October 22, 2019 | Vol. 181

(5 summaries)

Med Mal   Coverage   Personal Juridiction  

Second Department
Second Department affirmed denial of medical provider defendants’ motion to permanently stay NY malpractice case, and by implication 15 other NY malpractice cases, based on SC order purporting to permanently stay all claims against Oceanaus, a risk retention group, and its “policyholders” as part of a liquidation proceeding in SC where Oceanaus is domiciled. Noting that the SC court did not have, and likely could not have personal jurisdiction over NY plaintiffs, the Second Department held that affording SC order full faith and credit would violate due process by depriving plaintiffs of opportunity to address their wrongs without being part of the process resulting in the stay. As the providers, and not the plaintiffs, chose to purchase less expensive insurance, the provider should bear the risk not the plaintiffs. SC order also not entitled to comity where its stay of all actions against policyholders violated strong public policy in NY. While both states adopted Uniform Insurers Liquidation Act under which the SC order was issued, but the NY version did not permit permanent stays of actions against policyholders. Hala v Orange Regional Med. Ctr.

Med Mal   Set Aside Verdict   Accepted Practice   Admissibility  

Second Department
Surgeon’s testimony as to his custom and practice in suturing mesh patches during hernia repairs since he had no independent recollection of surgery and operative report did not indicate how many sutures were used or where they were placed should not have been admitted. Such testimony requires proof of ‘a deliberate and repetitive practice by a person in complete control of the circumstances’ that is unvarying and proponent must show sufficient prior instances where the unvarying practice was applied. Surgeon’s testimony showed that procedure for suturing Kugel Composix mesh patch he used differed from other mesh patches he used, differed based on the circumstances including patient’s weight, and that he had only performed a couple of procedures using this patch. The error was not harmless as it went directly to issue of departure from accepted practice. Defense verdict set aside and remanded for new trial. Martin v Timmins

Personal Juridiction   Forum non conveniens  

First Department
Registering to do business in NY and designating Secretary of State for service is not consent to personal jurisdiction on causes of action unrelated to corporation’s NY activities. Where plaintiff was not NY resident and received most of the treatment which is the basis of the action in Africa, case properly dismissed on forum non conveniens. Plaintiff’s claim that several high executives in defendant’s company had personal knowledge of relevant facts was not supported by the record. Fekah v Baker Hughes Inc.

Comment: The First Department followed and adopted the Second Department’s recent holding in Aybar v Aybar reported in Vol. 177 of the New York Torts Weekly.

Products Liab   Motion to Dismiss   Personal Juridiction  

Second Department
Motion to dismiss for lack of personal jurisdiction by French manufacturer granted on proof its brakes were sold exclusively to elevator manufacturers as component parts, it did not sell directly to end customers, know who end customers were or provide them with replacement parts establishing that it could not reasonably expect its product to have consequences in NY necessary for long arm jurisdiction, and it did not have a presence in NY. Plaintiff failed to make a “sufficient start” at proving long arm jurisdiction. Grandelli v Hope St. Holdings, LLC

Products Liab   Motion to Dismiss   Personal Juridiction   Discovery   Causation  

First Department
While record was insufficient to find court had long arm jurisdiction over corporation, plaintiffs made a “sufficient start” in showing personal jurisdiction to warrant discovery on the issue. Defendant corporation did not submit sufficient proof that its product could not be responsible for plaintiff’s injury in asbestos case for its burden for summary judgment. Matter of New York City Asbestos Litig. v A.O. Smith Water Prods. Co.

(14 summaries)

Set Aside Verdict   Admissibility   Prejudice   Materially Deviates   Interest  

Second Department
Trial court providently exercised discretion in admitting piece of metal that fell from train tracks in damage only trial, which was not unduly prejudicial or introduced to arouse jurors’ emotions, as it was probative on mechanism of injury and there had been testimony regarding the fall of the metal piece. Verdict of $800,000/$1 mil for past/future pain/suffering did not materially deviate from reasonable compensation where plaintiff had complex laceration of his right arm requiring skin graft from thigh resulting in weakness in dominant hand, loss of ROM in wrist, significant and permanent scarring, 2-surgeries and 2-weeks hospitalization, 2-months lost work and limitations upon returning, and continuing pain and limitations in his daily activities at time of trial. Computation of $64,249.90 interest incorrect as correct interest against NYCTA was 3% not 9%. Case remanded for correct computation of interest. Rojas v New York City Tr. Auth.

Med Mal   Accepted Practice   Causation   Admissibility   Expert Aff  

First Department
Administratrix’ statement that defendant doctor did not order CT of groin for observed melanoma, and did not follow-up to make certain CT was performed, insufficient to raise issue of fact in opposition to defendants’ record showing it was ordered and follow-up performed 2-days later because administratrix did not have personal knowledge of the conversation between decedent and the physician. Plaintiff’s expert’s opinions did not raise issues of fact where they were not supported by the record and expert could not identify the basis of a seemingly arbitrary rule relied on. Miller v Ford

Labor Law §240   Labor Law §200   Premature Motion  

First Department
Plaintiffs met burden of showing that information exclusively within the control of defendants was necessary to oppose motion for summary judgment on labor Law §§200 and 241(6) where no depositions were taken or documents, including documents regarding the repair, maintenance, and installation of the mesh walkway plaintiff fell on, were ever exchanged. Lyons v New York City Economic Dev. Corp.

Bus   Stairs   Directed Verdict   Set Aside Verdict   Create Condition   Notice   Pain/Suffering   Materially Deviates  

Second Department
NYCTA motion for directed verdict at end of liability case denied where there was rational path for jury to find 75%/25% defendant/plaintiff liability based on plaintiff’s testimony that her heel got caught in hole in bus step as she was exiting, causing her to fall forward, and that she saw the hole after she fell. Evidence that maintenance logs were missing for 10-days before accident was sufficient for jury to find notice. $2,000,000 past pain/suffering, $491,000/$480,000 past/future loss of earnings, did not materially deviate from reasonable compensation but $120,000 of future medical expense was against the weight of evidence and reduced to $59,577. Barrett v New York City Tr. Auth.

Premises Liab   Res Ipsa Loquitor  

First Department
Both sides denied summary judgment where door armature fell and hit plaintiff as she was leaving building where question of fact remained on whether defendant had exclusive control over armature for res ipsa loquitor. Plaintiff showed it was the type of accident that does not happen absent negligence and that it was not due to any of her fault. Jeanty v New York City Hous. Auth.

Motion to Dismiss   90 Day Notice   Reasonable Excuse   Meritorious Action  

Second Department
Lower court may but is not required to dismiss action for unreasonable neglect to proceed. Plaintiff showed reasonable excuse and potentially meritorious action warranting denial of the defendant’ motion to dismiss for failure to prosecute. Cayan v Schierwagen

MVA   Vicarious Liab   Coverage   Admissibility   Hearsay  

First Department
Carrier’s motion for summary judgment denying coverage based on proof that car was stolen at time of accident granted based on car owner’s testimony, the fact that he immediately reported it stolen to police, and that driver was arrested and prosecuted. Notarized statements of witnesses claiming that driver had previously been allowed to use car inadmissible because there was no jurat or other language that statement was true under penalties of perjury. Other hearsay statements properly excluded. American Country Ins. Co. v Umude

Premises Liab   Out of Possession   Control  

First Department
Out of possession owner granted summary judgment where plaintiff was injured when top loader tipped over because of uneven floor. Under lease owner had no obligation to maintain area even where it had a right to reenter and plaintiff failed to show that condition was significant structural defect violating statutory provision. Kopetic v Port Auth. of N.Y. & N.J.

Negligent Supervision   Foreseeability   Causation  

Second Department
Town camp that went on field trip to skating rink and skating rink granted summary judgment where infant-plaintiff fell while roller skating on proof that town camp provided adequate supervision and that its alleged negligence was not a proximate cause of injury because incident happened so fast that no degree of supervision could prevent it. Skating rink proved its alleged negligent supervision was not the cause of the infant-plaintiff’s injuries. Gonzalez v South Huntington Union Free Sch. Dist.

Premises Liab   Slip/Trip   Wet Floor   Dangerous Condition   Create Condition   Notice   Expert Aff  

Second Department
Plaintiff raised issue of fact in opposition to defendant’s prima facie showing that painted white lines in parking lot plaintiff slipped on were not dangerous with expert’s affidavit showing they were not slippery when dry but became slippery when wet, that sand would normally be added to painted coverings in areas that could become wet to make them non-slippery when wet, and that other areas of parking lot were painted with coverings that were not slippery when wet. Defendant failed to show it did not create the condition or have notice of it. Rojecki v Genting N.Y., LLC

Premises Liab   Slip/Trip   Wet Floor   Notice   Last Inspection   Unknown Cause  

Second Department
Residential facility denied summary judgment where tenant slipped and fell on wet floor where assistant director of operations testified to only general cleaning principles not last time area was cleaned or inspected necessary to show lack of constructive notice. Plaintiff’s testimony that she did not see anything on floor before she fell but her pants were wet after sufficiently identified cause of fall without speculation and her affidavit elaborating that from degree of wetness of pants she deduced that she slipped on ‘an appreciable sum of liquid on the floor’ would in any event raise an issue of fact. Steele v Samaritan Found., Inc.

Serious Injury   ROM   Expert Aff  

Second Department
Plaintiff failed to raise issue of fact in opposition to defendants’ prima facie showing of entitlement to summary judgment on serious injury where chiropractor report was unsworn and affirmed reports of treating physicians did not state what objective test was used to measure ROM. Bulging discs in and of themselves do not make out serious injury absent objective proof of physical limitation. Saunders v Mian

MVA   Rear End   Causation   Sole Cause  

Second Department
Driver and owner of vehicle that stopped in left lane, and put on hazard lights, to assist disabled motorist granted summary judgment where plaintiff safely pulled up behind stopped vehicle and was stopped for 2-minutes before he put on his right blinker to change lanes and was struck in the rear by a third vehicle. Since plaintiff was able to stop his car safely behind first defendants’ vehicle, they could not be a cause of plaintiff’s injuries and vehicle that struck plaintiff from behind was sole proximate cause. Kante v Tong Fei Chen

MVA   Pedestrian   Premature Motion  

Second Department
Pedestrian granted summary judgment on his affidavit that he was crossing street in crosswalk with light when defendant failed to yield right of way and struck him. Motion was not premature as defendant failed to show what evidence within the exclusive possession of the plaintiff was necessary to oppose the motion. Gaston v Vertsberger

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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