May 18, 2021 | Vol. 262

(6 summaries)

Premises Liab   Sole Cause   Survelliance Video   Question of Fact   Experts  

First Department
Defendants’ expert’s affidavit opining plaintiff was sole cause of elevator coming to a sudden stop because she did not fully close gate did not establish claim where video expert relied on was not part of record since it was not included with electronically filed motion, inserting only exhibit stating it would be provided “upon the Court’s request.” Items that cannot be practically e-filed are submitted with NYSCEF Form EF 21. Neither still images nor expert’s opinion established plaintiff did not fully close scissor gait and defendant’s expert’s affidavit raised questions of whether elevator was defective if it could rise without gait fully closed. Amezquita v RCPI Landmark Props., LLC    

Governmental Immunity  

Second Department
Nonprofit ATV Association and defendant-volunteer who caused tree to fell on plaintiff-volunteer and broke his leg while they were maintaining ATV-trail granted summary judgment under Federal Volunteer Protection Act, 42 USC §14501 et seq., on proof defendant-volunteer was acting within scope of responsibilities for NPO and accident was not caused by willful, criminal, or reckless conduct, gross negligence or flagrant indifference to rights or safety of others. Jeraci v Cooper    

Malpractice   Directed Verdict   Set Aside Verdict   Accepted Practice   Causation   Experts   Hearsay   Admissibility   Raised For First Time   Jury Charge  

Second Department
Hospital properly granted directed verdict where plaintiffs’ expert opined hospital deviated by underestimating fall risk for decedent who fell after quickly standing to answer phone but admitted on cross that fall protocol actually implemented was appropriate and that only doctors could order bed rest and 1-on-1 observation. Verdict in favor of doctors could be reached on fair interpretation of evidence as jury could credit proof fall procedures were appropriate and did not cause decedent’s injuries.

Trial court providently precluded decedent’s autopsy and expiration reports as opinions of cause of death in an autopsy report are inadmissible hearsay. Plaintiffs’ argument autopsy findings were admissible to confirm decedent’s injuries not preserved where not raised below nor did plaintiffs object to limitation on decedent’s adult children’s testimony. Preclusion of plaintiffs’ second expert appropriate exercise of discretion as cumulative. The jury was not substantially confused by verdict sheet or charges. Rucigay v Wyckoff Hgts. Med. Ctr.    

Motion to Dismiss   Res Judicata  

First Department
Supermarket’s motion to dismiss, claiming res judicata from prior stipulation to discontinue against a different defendant at a different location, denied as res judicata applies to actions arising out of the “same transaction,” not the same accident, and the second lawsuit was for the accident at a different location than alleged in the first. “With prejudice,” language of stipulation of discontinuance in first action is narrowly construed to only preclude another suit alleging accident at that location. CPLR §3217(c) prohibition against multiple suits did not apply as prior suits were discontinued for good cause and not harassment. Martinez v JRL Food Corp.    

Malpractice   Motion to Dismiss   Discovery   Willful/Contumacious   Reasonable Excuse  

First Department
Pro se plaintiff’s Complaint dismissed where she willfully refused to answer questions regarding a specific time period at her continued EBT as required by court order. Records that may not be admissible at trial can be used at EBT and plaintiff’s disagreement with court’s directives was not a reasonable excuse for not complying. Jones v FEGS-WeCARE/Human Resources, NYC    

Sepulcher   Special Duty   Governmental Function   Governmental Immunity   NYC  

First Department
NYC had special duty to notify next of kin of decedent’s death which is a nondiscretionary ministerial act not subject to governmental immunity, but it did not have information necessary to notify next of kin until they contacted NYC months later. Reid v City of New York    

(15 summaries)

Discovery   HIPAA   BP   Causation   Experts  

First Department
Lower court providently ordered disclosure of 6-months prior psychological and medical records on proof they were necessary to determine cause of plaintiff’s hospitalization after accident and denied request for 8-years of records where NYCTA failed to show they were material and necessary to assess causation, plaintiff’s recovery, or prognosis and its expert gave only generalized opinion they were necessary to determine life expectancy and evidence of plaintiffs overall health had been disclosed. Plaintiff did not raise loss of enjoyment of life claim in BP and defendant failed to show past mental health or substance abuse history was related to accident or prior conditions were exacerbated by accident. Hunlock v New York City Tr. Auth.    

Malpractice   Informed Consent   Accepted Practice   Causation   Res Ipsa Loquitor   Raised For First Time   Experts  

First Department
Defendants entitled to summary judgment on expert’s opinions facet joint injections and dosage of corticosteroid were within applicable standard of care and that plaintiff gave informed consent. Plaintiff’s claim defendant-doctor did not use proper sterile technique not supported by record. Plaintiff’s expert’s opinion that dose was excessive based solely on manufacturer’s recommendations as standard of care failed to raise issue and expert failed to opine any lack of informed consent was a cause of injuries. Res ipsa loquitor raised for first time on appeal not considered and in any event plaintiff failed to show infection would not have happened absent negligence. Thaler v Varlotta    

Construction Liab.   Workers Comp Defense  

First Department
Defendant, convention service company, granted summary judgment on workers compensation exclusivity clause where worker employed by company operating Jacob Javits Center was injured through actions of workers while they dismantled a nonparty’s booth for defendant. Workers were general employees of plaintiff’s employer, defendant reimbursed general employer for their wages but did not supervise the work or always have a supervisor on site, plaintiff did not claim coworkers were special employees of defendant, and his employer always had a foreman on site and assigned carpenters to work with the defendant establishing coworkers were not special employees of defendant. Cruz v National Convention Servs., LLC    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts  

Second Department
Defendants’ expert failed to eliminate all questions of fact where opinions did not rebut specific allegations of departures including improperly performing transrectal prostate biopsy, causing a laceration, and failing to perform a proper examination before discharging plaintiff despite repeated complaints of rectal bleeding, and whether these departures were a proximate cause of plaintiff’s injuries. Defendants also failed to show plaintiff was reasonably informed of foreseeable risks and a reasonably prudent person would have undergone the treatment if fully informed. Huichun Feng v Accord Physicians, PLLC    

Asbestos   Products Liab   Motion to Dismiss   Forum non conveniens  

First Department
Defendant failed to meet its “heavy burden” of showing its talcum products had no substantial nexus with New York where its own records show it developed and marketed them in NYC during time of decedent’s exposure. English v Procter & Gamble Mfg. Co.    

Premises Liab   Create Condition   Admissibility   Actual Knowledge   Raised For First Time   Premature Motion  

First Department
BP Oil denied summary judgment where it relied on affidavit of executive without knowledge of whether they delivered gas to station where plaintiff tripped on raised gas cap, and affidavit from executive with knowledge not considered when submitted for first time in reply to correct fundamental error in motion, not to address opposition. Motion was premature as plaintiff showed essential facts exclusively withing BP’s possession were necessary to oppose motion where dealer agreement granted BP 24 access to deliver gas to gas station and summary judgment motion deprived plaintiff depositions of witnesses with knowledge of whether BP delivered gas to station before accident. Blackstock v Accede Inc.    

Prior Written Notice   § 7-210   Big Apple Pothole   Spoliation   NYC  

Second Department
Plaintiff’s motion for summary judgment on issue of NYC’s prior written notice denied where “v” notation on Big Apple Pothole map from 2003 showing tree well lacked railing did not given notice of depressed and uneven condition within the tree well plaintiff claimed caused her fall as notice of one condition does not provide notice of unstated conditions. Plaintiff failed to meet burden for spoliation sanctions, that NYC had obligation to preserve evidence, evidence was destroyed with culpable state of mind, and evidence was relevant to and would support her claim. Fisch v City of New York    

Labor Law §240   Gravity Risk   Safety Devices   Comparative Fault  

First Department
Plaintiff who slipped on mud while attempting to lift heavy support beam denied summary judgment on Labor Law §240(1) as questions remained of whether injury was caused by failure to provide safety devices to protect against a physically significant height differential. Plaintiff’s lifting of beam would be no more than comparative fault which is not a defense under §240. Summary judgment on indemnity claims premature. Greene v Raynors Lane Prop. LLC    

Premises Liab   Assumption of Risk   Open/Obvious   NYC  

First Department
Photographs showing tear or seam in softball field turf left question of whether hole 16-year-old experience softball player’s foot went into was open/obvious or concealed danger that unreasonably increased risks to players. A.S. v City of New York    

Serious Injury   ROM   Experts  

First Department
Defendant granted summary judgment on orthopedic surgeon’s finding of full or only slightly limited ROM, that injuries resolved and radiologist’s report finding post-accident MRIs showed only preexisting degenerative changes not related to an accident. Plaintiff’s expert’s only examination 6-years after accident too remote to raise issue and expert failed to address MVAs before and after accident that plaintiff claimed caused spinal injuries, the findings of prior degenerative conditions on plaintiff’s cervical and lumbar MRIs, or plaintiff’s history of chronic neck/back pain in his medical records. Plaintiff offered only minor, temporary complaints of his hip, elbow, and knee insufficient for serious injury. Without causal connection, and where plaintiff testified he was confined for only a few days after accident, 90/180-day claim dismissed. Antepara v Garcia    

Premises Liab   Snow/Ice   3rd Party Contractor   Espinal  

Second Department
Snow removal contractor failed to meet burden for summary judgment where plaintiff alleged ice she slipped on in parking lot was caused by snow removal efforts and evidence showed defendant piled snow in large mounds in parking lot and against building. Defendant failed to eliminate questions of whether melted snow from mounds created ice that caused plaintiff’s fall. Nicosia v Bucky Demelas & Son Landscape Contrs., Inc.    

Premises Liab   Stairs   BP   Experts   Speculation  

First Department
Defendant made out prima facie entitlement to summary judgment on plaintiff’s testimony his foot slipped on smooth step without liquid, debris, or other substances as a worn tread, in and of itself, is not an actionable defect. Plaintiff’s expert’s unaffirmed report speculative where expert did not inspect stairs, opinions were based on unauthenticated photographs, plaintiff was unable to identify portion of step he slipped on, an neither BP nor plaintiff’s testimony mentioned inadequate lighting or violations of multiple dwelling law and multiple dwelling law provisions cited were inapplicable. Wong v 15 Monroe Realty Inc.    

Premises Liab   Create Condition   Notice   Last Inspection  

First Department
Supermarket failed to meet burden for summary judgment without proof it did not create or have notice of rolled up carpet plaintiff tripped on and did not show last time area was cleaned/inspected. General cleaning principles insufficient to eliminate questions of constructive notice. Reagan v Delmonico Mkt. Place, Inc.    

Pothole Law   Prior Written Notice   3rd Party Contractor   Create Condition   Espinal   NYC  

Second Department
NYC granted summary judgment where plaintiff’s foot got stuck in roadway hole causing him to trip on proof it did not receive prior written notice and plaintiff failed to show NYC created the condition or it was result of a special use. Contractor hired by NYC to perform work on roadway granted summary judgment on proof it did no work in area where plaintiff fell and did not create the defect. Ocello v City of New York    

MVA   Turning Vehicle   Sole Cause  

First Department
Access-a-ride and driver granted summary judgment where plaintiff pulled into bus lane at bus stop near red light and collided with defendants’ van as it made a right-hand turn from the only lane of traffic as plaintiff failed to yield the right-of-way. St-Cyr v New York City Tr. Auth.    

(2 summaries)

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Feigned Issue   Premature Motion  

Second Department
Plaintiff granted summary judgment on her affidavit, nonparty witness affidavit, and certified police report showing defendant-driver negligently rear-ended plaintiff’s vehicle while it was stopped, and she plaintiff was not comparatively at fault. Defendant-driver’s affidavit did not contradict his statement to police but was insufficient to raise triable issue. Plaintiff’s motion was not premature. The Court does not give the details of the proofs. Diamond v Comins    

MVA   Pedestrian   Question of Fact   Premature Motion   Renew  

Second Department
Defendant met burden for summary judgment on renewed motion after original motion was denied as premature and depositions were held, but plaintiff raised issues as to defendant’s credibility on how accident happened and if defendant contributed to accident. The Court does not give the details of the proofs. Doyle v Wieber    

About Matt McMahon

Civil trials and appeals since 1984
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