October 10, 2017 | Vol. 75

(3 summaries)

IME/DME   Preclusion   Appealable Order  


Defendants’ motion to preclude plaintiff from offering trial testimony of witnesses from IME Watchdog, Inc. granted only to the extent of precluding such testimony if the witnesses did not appear for deposition. The First Department clarified any doubt from prior rulings that plaintiff does not have to show special or unusual circumstances to have a representative present at a physical. Plaintiff has a right to have a representative present at a physical if that representative does not interfere with the examination or prevent the doctor from performing a meaningful examination. Santana v Johnson

Med Mal   Notice of Claim   Judicial Admissions  


Corporation that employed defendant doctor to provide medical services at a municipal correctional facility through a contract with a separate medical corporation denied summary judgment based in part on a letter sent by defense counsel to the Federal District Court before the case was remanded to state court acknowledging that it had contracts with the county and the defendant doctor. The letter was an informal judicial admission. Individual doctor granted summary judgment because no Notice of Claim was served on the county naming the individual doctor as required where under GML §50-d there is a statutory duty for the county to indemnify and defend the individual doctor. Ayers v Mohan

Respondeat Superior   Duty   Causation  


Employer granted summary judgment where plaintiff’s coworkers who held a party not sanctioned or paid for by the employer, not on the employer’s premises, and while all of the workers were not on duty, placed the plaintiff’s intoxicated husband in her car, she drove home and left him in the car to sleep it off but later found him dead of intoxication and positional asphyxia. The coworkers did not assume a duty to the plaintiff’s decedent because they did not place him in a worse position and comments that he didn’t need medical attention were non-actionable gratuitous comments. Act of placing plaintiff’s decedent in car was not cause of his death but only furnished the occasion. Gillern v Mahoney

(10 summaries)

Asbestos   Products Liab   Set Aside Verdict   Pain/Suffering   Materially Deviates   CPLR Art. 16  


Opinion of plaintiff’s expert at trial that mesothelioma was caused by exposure to asbestos dust from using a grinder on automobile brake linings was sufficient to sustain verdict and award as reduced by the lower court to $5 million/$4 million past/future pain-and-suffering and did not materially deviate from reasonable compensation. Jury finding of 86% liability against manufacturer of grinder, under Article 16 apportionment, was supported by the evidence. Matter of New York City Asbestos Litig.

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  


Defendants granted summary judgment on proof that their administration of Propofol and remedial measures taken after a venous reaction to the IV without infiltration or leakage into the surrounding tissues met with accepted practice and was not the cause of the plaintiff’s CRPS. Plaintiff’s experts’ opinions were conclusory in that they opined that there was a partial infiltration but could not quantify an amount of leakage of the Propofol or pinpoint when it occurred and put forth no medical explanation or support for their claim that the CRPS was caused by the injection. Plaintiff’s expert failed to address defendants’ experts’ opinions that the measures taken including elevation and warm compresses were a departure from accepted practice or why the expert’s alternatives were more appropriate. Rivera v New York Pain Care Ctr., P.C.

Premises Liab   Warnings   Jury Charge   Set Aside Verdict  

Second Deptartment

Plaintiffs’ motion to set aside defense verdict based on claim that court failed to charge portion of PJI regarding warnings denied as jury found there was no dangerous condition muting the question of warnings. LaMorte v CFG Profile, Inc.

Train   Assault  


NYCTA’s motion for summary judgment in case where plaintiff was pushed into an oncoming train on a subway platform denied. While NYCTA addressed plaintiff’s claims of lack of security to prevent the assault, it failed to eliminate questions of fact regarding whether the train was speeding and whether there was sufficient time for the operator to stop before striking the plaintiff. Linhart v Rojas

Labor Law §240   Labor Law §200   Control  


Plaintiff sustained injuries from the repetitive work of grabbing buckets from a higher level which subjected him to the risks of construction work but not the extraordinary risks of elevation protected by Labor Law §240(1). Labor Law §200 and negligence claims dismissed against general contractor who exercised only general oversight with the means and methods of plaintiff’s work solely determined by his employer. Ciechorski v City of New York

MVA   Duty   There to be Seen  


Defendant granted summary judgment on proof that he was driving 5-10 mph and that infant plaintiff ran out between parked cars. Proof that a driver is aware that children frequent the area does not automatically create a question of fact and plaintiff failed to raise a question of fact on whether defendant should have seen the infant before impact. A.C. v Ajisogun

Vacate Default   Compel Acceptance   Motion to Dismiss  


Plaintiff’s motion for default judgment denied and defendant’s cross motion to dismiss the complaint as abandoned for not taking a default within 1 year denied. There was sufficient evidence that plaintiff’s failure to take the default within 1 year was due to law office failure. Defendants were allowed to submit a late Answer because they promptly responded to plaintiff’s correspondence, made efforts to investigate the claim, and there was proof that defendants never received the Summons and Complaint. Gause v 2405 Marion Corp.

MVA   Sole Cause   Comparative Fault  

Second Deptartment

Driver and owner of car where infant plaintiff was a passenger denied summary judgment for failing to eliminate question of fact as to their own fault while making a left turn with a green light when they were struck by a vehicle that ran a red light. Driver with the right-of-way can anticipate that other drivers will yield but defendants failed to show that they used reasonable care to avoid the accident. Fargione v Chance

Emotional Harm   Amend Complaint   Statute of Limitations   Respondeat Superior   Raised For First Time  

Second Deptartment

In action for intentional infliction of emotional distress plaintiff’s motion to substitute individual sheriffs for “John Does” granted even after the statute of limitation expired as plaintiff met burden of showing applicability of relation back doctrine, that the claim arose out of the same transactions, the sheriffs were united in interest with the original parties, and that they knew or should have known that absent a mistake they would have been included in the original suit. The same sheriffs were involved in a federal lawsuit involving the same transactions brought by the estate of the plaintiff’s brother which the parties sought to consolidate and in which discovery proceeded along with discovery in this suit. That portion of the plaintiff’s motion which sought to add a negligent hiring cause of action against the County properly denied as plaintiff conceded that he was seeking to add respondeat superior and not negligent hiring which was only raised for the first time in a reply. Eriksen v County of Suffolk

1983 Action   Notice of Claim   Amend Complaint   Statute of Limitations   Respondeat Superior  


Plaintiff’s motion to amend the Complaint to include a 1983 action denied as the claim was sought to be added after the 3-year statute of limitations expired, the relation back doctrine did not apply, and the proposed amendment was palpably insufficient as it did not adequately allege that the constitutional violation of rights was the result of a governmental custom, policy, or usage. Plaintiff’s motion to substitute officer for John Doe also denied as plaintiff could not meet the criteria for the relation back doctrine as a municipality cannot be vicariously liable for 1983 violation eliminating “unity of interest.” Thomas v City of New York

(2 summaries)

Premature Motion   Appealable Order  


Appeal from order denying plaintiff summary judgment as premature dismissed as discovery was completed and summary judgment subsequently granted. Espinoza v Fowler-Daley Owners, Inc.

Serious Injury   Expert Aff  

Second Deptartment

Defendants met their burden of proof for summary judgment on serious injury by competent medical opinions but plaintiff raised a question of fact in opposition that her cervical and lumbar injuries met threshold for serious injury. The court does not give the details of the proofs. Min Kyu Jun v Azam

Comment: In a related decision the court dismissed the appeal from the decision and order of the lower court as it was superseded by the judgment entered. Min Kyu Jun v Azam.

About Matt McMahon

Civil trials and appeals since 1984
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