Med Mal Bankruptcy Estoppel
 Plaintiff was judicially estopped from pursuing his malpractice claim for prolonged failure to disclose his medical malpractice case to the bankruptcy court even after retaining counsel and being alerted to the importance of disclosing the matter.
Kleinplatz v Nathan L. Dembin & Assoc., P.C.
Comment: The same result was reached in the case of Horvath v Gumley Haft Kleier Inc. decided on the same day by the First Department and is a good reminder to the plaintiffs’ bar to question plaintiff often regarding any potential bankruptcies and to the defendants’ bar to ask the bankruptcy question at deposition and to run bankruptcy searches to make sure that the plaintiff has standing.
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Attorney Fees Sanctions Statute of Limitations
Moving defendant had provided an affidavit to the plaintiff’s attorney averring that it had no connection to the renovation project where the plaintiff was injured requesting a discontinuance. The plaintiff’s stipulation of discontinuance was without prejudice stating that the action could be reinstated regardless of statute of limitations if it was found that the moving defendant had some involvement with the project. The moving defendant refused, moved for summary judgment, and requested attorney fees for commencement or continuance of a frivolous action under CPLR §8303-a. The court granted the summary judgment motion but held the sanctions motion in abeyance until after the case was resolved and, at that time, denied plaintiff and plaintiff’s attorney’s motion to renew their opposition, granting moving defendant’s motion for sanctions of $14,100 without a hearing. The Appellate Division reversed finding a hearing necessary to determine if the action was commenced or continued in bad faith and without any reasonable basis in fact, and if so, a hearing on the amount of reasonable attorney fees which, under the statute are limited to $10,000. Altadonna v Accord Contr. & Mgt. Corp.
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Set Aside Verdict Materially Deviates
 Plaintiff’s $100,000 verdict set aside as materially deviating from reasonable compensation unless parties agreed to increase award to $300,000 for 12-year-old who sustained bimalleolar ankle fracture, and tibial fracture affecting his growth plate, which required 3 surgeries for ORIF and removal of screws, weeks of hospitalization, months of missed school, fusion of his tibia and fibula which will require a fourth surgery, and limitations of his activities. Sawh v Bally Contr. Corp.
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Premises Liab Elevator Res Ipsa Loquitor Set Aside Verdict
Setting aside a verdict for prejudicial error in not admitting elevator logs where a proper business record foundation had been laid, the First Department gives a detailed explanation of what is and is not necessary to for res ipsa loquitor. The service elevator door, consisting of an outer and inner door with an electric eye and no bumper, closed on the plaintiff as she entered the elevator with only one of the doors closing. A similar incident had occurred a week before to the plaintiff where her laundry cart was struck and noted in the building’s elevator logs. The elevator maintenance company had repaired the controller for the doors the day before the accident and had stated that the elevator was “on its last legs” and needed to be replaced. The maintenance company also testified that the doors could not separate and close independently without there being a malfunction.
The trial court refused to charge the owner’s non-delegable duty under Multiple Dwelling Law §78, res ipsa loquitor, found that the plaintiff was precluded from establishing freedom from comparative fault by not calling an expert, while also finding that the accident was of the type that would not normally occur absent negligence and that the elevator was in the exclusive control of the defendant. The trial court also found the elevator logs which included numerous incidents of problems with the elevator, including the door closing abruptly on the plaintiff’s laundry cart the week before, inadmissible. The jury returned a verdict in favor of the defendants finding neither defendants nor plaintiff negligent.
The appellate court found the service company’s testimony that the doors could not operate separately sufficient to establish the first element of res ipsa loquitor, that it was an accident that does ordinarily occur absent negligence; the fact that the electric eye is not accessible to the public sufficient to establish the second element, that it was within the exclusive control of defendant; and that the fact that the plaintiff merely walked into an elevator that was supposed to automatically open if she was between the doors established the third element, that it was not caused by the plaintiff. The plaintiff was only required to meet the 3 conditions for there to be a rational basis to find it more likely than not caused by the defendants’ negligence and did not have to exclude all possible causes. Barkley v Plaza Realty Invs. Inc.
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Med Mal Personal Juridiction Service CPLR §306-b
Plaintiff’s motion for default judgment properly denied, after referee’s determination that service on the defendant was improper, defendant’s motion to dismiss based on improper service properly granted, but the lower court erred in extending the plaintiff’s time to serve under CPLR 306-b as plaintiff failed to show that she exercised reasonable diligence in the initial service on defendant 3 years before, and failed to show that time should be extended in the interest of justice. Hobbins v North Star Orthopedics, PLLC
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Wrongful Death Set Aside Verdict Motion to Dismiss
Plaintiff’s motion to set aside the verdict as against the weight of the evidence and in the interest of justice based on jury’s award of $0 for “loss of guidance” denied. The determination of pecuniary losses is particularly within the province of the jury and there was a rational path for the jury to make its determination. Estevez v Tam
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Security Guard Duty Motion to Dismiss
In the context of a motion to dismiss based on documentary evidence (security agreement), the defendant’s motion was denied because the complaint raised the issue of whether the defendant security company assumed a common-law duty by instructing the plaintiff, a security guard from a separate (but related) security company, to search for and detain an intoxicated patron who attacked him. The contract established that there was no contractual duty as the contract did not expressly identify others as beneficiaries and, in fact, expressly identified them as non-beneficiaries. Garda v Paramount Theatre, LLC
Comment: This case was decided on 12/28/16 and inadvertently omitted from the January 3, 2017 Vol. 35. It is now in that volume and will appear correctly in all searches. We are very grateful for users who point out omissions or mistakes so that our database which feeds the advanced search feature is always accurate.
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MVA Rear End Uncertified Records Comparative Fault
On their motion for summary judgment the plaintiffs included the plaintiff driver’s testimony which showed that the plaintiff was stopped in traffic when he was rear-ended, and an uncertified copy of the police report which stated that the defendant reported that the plaintiff driver was traveling in reverse and struck defendant’s car. By including the uncertified police report in the moving papers, the plaintiff waived issues of admissibility and failed to show that the plaintiff was free from comparative fault. Cruz v Finney
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Highway Design Qualified Immunity
Court of Claims decision for defendant affirmed were plaintiff failed to put forth proof that defendants deviated from standards in existence at time of renovation project. Plaintiff driving south on I 87 collided with a van stopped in his lane but failed to show significant similar accidents in the years before his accident. Having failed to show that the traffic study conducted by the defendants was “plainly inadequate” or that the traffic plan was without a reasonable basis, State was also entitled to dismissal on qualified immunity. Steiner v State of New York
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Note of Issue Discovery Hippa BP
Lower court providently denied defendant’s requests for authorizations for medical treatment and hospitalization where plaintiff averred that he had not received any treatment at that hospital for injuries to the same areas involved in his accident and the demand for plaintiff’s employer authorizations for 10 years before the accident was overbroad. Discovery demands are limited to the injuries alleged in the BP. The lower court restored the action to the trial calendar. Diako v Yunga
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MVA Bus Wrongful Death Question of Fact
MTA and MTA bus company’s motion for summary judgment denied where witness who had just left bus identified defendant’s bus as having hit plaintiff’s decedent in 911 call (although witness did not see plaintiff’s decedent get hit), and police report identified the defendant’s bus as involved in the accident based on an inspection made 19 miles from the scene. While defendants pointed to gaps in plaintiff’s proofs, they did not sustain their burden of eliminating all triable issues of fact. Jiann Hwa Fang v Metropolitan Transp. Auth.
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Premises Liab Slip/Trip Stairs Handrail Expert Aff Building Code
Defendant denied summary judgment where plaintiff testified that she tripped on the lip of the stairs because she was unable to raise her foot high enough and that the handrail was too low for her to grab. Her expert engineers opined that the height of the riser and the handrail violated applicable building codes. Murray v Villa Barone Ristorante, Inc.
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Vacate Jud Reasonable Excuse Untimely
Defendants’ motion to vacate judgment entered upon failure to comply with a conditional order of preclusion and failure to appear at the inquest should have been denied as untimely under CPLR 5015(a)(1) which requires that the motion be made within 1 year of service of the order with notice of entry. While the court has discretion to vacate a judgment after the 1 year, defendant offered no reasonable excuse for failing to comply with the conditional order or for failing to make the motion within 1 year. Absent fraud, misrepresentation, or misconduct by the plaintiff, defendants were not entitled to vacate judgment under CPLR 5015(a)(3). Diaz v Wyckoff Hgts. Med. Ctr.
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Premises Liab Assumption of Risk Open/Obvious NYC
Defendants granted summary judgment where 15-year-old student tripped on a wrestling mat in multipurpose gym placed 2’-4’ from the baseline of the basketball court where he was doing a layup drill. The plaintiff assumed the risk of the mat which was open and obvious by voluntary participating in the drill with knowledge of the mat’s existence. The case against NYC would have been dismissed regardless because it was the wrong party. Egbebemwen A. v New York City Dept. of Educ.
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Premises Liab Curb Slip/Trip Unknown Cause Duty
Judgment in favor of mall based on claim that plaintiff could not identify what caused him to fall reversed where plaintiff testified at deposition, submitted by defendant, that his foot got caught in a crack in the curb causing him to trip and he was able to identify the crack at the deposition. Co-defendants, contractor and paving company, were properly granted summary judgment where the work had been completed years before the accident and they had no continuing duty to monitor the work. Kelly v Mall at Smith Haven, LLC
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Malicious Prosecution Probable Cause
Defendants denied summary judgment where plaintiff’s testimony and affidavit disputed that he was involved in a narcotics transaction and that he did not resist arrest raising an issue regarding whether the police made a “full and complete statement of facts” or misrepresented or falsified evidence or acted in bad faith which may be considered as the institution of a malicious prosecution. Rivera v City of New York
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Med Mal Wrongful Death Accepted Practice Expert Aff Notice
Defendant hospital and primary physician who cleared plaintiff’s decedent for total knee replacement surgery granted summary judgment on their experts’ opinions showing no departure from accepted practice in clearing the plaintiff, who had renal failure and was morbidly obese, for the surgery and the hospital’s care and treatment, including administration of medications, after the surgery. Medical examiner found the cause of death as “hypertrophic cardiomyopathy” due to “hypertensive and arteriosclerotic cardiovascular disease.” Plaintiff’s expert failed to address the specific issues in the defendants’ experts’ opinions and was otherwise conclusory failing to raise an issue of fact. Kerrins v South Nassau Communities Hosp.
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Med Mal Accepted Practice Proximate Cause Expert Aff
Defendant made out prima facie entitlement to summary judgment on their expert’s opinion that the use of chromic rather than vicryl sutures to close an episiotomy was not a departure from accepted practice and that chromic sutures were not the proximate cause of the plaintiff’s rectovaginal fistula and resulting fecal incontinence and colorectal instability. Plaintiff’s expert’s opinion may have raised an issue on accepted practice, opining that vicryl sutures lasted longer than chromic sutures, and should have been used in the face of plaintiff’s anemia from loss of blood, but failed to show an issue on proximate cause since the diagnosis of the rectovaginal fistula was made beyond the time that the plaintiff’s expert opined the vicryl sutures would break down. Ducasse v New York City Health & Hosps. Corp.
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Serious Injury Expert Aff ROM
Summary judgment for defendant on serious injury reversed as defendant failed to meet its initial burden through its experts’ affirmations which found significant limitations of ROM in her cervical and lumbar spine. Mangione v Bua
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Labor Law §241 Industrial Code
The Court of Claims correctly found a question of fact regarding whether the State provided tag lines while claimant was engaged in moving an I-beam across the Alexander Hamilton Bridge under industrial code §§ 23-2.3(c)(tag lines), 23-8.2(c)(3)(cranes), and 23-8.1(f)(2)(i)(sudden movement of crane). Martin v State of New York
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Premises Liab Wrongful Death Curb Unknown Cause Open/Obvious Inherently Dangerous
Defendants failed to meet their burden of showing that the plaintiff could not identify the cause of her decedent’s accident where plaintiff testified that she and her husband, the decedent, were walking through the parking lot at the defendant shopping mall when she saw her husband step onto a cracked portion of a curb, fall backwards, and sustain fatal injuries. Plaintiff was able to identify the cause of her husband’s fall. Likewise, defendants failed to meet their burden of showing that the cracked curb was open and obvious and not inherently dangerous as a matter of law. Davidoff v First Dev. Corp.
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MVA
Deposition testimony submitted by the defendants on their motion for summary judgment showed conflicting stories regarding how the accident happened and whether the light was red or green precluding summary judgment. Goulet v Anastasio
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Discovery Attorney Disqualification Proximate Cause Expert Aff Renew
Defendant’s motion to compel plaintiff to respond to its first set of discovery demands, constituting 266 requests, properly denied and plaintiff’s cross motion to strike the demands in their entirety, properly granted. While there should be full disclosure of relevant and necessary information, disclosure is not unfettered and defendant’s demands were clearly overbroad. Where the demands are so grossly overbroad the proper remedy is to strike the demand in its entirety. Defendant’s claims that plaintiff’s response to their second set of demands, which produced over 500 pages of records, was not supported by the facts or arguments advanced by defendants. Defendants motion seeking disqualification of the plaintiff’s attorney was solely within the discretion of the lower court judge who did not abuse her discretion in denying the request. Stepping Stones Assoc., L.P. v Scialdone
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Defamation Emotional Harm Outrageous Conduct
Plaintiff’s claims that defendant employer gave codefendant access to plaintiff’s work email account, personnel file, and Facebook account, and allowed her to send unsolicited communications to plaintiff’s contacts about his sexual proclivities stated a cause of action for defamation, intentional infliction of emotional harm, prima facie tort and plaintiff met the burden for an injunction by showing that he would be irreparably harmed. Unsolicited emails and posts were not protected free speech. Dennis v Napoli
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MVA
Defendant should have been granted summary judgment where plaintiff’s statement in police report was that he was pushing a pushcart which got stuck in a hole and it got away from him and struck the defendant’s car smashing the rear window. He was subsequently struck by an unidentified car but then claimed in his complaint that there was contact with the defendant’s car. Wahid v Shelto
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