Law §200 claim of worker whose eye was impaled on tree guard when he slipped on wet 2×4’s on sidewalk bridge he was dismantling as motion was premature where defendants admitted installing tree guard in Notice to Admit, directly contradicting their affidavit submitted on motion, and they had not been deposed.

Defendants granted summary judgment of Labor Law §240(1) claim as injury was not from an elevated-risk. Labor Law §241(6) claims dismissed as §23-1.7(e)(2) inapplicable where tree guard was permanent fixture not related to work and absence of required supervisor for removal of scaffold under §23-5.1(h)was not a cause of the accident. Corona v HHSC 13th St. Dev. Corp.    

Malpractice   Accepted Practice   Experts  

Second Department
Nurse-midwife and initial hospital granted summary judgment on expert’s opinion of no departure from accepted practice as plaintiff did not meet criteria for cervical insufficiency at initial hospital referencing notation that her cervix was long and closed. By not addressing that notation, the plaintiff’s expert failed to raise an issue in opposition. J. P. v Patel    

Comment: Defendants from subsequent hospital discontinued before motion.

Workers Comp Defense  

First Department
Proof defendants acted as single entity with common management, shared human resource department, and were both named on workers comp policy entitled defendants to summary judgment on workers comp exclusivity clause as plaintiff was their special employee even though his paycheck came from a different company. Sorge v Sharp Mgt. Corp.    

Malicious Prosecution   Motion to Dismiss  

Second Department
Town’s and town officials’ motion to dismiss malicious prosecution claim of owners/operators of Mahopac Marina, arising out of criminal action brought by town and town officials for changes made to the marina, denied as dismissal of criminal action for town’s lack of subject matter jurisdiction since it had no authority to regulate the marina which was part of NYS’ navigable waters was not inconsistent with plaintiff’s plural possessive innocence. Melchner v Town of Carmel    

Premises Liab   Out of Possession   Duty   Notice   Last Inspection  

First Department
Sublessors denied summary judgment where plaintiff’s thumb was severed in metal gate entrance as they were aware subtenants’ use would invite members of the public creating a nondelegable duty to provide safe ingress/egress and moving defendants failed to show lack of constructive notice where they never inspected the entrance gate before the accident. Aldalali v Sungold Assoc. Ltd. Partnership    

MVA   Rear End   Sole Cause  

Second Department
Defendant who brought her car to her a full stop as light changed from green to yellow granted summary judgment dismissing claim of driver of car who rear-ended car behind moving-defendant as plaintiff’s failure to maintain proper distance from car in front of her was sole cause of the accident. Grier-Key v Lyons    

Premises Liab   Sidewalk   Notice   Last Inspection  

First Department
Supermarket manager’s inability to recall if he worked on day of plaintiff’s fall on fish guts on sidewalk outside store and lack of testimony of no prior complaints failed to show lack of actual notice. Testimony of general maintenance procedures for garbage and sidewalk, without testimony of last time area was cleaned/inspected, failed to show lack of constructive notice. Fact that plaintiff did not see fish guts before fall was irrelevant without proof they were not visible, and burden never shifted to plaintiff. Castillo-Sayre v Citarella Operating LLC    

(2 summaries)

Uninsured   Arbitration   Hearing  

Second Department
Injured party’s carrier granted temporary stay on police report and offending vehicle carrier’s disclaimer showing offending vehicle was insured on day of the accident, but a question of fact remained of whether vehicle was being driven with knowledge/consent of owner requiring a framed issue hearing. Matter of Global Liberty Ins. Co. of N.Y. v Kaler    

SUM   Arbitration   Coverage  

First Department
Carrier for car that struck injured party granted permanent stay of arbitration as claimant was not an insured under offending car’s SUM policy and $250,000 claimant received from a codefendant in the tort action was greater than the $25,000 SUM policy. Matter of Allstate Ins. Co. v Bizounouya    

About Matt McMahon

Civil trials and appeals since 1984
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