Malpractice Accepted Practice Causation Experts Speculation
Defendants granted summary judgment on expert opinion that decision to discharge patient held overnight for suicidal ideations while under influence of PCP, where he no longer exhibited signs of PCP intoxication or suicidal ideations, was not a departure from accepted practice or cause of defendant suicide 3-hours after discharge and after decedent had consumed additional PCP. Plaintiff’s expert’s opinion was contradicted by record showing no signs of PCP intoxication or suicidal ideations at time of discharge and opinion that discharge led to death was speculative. Olaechea v Mundy
|
Labor Law §240 Labor Law §241 Labor Law §200 Gravity Risk Foreseeability Control Industrial Code Premature Motion NYC
Worker on elevated platform in underground train tunnel under construction granted summary judgment on Labor Law §240(1) where tunnel segments being carried on train traveling below platform turned and struck plaintiff causing him to fall as it was a foreseeable consequence of working on the platform above a moving train under §240. Defendants granted summary judgment on Labor Law §241(6) claims based on inapplicable industrial code provisions but denied summary judgment on applicable industrial code provisions.
Defendants showed they lacked control over means and methods of plaintiff’s work, but plaintiff showed EBT of a nonparty was necessary to oppose motion. Devoy v City of New York
|
Malpractice Accepted Practice Causation Experts Speculation
Hospital granted summary judgment on detailed neurologist opinion that there were no departures from accepted practice and TPA was not indicated and would not have prevented plaintiff’s evolving stroke and subsequent left-sided paralysis. Plaintiff’s emergency medicine expert’s opinion failed to raise issue where it did not recite training or experience in neurology, diagnosing or treating strokes, or standards of care, failed to rebut defendant’s expert, or detail how defendant’s departures caused plaintiff’s injuries. Laughtman v Long Is. Jewish Val. Stream
|
MVA Train Strike Answer CPLR § 3126 Preclusion Vacate Default Reasonable Excuse Meritorious Defense Speculation
Motion to strike MTA’s Answer for failure to comply with self-executing discovery order granted to extent of precluding defendants from offering evidence at trial where they ignored order, did not seek immediate conference to explain why they could not comply with order, did not move to vacate their default, did not provide a reasonable excuse for not complying with the order, and did not provide proof of a meritorious defense. Train operator’s testimony did not establish defendants were not negligent and police statement that plaintiff may have been intoxicated was purely speculative. Papadopoulos v Metropolitan Transp. Auth.
|
Labor Law §240 Gravity Risk Safety Devices Sole Cause
Worker who fell into 3′ trench when unsecured plywood covering gave way entitled to summary judgment on Labor Law §240(1). Plaintiff not required to show what safety device should have been provided, or submit expert opinion where plywood clearly was inadequate safety device and defendants failed to raise issue where they admitted 1″ heavy duty covering should have been used. Defendants failed to raise issue on sole cause without proof plaintiff was instructed or expected to use safety harness and failure of safety device precluded finding of sole proximate cause. Rubio v New York Proton Mgt., LLC
|
Premises Liab Sidewalk § 7-210 Homeowner Exception
Homeowner, retired photographer who used 1-room for infrequent paid photo editing work, granted summary judgment on homeowner exception to administrative code §7-210 where plaintiff tripped on sidewalk defect. Homeowner did not claim home-office tax deduction for his infrequent paid work which was deemed incidental to his residential use. Zak v City of New York
|
Malpractice Accepted Practice Causation Experts Speculation
Hospital granted summary judgment on expert opinion that treatment for transient ischemic attack did not depart from accepted practice and subcortical stroke 1-week after discharge was not caused by defendant’s treatment. Plaintiff’s expert failed to raise issue where opinion that treatment was “deficient” was speculative as it did not address defendant’s expert’s opinions and was contradicted by record showing plaintiff was prescribed 2-BP medications rather than only one as plaintiff’s expert claimed. Attia v Klebanov
|
MVA Bus There to be Seen
Plaintiff, passenger in bus going straight into intersection with right-of-way, granted summary judgment against bus making right hand turn on defendant bus driver’s testimony that bus crossed into oncoming lane without him looking and he did not see other bus until impact. McCants v Franchi
|
Motion to Dismiss Governmental Function Governmental Immunity GML §205-a-e NYC
NYC’s motion to dismiss granted where claim its agent assigned a lower priority radio dispatch code when decedent, off-duty police officer, made 911 call regarding possible burglar next door as it was entitled to governmental function immunity for exercise of discretion and judgment based on limited information provided by decedent. GML §205-e claims dismissed without proof of noncompliance with applicable law or regulation. Estate of Enchautegui v City of New York
|
Malpractice Informed Consent Accepted Practice Causation Experts Admissibility Feigned Issue
Defendants granted summary judgment of malpractice claim on expert’s opinions of no departure from accepted practice and no causation, including opinion that surgical scar was not from subject surgery, and of informed consent claim on proof plaintiff signed consent form stating she was apprised of risks of procedure and medical records showing they discussed history of keloid scars. Plaintiff’s affidavit conflicted with her deposition testimony on the consent form was not considered as it raised feigned issue and argument that defendants’ expert’s affidavit was defective where it did not state it was “under penalties of perjury” rejected where lower court providently allowed reply affidavit to correct irregularity. Plaintiff’s expert failed to opine there were departures or that result was outside expected complications. Bamberg-Taylor v Strauch
|
Premises Liab Assumption of Risk
Town granted summary judgment on primary assumption of risk where plaintiff testified at 50-H she was aware field where she slipped while running between bases was muddy, establishing she was aware of and assumed risks of muddy condition. Chiaramonte v Town of Smithtown
|
MVA Bus Question of Fact
Bus company and driver denied summary judgment on conflicting evidence of whether driver had sufficient time to pull over to shoulder while experiencing mechanical problems and whether he properly placed reflective triangles to avoid bus being hit in the rear. Martinez v Patel
|
