September 17, 2019 | Vol. 176


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ

Labor Law §240   Labor Law §241   Labor Law §200   Set Aside Verdict   Bifurcation  

Second Department
In a major pronouncement, the Second Department clarified that “bifurcation of the trial of personal injury cases is not absolutely required in the Second Department, and trial courts should use their discretion in determining, in accordance with the statewide rule, whether bifurcation will assist in clarifying or simplifying the issues and in achieving a fair and more expeditious resolution of the action (see 22 NYCRR 202.42[a]),” reviewing the history of the Second Department’s pre 1986 rule and the statewide 1986 rule in 22 NYCRR §202.42(a). Noting that under any standard there should have been a unified trial but the lower court felt constrained to not allow a unified trial based on precedent stating that unification is only permitted where liability and damages are inextricably intertwined, the Second Department stated that this rule is no longer applicable. Castro v Malia Realty, LLC


Med Mal   Set Aside Verdict   Hearsay   Admissibility   Dead Man Statute   Admission  

Second Department
Verdict in favor of hospital and ED doctor who discharged plaintiff’s decedent with pneumonia and claimed that decedent refused hospitalization AMA set aside based on improper admission of statements in records of subsequent hospital without proper foundation, and testimony of doctors in violation of Dead Man’s Statute. Defendants failed to lay a business record foundation for subsequent hospital records under CPLR 4518(a) or (c) even though they were germane to care and treatment. Statement in record that primary care physician stated decedent signed AMA form at initial hospital was not admission of decedent, no AMA form was signed, and Plaintiff’s expert did not open the door to this statement. Subsequent hospital’s resident’s entry that decedent signed AMA form inadmissible where not attributable to decedent. Testimony of subsequent hospital’s doctors’ conversations with decedent barred by CPLR §4519 (Dead Man’s Statute) as they were defendants at the time and offered the testimony against the estate. The estate did not waive CPLR §4519 by taking the doctors’ depositions and other hearsay exceptions do not overcome inadmissibility under Dead Man’s Statute. Grechko v Maimonides Med. Ctr.


Governmental Function   Special Duty  

Second Department
Port Authority granted summary judgment where pregnant plane passenger experienced spotting on landing, was placed in Port Authority ambulance which broke down, and she suffered a placental abruption during the delay causing the baby to be born with severe disabilities. EMT service is a governmental function and municipality cannot be liable unless it assumes a “special duty” which requires 1) assumption of a duty through specific promises, 2) knowledge that inaction could lead to harm, 3) direct contact between the municipality and party, and 4) the party’s justifiable reliance. Plaintiff failed to show that she was lulled into a false sense of security or induced to forgo other options and, therefore, there was no special duty. Halberstam v Port Auth. of N.Y. & N.J.


Med Mal   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Expert Aff  

Second Department
There was a rational path for jury to find that orthopedic surgeon’s failure to advise plaintiff of need for second surgery after her first surgery was departure but plaintiff’s expert’s opinion that injuries were caused by 11-month delay in performing second surgery could not provide a rational path for jury to find that the 1-month delay in advising plaintiff of need for second surgery was a proximate cause of her injuries where the defendant advised her of need on 2-subsequent visits, a month apart, before she sought treatment elsewhere. Verdict set aside and defendant granted judgment as a matter of law. Mi Jung Kim v Lewin


Set Aside Verdict   Pain/Suffering   Materially Deviates   ROM  

Second Department
$25,000/$0 past/future pain/suffering verdict for anterior cervical discectomy and fusion surgery materially deviated from reasonable compensation and was set aside unless defendant stipulated to increase award to $150,000/$100,000. Jury’s failure to award future pain/suffering could not be reached on a fair interpretation of undisputed testimony that surgery permanently reduced ROM. $25,000/$0 past/future medical expenses undisturbed. Chung v Shaw

NOTEWORTHY
(21 summaries)
MUST READSIF YOU MUST READ

Premises Liab   Slip/Trip   Wet Floor   Snow/Ice   Set Aside Verdict   Notice  

Second Department
Defendant’s motion to set aside verdict finding 60%/40% defendant/plaintiff liability where plaintiff slipped on wet floor tracked in from snow denied where testimony that teacher and teacher’s assistant were aware of condition and requested maintenance to correct it several times over 2-hours before fall provided rational path for jury’s verdict giving all reasonable inferences to plaintiff. Allen v Federation of Jewish Philanthropies of N.Y.


Med Mal   Accepted Practice   Notice   Causation   Expert Aff   Speculation   Conclusory  

First Department
Hospital granted summary judgment on expert’s opinion that plaintiff’s decedent presented at ED without signs of bacteremia, diagnosed 5-days earlier but unknown to plaintiff’s decedent or hospital, which would not have alerted ED staff to presence of bacteremia and, in any event, plaintiff’s heart attack at that point was unavoidable. Plaintiff’s expert failed to raise issue in opposition where it did not address plaintiff’s symptoms when he presented to ED and opinion that failure to recognize bacteremia deprived plaintiff of 30% chance of recovery was conclusory. Rotante v New York Presbyt. Hospital- N.Y. Weill Cornell Med. Ctr.


Labor Law §240   Labor Law §241   Labor Law §200   Safety Devices   Gravity Risk   Industrial Code   Control  

First Department
Electrician who fell from concrete platform without safety rails or stairs that he had to use to access electrical panel granted summary judgment on Labor Law §240(1) because of lack of safety devices to protect against elevated high differential and defendant’s motion for summary judgment on Labor Law §200 denied where issues of fact existed on defendants’ failure to correct dangerous condition over which it had control. Defendants granted summary judgment on Labor Law §241(6) where industrial code provisions were inapplicable or too general for a §241 predicate. Coombes v Shawmut Design & Constr.


Expert Aff   Speculation   Conclusory  

Court of Appeals
Plaintiff’s expert raised genuine issues of fact on opinions based on non speculative or conclusory records even though plaintiff’s testimony partially contradicting facts relied upon by her expert. Salinas v World Houseware Producing Co.


Med Mal   Causation   Expert Aff   Speculation   Conclusory   Raised For First Time  

First Department
Plaintiff’s expert’s opinions on causation were not speculative or conclusory and issues raised by defendants’ experts which they claimed were not addressed by plaintiff’s expert were conclusory or did not affect plaintiff’s expert’s conclusions. Hospital failed to show it had no duty to review plaintiff’s chest x-ray and hospital’s request to dismiss claims it believed were based on vicarious liability for doctor were not addressed as raised the first time on appeal. Haskins v Somrov


Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Recalcitrant Worker   Industrial Code   Open/Obvious   Inherently Dangerous   Indemnity  

Second Department
Defendants denied summary judgment on Labor Law §240(1) where worker fell from platform rigged between tops of 2-walls as instructed by supervisor to install sprinklers because ladder could not fit within 2×2 dropped ceiling grid, and plaintiff’s cross motion for summary judgment denied, as questions of fact existed on whether plaintiff was the sole proximate cause of accident as recalcitrant worker for not using available ladders that he claimed could not fit within dropped ceiling grid. Defendants granted summary judgment on Labor Law §241(6) where industrial code provisions either did not apply or were too general to act as a predicate and OSHA regulations cannot be a predicate for §241. Defendants made out entitlement to summary judgment by showing that wire on top of walls was open/obvious and not inherently dangerous but plaintiff raised issue of fact on whether they were inherently dangerous.

Owner granted summary judgment for contractual indemnity against electrical contractor on proof that owner’s potential liability was solely statutory, not its own negligence, but general contractor denied summary judgment on contractual indemnity where there were questions of fact of its own negligence. Graziano v Source Bldrs. & Consultants, LLC



Labor Law §240   Amend Complaint   Prejudice  

Second Department
Plaintiff’s motion to amend Complaint to add Labor Law §240(1) claim where he fell while walking backwards pulling loaded pallet on slippery ramp at construction site granted as not patently devoid of merit. It did not require an evidentiary showing of meri, and defendants failed to show they were directly prejudiced by the delay in seeking leave to amend especially where a §240 claim was included in the Notice of Claim. Clarke v Acadia-Washington Sq. Tower 2, LLC


Legal Mal   Personal Juridiction   Service  

Second Department
Plaintiff failed to show strict compliance with both the service and mailing requirements of CPLR 308(2) where filed affidavit of service showed service on paralegal at defendant law firm but no subsequent mailing, and subsequent affidavit showing mailing after required 20-day period could not be excused as mere technicality under CPLR 2001 and there was no proof that an affidavit of the mailing was ever filed. Motion to dismiss for lack of personal jurisdiction granted. Estate of Norman Perlman v Kelley


Serious Injury   Renew   Expert Aff   Reasonable Excuse  

Second Department
Plaintiff’s motion to renew opposition to defendant’s motion for summary judgment on serious injury granted on submission of affirmation of doctor who performed surgery on plaintiff during pendency of motion and motion for summary judgment denied. Doctor’s affirmation was unavailable at time of original motion giving plaintiff a reasonable excuse for not submitting it at that time. Conversano v Ad Gelato, Inc.


Discovery   Privilege   HIPAA  

Court of Appeals
By alleging difficulty walking and standing the plaintiff placed her prior knee conditions in issue waiving physician/patient privilege and entitling defendants to authorizations for these records. Brito v Gomez


MVA   VTL §1104   Untimely   Raised For First Time   NYC  

Second Department
Police Department and officer granted summary judgment where plaintiff’s vehicle struck police vehicle entering intersection in response to “10-85” officer needs assistance call protected by VTL §1104 and officer’s actions were not reckless. The court does not give the details of the proofs. Plaintiff’s claim that motion was untimely raised for the first time on appeal was not considered. Martinez v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Notice  

Second Department
Student who slipped and fell on ice in college parking lot granted summary judgment on testimony of defendant’s employees, eyewitness, plaintiff’s testimony, and photographs showing that condition existed for sufficient period for defendant to have discovered and corrected it. Vailes v Molloy Coll.


MVA   Causation   Sole Cause   There to be Seen  

Second Department
Proof that plaintiff entered intersection controlled by stop sign and was struck by defendant entering intersection from perpendicular road without stop sign demonstrated plaintiff’s negligence for failure to yield the right-of-way but failed to show that plaintiff was the sole proximate cause of the accident where testimony raised issue of whether defendant had his lights on at night in violation of VTL and observed what was there to be seen. Wilson v Mazewski


Serious Injury   ROM   Expert Aff  

Second Department
Defendants failed to make out prima facie entitlement to summary judgment on serious injury where doctor found significant limitations in ROM and failed to substantiate with competent medical evidence his belief that it was self-imposed. Mondesir v Ahmed


Premises Liab   Slip/Trip   Prior Written Notice  

Second Department
Town granted summary judgment where plaintiff did not plead that town created defect he tripped while returning to parking lot on path of nature center by affirmative act of negligence or that town made a special use of the pathway, the two exceptions to a prior written notice requirement. Osman v Town of Smithtown


MVA   Question of Fact   Serious Injury   Expert Aff  

Second Department
Defendants’ motion for summary judgment claiming they were not at fault for MVA denied based on conflicting testimony and they failed to meet burden for summary judgment on serious injury where examining orthopedist specifically stated that findings of normal ROM were not based on use of a goniometer or other objective device. Cho v Demelo


Legal Mal   Motion to Dismiss   Personal Juridiction   CPLR § 2004   Untimely  

Second Department
Defendant’s motion to dismiss for lack of personal jurisdiction granted where plaintiff failed to file affidavit of service as required by CPLR §308(4) and court did not sua sponte grant extension of time under CPLR §2004 which plaintiff had not expressly requested. Zheleznyak v Gordon & Gordon, P.C.


Motion to Dismiss   Personal Juridiction   Amend Complaint  

Second Department
Defendants’ claim that they did not receive follow-up mailing was insufficient to overcome inference of proper service from process server’s affidavit and lower court should not have sua sponte held process service affidavit inadequate because it did not state that envelope was marked personal and confidential without indication it was from an attorney or involved in litigation since defendants’ claimed they never received it and there was no proof that it was not properly labeled. Amended Complaint adding new parties filed without leave of court more than 20-days after Answer was a nullity. Hulse v Wirth


MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine  

Second Department
Car plaintiff was a passenger in that was rear ended by codefendant’s car that swerved to avoid a vehicle which stopped suddenly in front of it granted summary judgment. Rear ending car may have been presented with an emergency situation but that would not impose negligence on the part of the car it rear-ended. Pilgrim v Campoverde-Bravo


MVA   Rear End   Serious Injury   BP  

Second Department
Defendants denied summary judgment on serious injury where they failed to address allegations of 90/180-day category in BP and plaintiff granted summary judgment on proof he was stopped at a red light when struck in the rear by the defendants’ vehicle. Rosenblum v Schloss


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   3rd Party Contractor  

Second Department
Snow removal contractor granted summary judgment on proof he performed no work at the site on the day of the accident and, therefore, did not create or exacerbate any potentially dangerous condition. Eliav v Parker Queens, LP

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Uninsured   Stay Arb  

Second Department
Carrier’s petition to permanently stay arbitration based on late disclaimer based under livery exclusion of offending vehicles dismissed where offending vehicle’s carrier disclaimed 6-days after learning driver had picked up passengers for hire. Matter of Foremost Ins. Co. v Beiter


Serious Injury  

Second Department
Plaintiff failed to raise issues of fact in opposition to defendants’ showing of entitlement to summary judgment based on competent medical proof of no serious injury and lack of causation. The court does not give the details of the proofs. Bienaime v All Seasons Taxi Corp.

About Matt McMahon

Civil trials and appeals since 1984
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