| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Petitions to quash out-of-state subpoena seeking identities of subjects of 2-scholoary articles involving talcum-powder/mesothelioma link denied where information was relevant to testimony of 3-experts who rely on the articles and one author who was going to testify but withdrew.The identities of the subjects were not protected by HIPAA as the subjects were not the authors’ patients and did not provide medical care to them, nor by the federal Common Rule protection for human subjects which exempts secondary research on publicly available identifiable private information and there was no proof the information was provided during litigation subject to a protective order, and the release of the information was not unduly burdensome nor likely to have a chilling effect on medical research where it was only a few pages, easily accessible, did not reveal the researchers’ unpublished thought processes and was gathered from information publicly released in unrelated litigation without the subjects agreeing to participate in research. Matter of Johnson & Johnson v Northwell Health Inc. ✉ |
 Regional health care system’s motion to dismiss plaintiff’s claims of unauthorized disclosure of his information to Healthix, the largest computer network for medical records, denied under CPLR §4504(a) as the defendant is a qualified entity participant under 10 NYCRR §300.1(a)(Statewide Health Information Network) which may disclose necessary patient information to another qualified entity participant without the patient’s written authorization, under HIPAA as the defendant was a covered entity under HIPAA and Healthix was its business associate, and under Public Health Law §2803-c which only applies to residential health care facilities. Negligence claim dismissed as Healthix consent form plaintiff signed, checking box denying consent for Healthix to disclose information to defendant even for emergency purposes, did not specifically deny consent for defendant to provide information to Healthix. Klein v Catholic Health Sys. of Long Is., Inc. ✉ |
| NYC defendants denied summary judgment dismissing plaintiff-pedestrian’s claim for injuries when struck by a vehicle due to a defectively designed intersection. They failed to meet burden for qualified immunity which “will not shield a municipality from liability if its study of a traffic condition is plainly inadequate, there is no reasonable basis for its traffic plan, or it fails to conduct a study at all” without proof that once they became aware of the dangerous condition they undertook an adequate study, that not following the recommendation of their experts to realign the crosswalk was a “deliberative decision-making process that entertained and passed on that issue,” that there was a reasonable basis for their decision, or that “they continued to effectively review their plan in light of its actual operation.” They also failed to show the intersection was reasonably safe and not a cause of plaintiff’s accident. Tiannuan Chen v Jones ✉ |
| School district and junior high school failed to meet burden for summary judgment dismissing plaintiff’s Child Victims Act claims for sexual abuse by 2-teachers between 1972-1973. Plaintiff’s testimony that music teacher sexually abused her weekly during the school year, submitted by defendants, left questions of whether they should have known of his propensity for abuse from its frequency on her negligent hiring and retention claims and whether they failed to provide sufficient supervision of the teacher. Questions remained of whether they provided adequate supervision of the English teacher whose alleged single-episode of sexual abuse occurred at a motel where their submissions showed the music teacher introduced plaintiff to the English teacher on school grounds, describing her as his “friend” and a “good girl,” and the English teacher made arrangements to meet her at the motel on school grounds and during school hours. “[T]he school’s duty continues and is breached if the student is released ‘without further supervision into a foreseeably hazardous setting it had a hand in creating.'” Supreme Court improperly used federal summary judgment standard, shifting burden of proof to the plaintiff. C. M. v West Babylon Union Free Sch. Dist. ✉ |
| NOTEWORTHY (21 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff entitled to negative inference charge at trial but not striking of defendant’s Answer where defendant’s employee preserved portion of surveillance video showing plaintiff’s fall, meeting criteria in plaintiff-attorney’s demand letter, but no pre-fall footage as the destruction of the evidence compromised fairness where that employee was no longer employed by defendant or available for EBT to explain why he did not preserve the pre-fall footage. Lev v Eataly USA LLC ✉ |
| Lower court striking plaintiff’s Complaint for failure to provide a BP and discovery, properly deemed willful/contumacious where not provided within 4-months past deadlines in 2-court orders without a reasonable explanation, was too drastic a sanction under the circumstances and modified to a $2,500 sanction against plaintiff’s attorney. Mirabile v Kuwayama ✉ |
| Claimant’s cross-motion to deem his Notice of Intention to Claim (NOI), served within 90-days of being stabbed in his eye by another inmate at a correctional facility, as a Claim granted as Court of Claims Act §10(8)(a) provides that a timely served NOI may be considered a Claim if it meets the pleading requirements of §11(b) and the NOI met those requirements including the nature of the claim and acts of negligence. Johnson v State of New York ✉ |
| Psychiatrist’s post-Answer motion to dismiss on statute of limitations, converted to a motion for summary judgment, granted dismissing malpractice action on proof the action was commenced 3-years after the 2.5-year statute of limitations. Pro se plaintiff not entitled to collateral estoppel barring limitation defense where malpractice allegations that psychiatrist knowingly misdiagnosed him and prescribed debilitating, unnecessary medication which prevented him from bringing a timely lawsuit, and told him his mother’s understanding of the cause of his mental condition was wrong in order to delay his suit as collateral estoppel “may not be based on the same misrepresentation or act of concealment which forms the basis of plaintiff’s underlying substantive cause of action.” Plaintiff failed to show he did not medically need the medications, that they prevented him from understanding his claims, that he was insane for the insanity toll. Same result for hospital and plaintiff’s motion to renew opposition to hospital’s motion denied where the new evidence submitted was available at the time of the original motion. Borek v Seidman ✉ |
| Gym denied summary judgment dismissing member’s negligence clam that he was sexually assaulted by another member when that member exposed himself and masturbated in front him while physically stopping plaintiff from leaving the steam room where 3-prior complaints of sexual harassment, including one weeks before plaintiff’s incident, left questions of whether the conduct was foreseeable. Prior complaints did not have to involve the same assailant or the exact same conduct to make the conduct foreseeable. Gym failed to show it implemented its security training and practices, including its zero tolerance policy that would expel members which was only to be enforced if witnessed by an employee, leaving questions of inadequate security measures. Negligent hiring, retention, supervision dismissed as was respondeat superior. Crandall v Equinox Holdings, Inc. ✉ |
| Laborer granted summary judgment against building owner on Labor Law §240(1) where ropes provided to lift a heavy stone were an inadequate safety device, owner’s claim accident was caused by coworker’s negligence rejected ‘as people are not safety devices within the meaning of Labor Law § 240 (1)’ and it was not a superseding cause, and fact that plaintiff did not fall and was not struck by the stone did not take it out of §240. Owner granted summary judgment on contractual indemnity against employer where agreement covered injuries during course of employment, owner showed it was not negligent, and employer failed to show owner controlled plaintiff’s work. Sandoval v 201 W. 16 Owners Corp. ✉ Comment: From the lower court order the coworker let go of his rope as they were lifting a façade stone to a sidewalk bridge pulling plaintiff who was still holding his rope into the bridge’s wooden barrier. |
| School district granted summary judgment dismissing plaintiff’s claim for sexual abuse by a teacher between 1974-1976 that occurred off school premises and outside school hours. “Although a school cannot be held liable for injuries that occur off school property and beyond the orbit of its authority, the school’s duty continues and is breached if the student is released without further supervision into a foreseeably hazardous setting it had a hand in creating,” the district had no notice of the teacher’s propensity for sexual abuse and plaintiff testified the only she told about it who was not defendant’s employee. T. S. v Wappingers Cent. Sch. Dist. ✉ |
| Ophthalmologist, hospital, internist, and cardiologist granted summary judgment on experts’ opinions of no departures from accepted practice or causation in clearing decedent for separate cataract surgeries after the internist discovered he was in Afib, referred him to a cardiologist who prescribed metoprolol and aspirin but not another anticoagulant because it was contraindicated due to decedent’s alcohol abuse. Plaintiff’s experts failed to raise issues by not addressing defendants’ experts’ specific assertions that stroke was not a risk of cataract surgery and aspirin was appropriate for the patient. Plaintiff’s experts also failed to address the specific opinions of the defense experts on informed consent. Plaintiff not entitled to Noseworthy doctrine without showing what factual testimony the decedent could have given on the malpractice issue. Mattocks v Ellant ✉ |
| Plaintiff’s expert raised issues in opposition by his opinions that rebutted HHC’s expert’s opinions of no departure from accepted practice or causation by pointing to specific spinal physiology in the CT scan and explaining the mechanism of injury, development of neurological deficits during the admission, and waiting 2-days to perform surgery, causing a loss of improvement and diminishing plaintiff’s chance of a better recovery. Mascia v Pinar ✉ |
| GC failed to meet burden for summary judgment dismissing apprentice-painter’s Labor Law §200 claim when she was struck by a falling electrovalve at a construction site where questions remained on whether it supervised the means and methods of a subcontractor’s worker who claimed he left the valve on top of the ladder in the closet where the plaintiff was working when the GC called him away and on notice of a dangerous condition where plaintiff testified the valve fell through missing ceiling tiles. GC failed to meet burden on Labor Law §241(6) based on §23-1.8 (c)(1)(hard hats) as plaintiff did not have to show area was normally exposed to falling objects only that it was a hard had job and failure to wear a hard hat was a cause of her injury and questions remained on whether she was provided with and instructed to use a hard hat and whether danger of falling objects at the site remained. GC denied summary on contractual indemnity and common law indemnity and contribution against subcontractors where contracts had negligence triggers and questions remained on negligence of subcontractors and GC. Building owner’s motion for summary judgment , incorrectly labeled a cross-motion where it requested no relief against the GC-movant, filed 2-months beyond 60-day limit for summary judgment motions in the PC denied as untimely and owner failed to show good cause for the delay. Sandoval-Morales v 164-20 N. Blvd., LLC ✉ |
| Building manager granted summary judgment dismissing superintendent’s claim for injuries while trying to gain access to an apartment in the building as barred by the workers comp exclusivity clause on proof plaintiff received all instructions from the defendant’s employee, both the plaintiff and building manager considered the manager to be plaintiff’s boss, and the defendant had the right to fire plaintiff, establishing sufficient supervision and control to make plaintiff defendant’s special employee. Payano v Proto Prop. Servs. LLC ✉ |
| Village granted summary judgment dismissing plaintiff’s Child Victims Act claim for sexual abuse by village employee, director of teen center where plaintiff met the director’s younger brother and was abused by the director during a sleepover with the younger brother, on proof it had no notice of the director’s propensity for sexual abuse before or during his employment and the incident took place at the director’s home after its duty to plaintiff ended when he left the center. MCVAWCC-Doe v Town of Cortlandt ✉ |
| Hospital failed to meet its burden of showing the action was commenced beyond the statute of limitation as calculated by the dates alleged in the Amended Complaint and plaintiff’s testimony that she was injected from an insulin pen during her admission that may have had a reused reservoir, submitted by hospital on its motion for summary judgment, failed to eliminate all issues of fact. Lee v South Nassau Communities Hosp. ✉ |
| Defendant-mother who loaned a defective ladder to homeowner where mother was hosting a party granted summary judgment dismissing her son’s claim for fall from the ladder as he was hanging decorations for the party as the loan of the ladder was a gratuitous bailment where loaned for no-cost and any benefit to her was purely personal. Her only duty was to warn of defects she was aware of that were not ‘readily discernible’ and extended only to the bailee as it does not extend to all foreseeable users. Mother established 20” crack in one of the legs and missing rubber feet were apparent and present when she loaned the ladder. Pleskun v Rogova ✉ |
| Lower court providently entertained defendant’s cross motion for summary judgment on serious injury where parties agreed to hold IME/DME after Notice of Issue and defendant cross-moved immediately after receiving the report but defendant failed to submit competent medical evidence that plaintiff’s did not sustain a serious injury to her hip and failed to address her claims that her preexisting hip condition was exacerbated by the accident. Plaintiff’s motion for summary judgment on liability remanded for decision. Jones-Parrish v Ranieri ✉ |
| Abutting landowner failed to meet burden for summary judgment dismissing plaintiff’s trip and fall claim on metal protruding from sidewalk without showing prima facie that plaintiff tripped on a NYC parking signpost for which it would have no duty under administrative code §7-210. Minqing Jin v Cheung ✉ |
| Plaintiff failed to meet burden of showing defendant negligently failed to cover pothole at excavation site with metal plate where foreman’s statement and photographs from 3-days after the accident left questions of fact. Defendant failed to meet burden for summary judgment where photos showed pothole partially covered by the plate and expert and foreman posited possible causes but did not opine they caused the condition. Res ipsa loquitor not applicable as defendant was not in exclusive control of the area after its work was completed. Sagoe v Danella Constr. of NY, Inc. ✉ |
| Driver and passenger granted summary judgment and dismissal of comparative fault and other affirmative defenses on their affidavits that their vehicle was travelling at a constant 35mph for at least 1-minute before being rear-ended by defendants’ vehicle. Defendant-driver’s statement in police report that his brakes failed was self-serving and inadmissible and failed to show a nonnegligent explanation for the rear-end hit. Motion not premature where defendants had knowledge of the facts. Barr v Canales ✉ |
| Plaintiff failed to meet burden for summary judgment and dismissal of comparative fault defense where his affidavit and certified police report left questions of whether plaintiff’s vehicle was so close as to create an immediate hazard as defendant made a left-hand turn into a parking lot and whether plaintiff was comparatively at fault. Binyaminov v Satterlee ✉ |
| Owner and driver of van granted summary judgment dismissing plaintiff’s claim against them and cross-claims of taxi driver and owner on drivers’ affidavits establishing the taxi entered the intersection through a red light and struck the van making it the taxi the sole cause of the accident. Graves v Scott ✉ |
| Plaintiffs’ expert’s opinions that defendant-drive was negligent in not paying proper attention to road condition or taking actions to avoid the accident raised issues in opposition to defendants’ motion for summary judgment. The Court does not give the details of the proofs. Qureshi v Gleason ✉ |
| IF YOU MUST READ (4 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Plaintiff’s motion to set aside jury verdict finding defendant not negligent for plaintiff’s e-bike coming in contact with defendant’s vehicle as against the weight of the evidence denied as the jury could reasonably credit the defendant’s version and discredit the plaintiff’s version of the accident. The Court does not give the details of the proofs. Pen v Wheels, Inc. ✉ |
| Building owners granted summary judgment dismissing plaintiff-tenant’s exposure to toxic mold claim on proof they did not create or have notice of the condition. Plaintiff failed to raise an issue without an affidavit or other evidence or to show the motion was premature. The Court does not give the details of the proofs. Fieldman v Bambi Assoc., Inc. ✉ |
| Carrier’s grant of permanent stay of SUM arbitration without a hearing upheld where it met its burden of proof and did not need to rely on additional information raised for the first time in its reply. Matter of Old Republic Ins. Co. v Scott ✉ |
| Plaintiffs raised issues in opposition to defendants’ prima facie proof of no serious injury for injured-plaintiff’s spinal and knee injury. The Court does not give the details of the proofs. Defendants’ electronically signed medical reports were admissible. Aziz v Friendly Tr., Inc. ✉ |