| MUST READS (6 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Examining the Court of Appeal Sheppard-Mobley v King rule that a mother cannot recover for emotional harm without independent physical injury in a malpractice action where the child is born alive, the First Department held (4/1) that the mother’s claim for emotional harm from performing a vacuum extraction delivery without her consent was not barred by the rule as lack of informed consent is a discrete theory from malpractice, with different elements, that “implicates the prospective mother’s active role as decisionmaker for herself and on behalf of her fetus, with both capacities concerning the mother’s right to the integrity of her body.” The majority also invited the Court of Appeals to reconsider its Sheppard-Mobley v King ruling in light of common law developments in New York and other states since it was decided in 2005.Hospital denied summary judgment dismissing vicarious liability claim for labor/delivery nurse as barred by GOL §15-108 where plaintiffs discontinued case against her with prejudice due to her death as it was not a dismissal on the merits. Plaintiffs’ expert raised issues of fact on opinions that the hospital departed from accepted practice by the nursing staff failing to notify the doctor or midwife of fetal heart rate tracings showing minimal variability and recurrent decelerations and the resultant delay in treatment substantially diminished the infant’s chance of a better outcome and contributed to his death at 8-days. SanMiguel v Grimaldi ✉ |
| Motion to set aside $15 mil pain/suffering verdict as materially deviating from reasonable compensation by manufacturer of dry mix joint compound containing asbestos, and finding that it was 70% responsible for plaintiff’s mesothelioma, granted only to the extent of setting aside the pain/suffering award unless plaintiff stipulated to reduce it to $10 mil. Case remanded for calculation of offsets for settling defendants who were not on the verdict sheet and either amount paid or 30% of codefendant’s liability as found by the jury. Lower court providently admitted plaintiff’s video EBT taken to preserve his testimony (de benne esse deposition) pursuant to CPLR §3117(a). Plaintiff’s testimony he worked every day with large bags of the mix stamped with the manufacturer’s name and the company’s formula was sufficient to establish exposure to the manufacturer’s asbestos-containing product and his experts established specific causation by calculating his total exposure based on historical data and studies and their opinion that the manufacturer’s products caused his mesothelioma. Evidence that the compound was also contaminated from industrial talc properly admitted where included in the plaintiff’s CPLR §3101(d) disclosure. Matter of New York City Asbestos Litig. ✉ |
| Lower court providently granted defendant’s motion to set aside plaintiff’s verdict and dismissed plaintiff’s Labor Law §200 and negligence claims where plaintiff testified the wheel of the cart that caused him to fall did not appear defective and only wobbled after he loaded it with 400 lbs, other testimony showed it looked and functioned normally so that jury could not find defendant had actual or constructive notice of a dangerous condition without speculation. Plaintiff’s claim the accident was caused by a defective ramp rejected where plaintiff consistently attributed the cause of the accident to the defective wheel. In dicta, the court upheld the jury’s revision of its damage award where the trial judge directed them to resolve an inconsistency between the amount on the verdict sheet and the amount read in court. Plaintiff’s claim he was deprived of a fair trial rejected where raised for the first time on appeal and, in any event, defendants questioning their expert on whether they were negligent with the same questions plaintiff raised to his expert is permissible where it helps to clarify the professional or technical knowledge of an expert even if it goes to the ultimate jury question. Nassar v Macy ✉ |
 In a rare example of an arbitration award being overturned by judicial review, the arbitrator’s award of no serious injury based on his finding plaintiff failed to distinguish what injuries were from the subject accident and 2-prior accidents was “irrational because there was ‘no proof whatever to justify’ it. Plaintiff could not recall what body parts were injured in the prior accidents and submitted her treating doctors’ medical reports from the subject accident identifying the subject accident as the cause of her injuries with no history of recent prior injuries. Defendant did not submit any evidence of plaintiff’s prior injuries. Matter of Richardson v Markovich ✉ |
| Nursing home’s motion to stay action for resident’s multiple falls and to compel arbitration or for a change of venue pursuant to admission agreement signed by resident’s daughter denied where administrator’s affidavit claiming plaintiff-daughter signed the admission agreement as power of attorney of resident was not on personal knowledge of the signing of the agreement and did not explain the basis of her claim the daughter had the mother’s power of attorney, defendant did not provide an affidavit from the person who signed the agreement on its behalf, and there was no dispute that the power of attorney required both of the resident’s daughters to act together to be binding. Plaintiff’s motion to amend the Complaint to add the other daughter granted where defendant did not show prejudice by the amendment. Bergman v Rosalind & Joseph Gurwin Jewish Geriatric Ctr. of Long Is., Inc. ✉ |
| Motion to vacate $681,752.09 judgment entered on jury verdict against LLC and both of its individual owners by one of the individual owners, and to vacate a property execution against her personal real estate under CPLR §5239, granted to the extent of remanding the action for a hearing to determine whether the attorney had authority to appear on her behalf, necessary for the attorney’s failure to raise personal jurisdiction as a defense to effectuate a waiver, where moving-defendant rebutted the presumption of the attorney’s authority by both her affidavit and the attorney’s affidavit stating she never consented to him being retained to represent her by the other owner of the LLC. Ming Xue Xir v 422 Sunshine Ct., LLC ✉ |
| NOTEWORTHY (18 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Appeal from order denying plaintiff’s motion for renewal of opposition to defendant’s motion for summary judgment dismissed where the record on appeal did not include the pleadings or defendant’s original motion papers, making ‘meaningful review’ by the appellate court ‘ virtually impossible.’ Fitzpatrick v Affairs & Banquets Floral Servs., Inc. ✉ |
| Motion to dismiss by physicians employed by NYCHHC granted for plaintiff’s failure to serve them with a Notice of Claim on attorney affirmation and affidavit of person with knowledge that they complied with statutory requirements for demanding indemnification from NYCHHC, triggering the need to serve them with a Notice of Claim. They were not required to plead a Notice of Claim defense as it was part of plaintiff’s substantive case to plead and prove. Umeh v New York City Health & Hosps. Corp. ✉ |
| Plaintiff who fell 1.5 stories to the ground when motorized scaffold he was working on misleveled and stopped, causing him to slip on leaking motor oil on the scaffold platform, granted summary judgment on Labor Law §240(1) and §241(6) predicated on industrial code §23-1.7(d) which prohibits slippery substances on scaffold platforms. Plaintiff’s mistaken claim he was working with a particular coworker on the day was a minor discrepancy that did not require denial of summary judgment where plaintiff was the only witness. Lower court providently disregarded foreman’s affidavit where it was notarized outside NYS and not accompanied by a CPLR §2309(c) certificate of conformity and, in any event would not have raised an issue of fact as the foreman did not have personal knowledge of the accident. De Los Santos v Carlyle House Inc. ✉ |
| School defendants denied summary judgment where questions remained of whether “the infant plaintiff was released from school without adequate supervision into a foreseeably hazardous setting they had a hand in creating,” which extends a school’s duty to supervise beyond the physical control and custody of the child. The school designated the student pickup area where there was a roadway defect. Levy v City of New York ✉ |
| Farm owner denied summary judgment dismissing plaintiff’s claim for failing to maintain reasonable security where he was assaulted by farm worker as questions remained of whether farm owner knew of worker’s intention to harm plaintiff, whether plaintiff was allowed to be on the farm, and whether it was foreseeable the worker and plaintiff would meet that night on issue of owner’s opportunity and need to control the worker’s conduct. Owner denied dismissal of negligent hiring, retention, supervision, and training claims without showing worker’s employment on the farm did not put him in a position to harm plaintiff. Owner also denied dismissal of negligent infliction of emotional distress claim where questions remained of whether she breached her duty to plaintiff that either unreasonably endangered him or caused him to fear for his safety. Intentional infliction of emotional distress claim dismissed as labeling plaintiff’s relations with worker’s girlfriend as nonconsensual and paying part of worker’s restitution for the assault was not so ‘extreme and outrageous’ to exceed ‘all possible bounds of decency.’ Vicarious liability claim dismissed as worker’s assault was outside the scope of his employment, and not in furtherance of the owner’s business interests where it was purely personal and he was not authorized to use force. Lea v McNulty ✉ |
| Defendants’ motion to compel plaintiff to serve a CPLR §3012-a certificate of merit and notice of malpractice action for all malpractice actions and to transfer the action from the general negligence to the malpractice part where plaintiff initially served a certificate of merit on 2-defendants but not on additional defendants she separately sued and moved to consolidate, granted as plaintiff’s claims that the medical staff improperly assessed her fall risk due to her medical condition, narcotic medications, and fact she was legally blind sounded in malpractice rather than ordinary negligence. Snow v Gotham Staffing, LLC ✉ Comment: Appeal by nonparties dismissed as they were not grieved by the orders appealed from. Snow v Interfaith Med. Ctr.. Appeal from order and decision on reargument dismissed as academic. Snow v Gotham Staffing, LLC.. |
| Plaintiff’s motion to amend the BP to include industrial code §23-1.8(a)(personal protection equipment) as Labor Law §241(6) predicate for failing to have him wear protective goggles while dismantling a scaffold granted, even after Note of Issue was filed, as the amendment had merit and did not constitute new allegations or a new theory. Defendants granted summary judgment dismissing Labor Law §200 claims on proof they exercised no supervisory control over the means and methods of plaintiff’s work, “even if they may have had notice of the allegedly unsafe manner in which the work was performed.” Gonzalez v City of New York ✉ |
| Worker who slipped on a piece of discarded carpeting while walking in a hallway during the construction project granted summary judgment on Labor Law §241(6) based on industrial code §23-1.7(e)(2) as the accident did not arise from his work and the discarded carpeting was not integral to his work. Indemnification provision of GC’s contract with plaintiff’s employer was not triggered where the accident did not arise out of plaintiff work and GC denied summary judgment on its indemnity claim against carpeting subcontractor where GC was responsible for debris removal and questions remained of whether it failed to meet that duty and caused plaintiff’s accident. Sternkopf v 395 Hudson N.Y., LLC ✉ |
| Plaintiff’s motion for summary judgment for injuries when her foot fell through hole in restaurant deck denied where defendants’ employee affirmed he saw plaintiff merely stumble, hit part of a table, and fall to the floor raising an issue of whether the plaintiff fell from a dangerous condition or merely misstepped and plaintiff’s motion to dismiss comparative fault defense denied where questions remained. Assumption of risk defense dismissed as inapplicable to the situation. Muniz v SPO Rest., LLC ✉ Comment: The appeal was transferred from the First Department to the Second Department for hearing and determination under New York Constitution, Article VI, §4(i). |
| Concrete subcontractor failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claims of plumbing worker who stepped on Q-decking that gave way, causing him to fall 6′-10′, where it was unclear who placed the Q-decking but moving defendant was the last one working in the area before plaintiff’s fall, it had a duty to provide fall protection, and it used Q-decking. Concrete subcontractor denied dismissal of indemnity cross-claim of property owner, even if property owner’s workers or others were partially at fault, as language that indemnification was ‘to the fullest extent of the law ‘ did not violate GOL §5-322.1. Plumbing contractor likewise denied dismissal of owners’ indemnity claims. Munoz v JDS Seagirt LLC ✉ |
| Because of the dangerous nature of providing gas, a gas company has the duty to use “that degree of caution which is reasonably necessary to prevent the escape or explosion of gas from its pipes and equipment.” Defendants denied summary judgment where questions remained of whether they were negligent in maintaining their gas system and distribution of natural gas to the premises, and whether they’re negligence was a proximate cause of the explosion at the premises that injured plaintiff. Fletcher v Hasnat ✉ |
| Lower court improperly denied abutting landowner’s motion for summary judgment finding it untimely on mistaken calculation that it was filed 91-days after Note of Issue as it was timely filed using correct calculation under Gen. Construction Law §20. Defendant granted summary judgment on proof it owed no duty to plaintiff as it did not own, occupy, control, or make special use of the metal storm drain abutting defendant’s property. Orellana v Cannon ✉ |
| Company whose videographer backed into decedent while filming a wedding failed to meet burden for summary judgment by videotape which did not conclusively show the videographer did not back up into the decedent to rebut plaintiff’s testimony that she saw the videographer backup into the decedent while holding a video camera. Lower court improvidently granted summary judgment on finding the contact was “inadvertent,” as a jury could reasonably find the videographer did not exercise due care while backing up or provide someone to guide the videographer. Gutkina v Max Media & Art, LLC ✉ |
| Talcum powder manufacturer granted summary judgment where Texas law requiring direct evidence of specific causation or epidemiological studies showing plaintiff’s risk of injury from use of the product was more than doubled applied since plaintiff was a Texas resident who overwhelmingly used the product in Texas, only occasionally in New York on layovers, and never purchased it in New York and plaintiff’s experts only opined that her use of the product contributed to her mesothelioma without any data showing it doubled her risk. Matter of New York City Asbestos Litig. ✉ |
| School district denied summary judgment dismissing middle school track team member’s claim for injuries when she was struck by a lacrosse ball while stretching in an area of field designated by her coach as questions remained of whether requiring her to stretch in area of field near lacrosse practice unreasonably enhanced her risk of injury under the assumption of risk doctrine. E.Z. v Hewlett-Woodmere Union Free Sch. Dist. ✉ |
| Plaintiff’s affidavit that she looked for oncoming traffic, confirmed she had the light in her favor, and was halfway through the crosswalk when struck by defendant’s vehicle as it make a left-hand turn met her burden for summary judgment dismissing comparative fault defense but defendant’s affidavit that the pedestrian walk sign was red raised an issue in opposition. Affirmative defenses of assumption of risk dismissed as inapplicable to an MVA, emergency doctrine as defendant was not responding to an emergency since he did not see plaintiff before the contact, and walking outside of the crosswalk as there was no dispute plaintiff was in the crosswalk when struck. Hartell v Shaukat ✉ |
| Driver of vehicle struck by codefendants’ vehicle granted summary judgment on driver’s affidavit and video showing codefendants’ vehicle made a left-hand turn from a parking lot when it was unsafe to do so and moving-defendants had virtually no time to avoid the accident. Plaintiff who was a back seat passenger in turning vehicle granted summary judgment on liability against turning-vehicle defendants and dismissing their comparative fault defense on the moving-defendant’s affidavit and video, incorporated by reference in plaintiff’s moving papers, showing as a matter of law that the turning vehicle was at fault and plaintiff was an innocent passenger. Silva v Rabbani ✉ |
| Homeowners of property where plaintiff was installing parking meters by the curb granted summary judgment dismissing plaintiff’s Labor Law §§240 (1), 200, and negligence claims for injury to her finger when it got caught as she closed her vehicle door on proof they did not have authority to control or supervise plaintiff’s vehicle or work and plaintiff’s injury was not the result of an elevation risk. Marshall v Manuel ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants failed to meet burden for summary judgment on serious injury without addressing BP allegations that the accident exacerbated plaintiff’s preexisting shoulder and lumbar injuries. The Court does not give the details of the proofs. Boxwill v County of Nassau ✉ |
| Defendants granted summary judgment dismissing MVA case on proof they were not negligent in causing the accident and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Jewel v Jimenez ✉ |