October 11, 2022 | Vol. 334

(5 summaries)

Malpractice   Public Health §2801-d   Discovery  

First Department
Nursing home’s motion for protective order from disclosing cost reports, payroll-based journal reports, and survey reports regarding staffing denied where plaintiff showed they were material and necessary to show inadequate staffing and inadequate financial allocation to staffing were “among the circumstances leading to plaintiff’s decedent’s death.” Granitto v Kings Harbor Health Servs. LLC    

MVA   Highway Design   Set Aside Verdict   Pain/Suffering   Wrongful Death   Loss of Chance   Materially Deviates   Experts   Appealable Order  

Second Department
Motions to set aside verdict awarding $2mil for decedent’s 4-days pain/suffering and $125,000 for loss of services granted only to order a new trial on loss of services unless plaintiff stipulates to reduce that award to $10,000 for the 4-days decedent lived as there is no loss of services claim for wrongful death. There was a valid line of reasoning on a fair interpretation of the evidence for jury to apportion 70% of fault to town’s placement of the stop line where decedent riding a motorized scooter was struck by codefendant’s vehicle. Plaintiff’s medical expert and plaintiff’s testimony of decedent’s consciousness and severe pain during 4-days he lived were sufficient to support $2mil pain/suffering which did not materially deviate from reasonable compensation.

Defendants’ appeals were previously dismissed for failure to timely perfect, but Court exercised its discretion to consider the appeals. Schneider v Hanasab    

Comment: The Court had previously upheld denial of town’s motion for summary judgment, reported in Vol. 186.

Malpractice   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Experts   Loss of Chance  

Second Department
Petitioners’ medical expert’s opinion there could have been a better outcome if hospital took a different course failed to show NYHHC and hospital had actual knowledge of essential facts within 90-days based on the medical records but was not fatal to petition to serve late Notice of Claim. Medical proof of petitioner’s emotional and psychological injuries and preoccupation with her well-being after no fetal heartbeat was found 4-days before her scheduled induction and the fetus was still born, and her attorney’s prompt investigation provided a reasonable excuse for the delay. She showed plausible argument that respondents would not be prejudiced with argument they could defend based on review of records, interviewing witnesses, and consulting experts. Respondents failed to make a particularized showing of prejudice, offering only speculation based on elapsed time and fading memories.

Husband’s petition for his loss of services claim denied as he was required to show his own reasonable excuse for not filing a timely Notice of Claim and not just rely on his wife’s reasonable excuse. Matter of Balbuenas v New York City Health & Hosps. Corp.    

3rd Party Contractor   Duty   Espinal   Raised For First Time  

First Department
Contractor hired to clean out sewer tanks in basement granted summary judgment where it’s worker observed the sewer tank was covered by cardboard instead of its metal cover, removed the cardboard cover to clean the tank, and replaced the cardboard cover after he cleaned the tank on proof the plaintiff, an exterminator who stepped on the cardboard cover, was not a party to its contract and replacing the cardboard cover returned the condition to the state it was in as failing to make a condition better is not launching an instrumentality of harm under Espinal.

Contractor’s appeal from denial of dismissal of tenant’s cross-claims for contribution and indemnity dismissed as abandoned where raised for the first time in its reply brief. Skeete v Greyhound Lines, Inc.    

Products Liab   Frye   Preclusion   Causation   Experts  

First Department
Order denying preclusion of plaintiff’s engineer’s report and testimony after a Frye hearing affirmed as expert’s opinions that the cap from a canister in an HVAC system blew off and struck plaintiff from gas buildup was not a “novel theory” that required a Frye hearing where based on generally accepted principles of the Ideal Gas Laws and deductive reasoning, which even defendant’s expert agreed were generally accepted. Nor was there ‘too great an analytical gap between the data and the opinion proffered,’ and failure of defendant’s expert’s experiments to support plaintiff’s expert’s opinion did not change analysis where defendant’s expert did not replicate all relevant conditions.

Defendant denied summary judgment where questions remained on whether plaintiff contributed to the blowing of the cap and whether it blew from a chemical overfeeding that caused a gas buildup. Absence of prior similar occurrences and proof the system was designed to automatically address pressure issued only raised issues of fact. Nunez v Nalco Co.    

(16 summaries)

Negligent Supervision   Duty   Special Duty   Notice   Experts   Speculation   Conclusory  

Second Department
School defendants granted summary judgment of claim arising from 17-year-old student suicide at home after being discharged from school for disciplinary reasons as school’s duty to protect students under its care ends once the student is released back to the control/custody of the parents without releasing the child into a foreseeably dangerous condition partly of its own creation. School defendants did not assume a separate duty to protect decedent from suicide and had no notice of decedent’s suicide potential. Plaintiff’s expert failed to raise an issue in opposition on conclusory and speculative opinions. Boyle v Brewster Cent. Sch. Dist.    

MVA   Venue  

Second Department
Plaintiffs in 3-cases brought in Queens County without including Nassau County as a defendant that were transferred to Nassau County where the remaining 5-cases were brought and named Nassau County failed to show circumstances necessary to take it out of CPLR §504(2) which requires actions brought against a county be brought in that county except where “special or compelling countervailing circumstances” are shown. The parties agreed to join all 8-cases involving multiple pedestrians and multiple motor vehicles. N. C. v Ifezulumbria    

Premises Liab   Discovery  

Second Department
Lower court improvidently conditioned grant of defendants’ motion to compel plaintiff to provide authorizations for prior injuries to her ankle only if plaintiff ‘claims any effects on her gait or mobility as a result of this incident’ where defendants established the records were material and necessary to their defense. Remaining requests denied where defendants failed to show they were material and necessary. Hamed v Alas Realty Corp.    

Premises Liab   Duty   Burden of Proof  

Second Department
Trader Joe’s failed to meet burden for summary judgment of claim of plaintiff who fell in parking lot adjacent to its store which was owned by the town, even though neither it nor the landowner owned the parking lot, where it did not establish as a matter of law that “it did not occupy, control, or make special use of the parking lot.” Landowner met burden for summary judgment by submitting signage and lease to Trader Joe’s establishing it did not own, occupy, control, or make special use of the parking lot. Toner v Trader Joe    

Pothole Law   Construction Liab.   Big Apple Pothole   Causation   NYC  

First Department
NYC denied summary judgment where Big Apple pothole map identified “pothole or other damage” at intersection where plaintiff tripped on uneven or cracked pavement in crosswalk, Google maps submitted by NYC only raised questions of whether defect on the Big Apple pothole map was same defect that caused plaintiff to trip.

Contractor who performed milling work on street 1-year before accident granted summary judgment on proof the work did not include the accident intersection and plaintiff could not show how it could have caused the defect even if it had been part of the milling project. Separate contractor granted summary judgment on proof its excavation and trenching to install electrical conduits 5-years before accident was on opposite side of the street from where plaintiff fell. McDaniel v City of New York    

Child Victims Act   Motion to Dismiss   Duty   Notice  

Second Department
School district’s motion to dismiss causes of action alleging violation of Social Services Law §413, which required school officials to report suspected child abuse, granted as guidance counselor who abused junior-high-school student during 1972-1973 school year “was not a ‘person legally responsible’ for the plaintiff’s care” as defined by that section and there were no allegations the district had information student was being abused by her stepfather before the end of the school year, which was 2-months before §413 went into effect in September 1973. Hanson v Hicksville Union Free Sch. Dist.    

Labor Law §240   Scaffold   Safety Devices   Sole Cause   Raised For First Time  

First Department
Plaintiff who fell while laying second plank as he constructed scaffold denied summary judgment on Labor Law §240(1) where he unhooked harness he used to lay the first plank. Plaintiff and foreman testified the 5’-6’ safety line was the only line provided and too short for his work but employer testified that a 10’ retractable line was provided and sufficient for the work. NYCHA’s expert opined plaintiff could have stayed tied with either safety line. The conflicting evidence raised questions of whether adequate safety devices were available, plaintiff knew they were available, that he was expected to use them but choose not to for no good reason, and whether he was the sole cause of the accident. Claim that foreman approved plaintiff working without tie off and that plank was unsecured unpreserved for review as facts relevant to issues not raised below. Guaman v New York City Hous. Auth.    

Labor Law §240   Labor Law §241   Scaffold   Gravity Risk   Industrial Code  

First Department
Defendants denied summary judgment on Labor Law §240(1) where 10’-15’ long scaffold pipe weighing 40-45 lbs plaintiff installed vertically on screw jack fell on his head as he walked away even though the base was on the same level as plaintiff as question remained of whether it needed to be secured for purposes of the work, height differential was not de minimus given the force it could generate, and there was no proof safety devices were unnecessary. Question of whether plaintiff told his supervisor he misplaced his hard hat and was told to work without it precluded summary judgment for defendants on Labor Law §241(6) claim based on industrial code §23-1.8(c)(1)(head protection). Melendez v Brown-United, Inc.    

Malpractice   Motion to Dismiss   Personal Juridiction   Raised For First Time  

Second Department
Lower court providently disregarded defendants’ affidavits submitted for the first time in reply to correct deficiencies in their moving papers. Pena v Geisinger Community Med. Ctr.    

Malpractice   Accepted Practice   Experts   Raised For First Time  

First Department
Hospital granted summary judgment where plaintiff’s expert’s opinion of departure for failing to refer plaintiff for physical therapy after manual manipulation procedure was raised for the first time in plaintiff’s opposition and defendants had no notice of the claim as it was not pleaded in the Complaint or BP. Vega v Kirschenbaum    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Dangerous Condition   Notice   Indemnity  

First Department
Labor Law §241(6) claim of worker who fell while carrying tank along bottom of hole, muddy from heavy rain the prior day, dismissed as area was not a passageway or walkway regularly used by workers as defined in industrial code §23-1.7(d) but an open area exposed to the elements. Labor Law §240(1) claim dismissed where plaintiff did not claim he fell from an elevated height, but defendants’ motion for summary judgment on Labor Law §200 denied where issues remained of whether they had notice of the dangerous condition. Defendants also failed to eliminate all questions of whether 1-defendant was an owner where contractor testified that defendant was the original owner.

Defendants granted summary judgment on contractual indemnity claim against plaintiff’s employer where agreement provided for indemnity arising out of employer’s work to the ‘fullest extent of the law,’ which did not violate GOL §5-322.1 prohibition against indemnity for a party’s own negligence. Alvarado v SC 142 W. 24 LLC    

Premises Liab   Sidewalk   § 7-210   Comparative Fault   Experts  

First Department
Plaintiff granted summary judgment on liability on safety-expert’s opinion .75″-1″ deep, 2.5″-4.5″ wide defect was a tripping hazard and defendant’s superintendent’s subjective opinion that it was not a tripping hazard failed to raise an issue, especially where he conceded it was at least .5″ deep which met definition for sidewalk violation under 34 RCNY §2-09(f)(5)(iv). Plaintiff denied summary judgment dismissing comparative fault defenses where superintendent’s affidavit stating area was illuminated by light he installed and streetlight on other side of street, as well as plaintiff’s companion’s testimony she saw plaintiff’s foot trip, contradicted plaintiff’s testimony it was dark. Lopez v 1675 Realty    

Premises Liab   Snow/Ice   Stairs   Storm in Progress  

First Department
Landlord granted summary judgment dismissing claim decedent fell on snow/ice on stairs that accumulated several days before accident on storm in progress based on climatological data and witness testimony it was raining, drizzling, and misting at time of the accident, there was minimal snow fall in days before the accident, and it mostly remained above freezing during that period. A tenant testified the stairs were clear and dry at 10pm the night before the accident. Alessandro v Alessandro    

MVA   There to be Seen  

Second Department
Defendants made our entitlement to summary judgment on their driver’s showing plaintiff failed to yield right-of-way when pulling out from a driveway after a car passed and defendant-driver was not negligent, but plaintiff raised an issue of fact on whether the defendant-driver failed to see what was there to be seen by offering a completely different version of how the accident happened in his affidavit. Hassan v Brauns Express, Inc.    

Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Lower court improvidently denied plaintiff’s motion to vacate dismissal after failing to appear at conference or file discovery stipulation where parties stipulated to restore the case, explanation that court notices were routed to counsel’s spam folder provided a reasonable excuse, there was no evidence of dilatory behavior, and pleadings and depositions showed a potentially meritorious action. Navarro v Joy Constr. Corp.    

False Arrest   False Imprisonment   Probable Cause   Survelliance Video   Untimely   Raised For First Time   NYC  

First Department
Witness statement regarding altercation between EMT worker and plaintiff at theater provided sufficient probable cause to grant NYC summary judgment dismissing false arrest and false imprisonment claims even if other avenues of investigation such as surveillance video were available. Plaintiff failed to identify any grounds for police to question witnesses’ credibility. Claim NYC failed to provide good cause for untimely filing of motion waived where not raised before motion court. Alam v City of New York    

(3 summaries)

MVA   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s motion to vacate default in opposing defendant’s motion for summary judgment denied as unsubstantiated, conclusory allegations of law office failure were insufficient to provide a reasonable excuse, without which the court need not look at the issue of a meritorious action. The Court does not give the details of the proofs. Codrington v Churcher    

Serious Injury   Causation  

Second Department
Defendant met burden for summary judgment with competent medical proof that plaintiff’s spinal injuries were not serious injuries and his shoulder injury was not caused by the accident but plaintiff raised an issue in opposition. The Court does not give the details of the proofs. Wilson v Cole    

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury with competent medical proof but plaintiff raised an issue in opposition. As defendants failed to show plaintiff’s injuries were not caused by the accident, the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Allen v Dolores    

About Matt McMahon

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