September 5, 2023 | Vol. 381

(4 summaries)

Assault   Motion to Dismiss   Notice of Claim   Statute of Limitations   CPLR §205   Bankruptcy  

Second Department
Lower court erred in dismissing action recommenced by bankruptcy trustee after bankruptcy was reopened to allow the trustee to pursue assault case not originally included in the bankruptcy proceeding on the ground that plaintiff did not file a new Notice of Claim as the original Notice of Claim gave NYCHHC sufficient notice to investigate the claim and a second Notice of Claim was not required. The Court addressed the statute of limitations argument not addressed by the lower court and dismissed the second action as it was not brought under CPLR §205(a) within 6-months of the order dismissing the original case even if the motion to reopen the bankruptcy could act as a toll. Delzotti v Bowers    

Malpractice   Accepted Practice   Loss of Chance   Experts   Conclusory  

Second Department
Failure of neurologist’s and hospital’s experts to address specific allegations in plaintiff’s BP and their reliance on disputed fact that decedent’s stroke symptoms had improved between the time EMS arrived at his home and when he was first seen in the ER to justify not administering tPA was insufficient to show neurologist and hospital did not deviate from accepted practice or deprive decedent of a chance of a better outcome. Conclusory affirmations of emergency physician’s experts failed to meet burden for summary judgment.

Decedent was found unresponsive the next morning from a stroke to the pons of his brain stem, developed locked-in syndrome, and died 2.5 years later. Hiegel v Orange Regional Med. Ctr.    

Negligent Supervision   Notice   Causation   MVA   Vacate Default   Meritorious Action   Reasonable Excuse  

Second Department
Motion for summary judgment by mental health consulting company and its employee charged with transporting autistic child to/from a social group denied where the child ran between parked cars into the street and struck a moving car as plaintiff’s mother had previously told them the child was a ‘runner’ and his hand had to be held outside and any time they were near a road as they failed to establish they provided adequate supervision or that their lack of supervision was not a cause of the infant-plaintiff running into the moving vehicle. M.V. v Applied Behavioral Mental Health Counseling, P.C.    

Comment: Plaintiffs’ motion to vacate order granting the owner and operator of the vehicle the infant-plaintiff ran into, which plaintiffs opposed but failed to appear on a scheduled conference call, denied for failure to show a meritorious opposition to affidavit of rear passenger in defendants’ vehicle who saw the child run between two vehicle and strike the rear side of the moving vehicle. Without meritorious opposition, issue of reasonable excuse not relevant. M.V. v Applied Behavioral Mental Health Counseling, P.C.

Coverage   SUM   Collateral Estoppel  

Second Department
Carrier and insurance agency granted summary judgment dismissing claim they failed to provide plaintiff adequate SUM coverage where was 100% at fault for the accident in case brought by passenger in vehicle plaintiff struck, making her ineligible for any SUM benefits. Verdict was entitled to collateral estoppel as the issue of her culpability was identical in both cases. Plaintiff failed to show she lacked a full and fair opportunity to litigate the prior action by claim the carrier provided her with lackluster counsel and settled the case within their policy limits before the damage trial depriving her of the opportunity to appeal. Defendants providently denied summary judgment dismissing breach of contract claim which can be based solely on nominal damages. Giamundo v Dunn    

Comment: Prior decision denying defendants summary judgment reported in Vol. 91.
(16 summaries)

Premises Liab   Motion to Dismiss   Statute of Limitations   Raised For First Time  

Second Department
Defendants’ motion to dismiss Amended Complaint filed more than 3-years after the accident denied where timely filed under COVID-19 executive orders that tolled statutes of limitations for approximately 8-months. Court considered COVID-19 toll argument raised for the first time on appeal as “it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture.” Williams v Ideal Food Basket, LLC    

Vacate Default   Discovery   CPLR § 3126   Reasonable Excuse  

Second Department
Plaintiffs’ motion to vacate default in opposing defendants’ CPLR §3126 motion to strike the Complaint for failure to comply with court ordered discovery denied where plaintiffs’ counsel failed to show that problems with the firm’s calendaring system and COVID staffing disruptions she claimed caused the default, documented more than 1.5 years before the default, were present at the time of the default or give any reason why they did not seek an extension from the court or opposing counsel. V. v Leo    

Premises Liab   Duty   Notice   Governmental Function  

Second Department
Town denied summary judgment where tree abutting town road fell on plaintiff’s vehicle even though the tree was located on MTA property as town’s duty to keep its road safe extended to adjacent trees that pose a risk to the road and town failed to show it did not have constructive notice of the dangerous tree or that it met its duty to inspect and maintain the tree. MTA’s motion for summary judgment on governmental immunity denied as it was acting as a landowner engaged in a proprietary, not governmental function and it failed to show it did not own the land where the tree was located or lack actual constructive notice. Jourdain v Metropolitan Transp. Auth.    

Set Aside Verdict   Directed Verdict  

Second Department
Town’s motion to set aside verdict finding town negligent for plaintiff’s injuries when she stepped on a manhole cover that flipped over and that plaintiff’s negligence was not a cause of her injuries as against the weight of evidence and for a directed verdict denied as there was a rational path for the jury to reach its verdict and their findings were based on a fair interpretation of the evidence and not contrary to the weight of the evidence. The Court does not give the details of the proofs. Bird v Town of N. Hempstead    

Premises Liab   Ins. L. § 3420(a)(2)   General Release  

Second Department
Carriers for pharmacy and building owner where plaintiff fell granted summary judgment dismissing Ins. L. §3420 claim to recover on default judgment entered against building owner who defaulted in answering as general release for settling pharmacy expressly released the carriers and fact that the building owner was not mentioned in the release did not alter the broad terms of the release. If the release were to exclude specific claims, it should have been specifically stated. Rafailova v Leading Ins. Group Ins. Co., Ltd.    

Discovery   HIPAA   Privilege  

Second Department
Motion to compel defendant to provide HIPAA authorization for his STD testing and treatment by plaintiff who claimed she contracted a STD from defendant after detrimentally relying on his statement that he recently tested negative for STDs denied. Plaintiff met burden of showing defendant’s medical condition was in controversy but defendant raised and did not waive the medical privilege where he did not assert his medical condition as a counterclaim or excuse. Hausman v Smith    

Assault   Foreseeability   Duty   Court of Claims  

Second Department
State met burden of showing assault on inmate was not foreseeable on proof claimant did not know his assailant, it was a ‘surprise attack’ with a metal blade, and the state took reasonable measures to protect inmates including requiring all inmates go through a magnetometer before entering the yard where the assault occurred. Claim that the state should have used a different magnetometer failed to raise an issue in opposition. There were 2-dissenters. Armwood v State of New York    

Premises Liab   Sidewalk   Motion to Dismiss   § 7-210   Homeowner Exception   Premature Motion  

Second Department
Homeowners’ pre-answer motion to dismiss and to treat motion as for summary judgment on their affidavits that they occupied the property adjoining the sidewalk where plaintiff fell solely for residential purposes subject to the homeowners exception to administrative code §7-210 and that they did not create the defective condition or make special use of the sidewalk denied as affidavits are not documentary evidence under CPLR §3211(a), plaintiff adequately stated a cause of action, and defendants’ affidavits did not utterly refute plaintiff’s factual allegations or establish that a material fact claimed by plaintiff was not a fact. Summary judgment was premature where there had been no discovery and plaintiff had no personal knowledge of the facts claimed in defendants’ affidavits. Russo v Crisona    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

First Department
Hospital failed to meet burden for summary judgment dismissing action for decedent’s fall from bed where their expert nurse and neurologist addressed only 6-of-11 alleged departures, giving only conclusory opinions that the hospital instituted appropriate fall risk procedures, the decedent could not be monitored in a way to prevent her fall, and that her fall and resultant subdural hematoma were not a cause of her death. The nurse expert failed to submit the fall risk assessment or protocol she relied on. Martir v St. Luke’s-Roosevelt Hosp. Ctr.    

Vacate Default   Reasonable Excuse  

Second Department
Plaintiff’s motion to vacate summary judgment on serious injury, granted on default in opposing the motion, denied where counsel’s conclusory statements of law office failure did not provide a reasonable excuse and counsel failed to explain the more than 1-year delay in moving to vacate the default. Absent a reasonable excuse, the court did not need to look at whether there was meritorious opposition to the motion. Byung Ha Lee v Mascarenas    

MVA   Police   VTL §1104   Reckless   Causation  

Second Department
County granted summary judgment dismissing plaintiffs’ claims for injuries when vehicle driven against traffic while being pursued by a police vehicle with its lights and sirens on struck their vehicle as driving over the speed limit and against traffic is privileged under VTL §1104 for police vehicles responding to an emergency, the officer’s conduct was not reckless, and plaintiffs’ injuries were caused by the errant vehicle driving against traffic. Pena v County of Suffolk    

Labor Law §240   Labor Law §241   Sole Cause  

Second Department
Plaintiff’s motion for summary judgment on Labor Law §§ 240(1) and 241(6) for injuries when scaffold he was working on collapsed denied where defendants raised issue of fact on whether plaintiff was sole cause of accident by removing nails from the plank plaintiff was standing on that caused the scaffold to collapse. Elibox v Nehemiah Spring Cr. IV Mixed Income Hous. Dev. Fund Co., Inc.    

Malpractice   Amend Answer   Indemnity   Prejudice  

Second Department
Lower court improvidently denied radiologist’s cross-motion to amend his Answer to assert contribution and indemnity claims against emergency room physician whom plaintiff stipulated to discontinue as the amendment was not palpably improper or devoid of merit and there was no prejudice or surprise to the emergency room physician. As the case against the emergency room physician had been discontinued, the Court converted the radiologist’s cross-claim to a third-party action. Kennedy v Bracey    

False Arrest   Malicious Prosecution   1983 Action   Probable Cause   Raised For First Time  

Second Department
Arresting detective’s testimony that confidential informant worked with him on 20-buys was insufficient to provide probable cause based on the informant’s identification of the plaintiff in a photo array 2-weeks after the alleged buy. Detective’s testimony that he could not recall who decided to arrest the plaintiff, who was in Georgia at the time of the alleged buy in NY, left questions of whether deprivation of the plaintiff’s constitutional rights resulted from an official policy for the 1983 claim. Fields v County of Nassau    

MVA   There to be Seen   Causation  

Second Department
Plaintiff granted summary judgment on proof driver’s failure to see what was there to be seen while backing up belt-loader owned by American Airlines and striking plaintiff’s vehicle in a restricted zone at LaGuardia airport was the cause of the accident. Defendant failed to raise an issue in opposition. Rodriguez v American Airlines, Inc.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion  

Second Department
Plaintiff granted summary judgment against owner and driver of vehicle that rear-ended vehicle with him as a rear passenger on proof vehicle he was in was slowing down in traffic when struck in the rear. Comparative fault defense dismissed as plaintiff was an innocent passenger. Cross-claims against owner and driver of vehicle plaintiff was in dismissed where driver of vehicle that rear ended it could not establish skid was unavoidable since he was aware road was wet. Yonghong Xia v Zhao Xian Zeng    

(2 summaries)

MVA   Serious Injury  

Second Department
Lower court improperly granted defendants’ motion for summary judgment on serious injury where plaintiff raised an issue of fact in opposition. The Court does not give the details of the proofs. Plaintiff’s motion for summary judgment, denied as academic, remitted for lower court’s consideration. Hillel v Parra    

Serious Injury   Degenerative   Causation  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof showing plaintiff’s injuries were degenerative and not caused by the accident but plaintiff raised an issue in opposition. The Court does not give the details of the proofs. Diamond v Comins    

About Matt McMahon

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