June 29, 2021 | Vol. 268

(3 summaries)

Malpractice   Duty   Accepted Practice   Experts  

Second Department
Radiology defendants did not assume duty beyond administering and reading decedent’s “routine” mammogram where referring doctor did not specify screening or diagnosis, and decedent signed radiology center’s worksheet stating it was routine and including complaint of pain/soreness in breast but not statement she felt a lump, and their expert’s opinion that reading was within accepted practice entitled them to summary judgment. Stock thanks “for the opportunity to participate in the care of this patient,” did not create a duty beyond reading the mammogram. There was 1-dissent. Mann v Okere    

MVA   Wrongful Death   Sole Cause   There to be Seen  

Second Department
Driver and owner of minivan failed to meet burden for summary judgment as testimony that after reversing in cul-de-sac driver 4-other witnesses heard loud thump when she moved forward, driver began reversing when a man shouted to stop, and the 17-month infant, who died the next day, was laying on the ground right behind passenger side of van failed to eliminate all questions of driver’s negligence including her ability to see the infant. There were no eyewitnesses to the contact with the infant. Danziger v Elias    

Comment: Lower court found infant, identified as a 14-months infant, to be the sole proximate cause of the accident.

Attorney Fees   Settlement  

Second Department
Attorney who referred case to employer firm under agreement where he would receive 40% of fee granted 80% of fee for settlement reached after attorney left firm taking case with him, based on the relative work and contribution to the result. Matter of Cooper    

Comment: Surrogate court had split fee 50-50.
(14 summaries)

Premises Liab   Sidewalk   Trivial  

Second Department
Plaintiff’s testimony her toe stubbed the “little lip” of the 1″ height differential between 2-concrete slabs while looking ahead on a clear day, and photographs, established as a matter of law it was a trivial defect that someone ‘might merely stumble, stub his or her toes, or trip’ on and the surrounding circumstances did not increase the risk to make it a trap or nuisance. Boesch v Comsewogue Sch. Dist.    

Serious Injury   Directed Verdict   Appealable Order  

Second Department
Order granting oral motion for directed verdict on serious injury at close of plaintiff’s case in damage only trial reversed, and case remanded for new trial, where there was a rational path for jury to find serious injury viewing evidence in light most favorable to plaintiff. Plaintiff’s appeal from the order on oral motion was deemed a motion for leave to appeal which was granted. Manning v Bassi    

Comment: A reminder that orders from motions not on notice are not appealable but require a motion for leave to appeal.

MVA   Notice of Claim   Actual Knowledge   Prejudice   NYC  

Second Department
Proof that NYC police investigated accident where marked cruiser struck petitioner while crossing street, on day of accident and prepared a report where actionable wrong could be inferred met burden of showing NYC had actual knowledge of essential facts within 90-days and was not prejudiced by delay in filing Notice of Claim. Defendants failed to make a particularized showing of prejudice. Matter of McGrue v City of New York    

Motion to Dismiss   Vacate Default   Appealable Order  

First Department
Plaintiff’s appeal from order striking Complaint for failure to comply with discovery dismissed as no appeal lies from an order granted on default and plaintiff did not move for leave to appeal. Manrique v Delgado    

Malpractice   Informed Consent   Feigned Issue  

First Department
Defendants granted summary judgment of informed consent claim on detailed signed consent form warning of complication patient experienced after procedure and medical records demonstrating numerous conversations about plaintiff’s failed CPAP attempts, making plaintiffs’ claim defendants failed to recommend CPAP as a no risk alternative a feigned issue. Zeoli v Jacobowitz    

Premises Liab   Elevator   Notice   Res Ipsa Loquitor   Renew   Reargument   Appealable Order   Experts   Conclusory   Speculation  

Second Department
Owner, management company, and elevator maintenance company granted summary judgment where doors of 1-of-8 elevators closed on plaintiff on proof they had no prior notice of malfunctioning in any of the 8-elevators. Opinion of plaintiff’s expert that injury resulted from not maintaining door detector edge was speculative and conclusory. Plaintiff failed to show accident was type that would not ordinarily happened absent negligence, making res ipsa loquitor inapplicable.

Motion to renew based on documents where plaintiff identifies for the first time which of the 8-elevators was involved properly denied without reasonable justification for not including them in original motion and, in any event, they would not have changed the result as they did not raise address notice of a defect. There is no appeal from the denial of the motion to reargue. Lanzillo v 4 World Trade Ctr., LLC    

Malpractice   Statute of Limitations   Continuous Treatement  

First Department
Plaintiff failed to raise issue of continuous treatment for failure to diagnose thymoma during periods where her symptoms did not implicate presence of thymomas. 2-ER visits 3-years apart, before symptoms of thymomas were present, did not toll statute of limitations where there was no anticipation of follow-up treatment. Vines v New York City Health & Hosps. Corp.    

Labor Law §240   Safety Devices  

First Department
Worker struck by 1,000 lb. cylindrical rebar column his coworkers pushed down ramp entitled to summary judgment on Labor Law §240(1) as the heavy load required securing and no appropriate safety devices, such as hoisting equipment, barriers, or exclusive zones, were provided. McVicker v Port Auth. of N.Y. & N.J.    

Prior Written Notice   Create Condition  

Second Department
Municipalities granted summary judgment on proof of no prior written notice of defect in inlet grate and plaintiff’s expert’s opinion they created condition by repairing grate with mortar 1-year earlier that eventually washed away failed to raise issue on creation exception to prior written notice since it did not show defendants created an immediately dangerous condition. Torres v Incorporated Vil. of Rockville Ctr.    

MVA   Comparative Fault   There to be Seen  

Second Department
Plaintiff who entered intersection with green light granted summary judgment on liability but denied summary judgment of comparative fault as question remained whether he exercised due care in observing the conditions as he entered the intersection. Miles v Walsh    

MVA   Pedestrian   Sole Cause   There to be Seen  

Second Department
Defendant failed to meet burden for summary judgment where submitted proof showed 8-year-old was crossing winding road from defendant’s left and was struck by defendant’s passenger side after child crossed more than halfway, leaving questions of defendant’s fault for not seeing what was there to be seen and whether child was sole proximate cause of accident. Sage v Taylor    

Premises Liab   3rd Party Contractor   Create Condition   Espinal  

Second Department
Cleaning service that provided overnight cleaning and ad hoc daytime porters at Target store where plaintiff slipped on bleach in cleaning product aisle failed to meet burden of eliminating the launch an instrumentality of harm Espinal exception without proof of what services they provided on day of accident. Uziel v Target Corp.    

Prior Written Notice   NYC  

First Department
NYC granted summary judgment on proof it did not receive prior written notice of raised Dept. of Water manhole cover. Gray v City of New York    

MVA   Highway Design   Causation   Experts  

Second Department
Municipal defendants granted summary judgment where undisputed testimony that non-party driver who struck plaintiff in crosswalk while making left-hand turn could not see plaintiff due to sun glare established road design was not a proximate cause of accident. Plaintiff’s expert failed to raise issue without addressing testimony driver was blinded by sun glare and failure to explain how safety improvements would have prevented the accident. Girard v Town of Orangetown    

(0 summaries)

About Matt McMahon

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