October 24, 2017 | Vol. 77

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Set Aside Verdict   Frye   Motion in Limine   CPLR § 3101(d)   Preclusion  

Second Deptartment

Defense verdict finding that accident was not the cause of plaintiff’s knee injuries set aside as motion in limine to preclude defendants’ biomechanical/surgeon expert, Dr. Alfred Bowles’ testimony that the force of the impact could not have caused the plaintiff’s knees to hit the steering wheel or dashboard, should have been granted. The 3101(d) did not contain any information regarding the methods used by the expert or anything showing that it was based on generally accepted scientific principles, other than speculation. Statement in affirmation in opposition to motion in limine that the doctor’s opinions would be based on articles in the fields of biomechanical engineering and medicine was insufficient to meet the proponents’ burden under Frye as it did not contain the names of the articles, the authors, or any citations. Dovberg v Laubach


Labor Law §240   Labor Law §241   Workers Comp Defense  

First

Labor Law §§ 240(1) and 241(6) claims dismissed and company that was part of joint venture with plaintiff’s employer granted summary judgment as plaintiff’s only remedy against joint venture members was worker compensation. Cortes v Skanska USA Civ. Northeast, Inc.


Statute of Limitations   Set Aside Verdict   Pain/Suffering  

First

Trial court properly set aside damage portion of verdict sua sponte where a hi/lo agreement had provided a formula between $200,000 and $1,000,000 waiving post trial motions and jury awarded $0 for past pain/suffering, past medical expenses, and future pain/suffering but $70,000 for future medical expenses. A hi/lo agreement is predicated on a proper verdict, and the jury verdict was inconsistent. Flores v 731 S. Blvd. LLC


Set Aside Verdict   Preclusion   Pain/Suffering   Meritorious Defense  

Second Deptartment

Damage verdict, after court granted judgment as a matter of law on liability, awarding $80,000 past pain/suffering and nothing for future pain-and-suffering or medical treatment after trial court precluded plaintiff’s expert orthopedic surgeon who only saw plaintiff on one occasion, and not for treatment, from giving testimony regarding prognosis, future medical costs and future pain and suffering set aside and case remanded for new trial on damages. Statements about symptoms from the plaintiff to a non-treating expert doctor are not admissible but this does not preclude the doctor from giving a medical opinion on prognosis, future medical care, and future pain and suffering. $80,000 for past pain and suffering did not materially deviate from reasonable compensation. Knight v Barsch

NOTEWORTHY
(10 summaries)
MUST READS IF YOU MUST READ

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

Second Deptartment

Company contracted to supervise the installation of art show granted summary judgment on Labor Law §§240(1) and §241(6) claims on proof that failure of the device that plaintiff claimed was covered under §240 was intended to hold the art for display after it was installed and not as a safety device for installation and that none of the industrial code provisions relied upon by the plaintiff were applicable to the accident. Summary judgment on Labor Law §200 and negligence claims denied where defendant failed to show that it did not create a dangerous condition or have notice of same. Honeyman v Curiosity Works, Inc.


FELA   Workers Comp Defense  

First

Railroad employer granted summary judgment on negligence claim but denied summary judgment on FELA as a question of fact remained as to whether railroad’s continuance of plaintiff’s employment despite his known disability was connected to its status as an interstate railroad common carrier. FELA pre-empts state law. Foster v Port Auth. of N.Y. & N.J.


Med Mal   Informed Consent   Motion to Dismiss   Punitive Damages  

Second Deptartment

Lack of informed consent claims dismissed under CPLR 3211(7) where doctors did not commit an ‘unconsented-to affirmative violation of the plaintiff’s physical integrity,’ in failing to treat injuries sustained by plaintiff’s ward during a boxing match, which is one of the necessary elements for lack of informed consent. Punitive damage claims also dismissed where Complaint alleged mere negligence. Thomas v Farrago


Med Mal   Accepted Practice   Causation   Amend BP  

Second Deptartment

Summary judgment denied for doctors who failed to meet their initial burden of showing that they did not depart from accepted medical practice where plaintiff’s common bile duct was transected during a gallbladder removal surgery, or that the departures were not the proximate cause of the plaintiff’s damages. Plaintiff’s cross motion to amend BP to add additional dates of treatment should have been granted even though Note of Issue had been filed as it did not allege new facts or theories, plaintiff made a showing of merit and lack of prejudice to the defendants. Ortiz v Chendrasekhar


Premises Liab   § 7-210  

First

Homeowner whose main residence was in Israel and who maintained her driver’s license issued at her address in New Hampshire was not entitled to the 1-3 family exception under Administrative Code §7-210 as she failed to show that she regularly occupies the NY property. Plaintiff abandoned her appeal against this homeowner so only Cross Claim and not Complaint were reinstated. Kalajian v 320 E. 50th St. Realty Co.


Premises Liab   Out of Possession  

First

Out of possession landlord granted summary judgment on proof that applicable lease did not obligate landlord to repair or maintain property. Landlord’s senior property representative rebutted plaintiff’s claim that lease had expired before accident and defendant subsequently submitted the restated lease showing that the obligation did not change. Guilbe v Port Auth. of N.Y. & N.J.


Labor Law §240  

First

Plaintiff made out entitlement under Labor Law §240(1) on his claim that he fell from a defective, unsecured ladder provided by his employer, but defendant’s assistant foreman raised an issue of fact in his affidavit that he had not provided the ladder to the plaintiff, plaintiff had not complained about the ladder, and that plaintiff was working from the ground all day. Medrano v Port Auth. of N.Y. & N.J.


Graves Amendment   Motion in Limine  

Second Deptartment

Vehicle lessor denied motion to dismiss under CPLR 3211(7) where it failed to show that there was no significant dispute as to the plaintiff’s allegations in the complaint of negligent maintenance of the vehicle, which is an exception under the Greaves amendment. Nelson v Citiwide Auto Leasing, Inc.


Strike Note of Issue   Discovery  

First

Plaintiff’s motion to vacate his Note of Issue granted based on a material misstatement in the Certificate of Readiness by plaintiff’s former counsel that discovery was complete, and defendant was ordered to comply with outstanding discovery. Matos v City of New York


MVA   Sole Cause   Comparative Fault   CPLR § 3126   IME/DME   Serious Injury  

Second Deptartment

Defendants granted summary judgment against one plaintiff under CPLR 3126 for failure to appear for deposition and IME/DME but denied as to another plaintiff where defendants showed that plaintiff failed to yield the right of way but did not meet their burden of showing that defendant was not comparatively at fault. A driver with the right of way must still proceed with caution. Summary judgment granted against third plaintiff on serious injury where defendants met burden of proof by competent medical proof and plaintiff failed to raise a question of fact in opposition. Romero v Brathwaite

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

One defendant met its initial burden of showing the plaintiff did not sustain serious injury to her shoulder neck or back by competent medical evidence, but plaintiff raise a triable issue in opposition. NYCTA failed to meet its initial burden as it did not provide competent medical proof that the claimed injuries did not meet the serious injury threshold. The court does not give the details of the proofs. Barnes v New York City Tr. Auth.

About Matt McMahon

Civil trials and appeals since 1984
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