September 28, 2021 | Vol. 280

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Malpractice   Accepted Practice   Causation   Experts   Appealable Order  

Second Department
Hospital denied summary judgment where plaintiffs submitted affidavits of multiple experts opining hospital staff departed from accepted practice by not properly monitoring fetal heart tracings that showed fetal distress and not timely notifying OB/GYN of the changes and that this caused a delay in performing a C-Section resulting in the infant’s permanent partial hemi-paralysis. Hospital’s appeal from grant of summary judgment to OB/GYN dismissed as it was not aggrieved by that order. G. M. C. v O’Sullivan    

Comment: Plaintiff did not oppose OB/GYN’s motion for summary judgment.

Premises Liab   Elevator   Create Condition   Notice   Experts   Res Ipsa Loquitor   Indemnity   Premature Motion  

Second Department
Elevator maintenance company met burden of showing lack of notice of any defect in elevator that unexpectedly closed on plaintiff, necessary to trigger duty to correct condition, but plaintiff’s expert raised issue of whether defendant was negligent in inspection and/or maintenance of the elevator. Res ipsa loquitor did not apply.

Summary judgment on contractual indemnity not appropriate where question of negligence of indemnitee remains. Barcliff v Schindler El. Corp.    

MVA   Bus   Set Aside Verdict   Directed Verdict   Appealable Order  

Second Department
Plaintiff’s motion to set aside defense verdict as contrary to weight of evidence and for judgment as a matter of law denied where there was valid line of reasoning for the verdict based on a fair interpretation of the evidence and it was not contrary to the weight of the evidence. Claims of improper comments during summation unpreserved for appeal. Gil v New York City Tr. Auth.    

Premises Liab   Sidewalk   § 7-210  

Second Department
Abutting landowner and management company failed to meet burden of showing hole plaintiff tripped in was on pedestrian ramp, excluded from definition of sidewalk under administrative code §7-210, and not sidewalk. Santiago v City of New York    

MVA   Vacate Default   Reasonable Excuse   Prejudice   Meritorious Defense  

Second Department
Auto repair company’s motion to vacate order granting unopposed motion for default judgment granted on defendant’s proffered excuse, lack of prejudice by delay, and policy in favor of deciding cases on merits. The Court did not give the details of the proffered excuse. Defendant’s evidence that it never inspected or repaired vehicle involved in accident provided proof of meritorious defense. Torres v DeJesus    

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About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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