November 29, 2016 | Vol. 30

MUST READS
(3 summaries)

Late Notice of Claim   Reasonable Excuse   Prejudice   Statute of Limitations  

First

The lower court properly denied the plaintiff’s petition to file a late Notice of Claim as it was made after the expiration of the statute of limitations. Had the Appellate Division decided the petition on the merits it would have found that plaintiff’s excuse, that a clerical error caused the Notice of Claim to be served on the wrong entity, may have been acceptable, but plaintiff failed to show either that NYC had actual notice of the claim within 90 days or a reasonable time thereafter, or that there was no prejudice to NYC from the delay. Rodriguez v City of New York


Sudden Jerk   Set Aside Verdict   Internal Rules   Materially Deviates  

First

The Appellate Division reversed the $1,507,765 judgment in favor of the plaintiff and ordered a new trial on liability only, based on errors in evidentiary rulings. The judge improperly allowed MTA’s internal rules into evidence, and allowed plaintiff’s expert to read them to the jury. The internal rules created a higher standard of care than ordinary negligence. It was also error to allow plaintiff’s attorney to question defendant’s train operator on conversations with counsel.

The award was not found to materially deviate from reasonable compensation and will stand if there is a liability verdict after the new trial. Sebhat v MTA N.Y. City Tr.


Discovery   Strike Note of Issue  

Second Deptartment

Defendants’ motion to strike the Note of Issue and Statement of Readiness should have been granted as there were outstanding requests for plaintiff’s prior psychiatric and drug treatment records, rendering the certification of readiness a nullity. Plaintiff affirmatively placed all of her prior medical records, including psychiatric and drug treatment records, in issue by allegations of serious physical and neurological injuries and loss of enjoyment of life. Defendants, however, failed to show any relevance to the child custody and support records they sought and that request was properly denied. Greco v Wellington Leasing L.P.

NOTEWORTHY
(20 summaries)

Premises Liab   Set Aside Verdict   Slip/Trip   Spoliation  

First

Judgment after jury trial in favor of defendant affirmed. Lower court properly precluded plaintiff’s statement in EMS report that he lost his footing while going down the stairs as a prior consistent statement. Plaintiff had motive to fabricate the moment he fell. The court properly limited verdict sheet interrogatory to issue of handrails which was the only theory supported by evidence, and properly refused to give a missing evidence charge regarding claimed missing video and photographs. Plaintiff failed to show that surveillance video or photographs existed and that they were relevant to an issue in the case. Boolbol v Paradigm Mgt. Group, LLC


Attorney Fees  

Second Deptartment

Lower court should have granted outgoing attorney’s motion to renew based on new evidence that incoming attorney planned to discontinue state case without prejudice in order to recommence the action in federal court, and upon renewal should have granted outgoing attorney’s request for a retaining and charging lien under Judiciary Law §475. Incoming attorney made no reference to the attorney being replaced for cause in its initial letter and the only allegations of misconduct referred to actions after the substitution.

While an outgoing attorney can elect quantum meruit or contingency, contingency is preferred as the relative work of the attorneys cannot be ascertained until the case is over. Absent a clear election, contingency is presumed. Maher v Quality Bus Serv., LLC


Med Mal   Expert Aff   Res Ipsa Loquitor  

First

Grant of summary judgment to plaintiff in medical malpractice action against doctor, but not his corporation, was modified to grant summary judgment against the doctor’s corporation as well. Defendant, orthopedic surgeon, testified that he made an “error” by putting a hot mallet on plaintiff’s leg and thigh causing burns. Plaintiff did not have to produce an expert opinion since the defendant’s own testimony was sufficient to show liability. Although not raised below, the facts were sufficient to raise the inference of negligence under res ipsa loquitor. Legakis v New York Westchester Sq. Med. Ctr.


Legal Mal   Statute of Limitations   Continuous Representation   Motion to Dismiss  

Second Deptartment

Defendant’s motion to dismiss on statute of limitations grounds should have been denied. Letter sent by the defendant law firm to the plaintiff asking it to sign a consent to change attorney form was evidence that the attorney/client relationship continued until at least that date which was within the statute of limitations. Absent proof that the plaintiff had been notified of the defendant’s termination of the attorney/client relationship, the doctrine of continued representation applied and the statute of limitations did not begin to run. Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A.


Med Mal   Statute of Limitations   Amend Complaint   Law of the Case   Informed Consent  

Second Deptartment

Doctor who was originally added as third-party defendant, was only added as a direct defendant 6 years after the procedure was performed, and after the third-party complaint had been dismissed on the merits, was entitled to dismissal on statute of limitations grounds. Plaintiff’s failure to originally include the doctor who performed the procedure cannot be viewed as an inadvertent error to which the relation back theory may apply. Doctor was also entitled to dismissal of the cross-claim as law of the case. The previous decision dismissing the third-party action found no departure from accepted practice and that informed consent had been obtained. Ahrorgulova v Mann


Med Mal   Statute of Limitations   Continuous Treatement  

First

Plaintiff went to defendant optometrist for a routine eye exam once a year and claimed that his blindness in one eye was due to the optometrist’s failure to diagnose meningioma, although optometrist did notednerve pallor and optic neuropathy during each exam. The first three exams occurred more than 2 1/2 years before the suit was commenced and were properly dismissed as barred by the statute of limitations. The doctrine of continuous treatment did not apply since each routine exam was a separate event and not part of a continuing treatment of any condition. While the fourth exam occurred within the statute of limitations, the plaintiff’s blindness was not caused or aggravated by the failure to diagnose the meningioma at that exam. Flaherty v Kantrowich


NYC   MVA   Police   Reckless  

Second Deptartment

Defendants, NYC and police officer’s motion for summary judgment should have been denied as they failed to prove that the officer’s actions in driving into the intersection while responding to a call were not reckless and in disregard for the safety of others regardless of the opposition papers submitted by plaintiff. Rios v City of New York


Premises Liab   § 7-210  

First

Defendant hospital entitled to summary judgment on showing that ramp which caused the plaintiff’s injuries was accessible to the general public and, therefore, not covered under the adjoining landowner provisions of administrative code §7-210. Plaintiff failed to show special use or that the ramp was installed by or at the request of the defendant hospital or its predecessors. Lebron v City of New York


Med Mal   Accepted Practice   Expert Aff  

First

Defendants’ motion for summary judgment was properly denied, even absent a liability expert affirmation on behalf of the plaintiff, because defendants’ expert agreed that a 45 minute to 1 hour delay in responding to a live patient who is unresponsive and hypoxic would be a departure from accepted medical practice. There was a sharp dispute as to whether there was such a delay that would have to be resolved at trial. Manswell v Montefiore Med. Ctr.


MVA   Nonnegligent Explanation   Amnesia   Premature Motion  

First

The plaintiff, a passenger in the defendant’s car which lost control and went off the road, should have been granted summary judgment. Defendant’s amnesia of the accident is not a nonnegligent explanation and defendant’s hope that discovery may show a nonnegligent explanation is not a basis to deny summary judgment. Pane v Cisilino


Premises Liab   Workers Comp Defense   Raised For First Time  

First

Plaintiff, a superintendent at the defendant’s premises, was injured when he attempted to lift a dolly carrying a heavy motorafter it became stuck in a sidewalk crack. Although the lower court did not decide the issue, the appellate court found the workers comp defense to be a complete bar to the action and granted summary judgment to the defendant. Perez v Gateway Realty LLC


Personal Juridiction   Motion to Dismiss  

First

Plaintiff’s motion to dismiss the affirmative defense of personal jurisdiction should have been granted and defendant’s cross motion to dismiss should have been denied. Defendant did not make its motion within 60 days of serving its Answer and failed to make a showing of “undue hardship” to justify an extension of the statutory time to move to dismiss for lack of personal jurisdiction under CPLR §3211(e). Clermont v Abdelrehim


Assumption of Risk  

First

Defendant entitled to summary judgment on primary assumption of risk where plaintiff, an avid watersports instructor familiar with the risks was injured while filming a a wakeboarder from a tube being pulled by the same boat that turned sharply as it neared the shore. Plaintiff’s claim that his activities amounted to “horseplay” and not participation in a recreational sport was unavailing. Jin Chung v Lehmann


Discovery   Strike Answer   Conditional Order  

Second Deptartment

Defendant’s motion to strike the plaintiff’s Answer for failure to comply with 4 discovery orders requiring more specific answers to several interrogatories was denied by the lower court and, in its discretion, conditionally granted by the Appellate Division unless plaintiff complies with the order. Although the Appellate Division agreed that outright dismissal was inappropriate, it found the lower court’s outright denial of the motion an improvident exercise of discretion. Brannigan v Christie Overhead Door


Default Judgment   Compel Acceptance   Reasonable Excuse   Meritorious Defense  

Second Deptartment

Lower court properly denied motion for default and granted cross motion to extend the time to Answer and compel the plaintiff to accept an Answer. Defendants offered a reasonable excuse in that they timely notified their insurance carrier who, through inadvertent clerical error, failed to assign the case to an attorney. Upon receiving the plaintiff’s motion for default, the carrier assigned an attorney who made the cross motion. In addition, defendants showed a potentially meritorious defense. Jong Gwon Kim v Strippoli


Discovery   Preclusion  

First

Denial of plaintiff’s motion to strike Answer and grant of conditional order of preclusion if defendant did not appear for deposition within 30 days was a provident exercise of discretion. Devlin v Desamours


Discovery   Strike Answer  

Second Deptartment

Lower court providently exercised its discretion in denying the defendants’ motions to strike the Complaint pursuant to CPLR 3126 for failing to schedule and appear at 2 DMEs. The parties entered into 7 orders delaying the dates for the DMEs and defendants’ claims that plaintiffs did not timely schedule the DMEs is countered by the defendants’ sporadic follow-up and delay in designating the doctors for the DMEs. Teitelbaum v Maimonides Med. Ctr


Premises Liab   Stairs  

Second Deptartment

Defendant landlord should have been granted summary judgment on its showing that the plaintiffs did not observe any slippery substance on the top of the wooden stairs located inside their apartment before or after the accident and that the administrative code provision relied upon by the plaintiffs did not apply since the stairs was not a required exit from the building. Plaintiffs failed to raise a triable issue of fact in opposition. Kapoor v Randlett


Legal Mal   Continuous Representation   Statute of Limitations  

First

Defendants properly denied summary judgment where there was an issue of whether a subsequent lien matter against the same individual involved in a bankruptcy proceeding were sufficiently related to raise the continuing representation doctrine. Contract claims were properly dismissed as duplicative of the legal malpractice claims. Berger & Assoc. Attorneys, P.C. v Reich, Reich & Reich, P.C.


Defamation   Privilege  

Second Deptartment

Defendant, attorney for plaintiff in mortgage foreclosure proceeding, was entitled to dismissal for failure to state a cause of action in a defamation suit by defendant in mortgage foreclosure proceeding regarding statement in pleadings that mortgage was obtained by fraud. Communications by counsel with witnesses, other attorneys, parties, the court, and in pleadings are afforded absolute judicial privilege as long as they are in any way relevant to the matter being discussed. The statement that the mortgage was obtained by fraud cannot, therefore, cannot be the basis of a defamation action. Weinstock v Sanders

IF YOU MUST READ
(1 summaries)

Late Notice of Claim   NYC  

Second Deptartment

The Appellate Division affirmed the lower court’s grant of the petition to serve a late Notice of Claim. The court does not give the details of the case or the proofs. Matter of Duncan v City of New York

About Matt McMahon

Civil trials and appeals since 1984

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