June 8, 2021 | Vol. 265


MUST READS
(6 summaries)
NOTEWORTHYIF YOU MUST READ







Statute of Limitations   Appealable Order   Untimely  

Second Department
Defendants’ motions to dismiss appeal as untimely where Notice of Appeal was filed 38-days after order appealed from with Notice of Entry denied as Gov. Cuomo’s COVID executive orders tolled filing deadlines making filing timely. A toll stops the running of the applicable time period, and that time is not added when calculating timeliness whereas a suspension only delays expiration of the time period. The original and last two executive orders specifically mentioned tolling the time periods and the orders in between those provided the original suspensions and “modifications of law” were continued giving the governor authority to toll filing deadlines and statutes of limitation as Executive Law §29-a(2)(d) gave him authority to suspend statutes and alter or modify requirements of a statute. Brash v Richards    


Motion to Dismiss   Governmental Immunity   Waiver  

First Department
Thorough reviewing whether NJ transit expressly waived subject matter jurisdiction for tort claims in sister states by enactment of the New Jersey Tort Claims Act, the First Department found the language of that act was insufficiently explicit to waive sovereign immunity in sister states as required by SCOTUS in Franchise Tax Bd. of California v Hyatt, 139 S Ct 1485 (2019), ruling that “[i]ntra-state consent to suits cannot be deemed consent to inter-state suits.” Allowing a forum state to decide sovereign immunity waiver based on “comity” would bypass sovereign state’s limitations and requirements for liability.

The court, however, found NJ Transit waived the subject matter jurisdiction defense based on sovereign immunity by invoking the New York courts’ jurisdiction through extensive litigation over 7-years without raising the defense, inducing substantial reliance on the absence of the defense by plaintiff and the court. Defendant’s argument the sovereign immunity defense was not available until the Hyatt decision in 2019 rejected as sovereign immunity has always been available as defense. Belfand v Petosa    


Comment: The Court reached the same result in Henry v New Jersey Tr. Corp., included below.

Motion to Dismiss   Governmental Immunity   Waiver   Set Aside Verdict   Pain/Suffering   Materially Deviates  

First Department
Jury award of $400,000/$400,000 past/future pain/suffering did not materially deviate from reasonable compensation and NJ transit’s motion to dismiss for lack of subject matter jurisdiction based on the SCOTUS decision in Franchise Tax Bd. of California v Hyatt, 139 S Ct 1485 (2019) denied where defendant waived the defense by invoking the New York courts’ jurisdiction through extensive litigation without raising the defense, inducing substantial reliance on the absence of the defense by plaintiff and the court. Henry v New Jersey Tr. Corp.    

Comment: The Court’s reasoning is discussed fully in Belfand v Petosa, included above.

Directed Verdict   Set Aside Verdict   Jury Charge   Juror Confusion   IME/DME   Prejudice  

First Department
Judgment on $2,740,814 verdict for plaintiff set aside and new trial ordered where trial court refused to give PJI 2:36 comparative fault charge, requested by both sides who agreed failure to charge it would be reversible error, on belief comparative fault language in PJI 2:90 was sufficient reversed as testimony that plaintiff passed by table without seeing stool she tripped on a short while later rendered ‘the issues of negligence and proximate cause … so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause’ creating jury confusion on comparative fault.

Verdict would also have been set aside due to plaintiff’s doctor’s testimony that IME doctor was hired by an insurance company, and repeated references to these doctors having nothing to do with treatment, as it went beyond mere mention of insurance and trial court did not give an immediate curative instruction. Campbell v St. Barnabas Hosp.    



Motion to Dismiss   CPLR 3404   Amend BP  

Second Department
Plaintiffs’ motion to vacate JHO’s order striking Complaint for failure to adequately amend BP as required by several orders granted as JHO’s authority is limited to supervising discovery under CPLR §3104 and does not extend to the BP which is an expansion of the pleadings and not a discovery device. The Court also found the amended BP was adequate given that depositions had not yet occurred. Kramarenko v New York Community Hosp.    


Motion to Dismiss   Discovery   CPLR § 3126   Personal Juridiction   Sanctions   Willful/Contumacious  

First Department
Defendant’s initial motion to strike Complaint and third-party defendant’s Answer granted as plaintiff and third-party defendant willfully/contumaciously refused to participate in discovery. Defendant’s motion to dismiss second action arising from same facts and circumstances, commenced after first action dismissed, for lack of personal jurisdiction, where ex parte order granting substituted service was not reasonably calculated to apprise defendant of action, and for sanction against plaintiff’s attorney for frivolous conduct granted with plaintiffs’ counsel ordered to pay defense counsel $32,035. From lower court’s decision, the plaintiffs’ attorneys’ frivolous conduct was failing to inform court when seeking ex parte order that they made several unsuccessful service attempts at address sought for substituted service, were aware defendant was represented by counsel in the first action, but did not reach out to her in an unprofessional oversight or underhanded strategy to obtain a default judgment. Shchukin OU v Iseev    

Comment: Defendant’s attorney fees and costs were reduced by the lower court from $64,070 to $32,035.
NOTEWORTHY
(16 summaries)
MUST READSIF YOU MUST READ



Malicious Prosecution   Set Aside Verdict   Accepted Practice   Causation   Pain/Suffering   Materially Deviates   Collateral Source  

First Department
Stipulated reduced award of $7mil/$23mil past/future pain/suffering for permanent brain damage materially deviated from reasonable compensation and new trial ordered unless plaintiff stipulated to reduce award to 3mil/$7mil.

Verdict finding defendants departed from accepted practice by failing to properly treat plaintiff’s fluid overload, kidney failure, acidosis, and hypercapnia from asthma causing causing cerebral edema, seizures, and permanent brain injury was supported by evidence. Hospital’s motion for collateral source hearing granted on proof of reasonable certainty that medical expenses were or will be replaced from a collateral source. Redish v Adler    



Malpractice   Informed Consent   Accepted Practice   Spoliation   Negative Inference   Experts   Conclusory   Speculation  

Second Department
Plaintiff’s motion for spoliation granted to extent of granting a negative inference at trial on proof vascular surgeons lost or destroyed relevant venogram images necessary for prosecution of plaintiff’s case where it was their regular practice to record results, they recorded results of plaintiff’s other tests, and offered no explanation for absence of images. A handwritten note of the results was insufficient.

Plaintiff’s expert’s opinion surgeons departed from accepted practice by implanting unnecessary stent in plaintiff’s leg and failing to perform neurological evaluation before administering tPA raised issues in opposition to those defendants’ showing of entitlement to summary judgment. Plaintiff’s expert’s conclusory and speculative opinions on informed consent did not raise an issue.

Lower court’s grant of summary judgment to hospital based on its grant of summary judgment to doctors remanded for a decision on its merits. Loccisano v Ascher    



Malpractice   Public Health §2801-d   Accepted Practice   Causation   Experts   Sepulcher  

First Department
Proof decedent’s body was kept in closet-like room, his hands and feet bound, stomach bloated, and he was unshaven and dirty with a plastic tube down his throat left questions of whether defendant improperly “dealt” with body as the right of sepulcher is not limited to denial of immediate possession of decedent’s body. There was 1-dissent on this issue.

Plaintiff’s expert-physiatrist’s experience as chairman of hospital psychiatry department, as assistant clinical professor of psychiatry, and as medical practitioner qualified him to give opinion that rehab center deviated from accepted practice in treatment of decedent, a geriatric diabetic patient transferred to its care, and that those departures were a cause of death raising issue in opposition. Almeyda v Concourse Rehabilitation & Nursing Ctr., Inc.    



Assault   Building Security   Causation   Preexisting   Degenerative   Experts  

First Department
Hospital granted summary judgment for incident where plaintiff-patient left ER with EKG and IV lines, was instructed by security guards to return to ER, and left without signing out AMA on proof that none of plaintiff’s claimed injuries were caused by the incident as plaintiff testified the 2-security guards identified did touch him and third person who grabbed his arm was never identified. Plaintiff’s orthopedic surgeon failed to raise issue on opinion it was “very unlikely” conditions were pre-existing and he failed to address degenerative findings in plaintiff’s medical records he relied on. Johnson v New York & Presbyt. Hosp.    


Malpractice   Accepted Practice   Causation   Experts  

First Department
Plaintiffs’ expert failed to raise issue on departure for dentist and his practice failing to refer decedent to oral surgeon for biopsy of 2 cm gingival lesion, later diagnosed as a T2 cancer, during 4-month period without addressing evidence they referred decedent to a periodontist specifically for the lesion on each visit during that time. Defendants’ expert failed to rebut plaintiffs’ expert’s opinion defendants departed by not referring decedent on first visit leaving issue of fact. Defendants’ motion for summary judgment denied. Conflicting opinions of whether lesion was T1 or T2 on initial visit, and plaintiff’s expert’s opinion that failure to refer decedent for biopsy at that time allowed it to advance from T1 to T2, raised issue on causation. Santullo v Chen    


Building Security   Notice   Foreseeability  

Second Department
Building owner and manager failed to meet burden for summary judgment where security guard, employed by third-party contractor to guard lobby, was attacked by group of skateboarders as deposition testimony that a group of skateboarders entered and refused to leave the lobby a few days before and evidence of other prior crimes in the building, submitted by defendants, failed to eliminate issues of whether they provided reasonable minimal security for assaults they had notice were reasonably foreseeable. Vilsaint v SL Green Realty Corp.    

Comment: Security contractor that subcontracted security work to plaintiff’s employer granted summary judgment on contractual indemnity claim, and plaintiff’s employer denied summary judgment on its contractual indemnity claim, as assault occurred because of sub-contrator’s failure to provide adequate security and under the contract, contractor could only be responsible if assault resulted from its own acts. Vilsaint v SL Green Realty Corp..

Malpractice   Default Judgment   Motion to Dismiss   Untimely   Reasonable Excuse  

First Department
Plaintiff’s explanation she did not timely moving for default under CPLR §3215(c) because she had moved to Puerto Rico without telling her attorney who had to hire an investigator to find her and that she did not return affidavits for several months was not a reasonable excuse. Motion for default judgment denied and defendants’ motion to dismiss as abandoned granted. Ventura v Chhabra    


Negligent Supervision   Question of Fact  

Second Department
School district failed to meet burden for summary judgment where questions remained of whether student was adequately instructed on how to use school zip line during recess and whether instruction they could have another student give them a “head start push” was appropriate. Genova v Town of Clarkstown    


Premises Liab   Wet Floor   3rd Party Contractor   Espinal   Vicarious Liab   Notice   Survelliance Video  

First Department
Plaintiff who walked over dry lobby floor in hotel on his way to restroom but slipped when floor was wet 5-minutes later granted summary judgment against cleaning contractor who launched an instrumentality of harm where its employee poured or negligently mopped water/cleaning fluid on floor. Surveillance video left no question of cleaner’s negligence. Building owner and tenant-hotel denied summary judgment as they may be vicariously liable for contractor’s negligence under their nondelegable duty to maintain property in a safe condition and questions remained on whether they had notice of the condition. Tobola v 123 Wash., LLC    


Premises Liab   Workers Comp Defense  

First Department
Defendant granted summary judgment on exclusivity provision of Worker’s Compensation where it had exclusive control over means/methods and results of plaintiff’s work establishing plaintiff was its special employee. Martinez v 214 W. 39th St. LLC    


Malpractice   Notice to Admit   Discovery  

First Department
Pro se plaintiff’s motion for determination that defendants’ response to a Notice to Admit was inadequate denied as Notice sought discovery not an admission of undisputed or easily provable facts, and defendants properly directed plaintiff to seek the information through discovery devices. Genna v Klempner    


MVA   Emergency Doctrine  

Second Department
Defendants, driver, and owner of vehicle directly behind plaintiff’s vehicle when codefendant crossed double yellow line and struck plaintiff’s vehicle head on granted summary judgment on emergency doctrine where there was little or no time to react to emergency situation not created by moving defendants. Penaranda v Tesoriero    


MVA   Bus   Turning Vehicle   Sole Cause   Survelliance Video  

Second Department
Bus video showing plaintiff making left-hand turn out of parking lot in front of bus established she was sole cause of accident for failing to yield the right-of-way under VTL §1143. County and its bus driver granted summary judgment. Alston v Irizarry    


Premises Liab   Wet Floor  

First Department
Maintenance worker’s testimony that she was required to clean soap spills when cleaning bathrooms was fatal to her claim building’s management company allowed the floor to become wet. Mejia v 110 William, LLC    


MVA   Question of Fact   Comparative Fault  

Second Department
Conflicting versions of collision between plaintiff’s and defendant’s vehicles in depositions, submitted by plaintiff, failed to meet burden for summary judgment where questions of fact remained of who had right-of-way necessary to establish liability and comparative fault. Ramirez v Wangdu    


Negligent Hiring   Negligent Supervision   Assault   Motion to Dismiss  

Second Department
School district’s motion to dismiss claims of sexual abuse by school pediatrician between 1979-1981 denied as negligent hiring, retention, and supervision allegations are not required to be specifically pleaded and taking allegations in light most favorable to plaintiff, proper causes of action were stated. The Court does not give the details of the proofs. Doe v Enlarged City Sch. Dist. of Middletown    

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Premises Liab   Unknown Cause   Speculation  

Second Department
School district granted summary judgment on proof plaintiff was unable to identify the cause of her fall without speculation. The Court does not give the details of the proofs. Berry v Rockville Ctr. Union Free Sch. Dist.    

About Matt McMahon

Civil trials and appeals since 1984
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