September 8, 2020 | Vol. 227

(4 summaries)

Vacate Jud   Jury Charge   Prejudice  

Second Department

$8,351,924.06 judgment entered on jury award of $1.5 million/$4 million past/future pain/suffering from damage only trial reversed as trial court’s PJI §160 (Burden of Proof When Burden Differs on Different Issues) instruction improperly shifted burden of proof depriving defendants of substantial justice. Case remanded for new damage only trial. Gorokhova v Consolidated Edison of N.Y., Inc.

Med Mal   Discovery  

Second Department

Hospital granted protective order for second deposition of non-party chief of wound care at time of treatment, who was no longer employed by hospital by second deposition, only to extent that doctor could only be compelled to provide expert opinion regarding “his role in the diagnosis, care, and treatment” that resulted in hospital-acquired decubitus ulcers and amputation of plaintiff’s decedent’s leg and appointing a special referee to supervise second EBT. Since attorneys for both sides and the doctor engaged in improper conduct under, including the doctor refusing to answer questions, it was error to order plaintiff to pay for the special referee which could not be ordered absent consent of all parties. The cost of the referee is taxed as a case disbursement under CPLR §3104(b). There was 1-dissent. Slapo v Winthrop Univ. Hosp.

Vacate Jud   Inquest   Admissibility   Directed Verdict  

Second Department

Defaulting defendant’s motion to dismiss Complaint at end of inquest on damages denied as the only issue at an inquest is damages. $275,000 judgment vacated and remanded for new inquest on damages only where trial judge improperly accepted physician’s sworn statement in lieu of testimony. “A defaulting defendant ‘admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages.'” Where a defendant indicates they will appear at inquest plaintiff is required to make witnesses available for cross-examination. Castaldini v Walsh

MVA   Vacate Default   Untimely   CPLR § 2004   Reasonable Excuse   Appealable Order  

Second Department

In MVA wrongful death action plaintiff’s motion to extend time to oppose motion under CPLR §2004 denied where 1-extension had been granted, motion was filed 1-day prior to adjourned return date, and plaintiff failed to show good cause for the extension or reasonable excuse for not timely submitting opposition other than plaintiff’s lack of diligence. Plaintiff’s appeal from order granting summary judgment as to 1-defendant on default dismissed as no appeal lies from a motion granted on default. Leader v Steinway, Inc.

Comment: This is one of 3-decisions on this case reported in this volume, each involving a different defendant.

(9 summaries)

Premises Liab   Vacate Jud   Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b   Reasonable Excuse   Meritorious Action  

Second Department

Lower court providently denied plaintiff’s motion for extension of time to serve defendants under interest of justice standard of CPLR §306-b as plaintiff failed to show due diligence in commencing the action, waiting 2-years after plaintiff’s decedent’s death to be appointed administrator, filing the action on the last day of the statute of limitations, and failing to show a meritorious action. Plaintiff did not rebut building owner’s showing it did not have notice of the Complaint for 7-months after the statute of limitations. Fink v Dollar Mart

MVA   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department

Police officer injured when her patrol vehicle with lights and sirens on was struck in intersection by a sheriff’s vehicle that failed to yield the right-of-way granted leave to serve late Notice of Claim. While police report does not normally provide actual knowledge, where the municipal employee is involved in the accident and the report or investigation shows actual knowledge, leave to serve late Notice of Claim is appropriate. State trooper report indicated sheriff driver committed potentially actionable wrong by not yielding the right-of-way and that plaintiff was injured, county’s FOIL response included photographs taken at the scene, sheriffs’ reports and activity logs showed it had actual knowledge within 90-days and could not claim prejudice. Defendants failed to make a particularized showing of prejudice. The lack of a reasonable excuse was not sufficient to deny leave. Matter of McVea v County of Orange

Labor Law §240   Ladder   Safety Devices   Sole Cause   Comparative Fault   Indemnity  

First Department

Plaintiff denied summary judgment on Labor Law §240(1) where permanently affixed ladder vibrated, but did not shift or sway, causing him to fall which created question of fact on whether the ladder adequately protected him. Plaintiff’s work to correct loose cables striking and causing damage to other cables, which lasted several weeks, was repair entitled to §240 protection, not routine maintenance. Defendants did not show plaintiff knew he was required to wear a harness while climbing ladder or that he ignored specific instructions to do so on their claim of sole cause and, in any event, failure to wear a harness is at best comparative fault not a defense to §240. Two defendants who plaintiff did not contest were not owners or statutory agents granted summary judgment.

Building owner’s contractual indemnity claim against elevator company dismissed on proof elevator company completed work which passed building department inspection before accident, had not received any complaints, and there was no proof cause of the accident existed at time of elevator company’s work. Kehoe v 61 Broadway Owner LLC

Med Mal   Accepted Practice   Causation   Expert Aff  

Court of Appeals

By 7/2 Court agreed that plaintiff’s expert raised issues of fact in response to defendants’ showing of entitlement to summary judgment affirming First Department majority decision reported in Vol. 191. Two-dissents would have voted to reverse based on dissent in First Department. Barry v Lee

MVA   Vacate Default   Service   Reasonable Excuse   Meritorious Action  

Second Department

Affidavit of son of deceased sole shareholder of 1-defendant corporation established address where service was attempted, listed with the Secretary of State, was no longer valid as the corporation ceased doing business after the father died 2-years before attempted service and, therefore, the corporation was not personally served and did not receive notice of the action in time to defend under CPLR §317. The affidavit also provided a potentially meritorious defense sufficient to vacate the default in answering. Leader v Steinway, Inc.

Comment: This is one of 3-decisions on this case reported in this volume, each involving a different defendant.

False Arrest   Motion to Dismiss   Discovery   CPLR § 3126   Reasonable Excuse   Willful/Contumacious   NYC  

Second Department

Defendants’ motions to dismiss under CPLR §3126 granted for plaintiff’s failure to comply with discovery, including responsive BPs and authorizations, and disobeying orders for the same, granted where plaintiff failed to provide a reasonable excuse for not complying with discovery. Ewa v City of New York

Med Mal   Motion to Dismiss   Statute of Limitations  

Second Department

Action against doctor and hospice for misdiagnosis of leptomeningeal carcinomatosis disease dismissed as barred by statute of limitations where brought more than 2.5 years after patient discharged from hospice and plaintiff did not seek further treatment from them for this condition. Action against hospital timely when commenced at same time, presumably under continuous treatment doctrine. Badr v Blumberg

Comment: Amended complaint adding separate doctor timely where served 2-years and 9-months after misinterpretation of MRI as it related back to the same cause of action in the original complaint that was timely served. Defendant’s motion for summary judgment remanded for decision by the trial court even though appellate court had the authority to decide it.Badr v Blumberg.

MVA   Renew   Reasonable Excuse   Reargument  

Second Department

One-defendant’s motion to renew denied where new facts offered were available at time of original opposition and it failed to show reasonable justification for not including them. Defendant also failed to show new facts would have changed prior determination. No appeal lies from a denial of a motion to reargue. Leader v Steinway, Inc.

Comment: This is one of three decisions on this case reported in this volume, each involving a different defendant.

Serious Injury   ROM   Expert Aff  

Second Department

Defendants failed to meet burden for summary judgment on serious injury as to 1-plaintiff where their expert found significant limitations in ROM. They met initial burden as to other plaintiff who raised an issue in opposition. The court does not give the details of the proofs. Pierre v Wagner

(2 summaries)

Uninsured   Stay Arb   Admissibility   Hearsay  

Second Department

Lower court improperly admitted portion of police report containing hit and run driver’s license plate information which was hearsay as police officer did not observe this fact and declarant could not be identified. Testimony of 1-injured person who filed for uninsured arbitration clearly identified the license plate and description of hit and run vehicle, and photographs showed replacement parts on the front driver’s side of the hit and run vehicle establishing it was involved in the accident. Uninsured claims permanently stayed over objection of hit and run vehicle owner and carrier. Country-Wide Ins. Co. v Lobello

Serious Injury   BP  

Second Department

Defendants made out entitlement to summary judgment on serious injury by competent medical proof and plaintiffs failed to raise issue of fact in opposition. Plaintiffs’ claims under 90/180-day category abandoned where not addressed in their brief. The court does not give the details of the proofs. Yi Di Chen v Falikman

About Matt McMahon

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