November 2, 2021 | Vol. 285

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Malpractice   Set Aside Verdict   Preclusion   Loss of Chance   Causation   Experts  

Second Department
Verdict finding oncologist departed from accepted practice by not recommending genetic testing for susceptibility to ovarian cancer while treating breast cancer but that departure was not a cause of decedent’s ovarian cancer and death set aside where trial court improvidently precluded decedent’s sister’s positive BRCA2 gene result which would have shown decedent had at least 50% chance of having the gene and supported plaintiffs’ expert’s opinion decedent would have had the test and had her ovaries removed to prevent ovarian cancer. An expert need not quantify the loss of chance as long as the ‘jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury.’ Walsh v Akhund    

Premises Liab   Set Aside Verdict   Directed Verdict   Trivial   Admissibility   Jury Charge  

First Department
Defendants’ motion to set aside verdict and for judgment as a matter of law denied where jury could rationally find door saddle plaintiff tripped on was dangerous and not trivial.

Trial court providently precluded 3 of plaintiff’s in hospital record where defendants didn’t produce the interpreters for 2 of them to show they were objective and accurate, plaintiff was not shown to be declarant for 1, and all of them were not germane to treatment/diagnosis for business record exception. Objections to plaintiff’s counsel’s inflammatory comments during summation were sustained with curative comments and instructions, the jury charge was not confusing as a whole, and defendants consented to the court’s clarification. Nassa v 1512 LLC    

Construction Liab.   Set Aside Verdict   Pain/Suffering   Materially Deviates   Comparative Fault   Experts   Waiver  

First Department
Verdict finding Con Ed negligent was supported by evidence it knew it reversed electrical phases while rewiring subterranean cables, causing certain machinery to work in reverse or not at all, without notifying bakery where plaintiff worked of problem and baker’s hand was pulled into bread machine that operated in reverse which also supported finding of no comparative fault. $70,000/$93,750 past/future pain/suffering did not materially deviate from reasonable compensation for crush/shear injury requiring 21-stitches, 1.5-years of PT, and resulting in permanent nerve injury and jury could reject defendant’s claim of pre-existing repetitive stress injury. $176,175/$207,307 past/future lost earnings as supported by plaintiff’s employer’s testimony.

Defendant’s claim award for future pain/suffering without future medical expenses was inconsistent not preserved without objection before jury disbanded as were claims of improper remarks by counsel during summation where court gave curative instruction not objected to by defendant who did not ask for a mistrial. In any event, counsel’s remarks were not so unduly prejudicial as to require a new trial. Hernandez v Consolidated Edison Co. of N.Y., Inc.    

Motion to Dismiss   General Release   No-Fault   Notice  

First Department
Motion to dismiss subrogation claim for $67,498.41 of PIP benefits against tortfeasor based on general release denied where tortfeasor was on notice of claim to recoup PIP payments before signing release. Notice served on insured was notice to carrier. American Tr. Ins. Co. v Smiley    

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Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code   Unknown Cause   Experts  

First Department
Fact steel/plywood concrete form fell 3′-5′ off wall striking plaintiff entitled him to summary judgment on Labor Law §240(1) and plaintiff was not required to submit expert affidavit or proof of why form fell. Defendants’ claim appropriate pins attached form to the wall did not raise issue as the pins were not adequate to keep the form from falling.

In separate incident, plaintiff granted summary judgment on Labor Law §241(6) where concededly defective grinder spontaneously shut off and turned back on him for failure to comply with industrial code §§ 23-1.5(c)(3) and 23-9.2(a) requiring all equipment to be maintained in a safe condition, removed, and repaired immediately, and inspected to comply with the sections. Viruet v Purvis Holdings LLC    

Malpractice   Strike Answer   Discovery   Willful/Contumacious   Spoliation   Sanctions  

Second Department
Plaintiffs’ motion to strike defendants’ Answer and award monetary sanctions for refusal to comply with discovery orders denied where not willful/contumacious and plaintiffs failed to show spoliation of evidence was intentional or deprived them of ability to prove their case. Amos v Southampton Hosp.    

Premises Liab   Negligent Supervision   Assumption of Risk   Create Condition   Notice   Experts  

First Department
Testimony of ice rink’s employee that she saw separation in 4′ tall dasher boards that form the seasonal ice rink after 7-year-old’s thumb got stuck and torn off as child skated away from rail, and plaintiff’s expert’s opinion the board’s cap rails were improperly fastened and secured creating gaps, raised issue of whether rink was as safe as it appeared in opposition to defendants’ showing they did not create or have actual or constructive notice of the condition. Plaintiff failed to raise issue on negligent supervision and PTSD claims. Morley v BPP St Owner, LLC    

Malpractice   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

First Department
Hospital’s motion to dismiss on statute of limitation granted where plaintiff missed appointment with endocrinologist and did not reschedule, terminating treatment. continuing to take prescribed medications for a year beyond treatment end was not continuous treatment. Claim plaintiff still considered himself a patient did not raise issue on continuous treatment which requires both patient and doctor consider treatment ongoing. It was also contradicted by statement to subsequent doctor that he wanted to be treated at the new hospital from then on. Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr.    

Premises Liab   Wet Floor   Duty  

Second Department
Parent company granted summary judgment as it owed no duty to movie patron who slipped on bathroom floor of theater that was owned, managed, occupied, and controlled by wholly owned subsidiary and parent company did not make special use of theater. Neill v Cinema de Lux    

Serious Injury   Set Aside Verdict   Degenerative   Pain/Suffering   Waiver   NYC  

First Department
Verdict of no serious injury supported by evidence injuries were degenerative, not caused by accident. Subjective complaints of pain/suffering without collaborating medical evidence are insufficient to establish serious injury.

By not asking for mistrial before jury was disbanded, plaintiff waived claim of improper remarks by counsel which, in any event, were fair comment and cured by court instruction that jury is presumed to have understood and followed. Ortiz v City of New York    

Assumption of Risk   Open/Obvious   Experts   Speculation  

First Department
Plaintiff who crashed into unpadded wall assumed risk of unpadded wall which was inherent risk of playing basketball and was open/obvious. Plaintiffs’ expert’s opinion that wall should have been padded because it was within 3′ of out-of-balance line did not raise issue where expert did not inspect court, have measurements of distance, or cite any industry standards requiring padding under those circumstances. Caro v ZogSports, LLC    

Assault   Police   Question of Fact   NYC  

First Department
NYC’s motion to dismiss assault/battery case denied where police officers who did not remember exact incident did not dispute plaintiff could have been pushed or shoved while they were dispersing a large crowd, leaving questions of fact. Butler v City of New York    

Premises Liab   Comparative Fault   Premature Motion  

First Department
Plaintiff struck by carts pushed by supermarket’s employee granted summary judgment, supported by eyewitness affidavit, and defendants failed to raise issue in opposition. Motion was not premature where defendants failed to specify what information was exclusively within plaintiff’s possession necessary to oppose the motion. Plaintiff need not prove freedom from comparative fault for summary judgment, but dismissal of comparative fault defense would be premature. Natoli v Trader Joe    

Premature Motion   Create Condition   NYC  

First Department
NYC and not NYCTA nor Westchester County and Westchester transportation defendants have responsibility to maintain bus shelters in NYC but plaintiff’s allegation that NYCTA and Westchester defendants created the defect, and one of the Westchester defendant’s employee’s affidavit stating Westchester defendant’s employee had regular interaction with the schedule box that caused plaintiff’s injuries rendered defendants’ motion for summary judgment premature as discovery was needed to determine the issue. Olivo-Felez v County of Westchester    

Premises Liab   Snow/Ice   Experts   Speculation  

First Department
Supermarket granted summary judgment where plaintiff claimed he slipped on snow/ice at driveway entrance to supermarket as climatological data and expert’s opinion showed no precipitation for 19-days, no snow/ice on undisturbed, untreated, exposed areas for 11-days, and no snow/ice present at location for 85-hours before accident. Plaintiff’s claim it could have been from prior accumulated snow, refuted by climatological data, was speculative. Marcano v 100-120 Hugh Grant Circle Realty, LLC    

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About Matt McMahon

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