May 26, 2020 | Vol. 212

(3 summaries)

Amend Notice of Claim   50-H   Actual Knowledge   Prejudice   Conclusory   NYC  

Second Department
Petition to amend Notice of Claim to correct address from 165 Seagate Ct. to 165 Father Capodanno Boulevard (170′ away) based on 50-H testimony a year after original Notice of Claim, denied where not shown good faith error and that NYC’s ability to investigate was not hindered as petitioner’s claim that condition remained unchanged was conclusory and petitioner was unable to identify any witness to the condition, did not receive medical treatment at scene, and did not report accident to anyone that would have given actual knowledge to NYC within the 90-day period. Matter of DiMattia v City of New York

Products Liab   Med Mal   Motion to Dismiss   Untimely   Waiver   Personal Juridiction  

Second Department
Motion to dismiss on federal preemption by generic manufacturer of Dilantin prescribed to plaintiff when injured in a MVA granted when made while it’s motion to extend time to answer or move was pending which was withdraw after plaintiff’s attorney accepted copy of the motion to dismiss by hand waiving any objection it was untimely, and plaintiff’s motion for default denied. Plaintiff did not address federal preemption on appeal. New Jersey medical facility’s and doctors’ motion to dismiss on personal jurisdiction granted where plaintiff did not show minimum contacts between them and New York. Plaintiff’s taking medications in NY does not show contact with the state. Castro v Pfizer, Inc.

Settlement   Appealable Order  

Second Department
Appeal by defendants who did not oppose motion to enforce settlement against them dismissed as no appeal lies from an order or judgment on default. Order against opposing defendant reversed where “Post Mediation Agreement” and a “Settlement Agreement” failed to establish it, as opposed to one of non-opposing defendants, were obligated to make the payments. Brown-Wilks v Vornado Realty Trust

Comment: Lower Court’s vacating its own order reversed as court does not have authority to vacate its prior order sua sponte especially where that order is appealed. Brown-Wilks v Vornado Realty Trust.
(8 summaries)

Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
Defendants failed to meet burden of establishing treatment comported with accepted practice by submitting conflicting expert opinions leaving questions of fact regarding emergency C-section after prolonged drop in fetal heartbeat where infant suffered perinatal hypoxic ischemic insult with acidotic pH level in umbilical cord at birth and postnatal seizure activity within hours after birth. Plaintiff’s expert raised issue in opposition on causation with numerous medical studies, not contained in plaintiff’s previous expert’s report relied on by defendants, from which a jury could reasonably infer the departures caused plaintiff’s ADHD, oppositional defiant disorder, and speech, language, and cognitive delays. T.H. v New York City Health & Hosp. Corp. (N. Cent. Bronx Hosp.)

Labor Law §240   Labor Law §241   Labor Law §200   Res Ipsa Loquitor  

Second Department
Lower court improvidently searched record and granted summary judgment to general contractor where issue was not before court on respective motions and cross-motions. Even if plaintiff met burden of showing accident was not type normally occurring absent negligence and not due to voluntary act of plaintiff, question remained on exclusive control issue for res ipsa loquitor of whether plaster ceiling that fell, causing scaffold to collapse and crush plaintiff, was “structural” obligating building owner to maintain it under lease requiring denial of summary judgment against owner and court’s sua sponte grant of summary judgment against tenant. Res ipsa loquitor was not raised by tenant’s papers. Questions of fact remained on Labor Law claims. Zhigue v Lexington Landmark Props., LLC

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First Department
Plaintiff’s expert failed to raise issues of fact on accepted practice or causation where affidavit gave only general conclusions, misstatements of evidence, and unsupported assertions, opining that doctor showed little concern plaintiff was developing endocarditis but acknowledged that several infections were part of defendant’s differential diagnosis and he ordered tests that resulted in endocarditis diagnosis. Expert failed to rebut defendants’ experts’ opinions that delay in diagnosis was caused by plaintiffs 12-delay in having blood drawn after test was ordered and that a different infection, a bacterial infection, caused the damage. Ruiz v Rahman

Premises Liab   Slip/Trip   Sidewalk   Notice   Last Inspection  

Second Department
Hospital failed to eliminate questions on constructive notice with engineer’s testimony there were no complaints for 3-years, he inspected area every month, and they would repair curb and sidewalk as needed but did not show last time area was cleaned or inspected or that it would not have been visible on a reasonable inspection. Malloy v Montefiore Med. Ctr.

Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   Storm in Progress   Expert Aff   Speculation   Raised For First Time  

First Department
Abutting landowner granted summary judgment on certified meteorological records and meteorologist’s affidavit showing storm in progress. Plaintiff’s expert did not dispute storm in progress, opinion there was residue from prior snowfall speculative, and plaintiff offered no proof to support theory ice was old. Argument that snow removal efforts on day of accident created dangerous condition speculative as to how they caused it and not considered as raised for the first time on appeal. De Jesus v Roban Corp.

Negligent Hiring   NYC  

Second Department
NYC granted summary judgment against sanitation worker injured when coworker dropped one end of heavy “sausage bag” causing bicep tendon tear because risk of injury from lifting heavy garbage bag is inherent risk of plaintiff’s work and NYC showed coworker acted as reasonably prudent sanitation worker would act. Giannone v City of New York

Negligent Supervision  

Second Department
School district’s motion to dismiss claim of student injured when he jumped or fell from top step of mock climbing wall on school playground denied where district failed to show they provided adequate supervision or that accident happened in such a short span of time that no amount of supervision could have prevented. C.Q. v Farmingdale Union Free Sch. Dist.

Premises Liab   Duty  

First Department
Non-owner defendants granted summary judgment on proof they had no connection with property other than a land lease interest and, therefore, had no duty to plaintiff. Jackson v Savoy Park Owner LLC

(1 summaries)

Discovery   Premature Motion  

Second Department
Defendant’s motion to dismiss Labor Law §§240, 241, 200 and negligence claims before any discovery denied where proof showed discovery might lead to essential information to oppose motion. The court does not give the details of the proofs. Villalba v Brady

About Matt McMahon

Civil trials and appeals since 1984
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