September 7, 2021 | Vol. 278

(2 summaries)

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Experts  

Second Department
Plaintiff’s motion to set aside defense verdict and grant directed verdict denied as there was valid line of reasoning for jury to find defendant radiology technician did not depart from accepted practice by administering contrast at 1.3 ccs per second based on conflicting expert opinions and fact it violated hospital policy of 1.0 css per second was merely some evidence of negligence. Verdict was not against weight of evidence. Liguori v Yerger    

Dogbite   Set Aside Verdict   Admissibility   Prejudice   Pain/Suffering   Materially Deviates  

Second Department
Photo of similar dog that bit plaintiff would be admissible in damage only trial but prejudicial where in aggressive pose. But not so inflammatory as to set aside verdict. Plaintiff’s comment about defendants’ delay in conceding liability improper but instruction to strike comment and focus on damages cured error. Plaintiff’s expert’s description of accident and comments on defendants’ conduct improper and hearsay as expert was not treating doctor but reversal not warranted where liability conceded.

$400,000/200,000 past/future pain/suffering award materially deviated from reasonable compensation and new trial ordered unless plaintiff stipulated to reduction to $150,000/100,000. The Court does not give the details of the injuries. Wilt v Montvel-Cohen    

(3 summaries)

Labor Law §240   Labor Law §241   Ladder   Homeowner Exception   3rd Party Contractor   Espinal   Intervening Cause  

Second Department
Where employee of general contractor fell from ladder while climbing to remove metal plate that fireplace subcontractor had its subcontractor install to cap a chimney homeowners were granted summary of Labor Law §§240(1) & 241(6) claims on homeowners exception to Labor Law but fireplace subcontractor denied summary judgment on conflicting evidence of whether gc told it fireplaces would not be used, justifying fireplace subcontractor instructing its subcontractor to seal off chimney, leaving questions of whether it launched an instrumentality of harm under Espinal. Fireplace subcontractor failed to show plaintiff climbing ladder to permit ventilation was so extraordinary and unforeseeable as to be an intervening cause. Santibanez v North Shore Land Alliance, Inc.    

Malpractice   Wrongful Death   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department
Plaintiff’s motion to set aside verdict of $300,000 for decedent’s conscious pain/suffering as inadequate denied where decedent died several weeks after chocking on a piece of meat and nursing home staff who administered CPR failed to check decedent’s airway as it did not materially deviate from reasonable compensation. Defendant’s cross motion to set aside liability verdict denied as there was a valid line of reasoning for jury to reach its verdict. Wasserberg v Menorah Ctr. for Rehabilitation & Nursing Care    

MVA   Pedestrian   Sole Cause  

Second Department
County and crossing guard granted summary judgment on deposition testimony establishing uniform crossing guard raised stop sign towards traffic where defendant-driver approached, and hand towards traffic in other direction, but driver who saw crossing guard with stop sign did not stop as she did not see the 16-year-old in the middle of the crosswalk until she struck him establishing crossing guard was free of negligence and driver was sole cause of the accident. Christopher W. v County of Suffolk    

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About Matt McMahon

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