September 27, 2016 | Vol. 21

(2 summaries)

Med Mal   Set Aside Verdict   Jury Misconduct  

Second Deptartment

Jury’s verdict finding that defendant’s departure in discharging plaintiff’s decedent from the hospital was not a proximate cause of his injuries was properly upheld since determination of facts are the province of the jury unless it could not have been reached on any fair interpretation of the evidence. Allegations of jury irregularities or misconduct can only be used to set aside a verdict where it is shown that there was “improper influence” which prejudiced a substantial right of a party. Allegations in this case did not rise to the level of improper influence or prejudice of a substantial right. Russo v Mignola

Premises Liab   Slip/Trip   Slippery   Last Inspection   Dangerous Condition  


Defendant health club failed to meet its initial burden for summary judgment. Testimony showed a general routine of mopping the tiled floor in a common area every 15 to 20 minutes and putting out wet floor signs but did not show the last time that the common area had been mopped or inspected. Plaintiff’s testimony that he did not see water on the tile floor before he slipped and then observed beads of water on the floor after he fell, that workers would put out towels to protect the carpet in a private club area adjoining the common area which would often get wet from a nearby shower, and that he saw no wet floor signs, made it impossible to determine whether the floor presented a dangerous condition as a matter of law. Since the common area was not adjacent to the pool, water on the floor could not be considered “necessarily incidental” to the tiled floor. There was one dissent. Grossman v TCR

(7 summaries)

Wrongful Death   Pain/Suffering   Expert Aff   Conclusory  

Second Deptartment

The lower court’s grant of summary judgment to defendant dismissing the conscious pain and suffering claim was reversed for defendant’s failure to meet its initial burden. The affidavit of their expert doctor did not indicate the doctor’s skill, training, knowledge or experience to render the opinions other than to say that he/she was licensed in New York and a consultant in forensic medicine. The opinions were based on the vitals and observations in the hospital record at the time that the decedent was brought to the hospital and failed to explain how those findings led to the opinion that the decedent died immediately without suffering conscious pain before her death. Denial of summary judgment for wrongful death pecuniary harm was upheld. Mazella v Hauser

Premises Liab   Slippery   Stairs   Dangerous Condition   Expert Aff   Conclusory  

Second Deptartment

The court found as a matter of law that the stairs, which had been painted every year for 35 years without stripping the prior paint or applying slip-resistant material, was not a “dangerous condition.” Plaintiff’s expert’s affidavit claiming that the paint made the stairway inherently slippery and failed to meet generally accepted good practice of engineering safety was conclusory and did not raise a triable issue of fact. Martinez-Waszak v City of New York

Attorney Fees  

Second Deptartment

Outgoing attorney entitled to 30% and subsequent attorney entitled to 70% of contingency fee. Outgoing attorney can elect to receive quantum meruit at time of substitution or contingency percentage at the end of the case. Where an election is not made at the time of discharge, it’s presumed that the attorney has chosen proportionate share of the contingency fee. Determination of the split of the fee based on the time spent and services rendered is within the sound discretion of the court. Ficaro v Alexander

MVA   Sole Cause  

Second Deptartment

Plaintiff and codefendants, owner and driver of car plaintiff was a passenger in, were entitled to summary judgment against defendant who entered into intersection controlled by a stop sign even if defendant stopped at the stop sign since his failure to yield the right-of-way proved both negligence was and sole proximate cause. Hatton v Lara

Defamation   Privilege  

Second Deptartment

WPIX entitled to summary judgment because it’s report that the police were looking for an individual regarding a rape, together with the incorrect picture of the plaintiff, was based on a report issued by the police which is entitled to absolute privilege under Civil Rights Law §74. A police investigation is an “official proceeding” under the statute and it doesn’t matter that the police included the incorrect photograph of the plaintiff. Rodriguez v Daily News, L.P.

Expert Aff   Outrageous Conduct  


Defendant, mattress retailer, and third-party defendant, delivery company, not entitled to summary judgment on claims that bedbugs were introduced into the plaintiff’s household, causing physical injuries from bug bites, where plaintiff submitted an affidavit from an entomologist. Claims of extreme and outrageous conduct were properly dismissed. Davila v Sleepy

Serious Injury   Cross Motion  


Grant of summary judgment on defendant’s amended cross motion on serious injury grounds was reversed as an improper vehicle for seeking relief from a nonmoving party. Asiedu v Lieberman

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About Matt McMahon

Civil trials and appeals since 1984
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