| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Plaintiff’s motion to set aside verdict that found Labor Law §240(1) violation was not a proximate cause of decedent’s aortic dissection denied where the jury could credit defendant’s expert over plaintiff’s expert. Decedent’s treating doctor properly impeached with federal felony conviction and underlying facts involving dishonesty (CPL$ §4513). Extrinsic evidence of doctor’s divorce and administrative appeal improper but not so unduly prejudicial as to warrant a new trial. Missing witness charge for failure to call defendants’ second expert providently denied as cumulative where that expert would have given testimony already put forth by defendants’ first expert. Plaintiff was not entitled to increased susceptibility charge without evidence of it at trial. Caminiti v Extell W. 57th St. LLC ✉ |
 Non-party ACS’s motion to quash subpoenas for records of any allegations of sexual abuse and negligent supervision of respite foster care parent and her son who allegedly sexually abused and harassed the infant-plaintiffs, causing negligent infliction of emotional harm, providently denied on finding the records were relevant to the claim but remanded for an in camera inspection after ACS provides a detailed privilege log to determine which records may contain privileged or confidential information. Casas v Mercyfirst ✉ |
| Ophthalmologist’s motion for summary judgment dismissing malpractice claim for leaving orbital biopsy surgery before it was finished on his expert’s opinion of no departure from accepted practice as he was assisting the plastic surgeon and was free to leave when his services were no longer required denied where the opinion was conclusory and speculative as it failed to address medical records and testimony that raised issues of whether the ophthalmologist was only assisting in the surgery. Plastic surgeon’s motion for summary judgment dismissing plaintiff’s demand for punitive damage for editing the operative report granted as it did not show he “alter[ed] or destroy[ed] medical records in an effort to evade potential medical malpractice liability.’ Negligence allegations against ophthalmologist did not raise moral culpability for punitive damages. Woehrle v Buono ✉ |
| City’s motion to change venue from New York to Onondaga County providently denied where plaintiff provided compelling evidence that his limited financial means and the adverse effect on his mental health would cause sufficient hardship to him and his treating psychiatrist to overcome CPLR §504 which requires suits against municipalities be brought in their home county. Hicks v City of Syracuse ✉ |
| NOTEWORTHY (11 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to compel church defendant to provide personnel file of priest whom allegedly sexually abused him during a weeklong liturgical camp in 1994 providently granted as file was material and the priest’s motion for a protective order precluding disclosure of portions of his file postdating the allege abuse providently denied as material to issues of his employment and the church’s negligent hiring, retention, and supervision. Holloway v Orthodox Church in Am. ✉ |
| Summary judgment to elevator company on its expert’s opinions based on unauthenticated online history reports reversed where company’s affidavit that the reports were business records inadmissible where submitted for the first time in reply, plaintiff had no opportunity to cross examine the affiant, and there was no evidence they were the kind of reports relied upon in the profession in forming a professional opinion. Defendant failed to show ‘impossibility’ where a loose piece of solder that caused intermittent failures was found after the accident, raising a jury question of whether it was a cause of the accident. Orr v Vornado Realty, L.P. ✉ |
| Lower court erred in granting building owners’ summary judgment by summarily disqualifying plaintiff’s expert who was not an engineer but had the requisite knowledge and experience on the cause of plaintiff’s elevator accident, having qualified and testified as an expert in 120-cases. Motion denied on conflicting expert opinions. Elevator contractor granted summary judgment where its maintenance contract did not completely displace the owner’s duty to maintain the elevator in a safe manner, especially where it did not cover the parts plaintiff’s expert opined caused the accident. Escolastico v Rigs Mgt. Co., LLC ✉ |
| Radiology group and radiologist granted summary judgment dismissing plaintiffs’ claim they should have ordered a follow-up brain MRI with contrast where decedent was subsequently diagnosed with brain metastasis of cancer from an unknown source after treatment for ovarian cancer and died 2-months later as they performed and interpreted the brain MRI as ordered by the referring doctor and did not assume a general duty of care to perform further testing or diagnose decedent’s medical condition. Lopez v Micalizzi ✉ |
| Hospital’s motion for summary judgment dismissing plaintiff’s malpractice claim for toe infection from having decedent perform a treadmill stress test without shoes granted except for treatment during the 4-months from the stress test to when the infection cleared based on conflicting expert opinions of whether it was a departure from accepted practice to allow the stress test without shoes given decedent’s history of diabetes, vascular insufficiency, and peripheral neuropathy. Claims that the infection opened a pathway for further infections, including decedent’s endocarditis and subsequent sepsis, dismissed on defendants’ expert’s opinion it was impossible for the toe infection to remain dormant for months and then cause those conditions and plaintiff’s expert’s opinion was conclusory, unsupported by the record, and did not address defendants’ expert’s opinion on the growth speed of decedent’s toe infection. Bonocore v Ravindranath ✉ |
| Plaintiffs met burden for summary judgment on Labor Law §240(1) by injured-plaintiff’s testimony the A-frame ladder he was standing of while spraying soapy water collapsed but defendant’s testimony that the ladder was upright immediately after the accident and smoke was spewing from a dislodged elbow joint pipe from the pressurized sprinkler system several feet from the ladder raised an issue in opposition. Plaintiffs’ motion for spoliation sanctions for failure to preserve the elbow joint granted to the extent of directing an adverse inference charge as striking defendant’s Answer was too drastic where plaintiffs could prove their case without the joint. Yi Jiang Pai v Nelson Senior Hous. Dev. Fund Corp. ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) for fall of decedent, owner of contracting company, off low parapet on testimony he was wearing a safety harness but there were no tie-off anchors or fall protection. Defendants offered no proof appropriate safety devices were available on recalcitrant worker claim. Claim that there was a warning sign did not raise an issue where decedent’s coworker never saw warnings and an instruction to avoid an unsafe practice is not a safety device. Question of whether construction manager had notice of a defective condition remained on Labor Law §200 and negligence claims where it regularly visited the site and was present at the time of decedent’s fall. Real estate development company granted summary judgment as it was neither an owner nor owner-agent under Labor Law. Construction manager grated conditional contractual indemnity against decedent’s company to the extent not caused by its own negligence. Summary judgment denied on common law indemnification as premature before any finding of whether decedent’s company was negligent. Travalja v 135 W. 52nd St. Owner LLC ✉ |
| Abutting landowner failed to establish as a matter of law that the uneven sidewalk flags which caused plaintiff’s trip and fall was trivial as a matter of law without objective evidence of the dimensions of the defect as it could not be quantified from plaintiff’s testimony and photographs that demonstrated the irregular nature of the sidewalk. Codefendant granted summary judgment on proof it owned no duty to maintain the sidewalk under administrative code §7-210 as it was not an owner of the building and did not create the condition. Abreu v Pursuit Realty Group, LLC ✉ |
| Worker injured when 10’-15’ 4×4 beam fell on his head from an elevation granted summary judgment on Labor Law §240(1) as it was an object that required securing for the undertaking and plaintiff was not required to show the exact circumstances that caused the beam to fall. Fromel v W2005/Hines W. Fifty-Third Realty, LLC ✉ |
| Defendants failed to show worker’s injuries from metal top-track of door frame that fell 2”-4” onto worker’s hand was not from an elevated risk protected by Labor Law §240(1). Summary judgment denied. Cicale v Hines 1045 Ave. of the Ams. Invs. LLC ✉ |
| Defendants in first accident raised issues in opposition to plaintiff’s serious injury summary judgment motion for occipital neuralgia by affirmed orthopedic and neurology reports finding normal cervical ROM and MRI evidence of preexisting cervical degeneration and plaintiff was in 3-prior accidents injuring the same body parts. Plaintiff’s serious injury summary judgment motion against defendants in subsequent accident denied as premature and those defendants raised issues on causation. Fishman v Isales ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| County’s motion for summary judgment dismissing plaintiff’s Child Victims Act claim of sexual abuse by her foster father denied as it assumed a special duty by taking custody of the then infant-plaintiff for foster placement and failed to show “it lacked sufficiently specific knowledge or notice of the foster father’s alleged abusive propensities and conduct.” The Court does not give the details of the proofs. D. D. v Westchester County ✉ Comment: Same result and reasoning in a case involving alleged sexual abuse by a foster mother and father. Fitzgerald v Westchester County. |