November 8, 2016 | Vol. 27

MUST READS
(4 summaries)

MVA   Pedestrian   Serious Injury   Preclusion  

Second Deptartment

Lower court properly precluded plaintiff’s expert neuropsychiatrist from testifying regarding the history of the accident and complaints, and a last-minute physical examination conducted on the eve of trial without notice to the defendants. A non-treating expert may not testify regarding history or complaints in the medical records as related by the plaintiff but may testify regarding a physical examination, where appropriate. Jury’s finding of no serious injury supported by defendant’s radiologist and behavioral neurologist. Scariff v Wall St. Mail Pick Up Serv., Inc.


Discovery   Appealable Order  

First

Defendants appeal from a compliance conference order which limited the infant plaintiff’s EBT solely to the issue of damages was dismissed. There is no appeal from an order which did not decide a motion on notice and defendant did not take a motion seeking leave to appeal. Biton v Serour

Comment: This is an important reminder that preliminary conference orders, compliance conference orders, and status conference orders not deciding motions made on notice are not automatically appealable. If a party wishes to appeal something from the order, they should move on notice or make a motion for leave to appeal.


Summary Jud   Late Filing  

First

The lower court properly denied defendant’s motion for summary judgment as filed beyond the time set in her part rules. Defendant’s argument that they were unaware that Judge Guzman was assigned to the case was incredible since their notice of motion noted her assignment. Chmielowiec v Blackwood

Comment: While the general rule in Bronx Supreme Court is that you have 120 days after note of issue to file for summary judgment each justice may set his/her own time for summary judgment motions. It would appear that at the present time the only justice with a shorter time (60 days) is Justice Willa Guzman. Bronx Part Rules.


Med Mal   Pain/Suffering   Materially Deviates   Set Aside Verdict  

First

The court ordered a new trial unless plaintiff stipulated to reduce $2,000,000 award for past pain-and-suffering to $900,000 and $1,500,000 award for future pain and suffering for 28 years to $200,000 and sustained the lower court’s reduction of $1 million for the ex-wife’s loss of services claim to $100,000. The court does not discuss the details of the case but, per the lower court’s opinion, the jury found that the defendant doctor had misdiagnosed the plaintiff’s cataplexy as myasthenia gravis, subjecting plaintiff to unnecessary major surgery and prolonged unnecessary drug treatment resulting in significant weight gain and compromise of his immune system. The court saw no reason to set aside liability verdict. Wyble v Lange

NOTEWORTHY
(22 summaries)

MVA   Respondeat Superior  

Second Deptartment

Plaintiff was injured, while driving her own car, in an accident with a car driven by an individual defendant and owned by her husband. In addition to suing the individual defendants, plaintiff sued the County of Suffolk and Suffolk County Child Protective Services whom the defendant driver was working for at the time of the accident. The county defendants moved for summary judgment on the ground that the individual defendant was an independent contractor and not an employee based on proof that they had minimal control over the individual defendant and that she was an independent contractor for tax purposes. Respondeat superior does not apply against independent contractors. Plaintiff failed to raise a triable issue in opposition and its claim that the individual defendant’s work was the same as when she was an employee of the Suffolk County Child Protective Services previously was insufficient to render her an employee without a showing of substantial control. Meehan v County of Suffolk

Comment: After dismissal of the case in chief against that the county defendants, the individual defendants brought a third-party complaint against them for breach of a contract provision to provide car insurance. The county’s motion to dismiss the third-party action was denied, the third-party suit was severed, and the individual defendant’s insurance carrier, State Farm, was joined in the severed action. Meehan v County of Suffolk


Med Mal   Accepted Practice   Judgment Rule   Expert Aff  

First

Defendants made out prima facie entitlement to summary judgment by expert’s opinion that the plaintiff mother was not a candidate for cerclage and that peer-reviewed studies showed progesterone to be more effective at avoiding preterm birth where there is cervical incompetence. The child was born at 23 weeks with significant brain damage. Plaintiff’s expert opined that both were acceptable treatments within good and accepted practice but that cerclage was “preferable.” Absent an opinion from plaintiff’s expert that the doctor departed from accepted practice, plaintiff failed to raise a triable issue of fact under the judgment rule. A.C. v Sylvestre


3rd Party Contractor   Espinal   Burden of Proof  

Second Deptartment

Defendant, boiler maintenance company, who had a contract for the maintenance of the codefendant’s residential boiler were not entitled to summary judgment in case where plaintiff, home health worker, was injured while trying to adjust the water level in the boiler, because they failed to meet their burden of showing that their contract was not comprehensive and exclusive, one of the exceptions under Espinal. Arana v Kish


Vacate Default   Personal Juridiction   Service   Venue  

First

Two defendants moved to vacate defaults and to change venue from Bronx to Suffolk County. The lower court ordered a hearing regarding service and denied change of venue without prejudice. The appellate court modified to deny change of venue with prejudice since the LLC defendant sought to vacate only on CPLR 317 and 5015(a)(1), which presume jurisdiction, and not CPLR 5015(a)(4). Having waived any issue of improper service defendant was not entitled to move for change of venue. Lower court, however, properly granted motion to vacate for LLC under CPLR 317 as proofs showed that the Secretary of State mailed copies to the wrong address and that the local postal carrier did not follow certified mail rules. Lower court vacated only the damage portion of the judgment as against the other defendant who did not appear at the hearing regarding motion to vacate. The judgment was very large and could result in inconsistent results for the LLC at trial. Non LLC Defendant is entitled to present evidence to mitigate damages and evidence of comparative fault at trial. Darbeau v 136 W. 3rd St., LLC


Premises Liab   Out of Possession  

Second Deptartment

Infant was struck by a piece of wood that fell from a sukkah, a temporary structure for eating meals during the Sukkot holiday, erected on a second-floor balcony by the tenant. Landlord was entitled to summary judgment upon a showing that it was an out of possession landlord. Although landlord had the right to enter and repair the premises, there was no statutory or contractual obligation to repair the temporary structure. Chalouh v Lati, LLC


Labor Law §240   Industrial Code  

First

Plaintiff who was injured when a screw he was driving into sheet rock kicked back into his eye raised a triable issue of fact regarding industrial code 12 NYCRR §23-1.8(a)(operation which may endanger the eyes). Since Labor Law §200 claim was dismissed, there was no bar to owner and management companys’ claim against contractor for indemnity which, under the contract, required indemnity “to the fullest extent permitted by law…,” since owner/management company’s liability was purely vicarious. Paulino v Bradhurst Assoc., LLC


Med Mal   Accepted Practice   Expert Aff  

First

Parents of 17-year-old who died of cardiac arrest sued hospital, doctors, and ambulance company for not diverting their son to Montefiore Hospital, which was a tertiary care facility. Defendants were entitled to summary judgment on showing that they complied with the applicable Westchester Regional Paramedic Protocols in bringing the patient to the nearest “appropriate facility.” Although St. Joseph’s Hospital was not a tertiary care center, it was an appropriate facility under the protocols and plaintiff’s expert’s opinion merely stated that Montefiore would be a “preferable” facility, not that St. Joseph’s was inappropriate. Liburd v St. Joseph


Med Mal   Burden of Proof   Expert Aff  

Second Deptartment

Defendant radiologist failed to meet his burden of showing that he did not depart from accepted practice or that his departures were not the proximate cause of plaintiff’s decedent’s injuries based solely on his own affidavit which was conclusory in that it did not address the specific allegations raised by the plaintiffs and he failed to show how he came to his conclusions based on a limited number of images from a video sonogram which he could not locate and his initial report. Ross-Germain v Millennium Med. Servs., P.C.


Asbestos   Statute of Limitations   Discovery Rule  

First

Plaintiffs’ allegations that defendant failed to advise them that there was asbestos in wood panels and doors installed in their facility was not entitled to the 3 year from discovery statute of limitations under CPLR §214-c, because the harm was caused at the time they were delivered and not by exposure thereafter. Defendant entitled to summary judgment on statute of limitations. All Craft Fabricators, Inc. v Syska Hennessy Group, Inc.


Premises Liab   Notice  

Second Deptartment

A Plaintiff in a ceiling collapse case is entitled to summary judgment if it can show that a ceiling had leaked for a period of time and that the landlord had actual or constructive notice of the leak and did not repair it. Here the plaintiff showed that the ceiling had leaked and was repaired on numerous occasions over several years, that the ceiling had previously collapsed, and that she had notified the superintendent of the leak three days prior to the ceiling collapsing on her, and that it was not repaired. Defendant failed to raise a triable issue of fact. Toussaint v Ocean Ave. Apt. Assoc., LLC


MVA   Rear End   Premature Motion   Discovery   Nonnegligent Explanation  

First

Plaintiffs entitled to summary judgment on showing that defendant’s vehicle hit theirs in the rear while they were stopped at a red light. Defendant failed to proffer a nonnegligent explanation and claim that depositions were necessary is unavailing since any claim of a nonnegligent explanation would be within defendant’s own knowledge. Castaneda v DO&CO N.Y. Catering, Inc.


Premises Liab   Elevator   Workers Comp Defense   Indemnity  

First

Defendant employer was entitled to summary judgment based on plaintiff’s W-2s, plaintiff EBT, and employer’s testimony regarding company organization. Name of employer given by plaintiff at EBT was a tradename of the defendant corporation. Employer was also entitled to contractual indemnity against elevator maintenance company conditioned on proving that employer was not negligent. Antoniak v P.S. Marcato El. Co., Inc.


Labor Law §240   Untimely  

Second Deptartment

Plaintiff fell from a ladder while descending from a scaffold and was granted summary judgment under Labor Law §240(1). Defendant appealed solely on the ground that the motion was untimely since it was filed more than 120 days after note of issue. The note of issue, however, had been vacated during the pendency of the motion and was therefore properly considered. Mills v City of New York


Discovery   Strike Note of Issue   Motion in Limine  

First

Lower court properly denied defendant’s motion to strike note of issue, for additional discovery, and to preclude plaintiff from testifying at trial, since motion was filed more than 20 days after the note of issue and defendant did not give a reasonable excuse for the delay or proof that substantial injustice would result. Defendant’s attempt to get around the 20-day limitation by claiming it was a motion in limine was rejected as failure to obtain any discovery was due to defendant’s own inaction. Allen v Hiraldo


NYC   Late Notice of Claim   Leave of Court   Nullity  

Second Deptartment

Defendant New York City and New York City Department of Education were entitled to summary judgment where plaintiff served a late notice of claim without leave of court, which was a nullity. Mosheyev v New York City Dept. of Educ.


Premises Liab   Dangerous Condition   Create Condition   Notice  

Second Deptartment

Defendant showed by deposition testimony of the hospital employee and plaintiff, and plaintiff’s 50H hearing that the accident was not caused by a dangerous condition when plaintiff sat in a chair with wheels that rolled out from under him while at a pain management clinic. Wilks v City of New York


Vacate Default   Service   Meritorious Defense  

Second Deptartment

Third-party defendant was not entitled to vacate default under CPLR 317 and 5015(a)(1) because it had not updated its address for service with the Secretary of State for more than three years and cannot show a reasonable excuse for failing to answer. In addition, third-party defendant failed to show a meritorious defense. Vengrenyuk v Exxonmobil Oil Corp.


Premises Liab   Open/Obvious   Inherently Dangerous  

First

Defendant entitled to summary judgment where plaintiff testified that he saw a pile of Christmas trees before tripping over one of the trunks, and where plaintiff failed to rebut defendant’s testimony that there was no dangerous obstruction to the sidewalk. The condition was open and obvious and not inherently dangerous. Barchi v Rudin E. 55th St. LLC


Serious Injury   Expert Aff   Treatment Gap   ROM   1983 Action  

First

Defendant made out prima facie showing for summary judgment on serious injury by radiologist’s opinion that there was only a glenoid labrum tear, which he opined was a degenerative condition, and no supraspinatus tear, which would be traumatic, and neurologist’s affirmation that plaintiff made no complaints of shoulder pain for 4 months. Plaintiff raised triable issues of fact by medical records showing that she had complained of shoulder pain 6 days after the accident and throughout physical therapy and by her orthopedist’s opinion that the MRI showed both glenoid labrum and supraspinatus tears which required arthroscopic surgery, with resulting limitations of range of motion. Defendant’s claim that gap in treatment for shoulder injury after being diagnosed defeated serious injury was overcome by plaintiff’s explanation that the delay was due to her pregnancy and baby care. Acosta v Ramos


Serious Injury  

First

Defendant entitled to summary judgment on serious injury on affirmed reports of radiologist and orthopedist that plaintiff had a congenital abnormality which predisposed him to degeneration also present on the MRI. Plaintiff’s orthopedist did not address defendants’ opinions or explain how plaintiff’s condition was related to the accident and not the congenital condition. Brown v Bawa


Question of Fact  

First

Ambulette company was not entitled to summary judgment where evidence showed that they had been told that the patient could not be left unattended. Driver briefly left plaintiff’s decedent unattended while going to open the door, at which point she fell. There were questions of fact which could only be resolved by a jury. Jackson v Happy Care Ambulette, Inc.


Service   Vacate Default   Raised For First Time  

First

Order denying defendant’s motion to vacate default, compel acceptance of an answer. and dismiss for lack of service was properly denied as defendant failed to give a reasonable excuse for his failure to answer the complaint which was served on his office at the same address listed in his motion papers. Claims of ill health and late filing of affidavit of service were not raised below and were not considered. Antiohos v Morrison

IF YOU MUST READ
(3 summaries)

MVA   Rear End   Serious Injury  

Second Deptartment

Defendants made prima facie showing for summary judgment on serious injury grounds but plaintiff raised a triable issue of fact that his cervical and lumbar injuries met the standards for significant limitation and permanent consequential limitation. The court does not give the details of the proofs. Plaintiff’s car was rear-ended by one defendant and pushed into the rear of the other defendant. The defendant whom plaintiff’s car struck was entitled to summary judgment on separate grounds. Sok Hwan Chun v Bloom


MVA   Coverage   Confirm Arb  

First

Dollar Rent-A-Car, whose insurance broker had switched registration and insurance on several vehicles from vehicles for hire to personal vehicles, was not entitled to vacate arbitration award in favor of carrier on findings that vehicle at time of accident was being used as a vehicle for hire. Where arbitration is compulsory, the arbitrator’s findings are subject to closer scrutiny, must have evidentiary support, and not be arbitrary and capricious. There was sufficient evidence in the record to support the award. Matter of DTG Operations v AutoOne Ins. Co.


MVA   Serious Injury  

Second Deptartment

Defendants made out prima facie case for summary judgment on serious injury but plaintiff raised a triable issue of fact that his lumbar injuries met the standards for significant limitation and permanent consequential limitation. The court does not give the details of the proofs. Taylor v Hall

About Matt McMahon

Civil trials and appeals since 1984

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