May 10, 2016 | Vol. 2

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MUST READS
(5 summaries)

Workers Comp   Exclusive Remedy   Notice  

First

Plaintiff slipped on fruit on sidewalk outside of employer’s building. Fruit was from a nearby street vendor and plaintiff’s testimony established that it was not there a short time before the accident. Defendant raised Workers’ Comp exclusive remedy as a defense and court found that plaintiff failed to show that she was not eligible to receive Comp benefits. Court also found that plaintiff failed to show actual or constructive notice. Nepomuceno v City of New York


Med Mal   Accepted Practice   Ob/Gyn   C-section   Expert Aff   BP  

First

Rebutting defendant expert’s affidavit, plaintiff’ expert ob/gyn opined that there was a departure in failing to perform a C-section after the mother developed gestational hypertension in the 37th week of pregnancy and attempting induction when the mother was one week past due date with high blood pressure and the fetal tracings were non-reassuring. Plaintiff’s ob/gyn further opined that the infant showed signs of seizure activity by day two and images showed early signs of edema consistent with hypoxic-ischemic encephalopathy, and atrophy which can be expected with HIE.

In upholding the lower court’s denial of summary judgment, the First Department also found that the Plaintiff’s expert’s opinion extending the time of the malpractice back to the 37th week of the pregnancy was not a new theory of liability. The dates of the malpractice, incorrectly alleged in the original Bill of Particulars, were extended to pre-birth in a supplemental Bill of Particulars. The extension back to the 37th week was just a clarification of the time period. Destiny H. v Bronx Lebanon Hosp


Labor Law §241   Industrial Code   Saw  

Court of Appeals

A grinder was given to the worker with a saw blade attached instead of a grinding wheel and without a hand guard required for all hand held powered saws under 12 NYCRR 23-1.12(c). The saw blade kicked as the worker was trying to cut a hole in a bathroom vanity causing injury. The First Department felt constrained by its own prior precedent to narrowly interpret 12 NYCRR 23-1.12(c) to include only saws, not grinders modified to act as saws. Without the industrial code violation, the Labor Law 241(6) claim had to be dismissed. Hernandez v Seadyck Realty Co., LLC


Spoliation   Video  

First

The possibility of spoliation of a video surveillance tape cost Duane Reade summary judgment on a malicious prosecution claim. The tape provided by Duane Reade to the District Attorney’s office was incomplete. This raised questions if that was the original condition of the tape, if it was altered by mistake or intentionally in order to continue the prosecution. The case once again highlights how important preserving and providing full and accurate copies of surveillance videos can be for both defendants and plaintiffs.

Duane Reade showed that none of its employees were the source of the arrest. The complaints were made by an independent security guard and a customer and the dismissal of the false arrest claim against Duane Reade was upheld by the First Department. Duane Reade’s “shift leader” was found not to be an employee with a high degree of managerial authority sufficient to make the employees actions the same a Duane Reade’s and, therefore, punitive damage claims were properly dismissed. Pellegrini v Duane Reade Inc.


Judicial Admissions   Stay Arb   Uninsured  

First

Injured party filed a complaint against several vehicles claiming that his injuries were solely caused by “the defendants.” He later brought an uninsured claim claiming that he was hit from behind by a truck which fled the scene. The First Department agreed that the statement in his original complaint was a “formal judicial admission,” which barred the subsequent claim of a hit and run. Matter of Allstate Ins. Co. v Rosado

Comment: While this case may not seem earth shattering, it points to the power of “formal judicial admissions” which can win or lose a case. A judicial admission is any statement of fact or law made by a party or their attorney in the context of a case. If made in the current case, it is a “formal judicial admission.” If made in an unrelated case it is an “informal judicial admission.” Both are admissible, even if later withdrawn or amended. A formal judicial admission conclusively resolves that issue and eliminates the need for proof as in the above case.

The admission has to be “clear, unequivocal and deliberate” and attributable to the party directly or indirectly. A statement in a letter by an attorney, for example, can be attributed to the client if it is the only possible source of such information. Admission can be found in complaints, answers, bills of particulars, affidavits, mediation submission, accident reports, FOIL requests and attorney correspondence in addition to opening statements. For a good overview of the topic, see Miller v Lewis, 39 Misc. 3d 1216(A)(Sup. Ct. NY Cty, 2013).

NOTEWORTHY
(5 summaries)

Late Notice of Claim   Leave of Court  

First

The First Department noted that lack of a reasonable excuse for a delay in serving the notice of claim does not compel denial of leave. It upheld the denial because the plaintiff failed to show that the City obtained actual notice within 90 days or a reasonable time afterwards. Specifically, they noted that the plaintiff failed to provide a copy of a report he claimed had to be filed with the City by the Department of Buildings or show his efforts to obtain that report. Plaintiff’s claim that there was no prejudice because the condition remained the same was rejected as unsupported. Matter of Baum v City of New York


Venue  

First

The First Department reversed the change of venue for failure to adhere to the strict time limits of the CPLR for a motion to change venue. In dicta they also noted that the defendant’s claim that he operated his business out of a Westchester location was not sufficient to overcome the designation of “Bronx County” on the certificate of incorporation which was never amended. Martirano v Golden Wood Floors Inc.


Service   Traverse Hearing  

First

First Department reversed an order granting summary judgment for lack of personal jurisdiction where competing affidavits raised a question of fact of whether person served was authorized to accept service for LLC. A traverse hearing was ordered on the appeal. The statute of limitations had run and the First Department upheld the denial of the plaintiff’s cross motion to extend her time to serve the Summons & Complaint under CPLR 306-b since she failed to show diligent prosecution, a meritorious claim and fuzzy damages. Cruz-Guzman v 2380-2386 Grand Ave, LLC


Slip/Trip   Motion to Dismiss   Open/Obvious  

First

Lower court denied motion for summary judgment of cross claims. First Department reversed and granted motion where lower court had dismissed case as against co-defendant on grounds that the defect which caused the plaintiff to trip was open, obvious and not inherently dangerous since that finding would relieve the moving defendant of liability as well. Skisdopolus v Edwards


Pedestrian   Emergency Doctrine   Sole Cause  

First

Pedestrian was dressed in dark clothes while crossing the Grand Concourse in the Bronx at night, outside of the crosswalk. Driving under the speed limit, the driver swerved when the pedestrian stepped directly in front of the car, avoiding frontal impact but running over the pedestrian’s foot with the rear tire. The short time to respond to the pedestrian’s presence justified summary judgment for the defendant. Barrette v Vicente

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About Matt McMahon

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