November 22, 2016 | Vol. 29

MUST READS
(6 summaries)

Prior Written Notice   Bicycle   Comparative Fault   Directed Verdict   Set Aside Verdict  

First

Plaintiff’s motion to set aside that portion of jury’s verdict finding her 40% at fault on claim that comparative fault charge and finding was not warranted under the facts was properly denied as unpreserved since plaintiff did not move for a directed verdict and the verdict was supported by the evidence. Plaintiff was injured when riding through a road traverse in Central Park which was being closed for repairs after her boyfriend asked a DOT worker if they could ride through. The DOT worker was aware of two large holes, larger than potholes, and failed to warn the bicyclists of the danger. The jury found for NYC due to lack of sufficient prior written notice but found the DOT worker 60% at fault. There were extensive post-verdict motions and appeals, see Court of Appeals decision, where the case was dismissed and then reinstated by the Court of Appeals. Wittorf v City of New York

Comment: In addition to moving to set aside a verdict as against the weight of evidence, it is important to consider whether to also move for a directed verdict as this case demonstrates. Both motions are made under CPLR 4404 and can be made orally immediately after the trial and, in addition, on papers within 15 days, or such time as the court orders. All grounds to set aside the verdict, however, must be raised in a single written motion. CPLR 4406.


Med Mal   Late Notice of Claim   Reasonable Excuse  

Second Deptartment

The appellate division reversed the lower court’s denial of the plaintiff’s motion to deem its Notice of Claim, served one month after the 90-day period, timely served nunc pro tunc. The delay was only 30 days and notice was given by a served Notice of Claim, rather than claiming that the municipality had notice from a medical record, the municipality conducted a 50-H hearing, and the facts and circumstances regarding the claim of medical malpractice were preserved in the medical records. Actual notice of the claim within 90 days or a reasonable time thereafter is the most important factor in deciding whether to grant an application to serve a late Notice of Claim. The lack of a reasonable excuse does not warrant a different finding where the delay was so short and there was no prejudice to the defendant. Brunson v New York City Health & Hosps. Corp.


False Arrest   Malicious Prosecution   1983 Action   Amend Complaint   Statute of Limitations   Vicarious Liab   NYC  

First

The lower court granted the plaintiff’s motion to add a defendant police officer to the action for timely claims of false arrest and malicious prosecution as well as for federal 1983 action claims after the statute of limitations had run based on the united-in-interest theory. The First Department modified to deny the addition of the defendant officer for the federal 1983 claims finding that the officer was not united in interest with the defendant NYC which is not vicariously liable for violations of federal 1983 claims by its employees and, therefore, the claims against NYC and the police officers do not rise and fall together. Plaintiff’s assertion that unity-of-interest is “conduct based” and not “claims based,” is contrary to existing precedent. Higgins v City of New York


Med Mal   Duty  

Second Deptartment

Defendant general practitioner sent plaintiff who was complaining of stomach pains to the hospital for tests. After reviewing the tests which were faxed to him the next morning, he misdiagnosed the stomach pains as colitis instead of an abscess which went to the plaintiff’s brain causing serious injuries. The case was settled as to all defendants except the general practitioner whose motion for summary judgment was granted by the lower court and reversed by the appellate division. The general practitioner’s duty continued after sending him to the hospital because he continued to participate in his care and had advised him to continue taking the antibiotics. Lindenbaum v Federbush


Med Mal   Settlement  

Second Deptartment

Lower court properly denied plaintiff’s request to set aside stipulation of settlement, entered into under former attorney, on claim of duress by court and counsel. To show that an agreement was made under duress, party must show a wrongful threat and the preclusion of the free exercise of will. Plaintiff failed to show any threat made by either counsel or court. In addition, any repudiation based on duress must be prompt and plaintiff’s 18-month delay in seeking to undo the stipulation would itself require denial of the motion. Lopez v Muttana


Wrongful Death   Highway Design   Qualified Immunity  

Second Deptartment

Plaintiff’s decedent was killed when oncoming driver make a left-hand turn into a shopping mall from a left-hand turn only lane which had a traffic light but not a left turn traffic light. County was not entitled to qualified immunity for its decision not to install a left turn signal because it failed to show that the decision not to install the left turn signal was based on a study “which entertained and passed on the very question of risk that the plaintiff would put to a jury.” Warren v Evans

NOTEWORTHY
(21 summaries)

Preclusion   Set Aside Verdict  

Second Deptartment

The trial court providently exercised its discretion in granting defendant’s motion in limine to preclude a computer animation based on the plaintiff’s version of the accident, in denying the plaintiff’s application to make an offer of proof, and the denial of the plaintiff’s motion to set aside the verdict. Even if the lower court’s failure to allow an offer of proof was error the appellate court found that there was no proof to show that it would have affected the result or that it prejudiced a substantial right of the plaintiff. Aitcheson v Lowe


MVA   Bus   Wrongful Death   Pain/Suffering   Raised For First Time  

Court of Appeals

The Court upheld the First Department’s affirmance of a judgment on a jury verdict, finding legally sufficient evidence for liability and damages. As per the Appellate Division’s decision, the plaintiff’s decedent was found dead on the street with bloodied tire marks leading to and on her body. There were no witnesses to the accident but plaintiff’s experts were able to identify the bus as the cause of the accident based on DNA evidence and they opined that based on the angle of the body, it was struck while the bus pulled out of the bus stop when the plaintiff’s decedent would have been visible.

Award of $300,000 for 2 to 5 seconds of pain-and-suffering, $100,000 for decedent’s daughters loss of care and guidance (for 5 years) and $100,000 for past and $400,000 for future loss of custodial services to decedent’s mother did not deviate from reasonable compensation. Defendant did not raise the question of whether the award for loss of custodial services for the decedent’s mother until the appeal to the court of appeals and, it was therefore, not considered. Miriam Levy Oates, as Administratrix of the Estate of Rachel Levy, Deceased v. New York City Transit Authority


Serious Injury   Set Aside Verdict   ROM  

First

The First Department reversed the lower court’s grant of the motion to set aside the jury verdict that plaintiff did not sustain a serious injury, finding sufficient evidence for the jury’s determination. Plaintiff proved that he sustained a herniated disc, however. there was evidence from which the jury could find that he did not sustain a permanent consequential or significant limitation of use. Plaintiff relied on his chiropractor’s findings of limitation of ROM 3-4 years after the accident without explaining a finding of only minimal limitation of flexion in his medical records 3 years earlier. Sanchez v Alam


Premises Liab   Question of Fact   Proximate Cause  

Court of Appeals

The Court reversed the First Department’s reversal of the lower court’s denial of the defendant’s motion for summary judgment finding that the case involved ordinary negligence principles, including proximate cause, where the plaintiff was injured while walking down a ramp from a loading platform, which raised triable issues of fact for a jury to resolve. The First Department’s decision had reversed the lower court, finding that the defendant had provided a wall-mounted ladder to climb down from the loading platform and that its visibility was irrelevant since the plaintiff did not testify that he looked for alternative means to following his coworkers down the ramp onto stacked milk crates. The claim was reinstated. George Newman v. RCPI Landmark Properties, LLC


Labor Law §241   Labor Law §240   Industrial Code  

Second Deptartment

Defendant’s motion to dismiss the Labor Law §241(6) claim should have been denied even though plaintiff did not allege specific industrial code provision in the complaint or BP as no new facts or theories of liability were necessary to claim violation of industrial code 23-1.12(c)(2) where worker cut off his thumb using a circular saw mounted to the bottom of a table. The lower court’s position that this industrial code provision only applied to table saws and not portable saws placed form over substance. Grant of summary judgment dismissing Labor Law §240(1) claim was proper as there is no claim of an elevation risk. Sheng Hai Tong v K & K 7619, Inc.


Labor Law §240   Labor Law §240   Labor Law §200   Gravity Risk   Industrial Code   Sole Cause  

First

Plaintiff entitled to summary judgment on Labor Law §240(1) claim where steel beam being lowered to flatbed truck fell off a fork lift and landed on his foot causing him to fall off of the flatbed truck. The accident was the result of a height differential. The lower court correctly concluded that the plaintiff abandoned his industrial code allegations by failing to cite any specific subsection and by citing code provisions which were general and not specific. Defendant showed that it did not have authority to control the work site and was thus entitled to summary judgment on Labor Law §200.

Plaintiff could not be the sole proximate cause of the accident since it was, at least in part, the result of failing to provide adequate safety devices to check the lowering of the steel beam. McLean v Tishman Constr. Corp.


Med Mal   Accepted Practice   Informed Consent   Expert Aff  

First

Defendant ophthalmologist made out prima facie entitlement to summary judgment by expert’s opinion that there was nothing in pre-Lasik exam that should have alerted him to condition of Retinitis Pigmentosa, but plaintiff’s expert’s opinion raised issue of fact by showing that disease was slow progressing and would have shown signs by the time of pre-Lasik exam. Defendant’s claim that he could not be held liable under theory of informed consent because he was merely referring doctor was unavailing since he participated in care and there was proof that surgeon relied upon him for surgical clearance. Odoardi v Abramson


Med Mal   Accepted Practice   Amend BP   Expert Aff  

Second Deptartment

Plaintiff cross moved to amend her BP to include a claim that the defendant neurologist incorrectly diagnosed her with Parkinson’s disease and that was the reason why the dose of Botox he administered for spatial facial spasms was improper. The lower court properly denied the cross motion for plaintiff’s failing to have attempted to amend the BP when the plaintiff first knew or should have known of that claim and properly granted the neurologist’s motion for summary judgment on his expert’s opinion that the dosage given was proper. Jenkins v North Shore-Long Is. Jewish Health Sys., Inc.


Labor Law §240   Labor Law §241   Industrial Code  

Second Deptartment

Plaintiff should not have been granted summary judgment on his Labor Law §240(1) claim because falling from a scaffold does not in and of itself prove a violation of §240(1). It must be shown that the fall was caused by a failure to provide, or providing an inadequate, safety device. Summary judgment on the §241(6) claim for the defendant but should have been granted for most of the industrial code provisions requested by the defendant but denied for 22 NYCRR 23-5.18(e), (g), (h) (scaffolding footers, coasters and floors) based on differing versions of the accident. Karwowski v Grolier Club of City of N.Y.


MVA   Bus   Sudden Stop   Emergency Doctrine  

First

Defendant MTA failed to make out its prima facie entitlement to summary judgment based on the emergency doctrine where its submissions included its own driver’s testimony that he made 2 stops between 3rd Avenue and the 2nd Avenue bus stop, and the plaintiff’s testimony that she was thrown to the floor by a violent stop between 3rd and 2nd Avenue, not at the 2nd Avenue bus stop. Driver’s testimony that a cab cut him off as he pulled into the 2nd Avenue bus stop would not provide an emergency for the sudden stop that caused the plaintiff to fall. Iwata v Manhattan & Bronx Surface Tr. Operating Auth.


Serious Injury   Expert Aff  

First

Defendant’s psychologist’s opinion, after interviewing the infant plaintiff, that she did not sustain psychological trauma or have symptoms of posttraumatic stress disorder from her car accident made out prima facie entitlement to summary judgment on serious injury. Plaintiff’s expert’s failure to address portions of infant plaintiff’s medical records showing that her psychological stress was from her parents’ divorce and ongoing custody battle rendered her opinion impermissibly conclusory. Diaz v Barimah


MVA   There to be Seen  

Second Deptartment

Defendant was entitled to summary judgment on proof that it entered the intersection with the right-of-way when it was struck on the left side by the plaintiff’s vehicle which entered the intersection from a road with a stop sign. Claim that defendant should have seen what was there to be seen was of no avail because defendant’s car was so far into the intersection by the time the plaintiff’s car entered the intersection that the defendant driver could not have seen and avoided the plaintiff. Rivera v Water Boy, Inc.


Premises Liab   Slip/Trip   Sidewalk   De Minimus   Expert Aff  

First

Plaintiff was unable to describe the defect that caused him to trip other than to say that it was not wide or deep. Defendant’s expert’s affidavit showing measurements of less than ¼” high and less than ½” gap between concrete slabs showed that the defect was insignificant and there were no surrounding circumstances that increased the dangers of the defect. Fact that the photographs were taken two years after the accident did not negate the expert’s opinion as there was proof that the condition had not changed. Saab v CVS Caremark Corp.


MVA   Serious Injury   Expert Aff  

First

Defendant, driver and owner of taxicab which was dropping off plaintiff, was entitled to summary judgment on testimony that codefendant backed up into the cab as the passenger was getting out despite the cab driver honking a warning. Co-defendant was entitled to summary judgment on its cross-motion under serious injury only for the cervical spine and knees. Although defendant met its initial burden on the lumbar spine claims, plaintiff’s doctor’s opinion adequately addressed the claims of the generation and was non-conclusory, and defendant failed to address the 90/180 day claims. Lopez v Morel-Ulla


MVA  

First

Defendant entitled to summary judgment on proof that codefendant, driver of car that plaintiff was a passenger in, changed lanes without making sure that the lane was clear. Coaker v Mulet


MVA   Rear End   Nonnegligent Explanation   Premature Motion  

First

Plaintiff should have been granted summary judgment on his affirmation that he was slowing down in traffic when he was struck in the rear by the defendant’s vehicle and a certified copy of the police report which was consistent with the plaintiff’s affirmation. Defendant’s claim that plaintiff may have stopped suddenly did not provide a nonnegligent explanation and their claim that discovery might show a nonnegligent explanation is insufficient to deny summary judgment. McCarthy v Art Van Lines USA Inc.


Discovery   Sanctions   Renew  

First

Defendant’s motion to renew plaintiff’s motion to strike their answer for failure to provide discovery responses should have been granted based on new facts, and upon renewal plaintiff’s motion granted only to the extent of granting monetary sanction of $2500. While defendant should have been more attentive, the discovery was eventually provided six months after the discovery process began. Martins v 511 Props., LLC


Discovery   Preclusion   Strike Answer   Sanctions  

First

The lower court providently granted plaintiff’s motion to strike defendant’s answer, preclude, and for sanctions only to the extent of granting plaintiff a missing witness charge if the discovery items are not produced within 90 days as the defendant had provided significant responses to discovery and the failure to provide the requested items was not willful or contumacious. Corrigan v New York City Tr. Auth.


Legal Mal   Motion to Dismiss   General Release   Statute of Limitations  

First

Motion to dismiss was properly denied on grounds that general release did not pertain to defendant law firm and action was commenced within three years from the end of continued representation. Contract claims were properly dismissed as duplicative of legal malpractice claims. 25 Ave. C New Realty, LLC v Law Offs. of Jeffrey Samel & Partners


Serious Injury   CPLR § 3126  

Second Deptartment

Defendants failed to meet their initial burden for dismissal on serious injury by failing to address plaintiff’s claims of serious injury to his lumbar spine. Lower court, however, should have granted one defendant’s motion to dismiss the spouse’s loss of services claim for failure to appear at 2 court ordered depositions rather than to issue a conditional order. Bruno v Flip Cab Corp


Serious Injury   Expert Aff  

First

Defendant met its initial burden of entitlement to summary judgment on serious injury on plaintiff’s claim of a knee injury by its expert’s opinion that there were no limitations and, based on intra-operative photographs, that the surgery was not causally related to the accident. Plaintiff failed to introduce any medical evidence in opposition and is, therefore, precluded from making any claim regarding a knee injury even if he makes serious injury threshold on his spinal injury claims. Hojun Hwang v Doe

IF YOU MUST READ
(3 summaries)

Pain/Suffering   Materially Deviates  

First

Lower court properly set aside damage verdict as materially deviating from reasonable compensation for the injuries. Award for future medical expenses was not supported by evidence. The court does not give the details of the injuries or proofs. Hernandez v Consolidated Edison Co. of N.Y., Inc.


Premises Liab   Slip/Trip   Snow/Ice  

First

Lower court properly found issues of fact as to whether defendant created or had notice of ice condition which caused plaintiff to fall. The court does not give the details of the accident or the proofs. Velez v Davidson


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment by proof that it did not create nor have notice of the wet floor condition which allegedly caused the plaintiff to slip in the vestibule of the defendant’s building and plaintiff failed to raise an issue of fact. The court does not give the details of the proofs. Blazejewski v New York City Dept. of Educ.

About Matt McMahon

Civil trials and appeals since 1984
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