June 23, 2020 | Vol. 216


MUST READS
(4 summaries)
NOTEWORTHYIF YOU MUST READ

Med Mal   Preclusion   Expert Aff   Frye   Appealable Order  

First Department
Lower court’s ruling precluding plaintiff’s expert from testifying that plaintiff’s hyponatremia, though resolved, caused permanent fasciculations fit within the exception to the rule that pretrial evidentiary rulings are not appealable where the functional equivalent of summary judgment given that plaintiff could not establish causal connection between malpractice and injury absent the expert’s opinion. Preclusion warranted under Frye as material to support expert’s opinion based on fasciculations present in patients experiencing hyponatremia but who also showed brain damage which plaintiff did not have. Knafo v Mount Sinai Hosp.


Venue   Untimely   Reasonable Excuse  

First Department
Rehab facility’s delay in seeking change of venue from Bronx to Nassau County under clause in admission agreement untimely where facility was aware of admission agreement at time action was commenced and offered no reasonable excuse for the delay. Brown v United Odd Fellow & Rebekah Home, Inc.


Med Mal   Venue  

Second Department
Denial of defendants’ motion to change venue from Bronx to Orange County reversed and remanded for further determination of whether “substantial part of the events or omissions giving rise to the claims allegedly occurred” in the Bronx where plaintiff was treated at Montefiore Hospital. Plaintiff designated Bronx as venue based only on residence of defendants, no defendant resided in the Bronx, and only raised substantial events as further grounds in opposition to motion under CPLR §503. Vereen v Flood


Set Aside Verdict   Law of the Case   Res Ipsa Loquitor   Jury Charge   Expert Aff  

First Department
Judgment dismissing action on defense verdict reversed and new trial ordered where lower court should have charged res ipsa loquitor as doctrine does not require a showing of “sole physical access to the instrumentality causing the injury,” should have charged that violation of NYC administrative code §28-301.1 requiring building owners to maintain premises in a safe condition was some evidence of negligence, and plaintiff should have been allowed to fully question credentials of defendant who testified as an expert regarding their installation of towel dispenser/trash receptacle that fell from bathroom wall striking plaintiff given that it fell only 8-months after installation. Prior decisions on motions regarding res ipsa loquitor were not law of the case requiring jury charge, but evidence at trial showed charge warranted. Galue v Independence 270 Madison LLC

NOTEWORTHY
(8 summaries)
MUST READSIF YOU MUST READ



Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department
Internist and medical group made out prima facie entitlement to summary judgment on expert’s opinion that complaints on examination were not specific or diagnostic for temporal arteritis diagnosed 8-days later, and did not cause blindness. Plaintiff’s expert’s opinion that internist’s failure to properly examine, investigate, appreciate symptoms, and diagnose temporal arteritis raised issue in opposition. Expert’s opinion probative on proof that general surgeon who was not an internist had the requisite skill and knowledge in the care and treatment of temporal arteritis to give opinion.

Other internist, plaintiff’s primary physician, granted summary judgment on claim he should have consulted with first internist after she saw plaintiff as plaintiff’s expert’s opinion that it would have changed the outcome was speculative as to what primary care doctor would have done. Kiernan v Arevalo-Valencia



Motion to Dismiss   3rd Party Contractor   Create Condition   Duty   Espinal   Expert Aff  

Second Department
Con Ed’s motion to dismiss for failure to state a cause of action ,claiming it owed no duty to plaintiff’s decedent, denied where Complaint alleged Con Ed authorized installation of uninsulated wire from roof where decedent was working to Con Ed’s lines, in violation of applicable codes, which taken as true would create a duty under Espinal. Plaintiff’s cross motion for summary judgment denied on conflicting expert opinions. Sucre v Consolidated Edison Co. of N.Y., Inc.


Pothole Law   Sidewalk   Prior Written Notice   Big Apple Pothole   Question of Fact   NYC  

Second Department
NYC denied summary judgment on claim that “OK” notation on Big Apple map established sidewalk was clear of defects where line depicting raised/uneven defect in same area of sidewalk raised questions of fact on location of accident and whether it was caused by defect on map. Harrison v City of New York


Serious Injury   Expert Aff   Causation   Renew  

Second Department
Plaintiff granted summary judgment on serious injury by evidence that she was unable to engage in her usual activities, including being unable to return to work, for 90/180-days and defendants’ examining neurologist failed to connect his findings to her usual activities. Dembowski v Morris

Comment: Motion to renew denied where new affidavit by defendants’ examining expert failed to connect his findings to plaintiff’s usual activities under the 90/180-day category.Dembowski v Morris


Serious Injury  

Second Department
Defendant failed to meet its burden for summary judgment on serious injury where retired plaintiff’s testimony that “he cannot walk or sleep the way he used to, cannot lift anything heavy, including his grandchildren, and can no longer paint or mop,” failed to show that he could resume his pre-accident activities under 90/180-day category, even though he did not quantify how he engaged in these activities before the accident. Rodriguez v McCullough


Negligent Hiring  

First Department
Outpatient rehab facility granted summary judgment of negligent hiring claims that employee sexually assaulted patient after agreeing to falsify marijuana test results to allow them to smoke pot together in return for watching employee’s children as criminal background check showing trespass and 2-drug offenses that office of alcoholism and substance abuse did not deem warranted denial of hiring, instances of employee nodding out and not showing for work on occasion did not put facility on notice of propensity to commit sexual assault or falsify toxicology results. Norris v Innovative Health Sys., Inc.


Premises Liab   Slip/Trip   Sidewalk   Duty   Premature Motion  

Second Department
Company hired to list for sale empty lot abutting sidewalk plaintiff slipped on denied summary judgment for failure to attach a copy of the listing agreement to establish that it did not own, control, occupy, or maintain the property and did not owe plaintiff a duty. Town granted summary judgment where plaintiff’s only opposition was that motion was premature and plaintiff failed to show what discovery would be necessary to oppose. Ulloa v Incorporated Vil. of Freeport


MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Department
Middle car owner and driver denied summary judgment on claim that their car was stopped when struck in the rear and pushed into plaintiffs’ car where they failed to eliminate all questions of fact. D’Avilar v Lu

IF YOU MUST READ
(0 summaries)
MUST READSNOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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