September 22, 2020 | Vol. 228

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Unsigned Transcript   Reargument   Appealable Order  

Second Department

Setting out a thorough explanation of the differences and requirements of a decision, order, and ruling, the Second Department affirmed the denial of a motion to reargue the oral disqualification of the plaintiff’s attorney at trial or in the alternative to compel the lower court to issue an appealable order or sign the transcript of the oral motion and decision. While the Court found the lower court’s refusal to sign the transcript or a proposed order that would be enforceable and appealable under CPLR §2219 and 22 NYCRR §202.48 inexcusable, it affirmed the denial of the motion because the plaintiff did not seek a writ of mandamus in an Article 78 proceeding. The Court noted that the unsigned transcript constituted a decision and not an enforceable order disqualifying plaintiff’s attorney and therefore the time to appeal has not begun. Charalabidis v Elnagar

Comment: This is a companion decision to the Court’s decision on serious injury reported in this volume.


Med Mal   Discovery   Appealable Order  

Second Department

Plaintiff’s appeal from an order denying her motion to compel defendant doctors to appear for further deposition to answer questions the refused to answer at an EBT dismissed as the requested relief was akin to a ruling made during the EBT which is not appealable as of right, even on a full record from denial of a motion on notice, and plaintiff failed to seek leave to appeal. Gargano v Langman


Med Mal   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice   Court of Claims  

Second Department

Claimants’ motion for leave to serve late Notice of Claim on NYS which owns Stony Brook Southampton Hospital where the infant was born for injuries, including the infant’s death seven days after birth, during forceps-assisted delivery granted where NYS had actual knowledge of essential facts from medical records of birth hospital and Stony Brook University Hospital (also owned by NYS), where child died. The medical records showed no sonogram was used to determine cephalopelvic disproportion, claimant-mother agreed to forceps delivery after 9-hours of unsuccessful labor that included Pitocin, signed a consent form for a C-section on admission, the physician’s note indicating the mother did not want a C-section was created after delivery but the record had no indication she was advised a C-section should be performed, the infant was diagnosed immediately on birth with a hemorrhage below his scalp as a result of ‘birth trauma’, the autopsy report from University Hospital reported the infant suffered an injury during the forceps-assisted delivery that separated his brain from his upper cervical spinal cord region, and his large head was noted as a factor in this injury. The mother also suffered lacerations, disruption, and dislocation of her internal organs from the forceps-assisted delivery. Stirnweiss v State of New York


Premises Liab   Slip/Trip   Create Condition   Notice  

Second Department

Owner who sublet his apartment in co-op granted summary judgment where tenant died and family dropped bottle of alcohol while moving his possessions out of building, resulting in plaintiff slipping on the alcohol, on proof owner did not create condition or have notice. His motion was, however, denied as to any cross-claims where he did not attach copies of the cross-claims or identify what they were failing to make out prima facie entitlement to summary judgment on the cross-claims. Plante v 9615 Shore Rd. Tenants Corp.


Med Mal   Vacate Jud   Attorney Fees  

Second Department

Judgment dismissing claim of estate of attorney who referred medical malpractice case affirmed where defendant firm showed there was no written agreement between their firm and the referring attorney, referring attorney did not work on the case, and was merely a “finder.” Moss v Gurfein Douglas, LLP

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

MVA   Default Judgment   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiff’s motion for default judgment granted on proof of proper service, default in answering, and meritorious action. Defendants, municipality and its employee who was driving his own car as part of his employment, failed to give a reasonable excuse for not timely answering. Attorney’s conclusory statement that file was misplaced, and office understaffed insufficient excuse and court need not consider whether there was a meritorious defense. Maldonado v Mosquera


IME/DME  

Second Department

Defendant’s motion to compel plaintiff to appear for neuropsychological exam without a third-party watchdog present, after defendant’s neuropsychologist refused to go forward with the examination, denied as plaintiff is entitled to have a representative present during an examination as long as the representative does not interfere. Gonzalez v Red Hook Container Term., LLC

Comment: The court notes that this is the rule in the Second, First, and Fourth Departments.


Negligent Supervision   Late Notice of Claim  

Second Department

Municipality’s motion to dismiss claims not contained in original Notice of Claim granted and motion to amend Notice of Claim denied where proposed Notice of Claim not attached to motion and would add new theories. Lower court should not have sua sponte dismissed father’s claim for loss of services and medical expenses where no party requested that relief and original Notice of Claim included claims for medical expenses. C.D. v Goshen Cent. Sch. Dist.


Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Department

Defendants’ motion to vacate default in answering denied where attorney’s conclusory affidavit that delay in answering was caused by carrier insufficient to provide reasonable excuse and court did not have to look at question of meritorious defense. Plaintiff was carrier with assignment of injured insured’s claim. Rochdale Ins. Co. v Fairview Nursing Care Ctr., Inc.


Premises Liab   Slip/Trip   Elevator   Notice   Expert Aff  

Second Department

Plaintiff raised issues of fact in opposition to defendant’s showing of entitlement to summary judgment by affidavit of her mother, a building resident, stating that elevator misaligned on a daily basis for a month before accident, condominium board member acknowledged the problem in her presence, documentary evidence of similar incidents of misalignment, and unsatisfactory inspection report 3-days before incident that experts on either side disagreed on whether it could cause misalignment. Napolitano v Jackson “78” Condominium


Labor Law §240   Directed Verdict   Gravity Risk   Safety Devices  

Second Department

Defendant granted directed verdict on Labor Law §240(1) at close of plaintiff’s case where plaintiff was injured when a tool he was using to rotate steel beams weighing 600-1000 lbs at ground level slipped and struck him in the head as not the result of “a physically significant elevation differential.” There was no rational path for a jury to come to a different conclusion giving plaintiff the benefit of all reasonable inferences. Lemus v New York B Realty Corp.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Department

Plaintiff’s expert’s opinion that primary physician remained plaintiff’s-decedent’s physician while she was in extended care facility based on examination and care treatment plan prepared by primary physician at the facility, that the primary physician deviated from accepted practice causing plaintiff’s injuries and death raised questions of fact in opposition to the physician’s prima facie showing of entitlement to summary judgment. Plaintiff’s decedent developed bedsores, required hospitalization, and died 6-days later from cardiopulmonary arrest due to coronary artery disease and hypertension, with urosepsis a significant contributing factor. Rosario v Our Lady of Consolation Nursing & Rehabilitation Care Ctr.


Labor Law §240   Labor Law §241   Falling Object   Safety Devices   Industrial Code   Indemnity  

Second Department

Worker struck by unsecured HVAC duct causing him to fall 1-story from beam granted summary judgment on Labor Law §240(1). Owner and general contractor denied summary judgment on Labor Law §241(6) based on industrial code §NYCRR 23-1.8(c)(1)(hardhat) where they failed to show it was not a hardhat job and that lack of head protection did not play a role in worker’s injury.

Subcontractor’s motion for summary judgment on indemnity claim for amounts less than available excess insurance denied as premature. Aguilar v Graham Terrace, LLC


Venue   Renew   Amend Complaint   Motion to Dismiss   Default Judgment   Res Ipsa Loquitor  

Second Department

Nassau judge’s grant of plaintiff’s motion to renew opposition to Bronx judge’s grant of motion to change venue to Nassau adhering to original decision affirmed. Plaintiff’s motion to amend Complaint to correct “misnomer” where it named defendant as Freeman Company instead of Freeman Expositions granted where correct defendant was properly served and not prejudiced even though the motion to amend made after statute of limitations. Plaintiff’s motion for default judgment denied as defendant’s motion to dismiss served within 30-days of service was a timely appearance. Defendant’s motion to dismiss denied as its documentary proof did not utterly refute plaintiff’s allegations and the allegations of the Complaint stated a cause of action based on res ipsa loquitor. Duncan v Emerald Expositions, LLC


MVA   Consolidation  

Second Department

Motion by defendant driver in the first accident to sever cross-claim of defendant from second accident, made before discovery and BP, denied where medical records provided by plaintiff showed common questions of fact and law on whether injuries from first accident were exacerbated by second accident. While severance is within discretion of trial court it should be granted sparingly. Mejia v Doe


MVA   Consolidation  

Second Department

One defendant’s motion to consolidate action with 3-other actions already consolidated providently denied where summary judgment had already been granted against moving defendant and matter was scheduled for damage only trial. Hilarion-Mahotiere v Metz


MVA   Admission   Premature Motion  

Second Department

Plaintiff’s motion for summary judgment denied as premature based on her affidavit that she was struck by defendants’ car while making while it was making a dangerous lane change and police report with defendant driver’s statement that he “struck” the plaintiff’s vehicle on the driver’s side. Defendant driver’s statement was an acknowledgment that the collision occurred and not an admission of liability. Cordero v Escobar


MVA   Turning Vehicle   Untimely  

Second Department

Defendants failed to meet burden for summary judgment where deposition testimony submitted contained conflicting stories of whether plaintiff began to turn and what lane accident occurred in. Lower court improvidently reviewed plaintiff’s opposition submitted after return date, but it was harmless error since defendants failed to meet their burden of proof. Elusma v Jackson


Dogbite   Notice  

Second Department

Building owner’s proof dog that bit infant plaintiff was owned by tenant’s guest and lease recited that tenant did not have a pet was sufficient to make out prima facie case that dog did not belong to a tenant, was not regularly on the premises, and building owner had no notice of its presence. Plaintiff did not file opposition. J.R. v Poonam Apts., LLC


Serious Injury   Sanctions  

Second Department

Lower court’s sanction of denying defendants’ motion for summary judgment on serious injury as sanction for failing to serve plaintiff with order scheduling settlement conference, causing plaintiff not to appear at conference, reversed as not a proper sanction under 22 NYCRR §202.27. Case remanded for decision on serious injury motion. Charalabidis v Elnagar

Comment: This is a companion decision to the Court’s decision on the lower court’s failure to sign the transcript of the motion to disqualify plaintiff’s attorney reported in this volume.


Serious Injury   ROM   Causation   BP  

Second Department

Defendants failed to meet burden of proof on serious injury where one of their doctors found significant limitation of ROM and failed to show that injuries were not caused by the accident. Plaintiff’s testimony, relied upon by defendants on the 90/180-day category, failed to identify plaintiff’s usual pre-accident activities or compare them to post accident activities. Williams v Maleachern


Premises Liab   Create Condition   Notice  

Second Department

Landowner granted summary judgment on proof it did not create or have notice of condition of curb that crumbled when plaintiff stepped on it and plaintiff failed to raise an issue of fact in opposition. Fields v New York City Hous. Auth.


Lead Poisoning   Late Notice of Claim   Duty   Meritorious Action   NYC  

Second Department

Petition to serve late Notice of Claim on NYC 6-years after infant was found to have elevated lead blood levels denied where patently devoid of merit as NYCHA not NYC owned, operated, and controlled the building. Matter of K.G. v City of New York


Lead Poisoning   Late Notice of Claim   Duty   Meritorious Action   NYC  

Second Department

Petition to serve late Notice of Claim on NYC 9-years after infant was found to have elevated lead blood levels denied where patently devoid of merit as NYCHA not NYC owned, operated, and controlled the building. Matter of S.M. v City of New York


Vacate Jud  

Second Department

Pro se plaintiff’s motion to vacate judgment after defense verdict denied as trial court providently exercised its discretion in allowing a defense witness to testify during plaintiff’s case to accommodate the witness and gave an appropriate instruction. Claims of ineffective assistance of counsel in a civil matter are not considered absent extraordinary circumstances. Pines v New York City Dept. of Educ.

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About Matt McMahon

Civil trials and appeals since 1984
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