March 27, 2018 | Vol. 99

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Bus   Directed Verdict   Set Aside Verdict   Pain/Suffering   Materially Deviates  

First

There was a rational path for jury to find that bus driver could see the pothole before pulling into bus stop and letting plaintiff off. Conflict between plaintiff’s testimony and eyewitnesses regarding whether she stepped from the bus into the pothole or slipped on the stairs was a question of credibility the jury determined in favor of the plaintiff. $300,000/$1.5 million past/future pain and suffering, $300,000 future medical expenses and $107,000 past lost earnings modified to reduce future pain and suffering to $900,000 and future medical expenses to $260,000. Plaintiff failed to establish her past lost earnings to a reasonable degree of certainty where she failed to submit any documentary proof, such as tax returns or W-2’s. Martinez v Metropolitan Transp. Auth.


Med Mal   Motion to Dismiss   Personal Juridiction  

First

New Jersey radiologist denied dismissal on personal jurisdiction, even though he lived and worked solely in New Jersey, where he was licensed to practice medicine in New York, contracted with New York company to provide radiological services to its patients some of which were in New York including interpreting plaintiff’s sonogram which allegedly resulted in a delayed diagnosis, and transmitted his findings to the New York company which produced a report in New York. He was transacting business in New York by projecting himself electronically into the state (CPLR 302(a)(1)) and committed a tort outside of the state which injured a person inside New York and could reasonably expect his malpractice to have consequences in New York (CPLR 302(a)(3)). Allen v Institute for Family Health


50-H   Motion to Dismiss   Statute of Limitations  

Second Deptartment

Action dismissed on statute of limitations. Statute of limitations was not tolled for period between demand for 50-H hearing and the hearing. Mourato v Suffolk County Water Auth.


Sidewalk   Pothole Law   Slip/Trip   Prior Written Notice   NYC  

First

NYC granted summary judgment on record searcher’s affidavit that it had no prior written notice of the alleged defect. A citizen complaint 5 months before the accident was not prior written notice since NYC employee sent to inspect defect found it had already been repaired. Plaintiff failed to show the condition of the asphalt immediately after the repair and the record showed that the condition developed over time and was not immediately dangerous. Jones v City of New York

NOTEWORTHY
(9 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Stairs   Unknown Cause   Create Condition   Notice   Speculation  

Second Deptartment

Synagogue entitled to summary judgment on plaintiff’s testimony that he did not know what caused him to fall on the stairs and proof that the synagogue neither created the condition which did exist long enough to constitute constructive notice. Any ascribed cause of the accident would be speculative where plaintiff does not know what caused the fall. Gani v Avenue R Sephardic Congregation


Premises Liab   Slip/Trip   Stairs   Unknown Cause   Speculation  

Second Deptartment

Plaintiff’s testimony showed that she was not sure what caused her to fall while climbing the stairs at the defendant’s premises, making out defendant’s prima facie case for summary judgment. Aristizabal v Kostakopoulos


Premises Liab   Slip/Trip   Snow/Ice   Stairs   Create Condition   Notice  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on proof that it did not create condition or have notice of it, but plaintiff raised triable issues of fact based on climatological data and an eyewitness affidavit regarding what the conditions were prior to the accident, whether defendant created the condition and had notice of the condition before the fall. Monje v Guaraca


Serious Injury   ROM   Expert Aff   Feigned Issue  

First

Defendant granted summary judgment on serious injury on IME/DME doctor’s affirmation that the limitations of ROM were subjective and not supported by objective proof of an injury and any minor injuries had resolved. Plaintiffs failed to explain a 7 year gap in treatment contradicting their prior testimony as to the reasons for discontinuing treatment after 3 months, originally claiming that it was not helping and then claiming in motion that it was because of no fault cut off. The gap in treatment rendered plaintiffs’ doctor’s affirmation speculative without recent examinations. Alston v Elliott


Premises Liab   Slip/Trip   De Minimus   Open/Obvious   Inherently Dangerous  

Second Deptartment

Property owner granted summary judgment on proof that height differential between walkway with patio pavers and abutting tree bed was trivial, open/obvious, and not inherently dangerous. Costidis v City of New York


Med Mal   Wrongful Death   Informed Consent   Estate   Capacity to Sue  

First

Medical malpractice, wrongful death, and lack of informed consent by decedent’s children dismissed for lack of standing to act on behalf of estate. Petition to substitute children for decedent’s husband referred to the surrogate court which retained concurrent jurisdiction of the decedent’s estate. Papadam v Rothman


MVA   Uninsured   Stay Arb   Question of Fact  

Second Deptartment

Uninsured claim permanently stayed after hearing determined that there was no contact between petitioner’s car and truck. Petitioner submitted an un-affirmed police report with his statement that the truck cut him off causing him to swerve rather than that the truck struck him as he later claimed. Matter of Allstate Ins. Co. v Deleon


Assault   Negligent Supervision   Foreseeability  

Second Deptartment

Inmate’s case dismissed where municipality showed that the assault by another inmate at Rikers Island was not foreseeable because the assailant was not a gang member, did not have a history of attacks, and was not classified as high risk for fighting and that they provided active supervision according to state commission standards ((9 NYCRR 7003.2[c]; 7003.4[a])). McAllister v City of New York


Defamation   Privilege   Respondeat Superior  

First

Plaintiff claimed that individual defendant and various church defendants defamed him at a retreat where individual defendant stated that plaintiff, who was a beneficiary of a parishioner’s estate, asserted undue influence and acted immorally. The individual defendant and 1 church defendant denied summary judgment where issues of fact existed as to constitutional malice, knowingly making false statements or with total disregard for their truth. Other church defendants granted summary judgment where there was no proof that individual defendant was acting on their behalf or in concert with them. Glazier v Harris

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

Plaintiff raised issue of fact in response to defendants’ showing of entitlement to summary judgment by competent medical proof. The court does not give the details of the proofs. Meyer v Panagiotidis


Indemnity  

First

Third-party plaintiff failed to meet its burden for summary judgment on contractual indemnity claim where language of indemnity agreement was ambiguous. Pereira v J.P. Morgan Chase Bank, N.A.


Attorney Fees  

Second Deptartment

Plaintiff who hired a personal attorney to represent his interests above the attorney hired by carrier was entitled to substitution of his personal attorney and payment of his personal attorney’s fees by the carrier after the substitution, as had been agreed by a stipulation, but not for amounts paid prior to the substitution for which plaintiff never made a request in the original motion. Krimendahl v Hurley

About Matt McMahon

Civil trials and appeals since 1984
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