November 26, 2019 | Vol. 186


MUST READS
(7 summaries)
NOTEWORTHYIF YOU MUST READ

MVA   Set Aside Verdict   Materially Deviates  

Second Department
Order requiring new damage trial for future physical therapy and medical expenses only reversed where plaintiff consented to reduction of verdict of all damage items except future physical therapy and medical expenses as previously ordered by Second Department in Weathers v Tri State Consumer Ins. Co. and new trial ordered on all categories of damages. A plaintiff must unambiguously choose to accept a court’s reduction of damages and cannot pick and choose specific categories of damages. Weathers v Rios


Premises Liab   Expert Aff   Willful/Contumacious   Prejudice  

First Department
Defendant’s motion to preclude plaintiff’s expert engineer from testifying and require plaintiff to provide all materials used by expert denied. Although plaintiff retained the expert for an inspection and report before the demand for expert information was made, provided a potentially misleading response, and withheld the information until 6-weeks before the trial which was subsequently adjourned 60-days, defendant had ample time to prepare for trial and was not prejudiced. Plaintiff’s expert, although raising statutes not previously alleged, did not raise new theories of liability as the opinions all fell within the broad claims made in the Complaint and BP that included multiple allegations and an “otherwise” clause. Defendant’s argument that it needed the expert’s information to prepare for trial because of the extended time since the inspection and it did not hire its own expert rejected where it failed to explain why it did not hire its own expert. Rivera v New York City Hous. Auth.


MVA   Wrongful Death   Highway Design   Governmental Immunity   Causation  

Second Department
Town failed to show it undertook a study that entertained and passed on the placement of the stop sign and stop line that would be necessary for governmental immunity for planning decisions and failed to eliminate all questions of fact on whether it’s maintenance of the vegetation in the median island was negligent and a proximate cause of decedent’s accident. Schneider v Hanasab


Med Mal   Accepted Practice   Causation   Loss of Chance   Expert Aff  

First Department
Defendants failed to meet burden for summary judgment where expert did not discuss didelphys (double uterus) condition, and defendant doctor’s testimony did not discuss standard and was inconclusive on condition and expert’s opinion that there was no loss of chance of a better outcome from IVF if the condition was surgically corrected was improperly based on an assumption that any further decrease from the less than 5% chance of a successful outcome with the surgery would be trivial. It is for a jury to decide if “any” loss of chance was significant. Roeser v Essig


Asbestos   Statute of Limitations   Estoppel  

First Department
Asbestos defendants granted summary judgment on statute of limitations where action was commenced after tolled date for commencing action in unambiguous contract. Plaintiff failed to show fraud or wrongdoing in inducing plaintiff to delay commencing action where affidavit of former attorney only showed that defendant continued to negotiate. Matter of New York City Asbestos Litig.


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Agent   Control  

Second Department
Defendants, the mother and aunt of plaintiff who was injured when he fell from ladder while removing gutters, granted summary judgment on Labor Law §§240(1) & 241(6) on 1-2 family exception where certificate of occupancy showed house to be 1-family, and 3-separate living areas for mother, aunt, and aunt’s son (cousin), were all accessible by interior stairs, there was only 1-entrance, and the 3-occupants shared the expenses of the house. Remaining defendant, cousin of plaintiff, not entitled to 1-2 family exception because he was not an owner but granted summary judgment as he was not an agent of the owners where he did not have the authority to control the work. Labor Law §200 and negligence claims dismissed as liability was based on methods of work and defendants did not have authority to control work. Sanders v Sanders-Morrow


Products Liab   Design Defect   Warnings   Expert Aff  

Second Department
Snow thrower manufacturer denied summary judgment where plaintiff’s expert opined that failure to provide cleanout tool to remove debris rendered the product defective in 1983 when the manufacture offered an economically feasible safety tool including a cleanout tool for $20 in Germany. Manufacture failed to meet burden of showing it give adequate warnings where it never warned of possibility of impeller blade continuing to rotate after machine was turned off and failed to show that plaintiff was aware of the danger or that he would not have heeded a more prominent warning. Samyn v Ariens Co.

NOTEWORTHY
(27 summaries)
MUST READSIF YOU MUST READ

MVA   Bus   Set Aside Verdict   Pain/Suffering   Materially Deviates   Speculation  

Second Department
Jury verdict of $3mil/$7mil past/future pain/ suffering, $92,950/$301,600 past/future lost earnings $250,000 future medical expenses, and $325,000/$1,414,999.90 past/future lost services to wife materially deviated from reasonable compensation and was set aside unless plaintiffs stipulated to reduce award to $1mil/$2mil past/future pain/ suffering, $92,950/$301,600 past/future lost earnings $100,000 future medical expenses, and $50,000/$100,000 past/future lost services where plaintiff’s car was struck by bus while stopped causing herniated discs with radiculopathy and myelopathy requiring cervical discectomy and fusion surgery that resulted in a large, bulbous, keloid scar on his neck, surgical placement of a spinal cord stimulator, chronic pain despite surgeries requiring pain medications and injections leaving him drowsy and lethargic and limiting his previous activities and he would require a future surgical placement of a plate and screws in his lumbar spine.

Award for lost earnings exceeded proofs as plaintiff did not call an expert to opine that his income would increase. Future medical expenses in excess of the $100,000 cost of future lumbar fusion surgery testified to by plaintiff’s doctor was speculative. Tarpley v New York City Tr. Auth.



Discovery   Spoliation   Sanctions  

Second Department
Lower court’s grant of spoliation sanction to extent of ordering NYCTA to produce any of the 8 cleaners working on the train on the day plaintiff slipped on a clear liquid entering a train who still worked for NYCTA and ordering defendants to pay cost of depositions where defendants destroyed the assignment sheet that contained the names of the cleaners modified to require plaintiff to pay for depositions where plaintiff’s Notice of Claim on NYC did not put NYCTA on notice of an obligation to save the assignment sheet. Adam v New York City Tr. Auth.


MVA   Rear End   Set Aside Verdict   Nonnegligent Explanation  

First Department
Plaintiff’s motion to set aside defense verdict granted where defendant testified that plaintiff’s vehicle was stopped when she struck it and claim that plaintiff stopped at a yellow light was not a nonnegligent explanation. There was no rational path for jury’s verdict. Smyth v Murphy


Set Aside Verdict   Materially Deviates  

First Department
Plaintiffs’ motion to set aside verdict as materially deviating from reasonable compensation denied where jury could find impact to be minimal based on photographs showing minimal damage to vehicle and jury could credit defendant’s doctors’ opinions on causation and extent of injuries in arriving at verdict. Carino v Friendly Fruit, Inc.


Vacate Default   Untimely   Reasonable Excuse  

First Department
Motion to vacate default in opposing plaintiff’s summary judgment motion denied where motion was not made within 1-year of service of prior order with Notice of Entry. Defendant also failed to offer a reasonable excuse for the delay. Carter v Daimler Trust


Late Notice of Claim   Renew   Motion to Dismiss  

Second Department
Defendants’ motion to dismiss Complaint served after plaintiff/petitioner’s motion to serve late Notice of Claim (filed less than two weeks after 90-day period expired) granted and plaintiff’s motion to renew denial of petition, which was not directly appealed, denied where Notice of Claim was clearly not timely served and plaintiff failed to obtain leave to serve late Notice of Claim. Ahmad v New York City Dept. of Educ.


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice  

Second Department
Town failed to meet burden of showing it did not have prior written notice of defect on sidewalk where plaintiff fell where deposition and affidavit showed search of only Department of Public Works records and not Town Clerk records. Otto v Miller


Med Mal   Wrongful Death   Statute of Limitations  

First Department
Statute of limitations for medical malpractice case accrued on date guardian was appointed and commencement of action 10-years later was time barred as was wrongful death action where decedent died after expiration of malpractice statute of limitations. Graves v Brookdale Univ. Hosp. & Med. Ctr.


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department
Plaintiff’s expert’s opinion that defendants’ failure to admit plaintiff to hospital for monitoring based on symptoms of sharp back and abdominal pain characteristic of placental abruption which would have allowed delivery by emergency C-section upon signs of fetal distress raised issue of fact in opposition to defendants’ expert’s opinion that there was no departure or causation for fetus’ demise in utero. Williams v Nanda


Med Mal   Negligent Hiring   Accepted Practice   Causation   Expert Aff  

First Department
Plaintiff’s expert raised questions of fact in opposition to defendants’ showing of entitlement to summary judgment on opinion that colon was perforated during or after colonoscopy while still under defendants’ care supported by plaintiff’s daughter’s testimony that plaintiff complained of burning pain that he reported to hospital staff and a drop in blood pressure noted in hospital record. Negligent hiring claim dismissed where there was no evidence that defendants were unqualified for their positions. Shewbaran v Laufer


Premises Liab   Slip/Trip   Stairs   Duty   Building Code   Expert Aff  

First Department
Owner and tenant granted summary judgment on expert’s affidavit that stairs were safe, properly maintained, and did not violate 1968 building code where building was renovated in 1987 and plaintiff’s expert failed to raise an issue in opposition relying on 2008 building code without showing retroactive application. Plaintiff’s expert’s estimate of lighting, without measuring, did not raise issue of fact. Porto v Golden Seahorse LLC


Premises Liab   Building Code  

First Department
Building owner granted summary judgment or proof it did not violate any common law or statutory duty to plaintiff by not insulating vertical heating pipe that was in proper working order and plaintiff failed to show that 2006 code requiring installation of vertical heating pipes fell within an exception to the 2006 grandfathering clause. Ebron v New York City Hous. Auth.


Premises Liab   Assumption of Risk   Open/Obvious  

Second Department
Defendants granted summary judgment on primary assumption of risk where basketball player was injured when he hit fence located between backboard and post for backboard that was outside of basketball court line as it was an open/obvious condition the risk of which was assumed by plaintiff and plaintiff offered no evidence that placement of the fence violated “prevailing industry standards.” There was 1-dissent. Franco v 1200 Master Assn., Inc.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

First Department
Plaintiffs’ expert failed to raise issue of fact in opposition to defendants’ expert’s opinion showing that emergency room diagnosis of musculoskeletal pain was within accepted practice where symptoms were not typical of aortic dissection and plaintiff’s expert did not show knowledge of emergency medicine standards of care, did not dispute that symptoms were not typical of aortic dissection, and gave only conclusory opinions on causation. Perez v Riverdale Family Med. Practice, P.C.


Labor Law §241   Industrial Code  

First Department
Defendant’s motion for summary judgment on the Labor Law §241(6) predicated on industrial code §23-1.13(b)(4)(contact with live electrical wires) denied and plaintiff’s cross motion for summary judgment granted where plaintiff was required to cut into the wires that were electrified shocking him and causing him to fall from a ladder. Wolodin v Lehr Constr. Corp.


Premises Liab   Workers Comp Defense   Alter Ego  

Second Department
Owner of property where plaintiff slipped and fell on ice denied summary judgment on Worker’s Compensation defense on its claim that it was alter ego of plaintiff’s employer where it failed to show that the two companies were operated as one or that one wholly controlled the other, even if they were related. Landaverde v Lin-Ann Enters., Inc.


Premises Liab   Workers Comp Defense   Renew   Reargument  

First Department
Hospital granted summary judgment where temporary nursing assistant slipped on wet floor on proof that plaintiff was its special employee wholly supervised by hospital’s employees. Plaintiff’s motion to renew denied where she failed to submit any new facts or law and motion to reargue apparently granted with lower court adhering to its original decision despite stating that it was denied. Mohammed v St. Barnabas Hosp.


Premises Liab   Elevator   Foreseeability   Intervening Cause  

First Department
Plaintiff’s act of jumping 2.5’ from stalled elevator was an unforeseeable intervening cause that terminated any potential liability against elevator maintenance company. Estrella v Fujitec Am., Inc.


Premises Liab   Slip/Trip   Sidewalk   De Minimus   Notice  

First Department
Questions of fact remained as to whether plaintiff’s sneaker went into gap in sidewalk that defendant’s manager had marked months earlier as raising concerns and were included in budget for repairs before the accident, including circles around the defect indicating that the contractor was to look at or repair them. Given the surrounding circumstances a jury must find if the 7/16″-13/16″ high differential was dangerous or trivial. McCabe v Avalon Bay Communities, Inc.


Governmental Function   Governmental Immunity   Special Duty   Wrongful Death   Capacity to Sue  

Second Department
Town whose 911 dispatcher responded to decedent’s call for assistance and whose officers went to decedent’s home to get information from wife to try and locate him granted summary judgment on proof they did not assume a special duty necessary for liability when performing a governmental function such as police and rescue services. Claim brought directly in decedent’s name dismissed where he was deceased at the time the action was commenced. Flynn v Town of Southampton


MVA   Question of Fact   Uncertified Records   Feigned Issue  

First Department
Conflicts between plaintiff and defendant drivers’ versions of how accident happened raised questions of fact to be resolved by a jury. Inconsistencies between statement in uncertified police report attributable to defendant driver that he denied making and affidavit and subsequent deposition do not render defendant’s testimony and affidavit incredible as a matter of law. Colon v Woolco Foods Inc.


Construction Liab.   Agent   Control  

First Department
Construction program management company granted summary judgment on proof it was not an agent of the owner or general contractor because it did not have authority to control the injury producing work. Coleman v URS Corp.


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Last Inspection   Appealable Order  

Second Department
School district denied summary judgment without evidence of the last time area was cleaned or inspected prior to plaintiff’s slip and fall on 3-4′ line of water emanating from water vending machine in cafeteria. General cleaning provisions are insufficient to eliminate questions of constructive notice.

vending company’s appeal dismissed as abandoned where it did not request reversal or modification of the order. Williams v Island Trees Union Free Sch. Dist.



Motion to Dismiss   Renew   Reargument   Reasonable Excuse   Willful/Contumacious  

First Department
Plaintiffs’ motion to renew/reargue granted where they were deprived of fair opportunity to address oral motions to strike Complaint for failure to comply with discovery, including failure to provide an authorization for medical examiner records, and order striking Complaint vacated and action restored on proof that plaintiffs complied with orders in good faith and had a reasonable excuse for failing to provide medical examiner authorization based on law office failure. Luna v Brodcom W. Dev. Co. LLC


Serious Injury   ROM   Causation   Preexisting   Degenerative   Expert Aff  

First Department
Plaintiff raised issue of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury for neck injuries with affirmed reports of radiologist showing herniations and no evidence of degeneration establishing no evidence of degeneration in plaintiff’s own medical records, and affirmed report of chiropractor showing contemporaneous treatment with limited ROM in spine initially and 1-year later. Plaintiff failed to show any limitation of her left shoulder. Cessation of treatment after 1-year where plaintiff continued to treat with primary care physician and made no further complaints required dismissal of “permanent consequential” category but plaintiff can recover for all injuries related to accident if she meets significant threshold at trial. Nonmoving defendant granted the same relief upon searching record. Morales v Cabral


Vacate Default   Reasonable Excuse   Meritorious Action   Prejudice  

First Department
Plaintiffs met burden to vacate failure to oppose defendant’s motion to strike for failure to comply with discovery based on proof they were unaware their former attorney failed to respond to the discovery demand or oppose the motion, injured plaintiff’s affidavit showing a potentially meritorious action, lack of prejudice to defendants, and public policy in favor of deciding actions on the merits. Kalaba v Macy


Vacate Default   Reasonable Excuse   Meritorious Action   Willful/Contumacious  

First Department
Plaintiff’s excuse of law office failure for 2-week delay in filing opposition to defendants’ motion for summary judgment provided a reasonable excuse and that default was not willful and plaintiff showed meritorious action. Knight v Acacia Network, Inc.

IF YOU MUST READ
(0 summaries)
MUST READSNOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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