October 11, 2016 | Vol. 23

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MUST READS
(3 summaries)

Med Mal   Set Aside Verdict   Materially Deviates  

Second Deptartment

In a medical malpractice action, the Second Department took a close look at and recalculated numerous aspects of a damage award for lifetime care, pain, and suffering finding that the lower court improperly entered judgment after reducing elements of the damage award without ordering a new trial unless plaintiff stipulated to the reduction of the awards. The lower court properly found that the awards for future medical care, future medical equipment, and future medical supplies were duplicative of the award for the cost of a supervised living center but improperly averaged the annual costs, rather than using the evidence of inflation-adjusted costs. The lower court also erred in reducing the awards for future physical and occupational therapy, future speech therapy, and future medications, as they were not duplicative, in part, of the award for the future cost of a supervised living center. The awards for past and future pain and suffering, and future medications materially deviated from comparable awards.

The Court recalculated the damages and set aside the verdict unless plaintiff stipulates to judgment as recalculated as follows:

  1. future medical care from $382,371 for a period of 55 years to $105,452 for a period of 34 years;
  2. future medications from $2,279,185 for a period of 55 years to $1,668,991 for a period of 55 years;
  3. future medical equipment from $1,114,082 for a period of 55 years to $719,506 for a period of 34 years;
  4. future medical supplies from $826,684 for a period of 55 years to $533,898 for a period of 34 years;
  5. past pain and suffering from $10,000,000 to $750,000;
  6. future pain and suffering from $82,500,000 to $3,500,000;and
  7. reinstatement of the jury’s award of $5,462,330 for future loss of earning capacity over 39 years.

Reilly v St. Charles Hosp. & Rehabilitation Ctr.


Asbestos   Set Aside Verdict   Materially Deviates  

First

Award for 17 months of past pain-and-suffering reduced by the lower court to $9.9 million was found to materially deviate and a new trial ordered unless plaintiff stipulated to a judgment of $4.25 million which the court acknowledged was an expansion of prior awards because of the evidence showing plaintiff’s extreme suffering. There was sufficient evidence for the jury to conclude that the defendant knew of the dangers of asbestos and promoted asbestos use with its products, making them practically necessary, even though it did not itself manufacture asbestos. Defendant’s contention that Dummitt created a new standard and could not be applied retroactively was a mis-reading of the Court of Appeals’ decision which itself noted that it was consistent with long-standing Appellate Division principles and not a radical innovation. Peraica v A.O. Smith Water Prods. Co.

Comment: In two actions involving the same defendant, the court set aside a $5 million award for 1.5 years of future pain and suffering unless plaintiff stipulated to an award os $4.5 million. Matter of New York City Asbestos Litigation., and set aside a $10 million reduced to $6 million by the lower court unless plaintiff agreed to a reduced award for past pain and suffering to $ 3 million. Matter of New York City Asbestos Litig.


Labor Law §240   Elevated Platform   Safety Devices   Flatbed Truck  

First

Plaintiff fell 13’-14’ to the ground when dunnage between layers of steel beams broke while he was arranging the steel beams to be unloaded from a flatbed truck. Plaintiff was wearing the safety harness that he wore all the time, but which was not attached to anything. The fact that he fell 13’-14’ from an elevated surface and was provided with an inadequate safety device (the safety harness) was sufficient to bring him within the extraordinary protection of labor law §240(1). There was one dissent. Myiow v City of New York

NOTEWORTHY
(13 summaries)

Premises Liab   Slip/Trip   Wet Floor   Last Inspection   3rd Party Contractor   BP  

Second Deptartment

Normally a defendant moving for summary judgment must offer evidence as to the last time that the accident site was cleaned or inspected. Evidence of general cleaning practices is insufficient but specific evidence of cleaning practices may, under the circumstances of a particular case, be sufficient. The testimony of the concierge and third-party contractor’s employee established that they did not have constructive notice of the allegedly dangerous condition and plaintiff failed to raise a triable issue of fact in opposition.

A contractor may only be held liable to a 3rd party under specific exceptions which must be set forth in the complaint or BP. Plaintiff failed to plead any of the exceptions. Mavis v Rexcorp Realty, LLC


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendants failed to meet their prima facie burden for summary judgment by failing to show that the chain suspended between two poles as 700 to 1000 people walked from a football field rally to a bonfire around dusk was open and obvious. The question of open and obvious is usually a question for a jury. A condition may be considered a trap for the unwary where is obscured or the plaintiff is distracted. Defendants failed to establish that it was open and obvious given the crowd and lighting conditions. Simon v Comsewogue Sch. Dist.


Labor Law §240   Ladder   Sole Cause  

First

Plaintiff was entitled to summary judgment on proof that he fell 3′ from a ladder which did not have rubber footings. Defendant’s claim that plaintiff was the sole proximate cause of the accident because he did not use an available A-frame ladder was rejected based on plaintiff’s testimony that the A-frame ladder would not fit in the space, the defendant’s failure to provide factual proof or expert opinion that it would fit, and lack of evidence that plaintiff was instructed to use the A-frame ladder and not to use the straight ladder. Fact that plaintiff fell only 3′ does not defeat summary judgment on the labor law claim. Cronin v New York City Tr. Auth.


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Plaintiff was not entitled to summary judgment where defendant testified that the plaintiff stopped, started again, and stopped again suddenly without apparent reason causing the defendant’s car to skid on the road which was wet from melting snow. Plaintiff failed to exclude the possibility of a non-negligent explanation for the rear end collision. Moluh v Vord


Premises Liab   Circumstantial Evidence   Set Aside Verdict   Adverse Inference  

First

Grant of motion to set aside plaintiff’s verdict was reversed and verdict reinstated. Plaintiff’s evidence that an undocumented, aborted hole which he allegedly fell into was man-made and that defendant had the only permit to drill holes during the relevant period was sufficient for the jury’s determination. Jury may also have taken an adverse inference from defendant’s failure to produce their own documents and photos. Soler v Jersey Boring & Drilling Co., Inc.


Premises Liab   Slip/Trip   Storm in Progress   Last Inspection  

First

Plaintiff’s testimony that she saw it snowing 10 minutes before her first accident precluded any claim for failure to keep the entry vestibule floor clear of water tracked in by pedestrians since the storm was still in progress. Defendant proved that it had neither constructive nor actual notice of the dangerous condition in plaintiff’s second accident, urine on the second floor landing, nor created the same by the superintendent’s testimony that he inspected daily, mopped three times a week, and swept the stairs every day, as well as plaintiff’s testimony that she did not see the urine on the afternoon before her early evening accident. Rosario v Prana Nine Props., LLC

Comment: The First Department has generally held that testimony regarding general cleaning and inspection practices is insufficient and it must be shown when the last time that the area was inspected or cleaned.

Dental Mal   Set Aside Verdict  

First

Lower court’s grant of plaintiff’s motion to set aside defense verdict in dental malpractice action was reversed. Unless substantial justice has not been done the successful litigant is entitled to the benefits of a favorable verdict. There was sufficient evidence for the jury to conclude that the tumor found two years after the dentist’s treatment was not observable at the time of the original wing-bite x-ray, but only seen in hindsight. Cordero v Yeung


Bicycle   Create Condition   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendants failed to meet their prima facie burden for summary judgment by failing to show that they did not do any work at the area where the plaintiff was injured when his bicycle struck a hole in the sidewalk. Defendant also failed to show that the defect was open and obvious and not inherently dangerous. Morris v City of New York


Premises Liab   Handrail  

First

Defendant entitled to summary judgment since plaintiff’s expert failed to identify any statute or rule requiring the landlord to install a handrail or grab-bar in an apartment bathroom. Landlord’s denial of plaintiff’s request for a handrail is not a breach of a duty of care as the bathtub was in good working order and not alleged to be defective for ordinary use. Balleram v 11P, LLC


Premises Liab   Open/Obvious   Inherently Dangerous   Expert Aff  

Second Deptartment

A property owner has no duty to protect or warn against an open and obvious condition which is not inherently dangerous. A “wheel stop” that is clearly visible does not present an unreasonable risk of harm. Plaintiff’s expert’s affirmation in opposition was unsupported and largely refuted by the photographs. Lacerra v CVS Pharmacy


MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Deptartment

Second car in three car collision was entitled to summary judgment where plaintiff testified that he stopped, heard a bang behind him and seconds later was struck in the rear by the second car which was the only impact to the plaintiff’s car. Second car defendant testified that he was stopped behind plaintiff’s car and struck in the rear by a Verizon van which propelled him into the plaintiff’s car providing a nonnegligent explanation for the rear and hit. Wooldridge-Solano v Dick


Note of Issue   Discovery   Additional EBT  

First

Fact that plaintiff was involved in prior accidents involving the same body parts as the subject accident constituted “unusual or unanticipated circumstances” warranting further discovery in the form of a further deposition related solely to the prior injuries, but defendants failed to show a need for an additional DME since the DME doctor can supplement his/her findings on the new records once received. Jones v Seta


Serious Injury   Causation  

First

Defendant’s orthopedist’s affirmation finding only insignificant limitations made out a prima facie showing for summary judgment but plaintiff’s treating and expert orthopedists’ affirmed reports finding significant limitations of range of motion, acknowledging MRI findings of prior degeneration, and opining that the accident was the cause of the injury and limitations raised a triable issue of fact. Injuries to left ankle and lumbar spine were properly dismissed as they were unsupported by any medical evidence. Mehlman v Chain Cab Corp.

IF YOU MUST READ
(2 summaries)

Coverage   Duty to Defend   Declaratory Jud  

First

Defendant insurer entitled to declaratory judgment that it is not obligated to defend or indemnify under construction insurance policy for personal injury because the contract contained an additional insured-by written contract clause. Contractor’s broker lacked the authority to bind the insurance company cutting off any estoppel claim. Three Boroughs, LLC v Endurance Am. Specialty Ins. Co.


Serious Injury  

Second Deptartment

Lower court’s grant of summary judgment for defendant on serious injury grounds reversed as plaintiff raised a triable issue of fact that the injuries to his lumbar sacral region constituted serious injury under permanent consequential limitation of use and/or significant limitation of use. The court does not give the details of the proofs. Delacruz v Bonnie

About Matt McMahon

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