March 9, 2021 | Vol. 252

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Construction Liab.   Set Aside Verdict   Building Code   Dangerous Condition   Experts  

Second Department

Verdict for building owner and construction company set aside where trial court improperly precluded plaintiff’s expert from testifying that unfinished driveway without barriers, identical to unfinished sidewalk protected by barriers, violated industry safety standards as “the absence of a violation of a specific code or ordinance is not dispositive of the plaintiffs’ allegations based on common-law negligence principles.” Robins v City of Long Beach


Products Liab   Set Aside Verdict   Experts   Speculation  

Second Department

Plaintiffs’ motion to set aside verdict as against weight of evidence granted where step stool she was standing on collapsed and defendant’s expert was allowed to testify she may have slipped and fell onto stool, which was presented as a question on verdict sheet, as jury could not reach defense verdict on fair interpretation of evidence and defendant’s expert should not have been allowed to speculate as to cause of accident without proof in the record. Montesione v Newell Rubbermaid, Inc.


Labor Law §240   Labor Law §241   Falling Object  

First Department

Defendants granted summary judgment of Labor Law §§240(1) and 241(6) claims where plaintiff was struck on head by crate that fell from stack being moved during delivery to loading dock as plaintiff was not allowed beyond loading dock, would have no part in constructing exhibit, and was therefore not a person entitled to §§240 and 241 protections even if delivery of the materials was an essential step in the erection of the exhibit. Treacy v Inspired Event Productions, LLC


Premises Liab   Snow/Ice   Notice  

Second Department

Homeowners failed to meet burden for summary judgment where letter carrier slipped on snow/ice while delivering mail as evidence they submitted showed it snowed day before the fall and plaintiff saw snow/ice before he fell. Fact that homeowners were away on vacation did not relieve them of obligation to maintain property in a safe condition. Giambruno v Albrechet


Set Aside Verdict   Pain/Suffering   Preexisting   Materially Deviates   Admissibility  

First Department

$3 million/$5 million past/future pain/suffering verdict set aside by lower court unless plaintiff stipulated to reduce award to $750,000/$1.5 million upheld as reduced amounts did not materially deviate from reasonable compensation. Past medical expenses of $167,266.40 awarded by lower court reduced to $90,258.47 in accordance with bills properly certified under CPLR §§4518 and 3122-a, reducing award for those not properly certified. Muniz v Chimienti Realty Assoc. Inc.

Comment: From lower court’s decision, plaintiff was 52-year-old with multiple pre-existing conditions who tripped on defect in apartment requiring hospitalization, surgery, and inpatient rehabilitation for fractured leg that was re-fractured after he signed out of rehab facility AMA. Jury answered special verdict question indicating plaintiff did not fail to mitigate damage by discharging himself AMA.


Labor Law §241  

Second Department

Defendants granted summary judgment of Labor Law §241(6) claim by construction worker who had been working on roof of building under construction using aerial lift where plaintiff was injured when using lift to retrieve his keys he left on the second floor after completing work for the day, establishing he was not engaged in protected activity under §241 at time of the accident. McKnight v Metro-North R.R.

NOTEWORTHY
(12 summaries)
MUST READS IF YOU MUST READ

Malpractice   Accepted Practice   Causation   Experts   Speculation  

First Department

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  

Second Department

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  

Second Department

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  

First Department

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  

First Department

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  

Second Department

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  

Second Department

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  

First Department

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  

First Department

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  

First Department

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  

Second Department

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  

First Department

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

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Arbitration   Uninsured  

First Department

Carrier granted permanent stay of arbitration after framed issue trial showed offending vehicle was listed on police report and that car’s carrier admitted it was insured but had issued a disclaimer on insured’s claim it was not involved in the accident granted. Matter of Govt. Empls. Ins. Co. v Hernandez


Arbitration   Uninsured  

Second Department

Injured party’s uninsured carrier granted permanent stay of arbitration after framed issue hearing established identity of van that struck plaintiff and left scene of accident on plaintiff’s testimony authenticating photograph sent by bystander with offending vehicle license plate visible where carrier had denied coverage based on its insured’s claim it was not involved in the accident. Matter of Government Employees Ins. Co. v Charris

About Matt McMahon

Civil trials and appeals since 1984
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