October 17, 2017 | Vol. 76

(3 summaries)



In a case where plaintiff did not give DSS an opportunity to participate in settlement negotiations and settled the case of a 16-year-old paralyzed when shot by an intruder in his apartment complex without DSS’ knowledge or consent the court denied plaintiffs’ motion to expunge or reduce DSS’s lien for $250,070 paid over 9 years. The court rejected plaintiffs’ argument that the $4,350,000 settlement was not the full value of the case given plaintiffs’ concession that building security cases are difficult to prove and rejected plaintiffs’ counsel’s unsupported claim that no part of the settlement was intended to cover medical expenses. Plaintiffs waived a hearing scheduled by the lower court and based on the submitted papers, the lower court found that the lien which represented 5.79% of the total settlement was in line with an Ahlborn analysis given plaintiffs’ claims for medical expenses in the pleadings, their waiver of the hearing, and their lack of proof showing that the settlement was not intended to cover medical expenses. D.J. v 636 Holding Corp.

Premises Liab   Sidewalk   § 7-210  


Company that owned several units within a condominium and a commercial tenant within the condominium granted summary judgment against the condominium association as they were not owners under administrative code §7-210. Argument that motion should not have been entertained because moving defendants did not attach condominium documents rejected because CPLR §2214(c) allows a party to refer to documents previously e-filed and available to the court absent a specific local rule to the contrary. There was no proof that the commercial tenant’s employees who shoveled the sidewalk created the dangerous condition and its use of the sidewalk for deliveries did not constitute a special use. Keech v 30 E. 85th St. Co., LLC

Comment: CPLR §2214(c) provides in part: ” Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers on a motion need not include copies of papers that were filed previously electronically with the court, but may refer to them, giving the docket numbers on the e-filing system.” Before relying on this provision, check the local rules and make sure that any reference to previous documents is properly cited with the e-file docket numbers and that any documents referenced are included in a record on appeal.

MVA   CPLR § 3126   Preclusion   Willful/Contumacious  

Second Deptartment

Plaintiff’s motion to preclude defendants from using postaccident photographs and the transcript of plaintiff’s statement to defendant’s claims investigator not exchanged within the time set forth in the preliminary conference order and not until after depositions denied where plaintiff could not show that the delay in disclosure was willful/contumacious such as by repeated failure to comply with orders. The penalty to be imposed for violation of discovery orders lies within the sound discretion of the lower court. Candela v Kantor

(12 summaries)

Med Mal   Duty   Accepted Practice   Conclusory  

Court of Appeals

Cardiologists’ motion for summary judgment, denied by trial court and granted by Second Department on finding that plaintiffs’ expert’s affirmation was conclusory, denied by the Court of Appeals which found questions of fact. Primary care physicians’ motion for summary judgment, denied by trial court and granted by Second Department on finding that the duty of the primary care physicians did not extend to the issues of continuing Plavix after stents affirmed. Burns v Goyal

Med Mal   Accepted Practice   Causation   Expert Aff  


Moving doctor who performed an endoscopic retrograde cholangiopancreatography (ERCP) to check for and possibly repair bile duct leakage following gallbladder removal met his initial burden of entitlement to summary judgment by affirmations of 2 experts opining that the doctor did not depart from accepted practice and any leakage existed prior to the ERCP and could not be the cause of plaintiff’s injuries. Plaintiff raised an issue of fact by her expert’s opinion that defendant departed from accepted practice by performing excessive manipulation given plaintiff’s known history of inflammation and an unhealthy bile duct and that the manipulation exacerbated plaintiff’s condition. Codefendant’s testimony that moving defendant told him that he (moving defendant) had perforated the bile duct also raised an issue of fact. Cadichon v Facelle

Amend Complaint   Wrongful Death   Meritorious Action   Statute of Limitations  

Second Deptartment

Plaintiff’s motion to amend the complaint to include a wrongful death cause of action based on the decedent’s overuse of pain medication for injuries sustained from falling off a ladder during a renovation project granted as defendant failed to show that the claim was palpably insufficient or devoid of merit. In seeking to amend complaint, a plaintiff does not need to put forth evidence of a meritorious action. The wrongful death claim was not barred by the statute of limitations as it fell under the relation back doctrine. Assevero v Hamilton & Church Props., LLC

Premises Liab   Labor Law §200   Res Ipsa Loquitor   Sole Cause   Expert Aff  


Defendants’ motion for summary judgment on ground that plaintiff who was injured while working on electrical equipment that had not been deenergized failed to perform a voltage test rendering him the sole proximate cause of his injury denied. Defendant met its initial burden but plaintiffs’ expert raised an issue of fact by his opinion that potential transformers which may have been the source of the voltage were not on electrical prints and drawings provided which would render that the voltage test inconclusive without knowing where the transformers were located. Pappas v AT&T Inc.

Med Mal   Statute of Limitations  

Second Deptartment

Defendants’ motion to dismiss based on statute of limitations denied without prejudice to renew after completion of discovery. Defendant met its burden of showing that the action was commenced 5 days after statute of limitation based on the last date of treatment but plaintiff raised an issue of fact that last date of treatment was 8 days after date claimed by defendants which would make action timely. Franqui v Korol

Prior Written Notice   Dangerous Condition   Special Duty   Speculation   NYC  


NYC granted summary judgment on proof that it did not have prior written notice of depressed metal plate in roadway and plaintiff’s claim that repaving work done by NYC 3 years before accident created an immediate dangerous condition was mere speculation. Flynn v City of New York

Reargument   Irregularity  


Plaintiff’s motion to reargue, and upon reargument denial of defendant’s motion for summary judgment, granted as the plaintiff’s affidavit of merit raised both factual and credibility issues. Fact that affidavit was acknowledged by a vice consul in the US Embassy in Paris and submitted without an affidavit of conformity was a mere irregularity that could be corrected nunc pro tunc. Donsimoni v Fall

Comment: This scenario is now governed by CPLR R 2106(b) which allows someone physically outside of the US to affirm under the penalties of perjury, similar to an attorney affirmation or a declaration in federal court, without a notary. The statute gives the language to be used in the affirmation.

Premises Liab   Slip/Trip   Wet Floor   Out of Possession  


Building owner’s motion for summary judgment granted where lease provisions showed that owner was and out of possession landlord not obligated to repair or maintain the area where the plaintiff slipped and fell on a wet floor. Figueroa v Skillman Realty Co.

MVA   Vacate Default   Reasonable Excuse  

Second Deptartment

Plaintiff’s motion to vacate her default in opposing defendants’ motions for summary judgment on serious injury denied where plaintiff’s proffered excuse, that she was unable to obtain her no-fault records until after the return date, did not explain why she did not oppose motion with her neurologist’s affirmed report which was not part of no-fault records she was unable to obtain. Desuze v Johnson

Venue   Renew   Sanctions   Prejudice  


Plaintiff’s motion to renew opposition to defendant’s motion to change venue from Bronx to Suffolk County providently granted and motion denied where plaintiff’s original opposition was not considered for failure to comply with the court’s rules, defendants were not prejudiced by the renewal where the court assessed appropriate sanctions for defendant’s inconvenience, and defendant failed to show the inconvenience of any material witnesses from maintaining venue in the Bronx were plaintiff resided. Narvaez v Sammartino

MVA   Serious Injury   Renew   Reasonable Excuse  

Second Deptartment

Plaintiff’s motion to renew his opposition to the defendants’ motions for summary judgment on serious injury denied where affirmations of physicians and affidavit of plaintiff was submitted for the first time on the motion to renew and plaintiff failed to give a reasonable explanation for the failure to provide them on the original motion. Byun Sik Chu v Kerrigan

Statute of Limitations   Amend Complaint  

Second Deptartment

Plaintiff’s claims of official misconduct in the way her complaints were handled by police officials dismissed as time-barred. Plaintiff’s motion to amend the complaint to include complaints of official misconduct for her second attempt to file complaints, while not time-barred, were devoid of merit as they failed to state a cause of action and motion was providently denied. Patrella v County of Suffolk

(1 summaries)

Serious Injury  

Second Deptartment

Defendants met their burden of showing that plaintiff did not sustain a serious injury to his knee but plaintiff raised a question of fact in opposition. The court does not give the details of the proofs. Hamdan v Taggart

About Matt McMahon

Civil trials and appeals since 1984
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