March 20, 2018 | Vol. 98

(5 summaries)

Med Mal   Notice of Claim   Statute of Limitations  


HHC granted summary judgment where plaintiff served late Notice of Claim beyond a 30 day period afforded by a court order and the statute of limitations ran before defendant moved for summary judgment. Notice of Claim served beyond period allowed by court without further order was a nullity and HHC’s conducting 50-H hearing did not waive Statute of Limitation defense. Flores v Fraser

Med Mal   Preclusion   BP  


Defendants granted dismissal based on plaintiff’s failure to provide specificity as to dates of confinement and special damages in her supplemental BP as required by conditional preclusion order, precluding plaintiff from offering evidence as to liability or damages. Henry v Lenox Hill Hosp.

Comment: An example of how critical the language of a conditional order of preclusion can be — whether it precludes any testimony or evidence, any testimony or evidence regarding liability and damages, or any testimony or evidence regarding material not provided.

Discovery   Subpoena   Note of Issue  


Attempts by defendants in several crane collapse cases combined for discovery attempted to utilize the “Uniform Interstate Deposition and Discovery Act” (UIDDA) CPLR 3119 to obtain depositions of out of state doctors as fact witnesses regarding pre-existing or subsequent treatment of plaintiffs in Kentucky, Illinois, and Indiana (states that have also adopted the UIDDA) denied because UIDDA only applies to out of state actions. Defendants’ demand for post Note of Issue authorizations granted in part. Matter of 91 St. Crane Collapse Litig.

Comment: The UIDDA is a useful discovery tool that can often eliminate the need to obtain a commission or letters rogatory. While titled a “Uniform” act, each state can modify how it is applied and often does. The attorney seeking the out-of-state deposition must follow the rules as adopted in the state where the witness is located and the deposition is to take place. This often requires a pro forma submission of a subpoena drafted by a local attorney to the local court before it is served.

Court of Claims   Wrongful Death   Pain/Suffering   Statute of Limitations  

Second Deptartment

Plaintiff’s claim for conscious pain and suffering of the decedent while dying from exposure to heat in a room without air conditioning, commenced more than 90 days after decedent’s death, was timely under Court of Claims Act §10(5) which permits filing of a claim within 2 years after the end of a legal disability (plaintiff’s decedent’s psychiatric condition). Puckerin v State of New York

MVA   Graves Amendment  

Second Deptartment

Home Depot failed to meet its burden on the Graves Amendment by failing to show that the vehicle that struck the plaintiff’s vehicle was rented at the time of the accident and that the vehicle was properly maintained. It did raise an issue of fact on the Graves Amendment sufficient to deny plaintiff’s motion for summary judgment. Currie v Mohammad Z. Mansoor

(16 summaries)

Premises Liab   Prior Written Notice   Big Apple Pothole   Set Aside Verdict   NYC  


Judgment in favor of plaintiff affirmed where NYC had prior written notice of tree-well defect from Big Apple Map showing a “V” at area of accident, indicating a tree well without fence or barrier. NYC witness testified that cobblestones were a buffer or barrier and needed to be flush with the sidewalk to not be a tripping hazard. Jimenez v City of New York

Premises Liab   Slip/Trip   Snow/Ice   Espinal   Indemnity  

Second Deptartment

Cleaning contractor with duties to remove snow near parking lot managed by codefendant granted summary judgment for plaintiff’s fall where none of the Espinal exceptions (launch instrumentality of harm; detrimental reliance; displace management) applied. Common law indemnity claims asserted by third-party plaintiff Port of Authority dismissed but there was an issue of fact on the contractual indemnity claims. Castillo v Port Auth. of N.Y. & N.J.

Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice   Expert Aff  

Second Deptartment

Apartment complex granted summary judgment on defendants’ experts’ affirmations that a detailed topographical survey showed that water did not pool and could not create the black ice where plaintiff fell, defendants’ employee’s testimony that he never observed pooling water in 38 years, that no one complained about pooling water, and eyewitness testimony from 30 minutes before accident that there was no ice on the scene. Since plaintiff did not allege a recurring condition, it did not need to be addressed by the defendant. There was 1 dissent. Bader v River Edge at Hastings Owners Corp.

Discovery   Spoliation  


Plaintiff failed to show that defendant’s testimony regarding how video footage was maintained was necessary where defendant’s employee preserved video of plaintiff’s injury while playing a game in a bar for 8 minutes before the incident and 20 minutes after. Lam v 2 W. Nightlife, Inc.

Comment: Where you believe that specific time periods should be preserved, it is best to demand the specific time periods in an initial spoliation letter.

Med Mal   Accepted Practice   Causation   Expert Aff   BP  


Plaintiff’s expert failed to address defendants’ experts’ opinions of no departure from accepted practice or causation for plaintiff’s decedent’s heart attack, relying instead on a new theory that the heart attack was caused by an undiagnosed intestinal blockage, a theory not contained in the BP. Summary judgment for defendants. Hinson v Anderson

Strike Note of Issue   Discovery   IME/DME   Prejudice  


Defendants’ motion to strike the Note of Issue providently granted only to the extent of allowing further physicals by the same 3 doctors regarding a subsequent MVA. The physicals would not prejudice the plaintiff and defendants did not engage in willfull/contumacious tactics. Hickey v City of New York

MVA   Pileup   Rear End   Serious Injury   Preexisting  


First two cars which were stopped in traffic before being hit by third defendant, whose passenger were the plaintiffs, entitled to summary judgment as a claim of a sudden stop does not in and of itself raise a question of fact. One plaintiff failed to rebut evidence of pre-existing conditions in her own medical records but other plaintiff’s treating doctor explained that asymptomatic, pre-existing condition was exacerbated by accident, raising an issue of fact. Gap in treatment was adequately explained by no-fault cut-off. Giap v Hathi Son Pham

Premises Liab   Slip/Trip   Create Condition   Notice   Last Inspection  

Second Deptartment

Shopping center denied summary judgment where it relied on deposition testimony of manager regarding general cleaning and inspection procedures instead of the last time the area was cleaned or inspected, failing to eliminate questions of fact on constructive notice. Maria De Los Angeles Baez v Willow Wood Assoc., LP

Premises Liab   Stairs   Building Code   Raised For First Time  

Second Deptartment

Building owner granted summary judgment on tenant’s claim that he slipped on a hamburger wrapper as he walked up the front stairs. Argument that there was a missing hand rail in violation of a building code was not pleaded and raised for the first time in opposition to the motion was not considered. Mazurek v Schoppmann

Defamation   Raised For First Time   Qualified Immunity  

Second Deptartment

Defendant’s claim of qualified “common interests” privilege, improperly raised for the first time in reply and plaintiff was not given the opportunity to submit a sur reply. Neighbor’s statement to condominium that plaintiff was walking his dogs by her house without a muzzle as required by a court order was not subject to interpretation as defamatory, resulting in dismissal for failure to state a cause of action. Gottlieb v Wynne

Serious Injury   Preexisting   Degenerative   ROM  


While the infant plaintiff’s treating doctor offered objective evidence of her injury and an opinion that it was causally related to the accident given no prior symptoms, recent examination found only minor limitations in 1 plane of ROM which was insufficient to raise an issue of fact. M.P. v New York Tr. Auth.

Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Store granted summary judgment where plaintiff tripped over the base of directory sign, that she had previously walked past without incident, when she returned to make sure she was going in the right direction and tripped as she moved away. Defendants established that the sign was open and obvious and not inherently dangerous and plaintiff offered only speculation and conclusion insufficient to raise a triable issue of fact in opposition. Bartholomew v Sears Roebuck & Co.

Dram Shop   Control   Question of Fact  

Second Deptartment

Bar owner and patron who was attacked by intoxicated patron both denied summary judgment where questions of fact existed as to whether the attacking patron was visibly intoxicated or under the age of 21 at the time he was served. (Gen. Obl. Law §11-101) There was also a question of fact if the bar owner knew or should have been aware of the danger and had the opportunity to protect the plaintiff under ordinary negligence claim. Tansey v Coscia

MVA   Pedestrian   Comparative Fault  

Second Deptartment

Plaintiff’s testimony that he looked both ways before crossing in a marked crosswalk with the light in his favor when he was struck by the defendant’s vehicle made out entitlement to summary judgment. Defendant raised an issue of fact on comparative fault regarding whether plaintiff was walking outside of the crosswalk. Matyas v New York City Dept. of Sanitation

Default Judgment   Renew   Reasonable Excuse  


Plaintiff granted renewal of motion for default to include affidavit of personal knowledge of underlying facts on reasonable excuse of cognitive deficits, including inability to read. Antiohos v Morrison

Med Mal   Speculation  


Defendants granted summary judgment where there was no proof that they advised plaintiff’s decedent to stop taking aspirin. Speculation is never a substitute for proof. Eden v Johnson

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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