November 7, 2023 | Vol. 390

(4 summaries)

Public Health §2801-d   Malpractice   Experts  

Second Department
Sons of 2 deceased nursing home residents granted class certification for all similarly situated patients in the nursing home on witness accounts, a DOH Report confirming substandard care due to inadequate staffing, and their expert’s opinion that the understaffing impacts all residents on a systematic level in violation of state and federal regulations. While malpractice and negligence typically do not meet the criteria for class certification, liability under PHL §2801-d is for deprivation of rights under contract or law and specifically permits class action lawsuits. The violations of federal and state regulations for adequate staffing met the commonality requirement of CPLR §901(a)(2) even though individual injuries may differ and class certification is the superior method of adjudication, satisfying CPLR §901(a)(5), as elderly nursing home residents would have little ability or incentive to pursue individual claims, as noted by a memorandum in support of §2801-d. Jenack v Goshen Operations, LLC    

IME/DME   Preclusion   Prejudice   Conclusory  

Second Department
Defendant’s motion to compel plaintiff-Texas-resident to appear for IME/DME by a neurologist in NYC after plaintiff had appeared for the IME/DME but the neurologist canceled the appointment granted and plaintiff’s motion for a protective order precluding defendant from requiring her to appear for the rescheduled neurologist appointment in NYC denied where plaintiff did not submit her own affidavit showing ‘unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice,’ relying only on her attorney’s conclusory claims of hardship. “[T]he mere fact that the doctor cancelled her appointment was not a sufficient reason to preclude a neurological examination to which the defendant was otherwise, undisputedly, entitled.” Gonzalo v Fragomeni    

Notice of Claim   Court of Claims  

First Department
Claimant’s motion for leave to file a late Claim denied and Claim dismissed as the proposed Claim failed to meet the pleading requirements of Court of Claims Act §11(b) where it did not sufficiently allege the location, date, time, and circumstances of the accident to allow the state to investigate and only alleged she sustained injuries to her “neck and back.” Claim dismissed sua sponte as the Claim was jurisdictionally defective. The Court did not need to address the factors for filing a late Claim. Cardenas v State of New York    

Premises Liab   Set Aside Verdict   Prejudice   Appealable Order  

Second Department
Trial court erred in allowing cross-examination to show plaintiff’s litigious nature, but the error was harmless as the Court was satisfied the result would’ve been the same if the cross-examination had been precluded. Issue was properly preserved for appeal. Trial court providently declined to permit rebuttal to refute defendants’ former custodian’s testimony. Ramrattan v Resorts World Casino    

(15 summaries)

Vacate Default   CPLR § 3126   Discovery   Reasonable Excuse   Meritorious Action   Willful/Contumacious   Appealable Order   Reargument  

Second Department
Plaintiff’s motion to vacate default in responding to defendants’ motions to strike the Complaint for failure to comply with discovery demands and orders denied where plaintiff provided a reasonable excuse for not opposing defendants’ motions but repeated failure to comply with discovery demands and orders over several years evinced willful/contumacious conduct that could not show meritorious opposition to the motions.

Appeal from denial of motion to reargue dismissed as no appeal lies from denial of a motion to reargue. S.A. v Bucca    

Strike Answer   Discovery   Willful/Contumacious  

First Department
Plaintiffs’ motion to strike Dormitory Authority’s Answer for failure to comply with discovery order providently denied where it provided dozens of boxes for plaintiffs review and a Jackson affidavit showing all documents were turned over to CUNY after construction was completed, establishing that any failure to provide documents was not willful/contumacious. Dass v Dormitory Auth. of the State of N.Y.    

Premises Liab   Sidewalk   Motion to Dismiss   CPLR § 3126   Discovery   Reasonable Excuse   Willful/Contumacious   Reargument  

Second Department
Plaintiff’s motion to reargue conditional order of dismissal that required him to provide cell phone records within 30-days where his medical records indicated he was talking on his cell phone when he tripped granted with court adhering to its original decision and granting defendants’ cross-motion to dismiss as plaintiff’s repeated failure to comply with the discovery demands and orders, including providing a HIPAA authorization for cell phone records which was rejected by the cell phone carrier, and making a motion to reargue instead of complying with the conditional order of dismissal without a reasonable excuse was willful/contumacious. Halyard v Magellan Aerospace N.Y., Inc.    

MVA   Emotional Harm   Discovery   BP  

First Department
Defendants’ motion to compel plaintiff to provide authorizations for her pre-accident psychiatric and psychological records providently denied where her allegations of “anxiety, mental anguish and the loss of enjoyment of life” did not put her entire mental health history in issue and she did not claim emotional or psychological injury or aggravation. Watts v American BD Co.    

Labor Law §240   Ladder   Control   Admissibility   Hearsay   Sole Cause   Recalcitrant Worker   Indemnity  

First Department
Plaintiff’s testimony and photographs showing he slipped on muddy rung of ladder he was descending met burden for summary judgment on Labor Law §240(1) where GCs directed his work and were responsible for general site safety. Defendants failed to raise an issue by an unauthenticated workers comp form as ‘[h]earsay, standing alone, is insufficient to defeat summary judgment’ and the form did not contradict plaintiff’s testimony. Sole cause argument rejected without evidence that plaintiff knew a safer ladder was available or that he was instructed to use it and refused.

Defendants’ motion for summary judgment on contractual indemnity claim against plaintiff’s employer denied where questions remained of whether defendants failed to maintain the ladder and whether the employer had any responsibility or control of the ladder. O’Shea v Procida Constr. Corp.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Plaintiff’s expert’s affirmed report failed to raise an issue in opposition to defendants’ motions for summary judgment where it was dated before the motions, made general allegations of malpractice without distinguishing between the defendants, and did not address defendants’ experts’ opinions. Alleged departures in failing to ensure plaintiff took her medication in facilities before she returned to her original nursing home could not be a proximate cause of fall from a window months later where that medication protocol was changed after she left those facility and alleged negligence for failure to prevent her fall could not be a proximate cause as she was not in the custody of those facilities at the time of the accident. Original nursing home’s failure to administer plaintiff’s usual medication between when she was at other facilities (due to hurricane Sandy) and her fall after returning to the nursing home could not be a proximate cause but issues of fact remained on whether the nursing home knew or should have known plaintiff was not complying with her medication plan, should have monitored her behavior further, and whether failure to do so was a proximate cause of her injuries. Pietroforte v Belle Harbor Home of the Sages, Inc.    

MVA   Malpractice   Settlement   Motion to Dismiss   Collateral Estoppel   Judiciary Law §487  

Second Department
Motion to dismiss by attorney and law firm that negotiated settlement of MVA case for plaintiff who claimed they did not have authority to settle granted where plaintiff failed to plead factual allegations showing absent defendants’ negligence there would have been a more favorable outcome or plaintiff would not have incurred damages. Claim defendants did not have authority to settle was barred by collateral estoppel where the court in the underlying personal injury case granted those defendants’ motion to compel enforcement of the settlement finding the defendants in the present case had authority to enter into the settlement.

Judiciary Law §487 claim dismissed where allegations that defendants hid true facts for their own benefit were conclusory and factually insufficient. Guliyev v Banilov & Assoc., P.C.    

Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Control   Conclusory   Premature Motion  

Second Department
Contractor granted summary judgment dismissing Labor Law §§ 240(1), 241(6), and 200 claims on its president’s affidavit and documents showing it worked solely inside the building and had no authority to supervise the work on the building exterior where plaintiff fell from the scaffold. Scaffolding contractor denied summary judgment where its president’s affidavit was self-serving and conclusory.

Defendants’ motions were not premature where plaintiff failed to show essential facts necessary to oppose the motions would be obtained by discovery or were solely within defendants’ knowledge and plaintiff only claimed the motions were premature because discovery had not been provided and EBTs conducted. Mitchell v 148th St. Jamaica Condominium    

Premises Liab   Stairs   Wet Floor   Notice   Last Inspection   Recurring Condition  

First Department
Building owner met burden for summary judgment dismissing plaintiff’s claim for slip and fall on urine on stairway on evidence it had a reasonable inspection and cleaning routine and the condition did not exist on its last inspection 30-minutes before plaintiff’s fall. Plaintiff’s testimony that the fresh urine existed for 5-15 minutes before his fall did not raise an issue as that was insufficient time to discover and correct the condition. Girlfriend’s testimony that there was an unaddressed recurring problem with urine on the stairway was insufficient to show notice of the transitory condition at the specific location. Mateo v Franklin Plaza Apts., Inc.    

Premises Liab   Stairs   Notice   Last Inspection   Open/Obvious   Warnings   Comparative Fault  

First Department
Building owner failed to meet burden for summary judgment where plaintiff’s testimony that the stairs leading to the basement where his employer instructed him to dump a pail of dirty water were completely dark and he could not see the stairs, handrail, or basement floor when he slipped and from the top stair, leaving questions of whether the accident was caused by inadequate lighting. Defendant failed to show it lacked constructive notice where its management company employee testified he did not recall inspecting the stairs that day. Claim the condition was open/obvious only went to failure to warn and questions remained of whether plaintiff exercised reasonable care in descending the stairs, which would only go to comparative fault. Navarro v University Ave., L.P.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion  

First Department
Plaintiff granted summary judgment on her affidavit that defendants’ vehicle rear ended her vehicle. Defendant-driver’s claim that plaintiff stopped short when he accelerated and was moving from her lane to the left lane in slow but steady traffic failed to provide a nonnegligent explanation. Comparative fault and the “irrelevant assumption of risk” defenses dismissed. Motion not premature where the cause of the accident was within the defendant’s own knowledge. Ferreira v E-J Elec. Installation Co.    

MVA   Serious Injury   ROM   Experts   Speculation  

First Department
Plaintiff’s expert orthopedist raised issues in opposition by findings of significant shoulder, knee, and lumbar ROM limitations on examination, opinions that plaintiff sustained brain encephalomalacia, a labral tear/SLAP shoulder tear, a medial meniscus tear, plaintiff will likely require shoulder surgery, and that these were caused by the accident based on review of plaintiff’s medical records and MRIs taken within 2-months of the accident. Plaintiff’s expert’s opinion was not speculative where he addressed plaintiff’s history of a prior injury to his lower back. Hess v Fabrizi    

Serious Injury   ROM   BP  

Second Department
Defendants failed to meet burden for summary judgment on serious injury as to 1-plaintiff where their expert found significant limitations of ROM in her lumbar spine and failed to explain his opinion that the limitations were voluntary or address plaintiff’s claims under the 90/180-day category in the BP. Z. H. B. v Sica    

Dogbite   Vicious Propensity   Notice   Feigned Issue  

First Department
Plaintiff raised issues in opposition to defendant’s prima facie showing it did not have notice of the dog’s vicious propensities by her daughters’ affidavits that they had made several complaints to defendants that the dog “barked, growled, and lunged at them” when they passed the tenant’s apartment and asked that the dog be removed. The daughter’s affidavits did not so contradict plaintiff’s testimony as to show they were tailored to avoid the consequences of plaintiff’s testimony or raise a feigned issue. Chaney v Fulton Jefferson Hous. Dev. Fund Corp.    

MVA   Rear End  

First Department
Defendant granted summary judgment dismissing his passenger’s claim and co-defendants’ cross-claims on his affidavit that he was stopped when his vehicle was rear-ended by co-defendant’s vehicle whose unidentified driver fled the scene. Observation of sideswipe damage to moving-defendant’s vehicle in certified police report did not raise an issue where the most severe damage was noted to the rear of the vehicle. Kante v Ruiz    

(1 summaries)

Premises Liab   Unknown Cause   Speculation  

Second Department
Defendant granted summary judgment on proof plaintiff could not identify the cause of her fall while rollerskating at defendant’s rollerskating rink without resorting to speculation. The Court does not give the details of the proofs. Tanriverdi v United Skates of Am., Inc.    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
Bookmark the permalink.

Comments are closed.