June 6, 2023 | Vol. 368

(3 summaries)

Discovery   CPLR § 3101(d)   HIPAA   Frye   Falling Object  

First Department
Con Ed’s cross-motion to compel plaintiff to provide authorizations for medical and “testing records (including controls, standards and calibrations)” from her treating doctors and CPLR §3101(d) experts for a Frye challenge to certain tests improvidently granted, and plaintiffs’ motion for a protective order improvidently denied, where plaintiffs fully complied with discovery demands by providing CPLR §3101(d) responses detailing the “substance” of the facts and opinions of which each expert is expected to testify, HIPAA authorizations for all medical records, and Arons authorizations for interviews of her experts and appropriately objected that the information sought was not within her control.

‘It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify’ as §3101(d) only requires disclosure of the “substance” of the facts and opinions. A claim that a procedure is novel is not a “special circumstance” warranting disclosure beyond §3101(d). Defendant never attempted to obtain the demanded information directly through third-party discovery. Almonte v Consolidated Edison Co. of N.Y., Inc.    

Malpractice   Estate   Vacate Default   CPLR 3404   Reasonable Excuse   Meritorious Action   Prejudice  

Second Department
Plaintiff’s motion to vacate the automatic dismissal of the malpractice action after it was not restored to the trial calendar for more than 1-year after it was stricken denied where plaintiff failed to meet all 4-components of CPLR §3404. Plaintiff’s counsel’s affirmation and doctor’s unsworn affirmation were insufficient to show a meritorious action as they both lacked personal knowledge of the underlying facts. Counsel’s effort to appoint a new administrator after the plaintiff-administrator refused to go forward with trial and moved to Florida without telling counsel was not a reasonable excuse for not restoring the action before dismissal and showed that the delay resulted from plaintiff’s attempts to abandon the case. 9-year delay between malpractice and plaintiff’s motion failed to show defendants would not be prejudiced by restoring case. Plaintiffs must meet all 4-components for restoration to the trial calendar. Martone v Huang    

MVA   Arbitration  

First Department
Plaintiff’s motion to stay arbitration denied and electric moped rental company’s motion to compel arbitration granted on proof plaintiff was required to affirmatively click a box agreeing he was aware of and agreed to defendant’s terms of service which included an arbitration clause (clickwrap agreement). Whether he clicked on the hyperlink to review the terms was irrelevant as he was on inquiry notice of the terms.

Plaintiff dropped his reliance on a printed form of the agreement from a different case which had different versions of the agreement and failed to provide any other evidence that the agreement violated the type size requirements for consumer transactions under CPLR §4544. Weissman v Revel Transit, Inc.    

(11 summaries)

Assault   Discovery   Privilege   CPLR §306-b   Service   Reasonable Excuse   Untimely  

Second Department
Lower court improvidently denied certified nurse assistant’s cross-motion for in camera review of NYCHHC’s records of patient who assaulted her as disclosure of patient’s prior aggressive or violent acts was not medically privileged.

Plaintiff’s CPLR §306-b motion to extend time to serve assailant on “good cause” providently denied where she failed to show required diligence in attempting service. While diligent attempted service is not required for §306-b “interest of justice” extension, plaintiff’s lack of reasonable service efforts and delay in moving for extension failed to meet the interest of justice standard. Gooden v New York City Health & Hosps. Corp.    

Comment: See related decision below.

Assault   Vacate Default   Reasonable Excuse   Meritorious Action   Workers Comp Defense   Notice   Violent Propensity  

Second Department
Plaintiff’s motion to vacate default in opposing NYCHHC’s summary judgment motion improvidently denied where return date of summary judgment motion was after effective date of executive order tolling certain deadlines for COVID, was administratively adjourned, marked submitted prior to the expiration of the COVID tolls, and there were potential issues of fact on worker comp defense and notice of assailant’s violent propensities. Gooden v New York City Health & Hosps. Corp.    

Comment: See related decision above.

MVA   Venue  

First Department
Defendants’ motion to change venue from New York to Suffolk County, where defendants’ vehicle struck bicyclist in Suffolk County, based on convenience of material witnesses and the ends of justice (CPLR §510(3)) providently denied where 4-non-party witness affidavits did not detail the materiality and relevance of their proposed testimony or how they would be inconvenienced by testifying in New York County. Hidalgo v Hoge    

Discovery   HIPAA   Preexisting  

First Department
Defendants’ motion to compel plaintiff to provide unrestricted authorizations for medical and employment records for a prior work accident with injuries to his knees, a prior MVA with injuries to his knees and lumbar spine, and his current construction accident with injuries to his lumbar spine granted where plaintiff alleged permanent pain and difficulty walking, working, ‘prolonged sitting, climbing stairs and lifting, carrying heavy objects, performing strenuous activities, finding a comfortable position and sleeping.’ Even though he did not claim knee injuries from the current accident, the prior injuries were relevant to his alleged difficulties and his long-standing arthritic knees and pre-existing lumbar spondylolysis, warranting unrestricted authorizations. Villanueva v J.T. Magen & Co. Inc.    

Malpractice   Accepted Practice   Experts  

First Department
Hospitals and doctors met burden for summary judgment on experts’ affidavits that failure to include a cervical spinal abscess in their differential diagnosis and perform blood testing or cervical imaging were not departures from accepted practice where there were no symptoms of infection or neck complaints. Plaintiffs’ expert’s opinion that an emergency lumbar spine MRI was required and, when negative, would have required a cervical MRI and blood work that would have diagnosed the cervical abscess failed to raise an issue in opposition as it was mere hindsight and did not refute that defendants were not required to investigate an unindicated condition. Where plaintiff’s expert failed to show he ever diagnosed or treated the back injuries/conditions at issue, he was not qualified to give an opinion on the standard of care for the defendant-psychiatrist. Clifford v White Plains Hosp. Med. Ctr.    

Labor Law §240   Gravity Risk  

Second Department
Plaintiff met burden for summary judgment on Labor Law §240(1) on proof that handle of 300 lb. compressor he and coworkers were moving across 2′ deep trench between sidewalk and street struck him when the compressor broke through a plywood ramp and fell into the trench, establishing the accident was caused by the failure to provide adequate safety devices to protect against the gravity risk posed. Given the amount of force the compressor could generate over the distance it fell, there was a sufficient elevation differential protected by §240. Gonzalez v Madison Sixty, LLC    

Premises Liab   Wet Floor   Dangerous Condition   Amend BP   Note of Issue   Experts   Causation   Feigned Issue  

Second Department
Gas station granted summary judgment dismissing claim for fall on external ramp wet from rain as “[t]he mere fact that an outdoor ramp became wet from rain was insufficient to establish the existence of a dangerous condition.”

Court considered plaintiff’s amended BP which raised new theories, served in response to the motion, which was filed before Note of Issue, as a party can amend the BP once prior to filing a Note of Issue (CPLR §3042(b)), but plaintiff’s expert failed to raise an issue on causation under the new theories which were based on the injured-plaintiff’s affidavit detailing defects that contradicted his prior testimony. Smith v 3173 Gas Corp.    

Premises Liab   Trivial  

Second Department
Supermarket and landlord granted summary judgment on plaintiff’s testimony that her toe caught in a crack in the curb as she stepped on it on a clear day with nothing obstructing her view and photographs of the curb established it was a trivial defect in that it was “physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.” Balbo v Greenfield    

MVA   Sole Cause   Premature Motion  

Second Department
The defendant, whose vehicle the plaintiff struck, granted summary judgment on proof plaintiff was the sole cause of the accident when he failed to yield the right of way when entering the intersection against a stop sign. Motion was not premature where plaintiff failed to show discovery might lead to relevant evidence or that information solely within the other parties’ knowledge was necessary to oppose the motion. Berlin v American United Transp., Inc.    

MVA   Emergency Doctrine  

Second Department
Driver of vehicle traveling in opposite direction granted summary judgment on emergency doctrine on proof the accident happened almost immediately after she first observed plaintiff’s vehicle cross into the oncoming lane and whether she was stopped at a red light or proceeding through a green light at the time was irrelevant. ‘A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic.’ Francois v Baez-Mieses    

Construction Liab.   Duty   Create Condition  

Second Department
Con Ed granted summary judgment on proof it did not do work at the intersection where plaintiff fell in a crosswalk and did not create the defect that caused plaintiff’s fall. A contractor that does not own, occupy, control, or make special use of property has no duty to maintain the property. Thomas v City of New York    

(2 summaries)

Malpractice   Accepted Practice   Causation  

Second Department
Law firm and attorneys failed to meet burden for summary judgment dismissing legal malpractice claim without evidence establishing as a matter of law either that they did not fail to ‘exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ or that their breach did not proximately cause ‘plaintiff to sustain actual and ascertainable damages.’ The Court does not give the details of the proofs. Gardner v Sacco & Fillas, LLP    

Serious Injury  

Second Department
Defendants met burden for summary judgment on competent medical proof that plaintiff’s shoulder and cervical injuries did not meet the serious injury threshold, including the 90/180-day category. Plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Scala v Benitez    

About Matt McMahon

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