May 9, 2017 | Vol. 53

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Court of Appeals

The Court upheld the Court Administrative Board’s new rule which denies certification for judges after they reach the age of 70 if they have elected to receive their retirement pension, approving a rule which eliminates “double dipping.” The Court noted that such a practice undermines the public’s confidence in the judiciary. This may affect what judges will be available in the future. Matter of Loehr v Administrative Bd. of the Cts. of the State of New York


Med Mal   Statute of Limitations   Continuous Treatement  

Second Deptartment

Defendants’ motion for summary judgment on statute of limitations for all treatment prior to plaintiff’s most recent surgery to correct ectasia, a cornea condition, in March of 2011, which he developed after a surgery in 2001 for vision loss denied. Defendants had informed the plaintiff of a surgical treatment in other countries which they believed would be available in the United States within the foreseeable future. He underwent the surgery in New York in March 2011, continued to treat with the defendants for the condition until December 2012, and filed suit in July 2013. The Second Department found that there was a question of fact of whether there was an anticipation of further treatment continuing from the original treatment of the condition of plaintiff’s eye and denied summary judgment. Freely v Donnenfeld


Labor Law §240   Ladder   Sole Cause  

First

Defendants’ motions for summary judgment denied where plaintiff fell while standing on the top of a 6’ foot A-frame ladder in violation of his employer’s safety manual, on proof in opposition that the fall was caused by the side hinge breaking, causing the ladder to collapse, creating a question of whether the ladder or the manner in which it was used was the proximate cause of the accident. Manfredonia v Gateway School of N.Y.


Coverage   Notice   Ins. L. § 3420(a)(2)  

Second Deptartment

Plaintiff’s motion for summary judgment on its direct claim to collect a default judgment of $285,822.50 denied, and defendants motion for summary judgment granted, where plaintiff did not give notice to the carrier until after the insured gave late notice which was properly disclaimed. It was the plaintiff’s burden to show that he acted diligently in determining the identity of the carrier and notifying them of the claim. While the quality of proof is less for an injured party than for the insured, plaintiff’s notice to the carrier, sent 1 month after the insured notified the carrier, was superfluous since the first notice was by the insured. Under those circumstances the carrier did not have to include the fact that it had disclaimed coverage for the insured’s failure to timely notify in its disclaimer to the injured party. Glanz v New York Mar. & Gen. Ins. Co.


Defamation   Punitive Damages  

Second Deptartment

In a very rare case, the Second Department upheld a grant of summary judgment of a defamation claim and an award of $25,000 compensatory and $10,000 punitive damages after a nonjury trial for false statements published to school employees, and repeated by students, regarding the plaintiff who was a school employee and who showed emotional distress as a result. Camaj v Plassmann


Legal Mal   Motion to Dismiss  

First

Motion to dismiss for failure to state a cause of action denied where plaintiff alleged that defendant law firm failed to prepare the sole eyewitness for his deposition testimony by having him review his call to the police where he described the truck that hit the plaintiff as having a flat front, and witness testified that it had a round front which plaintiff alleged was the reason for the defense verdict. The allegations stated a cause of action against the law firm. Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP


Serious Injury   Expert Aff   CPLR § 3101(d)   Preclusion  

Second Deptartment

The lower court providently exercised its discretion in denying the plaintiff’s motion to preclude the defendant from submitting its expert’s opinions on the motion to dismiss under serious injury as there was no showing that the failure to provide a 3101(d) prior to submitting the affirmation in support of defendant’s motion was intentional or prejudiced the plaintiff. Because defendant failed to address plaintiff’s claims of under the 90/180-day category, motion to dismiss on serious injury should have been denied regardless of plaintiff’s papers. Yampolskiy v Baron

NOTEWORTHY
(22 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Set Aside Verdict   Directed Verdict   Notice   Materially Deviates  

First

Lower court’s grant of defendants’ motion to set aside the verdict, and for a directed verdict, reversed where plaintiff slipped on a dirty surgical or food-service hat causing her foot to go into a little hole and lose her balance. There was no evidence that the defendant knew or should have known of the presence of the hat or that it was a recurring condition, but the evidence showed that the hospital had removed 4 tiles after a flood before the accident and covered the area with a mat which would bend when stepped on. There was a rational path for the jury to find that the missing tiles and rubber mat were concurrent causes of the accident. Since the lower court did not rule on the defendants’ motion for a substantial reduction of the verdict, that issue was remanded. Jones v New York-Presbyterian Hosp.


Med Mal   CPLR §306-b   Reasonable Excuse   Interest of Justice  

Second Deptartment

The lower court should have denied plaintiff’s motion to extend her time to serve a Summons with Notice, and granted the defendant’s motion to dismiss for lack of service, where plaintiff made only 1 attempt at service during the 120 days. Plaintiff’s extreme lack of diligence, failure to serve Complaints on co-defendants, and lapse of the statute of limitations defeated claim that service time should be extended in the interest of justice. Hourie v North Shore-Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp.


Med Mal   Accepted Practice   Judgment Rule   Informed Consent   Causation   Expert Aff  

Second Deptartment

Doctors made out prima facie case for summary judgment by deposition testimony, medical records, and expert affirmations showing that defendants did not depart from accepted practice by exercising their professional judgment in allowing the plaintiff mother to deliver vaginally, aware of plaintiff’s obesity and diabetes, or in manipulating the fetus when it encountered shoulder dystocia, and proof that the infant’s brachial plexus nerve damage/ Erb’s palsy was not caused by any departure by the defendant doctors. Plaintiff’s expert failed to raise a question of fact on the exercise of professional judgment and causation. Hospital entitled to summary judgment by showing that its staff followed the directives of the private attending physicians which were not contradicted by normal practice. Gattling v Sisters of Charity Med. Ctr.


Med Mal   Statute of Limitations   Continuous Treatement  

Second Deptartment

Doctor’s motion to dismiss all claims prior to 2001 as time-barred should have been denied as the plaintiff showed that the doctor continuously treated him for high cholesterol, risk of heart disease, and prescribed cholesterol-lowering medications during this period, which raised a question of continuous treatment for plaintiff’s need for a bypass surgery. Murray v Charap


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code  

First

Plaintiff who was injured while alighting from a construction vehicle was not entitled to the protections of Labor Law §240(1) as it was not the type of elevated risk contemplated by the statute, the industrial code provisions cited, §§ 23-1.7(f) and 23-1.30 did not apply, and defendant showed that it did not have control over the methods and means of work for liability under Labor Law §200. Molloy v Long Is. R.R.


MVA   Turning Vehicle  

Court of Appeals

The Court reversed the Fourth Department’s decision granting defendant summary judgment, finding a question of fact where defendant’s truck was making a right-hand turn at a red light when it struck and killed the bicyclist who was passing the truck on the right to either enter the intersection or make a right turn. Coffed v McCarthy


1983 Action   Police   NYC  

First

Defendants’ motion to dismiss should have been denied as plaintiff’s allegations that police officers, acting under color of law, broke down his door without a warrant, beat him up, and wrongfully arrested him stated a cause of action under 42 USC §1983. Abreu v New York City Police Dept.


Med Mal   Amend Complaint   Discovery  

Second Deptartment

Plaintiff’s motion to amend his complaint to allege fraud and breach of fiduciary duty denied as “patently devoid of merit.” Plaintiff’s motion to compel production of original records for forensic testing denied for plaintiff’s failure to show that the testing would not be destructive, or the extent to which it would be destructive, and that there was sufficient justification for the testing. Freely v Donnenfeld

Comment: This is a separate decision on the same case reported in MUST READS above.


Premises Liab   Dangerous Condition   Create Condition   Notice   Expert Aff   Feigned Issue  

Second Deptartment

Gym owner granted summary judgment where plaintiff testified that he knew there was water on the shower floor when he stepped into the shower stall and slipped, and only claimed that there was soap residue in his affidavit in opposition to the motion in a feigned attempt to avoid summary judgment. Water was an incidental necessity of the shower and defendant did not create a dangerous condition nor have notice of same. Barron v Eastern Athletic, Inc.


MVA   Wrongful Death   Motion to Dismiss  

Second Deptartment

Car leasing company’s motion to dismiss for failure to state a cause of action properly denied where plaintiff submitted evidentiary material sufficient to allege that defendant’s negligent maintenance of the vehicle caused the plaintiff’s decedent’s car to leave the roadway and crash into a bridge abutment. Where plaintiff submits evidentiary material in opposition to a motion to dismiss, the question becomes whether the plaintiff “has” a cause of action, not whether plaintiff has “pled” a cause of action. Coe v Toyota Motor N. Am., Inc.


Security Guard   Premises Liab   Question of Fact  

Court of Appeals

The Court affirmed the Second Department’s decision finding a question of fact where plaintiff was injured when struck by a remote-controlled car operated in defendant’s parking lot next to defendant’s security guard who did nothing to stop the use of the remote-controlled car. Pesante v Vertical Indus. Dev. Corp.


MVA   Slip/Trip   Police   GML §205-e  

Second Deptartment

Defendant, intoxicated driver involved in an accident, granted summary judgment on police officer’s claim that he slipped and fell on an oily substance while running to the scene of the accident. Defendant showed that there was no logical connection between the statutory violation and the plaintiff’s injuries. Frunzi v Sonn


Discovery   Strike Answer   Willful/Contumacious  

First

Defendant’s failure to communicate with plaintiff’s attorney regarding the necessity to provide discovery, and its opposition to the motion, showed that they had ceased participating in the defense of the action and that their failure to provide discovery was willful and contumacious justifying the order striking their answer. Racer v Mazel, USA LLC


Premises Liab   Snow/Ice   Slip/Trip   Labor Law §241   Labor Law §200   Notice   Last Inspection  

Second Deptartment

Homeowner living out of state while extensive renovations were taking place granted summary judgment on electrician’s Labor Law §241(6) claim but denied summary judgment on the Labor Law §200 and common-law negligence claims. Plaintiff slipped on snow and ice on the homeowner’s property on his way to the job site. The injury was caused by a dangerous defect on the premises and not the manner in which the work was performed and, therefore, the homeowner owed a duty to maintain the premises in a safe manner under both common-law and Labor Law §200. Defendants’ proofs failed to show the last time the area was inspected or what the condition of the area was on the day of the accident, failing to eliminate the question of constructive notice. DeFelice v Seakco Constr. Co., LLC


Premises Liab   Dangerous Condition   Notice   Speculation  

Second Deptartment

Homeowners granted summary judgment where plaintiff speculated that they placed a garbage can on a berm close to the road on a windy night which caused it to be blown into the road where plaintiff had to swerve to avoid it, hitting a tree. Defendants made out a prima facie entitlement to summary judgment and plaintiff offered nothing but speculation. Latuso v Maresca


MVA   Photographs  

First

Defendant failed to make out prima facie entitlement to summary judgment by submitting plaintiff’s deposition testimony and photographs which both identified the bus as a “Gray Line” bus, contrary to defendant’s assertions. Walker v Gray Line N.Y.


MVA   Consolidation   Venue  

Second Deptartment

Plaintiff’s motion to consolidate an action commenced by him in Queens County with an action commenced by him in Bronx County from a subsequent MVA where he claimed aggravation of injuries sustained in the first accident granted to the extent of consolidating the actions for joint trial. Since the issues of injuries, and aggravations of injuries, were in both actions where the plaintiff was treated by the same providers, judicial economy requires they be tried together. Venue was properly placed where the first action was commenced. Longo v Fogg


MVA   Rear End   Comparative Fault   Nonnegligent Explanation  

Second Deptartment

Plaintiff entitled to summary judgment on her own affidavit showing that she was stopped for 3 seconds before being hit in the rear by the defendant’s vehicle. Defendant’s claim that the plaintiff stopped suddenly was insufficient to provide a nonnegligent explanation. Nikolic v City-Wide Sewer & Drain Serv. Corp.


Premises Liab   Out of Possession   Alter Ego  

First

Defendants’ motion for summary judgment should have been denied as they failed to show that they were an out of possession owner or that they were the alter ego of Montefiore hospital. Cortes v MMC Residential Corp., I., Inc.


Premises Liab   Snow/Ice   Slip/Trip   Last Inspection  

Second Deptartment

Homeowner association denied summary judgment for slip and fall on ice over manhole cover on private road within HOA property. Defendant failed to show the last time the area was inspected or cleaned prior to the accident, necessary to eliminate issue of constructive notice. Torre v Aspen Knolls Estates Home Owners Assn., Inc.


Premises Liab   Sidewalk   Snow/Ice   Slip/Trip   § 7-210   Raised For First Time  

Second Deptartment

Owner of owner occupied 2-family house granted summary judgment where plaintiff failed to show statute or ordinance imposing duty on homeowner to remove snow and 1-3 family exception to administrative code §7-210 applied. Plaintiff’s claim that the condition was created by the homeowner was raised for the first time on appeal and not considered. DeSilvio v Lin Zheng


Renew   Indemnity  

Second Deptartment

Third-party plaintiff’s motion to renew its opposition to third-party defendant’s motion for summary judgment on contractual indemnity claims, based on the Appellate Division’s order reinstating Labor Law §240(1) claims, met the test for renewal, that there were new facts not previously available or a change in law which would result in a change in the court’s decision. Cioffi v Target Corp.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

Defendants met their initial burden of showing no serious injury by competent medical evidence but plaintiff raised an issue of fact on serious injury under the permanent consequential category for his cervical and lumbar injuries. The court does not give the details of the proofs. Linares v Suarez

About Matt McMahon

Civil trials and appeals since 1984

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