November 28, 2017 | Vol. 82

(7 summaries)

Wrongful Death   Espinal   Pain/Suffering   Materially Deviates   Raised For First Time   Amend Answer   Prejudice  

Second Deptartment

Defendant, which maintained private garbage truck that crushed and killed plaintiff’s decedent, only raised issue of lack of duty under Espinal for the first time on appeal. It was not included in the jury charge, not before the jury, and not preserved for appeal. Espinal would not have applied since the evidence showed that the interlock system which was not installed when the truck was released by the defendant was considered by the employer and defendant as an integral protection for the employees who were therefore third party beneficiaries to the oral maintenance agreement.

Verdict set aside as materially deviating from reasonable compensation unless plaintiff stipulated to reduce the $1,000,000 for pre-impact terror to $250,000; the $2,000,000 for conscious pain and suffering to $750,000; the $2,000,000/$1,000,000 for past/future pecuniary loss for 16 years to $650,000/$350,000. Parties agreed that truck would have struck plaintiff’s decedent in less than a second and he would have experienced pain/suffering for 1-2 minutes.

Lower court should have allowed defendant to amend Answer to include GOL §15-108(a) settlement setoff as a defense as plaintiffs could not show that they would not have entered into the substantial settlement if the defense was in the Answer. Vargas v Crown Container Co., Inc.

Premises Liab   Create Condition   Notice   Circumstantial Evidence  

Court of Appeals

In a 4-3 decision from a letter submission, the Court of Appeals found that plaintiff raised questions of fact in opposition to the defendant’s prima facie showing of entitlement to summary judgment where plaintiff tripped on a cord tied to a barrel in a parking lot. The lower court found that plaintiff presented only circumstantial evidence that the defendant created the condition or had notice of it, which it held was insufficient to raise a question of fact. The majority disagreed finding that plaintiff raised questions of fact. There were 3 dissenters. Lau v Margaret E. Pescatore Parking, Inc.

Labor Law §240   Ladder   Admissibility   Hearsay  


Defendants’ argument that discrepancies between plaintiff’s testimony regarding his fall from a ladder and details in his medical records, such as whether the ladder was wooden or metal, the height he fell from, and whether the ladder slipped or a rung cracked, did not raise questions of fact because they were not “germane to diagnosis and treatment’ necessary to overcome the hearsay objection. Nor were they party admissions since there was no proof that they were attributable to the plaintiff. Hearsay may be used to defeat summary judgment but only when it is not the only proof and it was the only proof offered by defendants. Mosqueda v Ariston Dev. Group

Dental Mal   Informed Consent   Accepted Practice  

Second Deptartment

Dentists and oral surgeon they referred plaintiff to for a tooth extraction granted summary judgment on malpractice claim since there was no departure from accepted practice in the extraction of the tooth but denied summary judgment on informed consent where plaintiff claimed that they extracted the wrong tooth. Plaintiff had previously treated with the dentists for an infected tooth (#4) but deferred having root canal because of the cost. Subsequently she fractured a different tooth (#2) and testified that she elected to have tooth #2 removed. The referral to the oral surgeon identified tooth #4 not tooth #2 and there was a dispute between the oral surgeon and the plaintiff as to whether they spoke before she signed the boilerplate consent form and before the extraction. The cause of action for informed consent does not necessarily need a deviation from accepted practice where, as here, the wrong body part is operated on. Since all experts agreed that root canal for the extracted tooth was a viable option, there was actionable harm. Godel v Goldstein

Ins. L. § 3420(a)(2)   Motion to Dismiss  

Court of Appeals

Motion to dismiss cause of action under Ins. L. §3420 to collect $20 million verdict, which was reduced to $7.3 million, against carriers for DHL who hired defendants under a cartage agreement denied. The Court of Appeals clarified that the term “issued or delivered” in Ins. L. §3420(a) includes situations where both insureds and risks are located in New York. Carriers and DHL were both located outside of the state, job and cartage company were in New York. There was 1 dissent. Carlson v American Intl. Group, Inc.

Statute of Limitations  

Court of Appeals

Answering certified questions from the Second Circuit, the Court of Appeals clarified that public benefit corporations, like political subdivisions, do not have the capacity to challenge the constitutionality of a state enacted law in a case involving a constitutional challenge to the revival statute extending the statute of limitations for 911 first responders to a year after the enactment of the statute. The Court further defined the standard of constitutional review under the New York State Constitution as a reasonable, not arbitrary, remedy to address an apparent injustice which can include reviving actions barred by a statute of limitations. Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation.


Second Deptartment

Restaurant granted summary judgment where patron cracked her tooth while biting into a whole olive in a cocktail she was drinking under the “reasonable expectation doctrine.’ Restaurant has duty to make its products safe from harmful substance which a consumer would not ordinarily anticipate. A consumer would anticipate a pit being in a whole olive as a matter of law. Schmidt v Fourth Wall Rests., LLC

(11 summaries)

MVA   Set Aside Verdict   Serious Injury   Pain/Suffering   Materially Deviates  

Second Deptartment

Jury verdict of $300,000/$500,000 past/future pain/suffering and $800,000 medical expenses did not materially deviate from reasonable compensation where plaintiff’s treating physician testified that he sustained a torn glenoid labrum with impingement syndrome in his shoulder requiring surgery, torn meniscus in his knee, and disc bulge at L4-L5 with radiculopathy in upper and lower extremities. Where competing experts give different opinions, the jury is entitled to credit whichever opinion it believes most credible and the verdict could be reached on a fair interpretation of the evidence. Quijano v American Tr. Ins. Co.

Late Notice of Claim   Actual Knowledge   Agent  


Suit against MTA subsidiaries Capital Construction Company and Long Island Rail Road require a demand for payment of damages and a period of at least 30 days without adjustment under Public Authorities Law, not a Notice of Claim. Actual knowledge by accident report filed by petitioner’s employer with subsidiary is not imputed to MTA, even if they have the same attorneys, nor to NYCTA or NYC. These are distinct entities and there is insufficient control for Capital Construction Company to be an agent of MTA. Petition for leave to serve late Notice of Claim denied. Matter of Rodriguez v Metropolitan Transp. Auth.

Negligent Supervision  

Second Deptartment

Infant plaintiff with cerebral palsy was injured during recess when another child collided with him during a game of wall ball. School district granted summary judgment on finding that the infant plaintiff had a one-on-one aide standing within 10’ of him, his IEP did not restrict him from playing during recess, and the accident happened so suddenly and unexpectedly that no degree of supervision could have prevented the accident. Tzimopoulos v Plainview-Old Bethpage Cent. Sch. Dist.

MVA   Directed Verdict   Set Aside Verdict  


Directed verdict against defendant after jury found defendant not negligent reversed as jury could have found for the defendant on a fair interpretation of the evidence such as finding that moving defendant had a green light and co-defendant failed to stop at a red light. Torres v Diaz

Med Mal   Amend BP   Prejudice  

Second Deptartment

The lower court improvidently exercised its discretion in denying plaintiff’s motion to amend the BP to include a new theory of causation raised in the defendant’s expert’s disclosure. There could be no prejudice since the new theory was contained in the defendant’s own expert disclosure and the plaintiff sought leave to amend immediately after receiving the disclosure. Moore v Franklin Hosp. Med. Center-North Shore-Long Is. Jewish Health Sys.

MVA   Bus  

Second Deptartment

NYCTA granted summary judgment on plaintiff’s 50-H and deposition testimony and video footage from the bus showing that the driver pulled the bus away from the stop consistent with typical jerks and jolts commonly experienced with city bus travel and not a sudden “unusual and violent” jerk. Cui Fang Li v New York City Tr.

Comment: A reminder to always send a preservation letter, demand copies of video footage, question defendant driver about same, and consider spoliation sanctions if the video is not preserved.

Premises Liab   Out of Possession   Create Condition   Notice  

Second Deptartment

Out of possession landlord which assumed obligation to repair apartment granted summary judgment where window slammed shut as soon as it was opened severing the tip of a visitors finger on proof that landlord did not create the condition nor have actual or constructive notice. Landlord had repaired a window in the same apartment 1year before with no complaints received after that repair. Cotto v New York City Hous. Auth.

MVA   Turning Vehicle   Comparative Fault   There to be Seen  

Second Deptartment

Defendant driver, driving straight with right-of-way, denied summary judgment on her testimony that she first saw the middle section of plaintiff’s car moving at a snail’s pace directly in front of her just before impact, raising a question of fact as to whether the defendant was negligent for not seeing what was there to be seen to avoid the accident while entering the intersection. For summary judgment a defendant must prove the plaintiff’s negligence and defendant’s freedom from comparative fault. Aponte v Vani

Serious Injury   BP  

Second Deptartment

Defendants failed to meet their burden for summary judgment on serious injury where their experts failed to address plaintiff’s allegations under the 90/180-day category alleged in the BP. Iacobino v Coyle

MVA   Turning Vehicle   Feigned Issue  

Second Deptartment

Defendants granted summary judgment on defendant’s affidavit and plaintiff’s certified accident report showing that plaintiff traveling in middle lane made a right turn in front of defendant’s car in the right lane causing the accident. Contrary statements in plaintiff’s affidavit were feigned issues insufficient to defeat summary judgment. Park v Sanchez



Plaintiff’s motion to renew opposition to summary judgment on Labor Law § 240(1) denied as unsupported by new facts. Rosa v Alianza, LLC

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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