March 8, 2022 | Vol. 303

(7 summaries)

Malpractice   Set Aside Verdict   Prejudice   Experts   Appealable Order  

Second Department
Judgment on jury verdict in favor of defendants reversed and remanded for new trial before a different judge in the interests of justice, even though issue was not preserved for appellate review, where trial judge made repeated prejudicial comments during trial, barred plaintiff from referring to growth on foot as a “tumor,” requiring it be referred to as a “wart,” effectively deciding issue instead of leaving it for the jury’s consideration and incorrectly commenting several times that there was no proof of misdiagnosis despite plaintiff’s expert’s opinions depriving plaintiff of a fair trial. Trial court’s belated instruction to ignore his comments insufficient to cure the prejudice. One defense counsel’s comments about relationship between plaintiff’s attorney and plaintiff’s expert pathologist during cross-examination and summation were so inflammatory as to deprive plaintiff of a fair trial.

Motion for summary judgment by 1-defendant properly denied on conflicting expert opinions. Valenti v Gadomski    

Comment: Appeal from denial of motion for summary judgment by 1-defendant dismissed as subsumed in appeal from the judgment. Valenti v Gadomski.

Assault   Negligent Supervision   Discovery   Privilege   HIPAA   Notice   Violent Propensity  

First Department
Plaintiff’s motion to compel nursing home that transferred decedent’s assailant to provide records of its former resident’s history of violent behavior and sexual assaults granted as relevant to transferring nursing home’s knowledge of patient’s violent propensities where decedent was sexually assaulted at nursing home assailant was transferred to. Portions of assailant’s records relating only to behavior issues are not privileged and portions relating to diagnosis and treatment would be redacted. Transferring nursing home’s motion for a protective order denied. Cabreja v Bay Park Ctr.    

Loss of Services  

First Department
Defendants’ motion for summary judgment dismissing plaintiffs’ loss of services claim for their daughter’s inability to assist in their business dismissed as “[p]ublic policy considerations . . . militate against recognition of a cause of action for the death of key personnel” and they did not allege any loss of her services as a daughter. Klaar v Fedex Corp.    

Premises Liab   Out of Possession   Sanctions   Spoliation  

Second Department
Property owner and its manager granted summary judgment on proof it was an out of possession owner, had no responsibility to maintain parking lot where plaintiff fell, and there was no allegation of a statutory violation. Owner’s responsibility for repairs under lease unrelated to parking lot were irrelevant as “it is possible for an out-of-possession landlord to have a limited duty to maintain or repair a leased property in some specific respect while having no responsibility to maintain or repair the leased property in another respect.”

Plaintiff’s cross-motion for discovery sanctions denied without proof of spoliation or failure to respond to discovery demands or court orders. McDonnell v Blockbuster Video, Inc.    

Premises Liab   Sole Cause   Intervening Cause   Foreseeability   Warnings   Indemnity  

Second Department
Owner of community center with beach access failed to meet burden for summary judgment of guest’s claim of severe injuries when he jumped off bulkhead into shallow water where evidence did not show as a matter of law that plaintiff’s decision to jump or intoxication was sole cause of accident or an unforeseeable superseding cause as there were no warning signs or water level markers, water was murky, plaintiff was unfamiliar with area, and thought it was a deep boat channel.

Third-party defendant who rented center for party granted summary judgment dismissing common-law contribution and indemnity claims on proof he was not negligent and dismissing contractual indemnity claim where promise to indemnify owner for its own negligence could not be “clearly implied” from the rental contract. Reilly v Patchogue Props., Inc.    

MVA   Bus   Set Aside Verdict   Directed Verdict  

Second Department
Verdict finding NYCTA bus driver negligent for sudden stop that caused plaintiff to lose her grip while standing, throwing her to bus floor set aside and defendants granted judgment as a matter of law as plaintiff’s testimony that stop was violent, and other evidence and circumstances, did not provide the “objective evidence” needed to show a stop was “unusual and violent.” Driver testified he was going 5 mph with no traffic in front of him that would cause him to make a sudden stop when light turned from yellow to red. Stark v New York City Tr. Auth.    

Malpractice   Set Aside Verdict   Accepted Practice   Causation   Experts  

First Department
Ophthalmological surgeon’s motion to set aside verdict and for judgment as a matter of law denied where he removed 6mm Intra-Ocular Lens through a 2.75mm incision, a portion of the lens was not emulsified and dropped into the back of the patient’s eye, and a giant retinal tear was found during surgery to remove the dropped lens portion 2-weeks later and she eventually became legally blind in that eye from a retinal detachment. Experts on both sides agreed the giant retinal tear found during the surgery 2-weeks after the initial surgery was not present 6-days earlier and that a small tear in the superior portion of the eye would not have been readily visible at that time but they disagreed on what caused the giant tear. Taking all of the evidence into consideration, there was a valid line of reasoning for the jury to find the defendant caused a small tear in the superior portion of the eye, as demonstrated by the vitreous hemorrhage, which developed into the giant tear 2-weeks later, causing the detachment. The verdict was not palpably wrong and “[i]n the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict.” Rozon v Schottenstein    

(17 summaries)

Pothole Law   Sidewalk   Prior Written Notice   Set Aside Verdict   NYC  

Second Department
Judgment on verdict finding uneven sidewalk caused plaintiff to fall, NYC had prior written notice of defect, but that NYC was not negligent affirmed, and plaintiff’s motion to set aside verdict as against weight of evidence denied, as jury could reasonably conclude plaintiff failed to show defect was significant and not reasonably safe. Levina v City of New York    

Malpractice   Accepted Practice   Causation   Experts   Raised For First Time  

Second Department
Plaintiffs’ gynecology-expert’s opinion that OB/GYN-defendant departed from accepted practice by failing to order an emergency C-section when mother’s recurring vaginal bleeding resumed raised an issue in opposition to that defendant’s showing of entitlement to summary judgment and was not a new theory asserted for the first time in opposition.

Plaintiffs’ pediatric-expert’s opinion that pediatric-defendant departed from accepted neonatal standards by failing to ensure a saline solution was timely administered to the infant after birth raised an issue in opposition. While not pleaded in the Complaint or BP, this theory was referred to during the pediatrician’s deposition and properly raised in opposition. M. T. v Lim    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts   Speculation   Raised For First Time  

Second Department
Thoracic-cardiovascular surgeon met burden for partial summary judgment dismissing claim for discontinuing aspirin therapy after third aortic valve and root replacement surgery, where plaintiff suffered a stroke a month later, and plaintiff’s cardiology and vascular experts failed to raise an issue in opposition where their opinions were not supported by the record as they incorrectly assumed all 3-surgeries used bioprosthetic replacement valves but the last 2 used homograft valves. Plaintiff failed to raise issues in opposition to cardiology and infectious disease defendants’ showing of entitlement to summary judgment dismissing malpractice and informed consent claims. Plaintiff’s expert’s opinion that infectious disease doctor was negligent in treating plaintiff with Zyvox not considered as it was a new theory not pleaded. Palagye v Loulmet    

Comment: Hospital’s motion for summary judgment denied where plaintiff’s expert raised issues on opinion of departure for delay in performing chest CT scan and in starting vancomycin that had been ordered which were not new theories as they “were discernable from the pleadings and the deposition testimony.” Plaintiff’s infectious disease expert’s opinions were not speculative or conclusory. Palagye v Loulmet.

Products Liab   Warnings   Causation   Amend Complaint   Amend BP  

First Department
Hardware store granted summary judgment dismissing inadequate warnings claim where plaintiff did not read or even realize label instructions for drain cleaner were in Greek until after his accident so that their inadequacies could not be a cause of the accident. Plaintiff’s motion to amend BP and Complaint to include OSHA and FHSA violations denied as OSHA only protects workers and FHSA claims are only against manufacturers, not retailers. Valerio v 265 McClellan Realty, Inc.    

Premises Liab   Negligent Supervision   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Medical referral form prepared by school indicating infant-plaintiff fell at recess sustaining knee laceration insufficient to give municipality actual knowledge of essential element of claims they negligently maintained metal guardrail in parking lot and failed to supervise students during recess where it did not have any details of where or how accident happened. Plaintiffs failed to give reasonable excuse without proof 11-month delay in serving late Notice of Claim was due to infancy or injury, especially where they consulted an attorney 4-months after the accident but did not seek leave for another 10-months. They also did not present “some evidence or plausible argument” for why municipality was not prejudiced by delay. I. N. v City of Yonkers    

Premises Liab   Sidewalk   Prior Written Notice   Create Condition   Indemnity  

Second Department
MTA failed to meet burden for summary judgment where plaintiff tripped on vertical bolt protruding from sidewalk near train station in Town of Babylon, which has an ordinance placing responsibility for sidewalk maintenance on abutting landowner and provides for a private cause of action, as it failed to conclusively show it was not an abutting landowner. MTA denied summary judgment of contractual indemnity against town where questions remained of MTA’s negligence.

Town met burden for summary judgment on proof it did not receive required prior written notice but plaintiff raised issue on proof town created the dangerous condition by moving the trash, exposing the bolt. Sanon v MTA Long Is. R.R.    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Loss of Chance   Experts  

Second Department
Defendants’ motion to set aside verdict and for judgment as a matter of law denied where there was sufficient evidence for a rational jury to conclude defendants departed from accepted practice by failing to diagnosis, treat, or refer plaintiff for proper treatment after multiple complaints of vision problems during her late pregnancy, and by delivering her baby vaginally instead of by C-section, which diminished plaintiff’s chances of a better outcome and increased her injuries including legal blindness from glaucoma. Verdict was not against the weight of evidence as it could be reached on a fair interpretation of the evidence based on conflicting medical experts’ opinions. Velasquez v Ruiz    

Malpractice   Duty   Accepted Practice   Experts  

Second Department
Plaintiff’s expert’s opinion that radiology-defendants departed from accepted practice by recommending repeat CT scans that showed multiple nodules for several years without timely recommending additional diagnostic tests to rule out malignancies raised an issue in opposition. Malignancies were found in decedent’s lungs after defendants ultimately recommended a PET scan and she died a year later. Plaintiff’s expert’s opinion was not an attempt to expand the radiologists’ duty. Dye v Okon    

Malpractice   Accepted Practice   Causation   Experts  

First Department
Defendants granted summary judgment where record showed decedent’s blood pressure never rose above clinically significant levels before or after transfer from hospital to rehab center, making plaintiff’s expert’s opinion that her death was caused by uncontrolled blood pressure fundamentally flawed. Rehab doctor’s notations that blood pressure was not clinically significant for 3-days, without quantifying values was not evidence the tests were not performed and were corroborated by other doctor’s reading 3-days later. Nazario v Mount Sinai Beth Israel    

Labor Law §240   Industrial Code   Indemnity  

First Department
Worker electrocuted when he grabbed safety wire granted summary judgment on Labor Law §241(6) predicated on industrial code §23-1.13(b)(3)(electrical hazards) even though safety cable was not designed as an electric circuit as the wire itself was designed to carry an electrical charge.

Subcontractor that provided all temporary electrical power to the floors under construction granted summary judgment of common-law and contractual indemnity claims on proof the wire did not have an electrical charge immediately after the accident and plaintiff’s employer hired a different subcontractor to maintain the scaffolds, wires, and cables, showing plaintiff’s accident was not a result of its negligence or work. Navedo v VNO 225 W. 58th Streel LLC    

Premises Liab   Vacate Default   Service   Notice  

Second Department
Building owner’s motion to vacate $654,928 judgment entered after inquest on default granted on its registered agent’s affidavit that it did not receive the Summons and Complaint served on the Secretary of State which was sent to an office he vacated 6-years earlier and he noted that plaintiff-tenant’s attorney had sent a letter to defendant at its principal place of business 1-year before starting suit. There was no evidence defendant deliberately attempted to avoid notice of the suit. Quinones v Jonlek Assoc., LLC    

Motion to Dismiss   Court of Claims  

First Department
Dismissal of criminal conviction on grounds of ineffective assistance of counsel does not meet requirements for wrongful conviction cause of action under Court of Claims Act §8-b(3)(b) as it was not premised on new evidence that would likely have resulted in a verdict favorable to defendant at the criminal trial and could not have been produced at that time. Bryant v State of New York    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation   Raised For First Time  

Second Department
Defendants met burden for summary judgment with opinions of OB/GYN and pediatric neurology experts that defendants did not depart from accepted practice in their obstetrical or pediatric care and were not a cause of the infant’s neurological and developmental delays. Without an obstetrics expert, plaintiffs failed to raise an issue on the obstetrics care and causation and their pediatric expert’s opinion was conclusory and speculative where it did not address defendants’ expert’s opinions and improperly raised a new theory in opposition. Mendoza v Maimonides Med. Ctr.    

Labor Law §241   Industrial Code   Notice   Last Inspection  

First Department
Defendants failed to meet their burden for summary judgment of plaintiff’s Labor Law §241(6) claim on industrial code §23-1.5(c)(3)(maintaining safety devices) where plaintiff was injured when a whip-check, designed to reduce air from a compressor if a hose fails, malfunctioned as plaintiff assisted coworkers to clear a blockage and it recoiled and struck him in the face without proof that the whip-check was not defective and that they did not have notice of the defect as they offered no proof they inspected it prior to the accident. While workers cannot recover for items they are tasked to fix, defendants failed to show plaintiff was tasked with fixing the whip check. Lopez v City of New York    

Labor Law §240   Labor Law §241   Industrial Code   Causation  

First Department
Plaintiff who fell from guard rail on mainlift he was standing on because ductwork prevented him lifting it to where he needed to work granted summary judgment on Labor Law §240(1) as manlift was inappropriate for his work and failed to provide adequate protection under §240. Defendants’ motion for summary judgment dismissing Labor Law §241(6) based on industrial code §23-1.25(d)(protection for welders) denied without proof they did not violate the statute or that the violation was not a cause of plaintiff’s fall. Healy v BOP One N. End LLC    

Pothole Law   Prior Written Notice   Big Apple Pothole   Raised For First Time   NYC  

Second Department
NYC denied summary judgment where Big Apple Map it submitted with motion had an insufficient description of intersection where plaintiff tripped in a hole on the sidewalk to show that they did not have prior written notice of the alleged defect. Claim plaintiff’s 50H testimony identified where he fell as southeast corner not considered where raised for the first time on appeal. Ghumann v City of New York    

False Arrest   Malicious Prosecution   Probable Cause   Amend BP   Reasonable Excuse   Note of Issue   NYC  

First Department
Neither plaintiff nor defendants were entitled to summary judgment where they had different accounts of search and arrest and video contradicted at least one officer’s version. Drugs found on plaintiff during an illegal arrest could not provide probable cause to bar false arrest, malicious prosecution, excessive force, and illegal strip search claims. Plaintiff’s motion to amend BP to include theory that arrest delayed his parole hearing denied without factual support or a reasonable excuse for waiting 6-month after Note of Issue to make motion. Reese v City of New York    

(3 summaries)

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Defendants made out prima facie entitlement to summary judgment on pediatric-neurology expert’s opinion their treatment of infant-plaintiff for seizure disorder did not depart from accepted practice or result in infant’s major stroke 3-months later. Plaintiff’s experts failed to raise issue where their opinions were conclusory, speculative, and unsupported by the evidence. The Court does not give the details of the proofs. Coscia v Mosca    


Second Department
Defendants granted summary judgment on testimony of plaintiff and defendant-driver establishing defendants were not negligent in causing accident where their ambulette with plaintiff as a passenger was struck by an unidentified vehicle. The Court does not give the details of the proofs. Chan Pok Kim v Jurado    


First Department
Defendants’ motion for summary judgment dismissing Complaint against 1-defendant denied without affidavit setting forth facts justifying summary judgment. Plaintiff’s motion to compel that defendant to appear for deposition granted. The Court does not give the details of the proofs. Gould v OTG Mgt., LLC    

About Matt McMahon

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