Plaintiff was catastrophically injured when he fell from a roof he was installing on a newly constructed Lowe’s store.  Among his serious injuries, plaintiff suffered total loss of vision, significant hearing loss, loss of smell and taste, impaired mental functioning, facial disfigurement and chronic bone infection in his leg.  Following trial on plaintiffs’ Labor Law claims, the jury awarded $200,000 for past pain and suffering and $800,000 for future pain & suffering over 32 years.  After plaintiffs’ post-verdict motion, Supreme Court ordered a new trial on plaintiff’s pain and suffering unless defendants stipulated to $1.2 million for past and $2.9 million for future pain and suffering.  On appeal by plaintiffs, the Third Department found some of the awards did not represent reasonable compensation.  Particularly, the Court found the injured plaintiff’s wife, who was thrust into the role of single parent and care-giver to her disable husband, should have been awarded $110,00 (rather than $10,000) for her past and $490,000 (rather than $90,000) for her future loss of consortium given the nature of her husband’s permanent injuries.  Furthermore, given the profound impact of plaintiff’s injuries on his life, the Court felt adequate compensation for plaintiff’s future pain and suffering would be $3.9 million.  The award for future health care costs was also increased due to the Court’s finding that the jury disregarded the cost of home care in their award.

In this single car accident case, the plaintiff sustained a brain injury from striking his head on the windshield frame above his airbag after his vehicle lost control on a very steep and sharply curved road and plunged into a drainage ditch.  Following a jury trial against the County of Schenectady for negligent design and maintenance of the road, the jury awarded plaintiff $1.25 million for future pain and suffering, which the Court recommended increasing to $1.75 million to more adequately represent reasonable compensation for his damages. 

Defendant allegedly lost consciousness while driving his vehicle and collided with plaintiff’s vehicle.  Following plaintiff’s suit against defendant for the injuries she received as a result of the collision, defendant moved for summary judgment dismissing the complaint stating the accident was caused by an unforeseen medical condition of defendant which caused him to loss consciousness.  On appeal from Supreme Court’s denial of defendant’s motion, the Court found due to evidence that defendant had been experiencing dizziness, lightheadedness and weakness in increasing frequency during the month preceding the accident, and felt lightheaded on the day of the accident while driving, issues of fact remained as to whether defendant’s medical emergency was foreseeable.

In this medical malpractice action, plaintiff’s decedent was receiving care from a nurse practitioner employed by an OB/GYN practice.  Plaintiff’s action alleged failure to timely diagnose decedent’s choriocarcinoma over several months.  Plaintiff sued the nurse practitioner, her two supervising physicians, and the OB/GYN group that employed the NP.  The OB/GYN group also had a third-party indemnification claim against the NP.  Plaintiff settled with the NP before trial and Supreme Court thereafter entered a directed verdict in favor of the physicians during the trial.  The jury subsequently returned a verdict against the NP and awarded plaintiff $1.89 million.  Supreme Court ordered judgment in favor of the OB/GYN group against the NP on the indemnification claim.  The OB/GYN and physician’s insurer, PRI, disclaimed coverage for the verdict, which prompted an action against PRI for failure to defend and indemnify the group and physicians.  PRI subsequently settled with plaintiff for $2.4.  On appeal the Court found OB/GYN’s insurer, PRI, should be barred from receiving common-law indemnification because of its “unclean hands.”  Specifically, the Court found PRI put its own interest before its insureds when it became clear to PRI that their interests were adverse to defendants and PRI failed to inform them of their right to seek counsel of their own choosing at PRI’s expense.  In fact, counsel provided to the OB/GYN group by PRI joined in the directed verdict motion with the physicians even though there was sufficient evidence to oppose it, potentially exposing the OB/GYN group to a multimillion dollar judgment.  PRI’s actions also damaged the NP as the directed verdict in favor of the physicians deprived the NP of any chance of the jury finding the physicians as least partially negligent.  Given these circumstances, the Court found PRI could not seek indemnification in light of their deceptive business practices. 

On appeal, the Court reversed Supreme Court and granted plaintiff partial summary judgment as to liability on his Labor Law § 240 (1).  Plaintiff was injured while standing on a scissor lift when he was struck in the head by steel panels being lifted by a crane that suddenly accelerated downward in a free-fall, striking plaintiff on the head.  There was evidence presented that there were no tag lines or other devices used to steady the load of steel panels during the hoisting process.  The defendants failed to set forth a triable question of fact regarding liability despite defendant’s proof that the crane may have malfunctioned because that proof did not establish adequate safety devices were provided or that the alleged crane operator error was an intervening superseding cause.   

While an inmate at Ogdensburg Correctional Facility, claimant injured his shoulder after slipping on the floor while playing basketball in the gymnasium at the facility during morning hours.  Immediately after the fall, claimant testified that he saw a wet substance on the floor where he fell.  The case was tried and the court found claimant and defendant equally at fault for plaintiff’s injuries, finding the claimant had a duty to observe the substance on the floor that caused him to slip.  However, as noted on appeal, while defendant asserted a general affirmative defense of comparative fault, defendant never specified that claimants fall was due to the existence of an open and obvious condition that claimant should have seen and avoided.  Regardless, the Court on review found no evidence at trial to establish claimant’s culpability and reversed the lower court’s finding of fault on behalf of claimant.  Specifically, claimant was injured during his first run down the court to make a lay-up shot when he slipped and fell on his shoulder.  The corrections officer in the gymnasium at the time of the accident was on the opposite end of the court and had not been in the location of the fall that day.  However, the officer did testify that defendant used a cleaning solution on the gym floor that could make the floor slippery if too much solution was used and that at times the gym floors were mopped with the solution in the mornings. 

Plaintiff was injured during an assault on the streets on the City of Albany, which was purportedly captured on a video camera owned and operated by respondent Philp ‘N Spill, Inc. outside of the bar known as The Bayou Café.  Plaintiff proceeded by order to show cause to preserve the recordings and the lower court ordered respondent to preserve the video recording and provide a copy to plaintiff’s counsel.  Respondent failed to comply, plaintiff moved to hold respondent in contempt, and respondent cross-moved claiming the court lacked jurisdiction due to improper service of process.   Following a traverse hearing, the lower court held jurisdiction was properly obtained over respondent, prompting this appeal.  Plaintiff’s process server testified that he went to respondent’s place of business and served Ronald Lanzetta, who was identified as the person in charge, claimed to be the manager, and told the process server he would give the papers to the owner.  Based upon this showing the Court found respondent had fair notice.    

(From the June 2009 Newsletter)

Error in Voir Dire 

A jury trial was held in Ulster County before Judge Egan for injuries plaintiff sustained in a motor vehicle accident.  At issue was whether plaintiff sustained a serious injury and, if so, the measure of damages.  The jury found plaintiff sustained a significant limitation of use of a body function or system and awarded lost wages and medical expenses but gave no award for past or future pain and suffering.  During voir dire, plaintiff’s counsel objected to the court’s limiting of questioning to 15 minutes for each round.  On appeal the Court found plaintiffs were prejudiced by the short time permitted for voir dire given the issues in the case.  Furthermore, the failure of the jury to make an award for pain and suffering was a material deviation from reasonable compensation after a finding of serious injury was made.  A new trial was ordered.

Defendant Zinssar was operating a snowmobile at night when her snowmobile struck the plaintiff who was riding on a saucer attached by a tow rope to another snowmobile being driven by co-defendant.  In reversing Supreme Court’s grant of summary judgment to Zinssar, the Court stated that Zinssar had a duty to see what by the proper use of her senses she might have seen while operating her snowmobile on the night of the accident.  As there was proof of sufficient illumination from the moon and a sight distance of 200+ yards, Zinssar may have been able to see plaintiff prior to the accident, thereby rendering the accident a reasonably foreseeable risk, to which she would have had a duty to avoid if possible.  The Court also noted the claim was not barred by the primary assumption of the risk doctrine because there were questions of fact regarding whether Zinssar’s conduct unreasonably increased the risk of injury to plaintiff.

Plaintiff was injured in three separate motor vehicle accidents in a two-year period and brought claims in two separate actions against the other drivers.   All defendants moved for summary judgment on the issue of serious injury.  Supreme Court dismissed all of plaintiff’s claims against two defendants but found a question of fact as to the 90/180 day category regarding the claim against one of the drivers, defendant Hand.  On appeal by Hand and plaintiff, the Court granted summary judgment to all of defendants, dismissing plaintiff’s complaints, as plaintiff’s proof failed to set forth the requisite causation needed to survive summary judgment on a serious injury threshold motion.  Plaintiff had a history of neck and lower back problems which preceded the accidents and to which defendant’s experts attributed the plaintiffs complaints alleged in the lawsuits.  Plaintiffs’ experts failed to properly address the defendants’ claimed lack of causation in that plaintiff’s experts did not distinguish plaintiff’s condition from before the accidents with her conditions after each accident or submit any proof regarding exacerbation of pre-existing injuries.

In this “classic” Labor Law § 240 (1) case, the plaintiff was injured when he fell 30 feet through an opening in a roof that he was working on involving construction of a new building.  Plaintiff moved for summary judgment on liability under Labor Law  § 240 (1), which was granted from the bench without written decision.  On appeal by defendant building owner, the Court affirmed.  There was undisputed evidence that no safety devices were provided to plaintiff while he worked on the roof and that even though other portions of the roof allegedly had protective guardrails, the edge of the roof where plaintiff fell was not protected with any guardrails. There was also no evidence that plaintiff was a recalcitrant worker.  The Court noted that defendant’s compliance with OSHA regulations did not defeat plaintiff’s prima facie showing as Labor Law § 240 (1) contains its own safety measures and, furthermore, OSHA standards would not apply to the defendant building owner.

Supreme Court struck portions of defendant’s answer for willful non-compliance with discovery during a 6 year period.  Throughout discovery, plaintiff demanded that defendant produce for deposition an employee of defendant with knowledge of the events regarding the electric shock plaintiff received while working at a Pizza Hut franchise.  Eventually, defendant identified a Mr. Bradley as an employee of defendant with pertinent knowledge regarding plaintiff’s claims but it became clear during Mr. Bradley’s deposition that he was not employed by defendant and had little to offer in terms of information.  Defendant also failed to comply with a demand for documents.  The appellate court found Supreme Court did not abuse its discretion in finding defendant’s conduct willful and striking portions of the answer as a consequence of such behavior.

 Default Judgment Vacated

Plaintiff was rendered a quadriplegic after being attacked by two individuals who were part of a larger group that allegedly conspired in the assault.  Defendant Cimaomo was part of the larger group and was sued by plaintiff.  Plaintiff took a default judgment as to liability against Cimaomo and defendant appealed.  Because there were viable questions of fact regarding Cimaomo’s alleged participation in the event, demonstrating a potential defense, and evidence that defendant did not intend to abandon her defense but rather misinterpreted deadlines, the court found the brief delay in defendant’s answer did not prejudice plaintiff and the default judgment should not have been granted. 

In this medical malpractice action, defendants each moved for summary judgment dismissing the complaint, which motions were granted.  On appeal, plaintiff’s complaint against defendant Dr. Marshall and his medical group was reinstated as the Court found plaintiff’s proof raised questions of fact as to Marshall’s negligence and whether such negligence was the proximate cause of plaintiff’s decedent’s injuries.  Specifically, plaintiff offered the expert affidavit of a board certified physician who opined that defendant Marshall deviated from good and accepted medical practice in his continued reliance on his initial tentative diagnosis of ischemia without engaging in a differential diagnosis to consider other causes for plaintiff’s complaints and in his failure to refer plaintiff to an appropriate specialist.  Plaintiff’s expert stated that Marshall’s negligence in failing to properly diagnose plaintiff’s decedent’s condition nor refer him to a specialist led to decedent’ preventable death.

Defendant owner of a shopping plaza was granted summary judgment dismissing the complaint of a plaintiff who was injured after slipping on ice and falling in the plaza’s parking lot.  According to plaintiff she fell on an ice-patch that had formed as a result of a melting snow pile that caused water to flow into a depression in the parking lot and re-freeze.  Plaintiff’s proof to defeat summary judgment focused on constructive notice and included photographs of the accident scene taken with an hour of the accident, an affidavit from a meteorologist and an affidavit from an architect.  The meteorologist opined the re-freezing of the melted snow would have occurred 13-15 hours prior to plaintiff’s fall and the architect concluded that the slope of the parking lot would have caused melted snow to travel to the location where plaintiff fell on ice.  The Court found sufficient questions of fact regarding constructive notice to defeat the motion for summary judgment and reversed Supreme Court’s decision. 

Plaintiff was injured when he tripped and fell over a “tool box or tool case” in the aisle of a Sears store while he was walking and glancing at a sale flyer.  Defendant’s motion for summary judgment was denied as Supreme Court found defendant failed to meet its burden to establish it did not create the dangerous condition and plaintiff’s proof was sufficient to create a question of fact regarding whether defendant had constructive notice of the condition prior to plaintiff’s fall.  Defendant failed to produce any testimony from employees who were in charge of arranging merchandise in the aisle in which plaintiff fell or the employees who immediately came to plaintiff’s aid after the fall and were in a position to observe the accident scene.  Furthermore, defendant failed to set forth any proof of regular aisle inspections or maintenance in the area of the fall, which, given plaintiff’s statement that boxes were in the aisle, left a question of fact as to whether the dangerous condition existed for a sufficient period to time to permit defendant to discover and remedy the problem. 

Plaintiff rented an apartment in a house that shared a common driveway with the house next door.  Plaintiff slipped and fell on ice in that common driveway causing her injury.  After commencing a lawsuit against the respective owners of the two houses which shared the common driveway, Supreme Court dismissed the case against defendant Hausler, the owner of the home that plaintiff did not live in, finding such owner did not owe a duty of care to her neighbors tenant.  The negligence action against the owners of the home in which plaintiff rented her apartment proceeded to trial and plaintiff was awarded damages of $6,000 following reduction of the $15,000 award due to plaintiff’s comparative fault.  On appeal from the grant of summary judgment to Hausler and the jury’s determinations at trial, the Appellate Division reversed the award of summary judgment to Hausler and ordered a new trial.  There was proof submitted on summary judgment that Hausler exercised control over the common driveway in sharing responsibility with the other homeowners in the repair, repaving and snow removal of the entire common driveway, evenly splitting the costs for such maintenance.  Furthermore, there was proof that Hausler would apply de-icer to the hilly common driveway, and not just to the side closest to her house.

Plaintiff was injured when she slipped on ice and fell off the porch of the building in which she rented an apartment.  Plaintiff regularly used this porch to enter and exit her apartment.  In an action against the building owner, defendant moved for summary judgment contending a storm was in progress at the time of plaintiff’s fall.  Supreme Court granted the motion and dismissed the complaint.  In affirming Supreme Court’s decision on appeal, the Court noted that the plaintiff’s meteorological expert acknowledged that light snow fell on and off during the day of plaintiff’s fall and plaintiff’s own testimony stated she thought it was snowing lightly when she fell.  Therefore, the Court agreed that a storm was in progress when plaintiff fell, a finding which then required plaintiff to submit proof that the ice she slipped on existed prior to the storm in progress in order for her to survive summary judgment.  Plaintiff failed to meet her burden on this remaining issue as she testified that the ice she fell on resulted from the storm that began the night before the accident.  Furthermore, even though plaintiff used the porch on a regular basis, she failed to submit any evidence that ice was present on the porch prior to the storm in progress at the time of her fall.

(From the April 2009 Newsletter)

Just in case you have not already done so, you should read this case!

In this medical malpractice case, defendant Doerr settled with the injured plaintiff Fasso for $900,000, leaving $1.1 million in available insurance coverage on the table.  Prior to settlement, and without objection by any party, plaintiff’s health insurer, Independent Health Assoc., Inc. [IHA], intervened in the action seeking equitable subrogation for the $780,000 it had paid out on plaintiff’s behalf for the injuries she allegedly sustained due to defendant’s negligence.  As part of the settlement, plaintiff and defendant agreed that IHA’s subrogation claim would be dismissed because plaintiff was not “made whole” by accepting a settlement amount that was less than her actual damages.  Immediately thereafter, IHA sought to be reimbursed their $780,000 out of the remaining $1.1 million of insurance coverage but such claim was denied by Supreme Court.  However, the Court of Appeals heard the case and reversed, remanding for further proceedings.  The Court of Appeals held that the plaintiff and defendant could not agree to extinguish IHA’s equitable subrogation rights without IHA’s consent.  Furthermore, because $1.1 million remained in available insurance following settlement, the “made whole” rule would not preclude IHA’s claim merely because plaintiff accepted a settlement sum below the actual value of her claimed damages. 

Although the issue was not before the Court of Appeals, the Court took time to discuss the legal and practical issues surrounding intervention by insurers into underlying tort actions.  In stating that “competing policy concerns” are invoked by applications for intervention pursuant to CPLR § 1013, which deserves “legislative consideration”, the Court noted that such interventions place the insured and insurer in adversarial positions because neither has an incentive to consider the interests of the other, thereby complicating settlement negotiations between the injured party and tortfeasor.

While attending defendant’s school, and during a break between classes, the infant plaintiff attempted to slide down a stairwell banister and fell, sustaining a skull fracture and brain injury.  Plaintiff now seeks to recover damages for his injuries from defendants.  After completion of discovery and the filing of the note of issue, defendants moved to amend their answer to assert the affirmative defense of primary assumption of risk, which Supreme Court granted and the Appellate Division reserved.  On appeal the Court held that they were not inclined to extend the policy underlying the primary assumption of risk doctrine beyond situations in which the plaintiff was injured while voluntarily participating in a sporting event or entertainment activity.  In finding that plaintiff’s act of sliding down the banister was not a sporting or recreational activity, the Court refused to extend the doctrine of primary assumption of the risk to bar recovery against defendants. 

Following a jury trial, plaintiff was awarded $450,000 for her future pain and suffering related to injuries she sustained to her right arm and shoulder during a fall.  Defendant appealed claiming such award was excessive.  In upholding the jury’s determination and award, the Court noted that at the time of her injury plaintiff was 37 years old and had a life expectancy of 44.7 years.  The proof presented by plaintiff through her treating physician established that she sustained a hyper flexion injury to her dominant arm and injury to her brachial plexus, resulting in continuing symptoms of pain, numbness, weakness and reduced range of motion of her right arm.  The treating physician diagnosed plaintiff with thoracic outlet syndrome and scapula thoracic disassociation and testified that her conditions were permanent and would continue to significantly limit her use of her right arm and shoulder.  Furthermore, the plaintiff testified that due to her pain, numbness and weakness, she was restricted in her activities.

Plaintiff was injured when she stepped into a rut on a paved public street in Kingston, causing her to fall.  Following a motion for summary judgment by defendant, plaintiff argued that defendant affirmatively created the hazardous condition.  Plaintiff’s expert opined that the road was negligently designed and constructed, which caused water to pool and degrade the surface of the roadway over time.  However, there was no proof offered that defendant designed or constructed the road or that defendant performed any work that immediately resulted in the existence of a dangerous condition as opposed to a hazardous condition that evolved over a period of time.  The Court also dismissed plaintiff’s argument that the roadway should have been repaved rather than patched periodically as there was no evidence that plaintiff’s fall was the result of the patchwork. 

While walking on the sidewalk in front of property owned/leased/managed by the respective defendants, plaintiff slipped and fell on ice causing her injuries.  Plaintiff alleged defendants created the dangerous condition or had notice of the ice and failed to address it properly.  Defendants met their initial burden on their motions for summary judgment dismissing the complaint through testimony of an employee who performed snow removal and de-icing of the subject sidewalk less then 24 hours prior to the accident and inspected the property on a daily basis.  In opposition to defendants’ motions, plaintiff offered her own testimony and the affidavit of a meteorologist.  Plaintiff testified that she slipped on a patch of ice that was the size of her body, although she did not see it until after she fell because she was looking ahead while walking toward a bus stop.  The meteorologist’s proof established that a 24-hour storm produced 8.5 inches of snow in the effected area beginning some 40 hours prior to plaintiff’s fall and that no precipitation had fallen in the 16 hours immediately prior to her fall.  He opined that the large patch of ice that plaintiff testified she slipped on was the residue of that 24-hour storm that had ended some 16 hours before her accident.  Supreme Court and the Appellate Division both held plaintiff’s proof created a trial question of fact regarding constructive notice. 

Plaintiff worked at decedent’s residence three days a week for a few months prior to the date of her accident, when she arrived at decedent’s house and slipped and fell on packed snow and ice on the driveway, causing her to sustain injuries.  In support of its summary judgment motion, defendant produced proof that a storm was in progress at the time of plaintiff’s fall, thereby shifting the burden to plaintiff.  Plaintiff presented proof that the storm began about the same time she arrived at decedent’s house, that there was packed snow and ice on the driveway that covered most of the driveway, which was a few inches thick, and that it had been present before the date of the accident.  There was also proof that in the two days prior, temperatures did not go above freezing and no precipitation had fallen.  Therefore, the Court found plaintiff presented sufficient proof to create a triable question of fact as to whether decedent was negligent in maintaining his property, reversing Supreme Court’s grant of summary judgment.

Plaintiff was involved in a single car accident when she swerved to avoid a deer, went off the paved portion of the roadway, side-swiped some trees and struck a tree stump located three feet off the roadway, head-on.  At issue on appeal was plaintiff’s claim that the State of New York was negligent in failing to comply with new safety standards regarding clear zones along the side of the roadway during a 1991 project involving that roadway.  Plaintiff was required to prove that the State was undertaking a reconstruction of the roadway, and not just a paving or resurfacing project, to argue the State had to comply with design standards adopted after the roadway was constructed.  In affirming the lower court’s finding that defendant was not liable following a bifurcated trial, the Court noted testimony from State and local DOT employees who testified that the project involved repaving only and did not rip-out or reconfigure the roadway or in any way change the area outside of the shoulders. Additionally, the Court held there was no proof that the State breached its duty to maintain the road in a reasonably safe condition as no prior accident or other event gave notice to the State of this allegedly dangerous condition beyond the paved portion of the roadway.

Plaintiff, an attorney, brought this action for defamation/fraud/injurious falsehood (among others claims) against his former client, defendant Claverack.  For 25 years the plaintiff was retained by defendant to represent its insured’s in liability claims.  One such action in which plaintiff was retained resulted in a $4,206,780 verdict against defendant’s insured, which was found 75% liable.  Following the large verdict, defendant claimed plaintiff failed to keep it apprised of the progress of the litigation and failed to settle the case within the policy limits of its insured.  During post-trial settlement negotiations, defendant sent a letter to plaintiff’s professionally liability insurer, Zurich, seeking their contribution to a post-judgment settlement.  In the letter to Zurich, defendant enclosed various memoranda detailing conversations between plaintiff and two officers and directors of defendant that were allegedly created contemporaneous to the alleged telephone conversations.  However, plaintiff claims that the memoranda were fabricated to compel his liability carrier, Zurich, to contribute to the post- judgment settlement, which it did.  Plaintiff was also required to pay his deductible on the settlement payment.  Following these events, Zurich declined to renew plaintiff’s liability policy, forcing plaintiff to insure with another company at a higher premium.  On appeal from Supreme Court’s grant of summary judgment to defendants, the Court reversed and found questions of fact on the defamation, injurious falsehood, and fraud causes of action.  Notably, plaintiff contended defendants intentionally fabricated the memoranda to contain false statements, published them to Zurich implicating his business reputation, caused plaintiff to pay a deductible and caused him to pay high premiums for insurance. 

Plaintiff initiated this Labor Law action against, among others, the Town of Colonie.  The Town in turn brought a third-party indemnification claim against Anjo Construction seeking contractual indemnification.  Anjo moved to dismiss the third-party claim, which motion was granted by Supreme Court.  Plaintiff appealed the grant of partial summary judgment dismissing the third-party claim.  In citing CPLR 5511, the Court dismissed plaintiff’s appeal stating that plaintiff did not have standing to dispute the dismissal of the third-party contractual indemnification action between the Town and Anjo, which did not affect the plaintiff’s complaint.

Plaintiff’s case was dismissed for failure to timely serve a complaint pursuant to CPLR 3012 (b) after receiving a demand for a complaint in April 2007 by defendants.  The Court noted that plaintiff failed to proffer a reasonable excuse for her three-month delay in responding to defendants’ demand and that the proof in the record established that plaintiff had sufficient information at the time of filing the summons with notice to serve a complaint but failed to timely do so.

During this medical malpractice jury trial, Supreme Court charged the jury with an instruction regarding evidence of the defendant physician’s habit in performing surgeries.  A core issue in the action was what caused plaintiff to suffer a long thoracic nerve injury during a breast biopsy surgery performed by defendant.  On appeal by plaintiff following a defense verdict, defendant conceded the habit evidence instruction was given in error.  However, the Court found such error was harmless as defendant did not rely on this theory in his case and there was no real evidence concerning defendant’s habits in performing this type of surgery presented to the jury. 

Plaintiff brought this action on behalf of her infant daughter for injuries she sustained due to dangerous conditions on defendants’ property.  The Court ordered the infant plaintiff to submit to an IME by a certain date.  Counsel for the parties confirmed a date for the IME within the court’s timeline and plaintiff’s counsel informed the plaintiff of the date.  However, the infant plaintiff did not appear for the IME as scheduled.  Following defendants’ motion to dismiss the complaint for failure to comply with disclosure, Supreme Court struck the complaint.  On appeal, the Court reversed and ordered Supreme Court to issue a conditional dismissal order.  Given the infant plaintiff’s age, hearsay claims that plaintiff was never informed of the IME date and the fact that plaintiff only failed to appear at one IME, Supreme Court should not have dismissed the complaint.         

(From the March 2009 Newsletter)

Defense Counsel’s Illegal Communication with Plaintiff’s Treating Physicians

During a medical malpractice jury trial in July 2007, defense counsel had ex-parte conversations with two of plaintiff’s treating physicians without first obtaining plaintiff’s authorization pursuant to HIPAA.  Following discovery of these improper conversations during the trial, plaintiffs moved post-trial to set aside the defense verdict and for a new trial, which was granted by Supreme Court.  Defendant appealed and the Appellate Division affirmed Supreme Court’s post-trial decision and order.  During the trial, plaintiffs subpoenaed the two treating physicians at issue to provide testimony on plaintiff’s behalf.  However, the physicians’ testimony was not what plaintiff’s counsel had expected and came as a complete surprise.  It was not until later that plaintiffs’ counsel became aware of the ex-parte conversations defense counsel had with these two treating physicians.  In holding that the testimony of the treating physicians was clearly prejudicial to plaintiffs’ case, the Court noted that defense counsel’s illegal behavior enable him to obtain information he otherwise would not have had, which allowed him to elicit favorable testimony for defendant, of which plaintiff was not prepared to rebut.

Plaintiff, a 71 year old woman, was injured when she allegedly stumbled and fell while exiting defendant’s bus.  The defendant bus company had a policy that all drivers are to stand facing the bus and assist passengers who are alighting from the bus.  Furthermore, as a common carrier, defendant owed a duty to plaintiff, as an alighting passenger, to stop at a place where she could safely disembark.  Defendant moved for summary judgment dismissing the complaint, which Supreme Court denied and the Appellate Division affirmed finding questions of fact regarding defendants’ negligence.  Notably, there was testimony from the bus driver that he was engaged in a conversation with another passenger when plaintiff exited the bus and therefore did not notice her.  Plaintiff and her daughter testified that the bus driver had his back to plaintiff as she exited and partially blocked her way, causing her fall and injury.  There was also proof of a height differential from the bottom step of the bus to the ground, which was not addressed by the driver.  However, a fellow passenger testified that plaintiff fell after walking away from the bus, not while exiting. 

Supreme Court dismissed a negligent supervision action against defendant school district regarding injuries a fifth grade student received after being pushed by a fellow fifth grader into a locker and bench in the boys’ locker room.  The incident occurred immediately following gym class during the four minutes the boys are allotted to change after class.  In focusing on the issue of whether or not the acts of the fellow student could have been reasonably anticipated, the Court cited testimony from the physical education teacher in charge of the boys that day, finding questions of fact exists as to whether defendant could have reasonably anticipated the intentional act causing plaintiff injuries and whether the lack of supervision in the locker room was a substantial factor in brining about the injuries.  Namely, the physical education teacher testified that the students in this gym class were acting out of control, not listening to directions, and had to be lectured on stopping their inappropriate behavior and listening to directions.  The teacher admitted that given the students behavior that day, the teacher would have greater concern to supervise their behavior while they were changing in the locker room.  Furthermore, it was custom for the teacher to go into the locker room at some point while the boys were changing.  However, on the date in question, the teacher did not enter the locker room because he was talking to another student in the gym.

In this subrogation action by plaintiff, a health insurer, against defendants, who injured plaintiff’s insured, Supreme Court dismissed the complaint based upon a general release the insured provided to defendants. In the underlying tort action, Stephanie Weaver (insured) settled her personal injury action against defendants, the driver and owner of a vehicle that struck her as a pedestrian, for $2 million dollars.  Prior to the settlement agreement entered into by Weaver and defendants, defendants were made aware of plaintiff’s lien and subrogation rights as Weaver’s health insurance company who had paid approximately $71,000 on behalf of Weaver for health services.  During the settlement process, Weaver’s counsel indicated to defendants that the purported lien would be satisfied with settlement funds held in escrow.  At the same time, however, Weaver’s counsel told plaintiff that while settlement negotiations were occurring and a settlement hearing date was set, the settlement would only be for pain and suffering and not damages for any medical expenses, including those paid by plaintiff on Weaver’s behalf.  Once the settlement was reached, Weaver signed a general release in favor of defendants which stated Weaver would “indemnify and save harmless [defendants] against any and all further claims for damages, costs, expenses and liens, including but not limited to …. health insurance liens.”  Despite this language, the Appellate Court reversed Supreme Court’s order dismissing the complaint, holding that as defendants had knowledge of plaintiff’s subrogation rights prior to settlement, the settlement had no effect on plaintiff’s right to recover against defendants.  The Court did not address defendants’ possible indemnification claim against Weaver, but presumably that litigation will arise very shortly.

Plaintiff was injured in a car accident when Mr. Zulauf, driving while intoxicated, struck her vehicle.  She brought this action against defendant Grandview pursuant to GOL § 11-101 and the case proceeding to trial.  The proof at trial established that during the evening immediately prior to the accident, Zulauf had attended a Christmas Party at defendant Grandview hotel.  There were approximately 200 guests at the party and two bartenders.  While there was clear evidence that Zulauf was visibly intoxicated during the party, there was no evidence presented that the bartenders or any of defendant’s employees personally served Zulauf alcohol.  Witnesses testified that Zulauf remained seated at a table most of the evening and, due to the large number of people at the party, the bartenders’ views of the tables were often obstructed.  Given this proof, the jury’s verdict for defendant would not be set aside on appeal.          

(From the February 2009 Newsletter)

Products Liability

Plaintiff was injured while riding in the back compartment of a box truck that was transporting a motorcycle.  Plaintiff stood up while the vehicle was stopped at a red light, and subsequently fell injuring his arm on the wheel well when the truck began moving again.  After commencing an action asserting claims of negligence and strict products liability, defendant Utilimaster (manufacturer of the box portion of truck) was granted summary judgment dismissing the claims against it.  In support of its motion, defendant presented proof that the wheel well that injured plaintiff was not inherently dangerous for its intended purpose, which did not include passengers riding in the cargo area of the truck.  Plaintiff’s expert affidavit did not raise any question of fact as his opinion that it was common for people to ride in the cargo area of the truck lacked a proper foundation.  Because it was not reasonably foreseeable that plaintiff would ride in the cargo area, the Court held the complaint was properly dismissed by Supreme Court.

While playing touch-football during recess at school, the infant plaintiff, a fifth grader, collided with a fellow teammate causing some of her teeth to be knocked out.  The parents of the injured student initiated an action against the school district alleging negligent supervision by the defendant.  Following defendant’s summary judgment motion to dismiss the complaint, Supreme Court denied the motion finding triable questions of fact as to negligence and causation.  In reversing Supreme Court, the Appellate Court found the complaint must be dismissed for lack of proximate cause finding that no amount of supervision could have prevented this unintentional collision between children participating in a sport which requires running in different directions.  Furthermore, plaintiff’s expert affidavit cited no recognized standards or data to support his conclusions that the recess game required formal supervision and provision of safety equipment.

In this Labor Law §§ 200, 240(1) and § 241(6) action, plaintiff injured his left elbow while working on an elevated platform when he tripped over a trapdoor in the floor, which he had left open after climbing through it to gain access to the platform, causing him to fall to the floor of the platform, hitting his elbow.  Following motions for summary judgment by all parties, Supreme Court dismissed plaintiff Labor Law § 200 claim but denied summary judgment to any party on the other claims.  On appeal, the Court modified Supreme Court’s decision and dismissed the entire complaint.  As for the § 240 (1) claim, the Court held because plaintiff’s injury caused by tripping over the trapdoor and hitting his elbow on the platform could have occurred at ground level and was not related to the effects of gravity, his claim should be dismissed.  The § 241(6) claim also should have been dismissed by Supreme Court because the evidence supported the finding that plaintiff’s injury resulted solely from his tripping and falling onto the platform and was not proximately caused by any violation of the regulations regarding hazardous openings or use of safety harnesses. 

Plaintiff, a laborer hired by defendant to construct a garage at defendant’s home, was injured when he fell from a scaffold while working on the garage project.  As Labor Law § 240(1) and § 241(6) do not apply to owners of one and two-family dwellings, such as defendant’s dwelling, plaintiff brought this Labor Law action under the premise that defendant directed and/or controlled the work of plaintiff and therefore the homeowner exemption did not apply.  Supreme Court granted defendant’s motion to dismiss the complaint and the Third Department affirmed finding although defendant homeowner was involved in many aspects of the garage project, he ordered materials and hired subcontractors at the direction and suggestion of plaintiff, the garage was built according to a proposal prepared by plaintiff and there was not proof that defendant supervised or controlled any actual construction of the garage.  Furthermore, the Labor Law § 200 claim could not continue as the conditions that brought about the accident were caused by plaintiff’s own work methods at a point in time when defendant was not exercising any control over the work.

Following the grant of partial summary judgment to plaintiff on liability (Labor Law § 240[1]) and a non-jury trial on damages before Supreme Court, the Appellate Division on this cross-appeal reversed the prior order that granted plaintiff’s partial summary judgment and sent this case back for trial.  Namely, the Court found questions of fact exist regarding whether or not plaintiff’s conduct was the sole proximate cause of his injuries in his choice of where to tie off his lanyard and whether the scaffold used by plaintiff should have been expected to withstand the weight exercised upon it by the falling spider beams that plaintiff was dismantling at the time of his injury.  In reaching this conclusion, the Court found conflicting testimony between plaintiff and the only eyewitness to the accident regarding the happenings of the event and whether or not the scaffolding collapsed or if plaintiff was merely pulled from the scaffolding by a falling spider beam, which possibly should not have been expected to withstand the weight being put upon it.  The Court also found questions of fact with regard to whether a proper tie off point for plaintiff’s lanyard was provided and whether or not plaintiff had been the sole cause of the accident by not creating his own pad eye to tie himself off to rather then using one already available within his work area. 

On February 15, 2007, while a senior at respondent’s high school, petitioner was injured when a fellow student pulled a chair out from under her in the senior only cafeteria, which was allegedly unsupervised.  On the day of the accident, the petitioner’s mother explained to the school nurse what happened and an accident report was made indicating the facts set forth above.  Eight months later, in October 2007, petitioner applied for leave to file a late notice of claim against respondent to allege her injuries were caused by its negligent supervision of the students in the cafeteria at the time of plaintiff’s injury.  The Court affirmed Supreme Court’s denial of leave to file a late notice of claim as the respondent arguable suffered substantial prejudice in its ability to investigate this claim and incidence as the fellow students in the cafeteria had presumably graduated as of October 2007 and the cafeteria was allegedly not supervised by any adults.  Furthermore, petitioner did not offer any excuse for her delay in filing the notice of claim.

The Third Department took a contrary position to those of the Fourth Department and Second Department in this personal injury action brought by a police officer seeking to invoke VTL § 1104 (e) to his benefit to recover for personal injuries he sustained while in the course of his duties as a police officer attempting to effectuate a traffic stop.  The accident occurred when plaintiff, a Broome County Deputy Sheriff, was traveling northbound and attempted to make a u-turn, with his emergency lights activated, to pursue a southbound speeding vehicle.  Prior to his attempted u-turn, plaintiff pulled to the right shoulder with his emergency lights activated and saw defendant’s decelerating northbound vehicle approaching him from behind.  After looking over his shoulder and detecting no vehicle, plaintiff began his u-turn and was immediately struck by defendant’s vehicle.  The deputy had assumed defendant had stopped her vehicle prior to reaching the location of plaintiff’s stopped vehicle but defendant testified that she had only slowed down her vehicle in approaching the plaintiff’s patrol car.  Following the accident, plaintiff initiated a negligence action against defendant seeking recovery for his personal injuries sustained in the accident.  Defendant asserted an affirmative defense alleging that plaintiff’s culpable conduct caused or contributed to his damages.  Plaintiff then moved to dismiss the affirmative defense pursuant to VTL §§ 101, 114-b and § 1104.  The plaintiff argued that because he was involved in an emergency operation at the time of the accident, his own negligence may not be considered and that liability can only be assessed against him through proof that he acted with reckless disregard for the safety of others.  Defendant argued plaintiff cannot use the reckless disregard standard found in VTL § 1104 (e) as a “sword” to avoid comparative negligence in seeking damages for his own injuries.  Supreme Court granted plaintiff’s motion to dismiss the affirmative defense and on appeal, the Third Department reversed finding plaintiff is not entitled to the protections of VTL § 1104 (e) when suing in his personal capacity as the issue in the case is a bystander’s civil liability to the operator of an emergency vehicle and not the civil liability of an emergency operator to an injured party.  The Court made note that the application of VTL § 1104 (e) in this action could potentially cause an unwarranted financial windfall to plaintiff if plaintiff’s negligence were barred for consideration by the jury.  Lastly, the Fourth and Second Departments have taken contrary positions on this issue involving application of VTL § 1104 (e).    

Plaintiff slipped and fell on snow and ice on the sidewalk in front of her neighbor’s house.  After commencing her action against the City, plaintiff conceded there was no prior written notice to the City of the snow and ice condition but alleged the City created the dangerous condition which led to her injuries, thereby obviating the need for prior notice.  However, plaintiff’s proof failed to raise a triable question of fact on this issue and defendant established its snow removal operations in that area occurred one week before plaintiff’s accident.  Plaintiff’s action was dismissed.

Third-party defendant, Kenall, had a purchase contract with defendant, Woodhead, to provide magnetic lighting fixtures to Woodhead.  Within the contract between Kenall and Woodhead, there was a forum selection clause which stated “venue over any dispute arising under or in connection with this purchase order shall reside exclusively in … Counties of Boone and Cook…in Illinois.”  When Woodhead was sued by a person injured from a falling magnetic light fixture manufactured by Kenall, Woodhead started a third-party action against Kenall in New York Supreme Court seeking contribution and indemnification.  Kenall successfully moved to dismiss the action in New York based upon the forum selection clause and the Appellate Division affirmed.  The Court noted the third-party action by Woodhead concerned enforcement of their contractual right to indemnification from Kenall pursuant to the purchase agreement and therefore was subject to the broad forum selection clause of such agreement once invoked by Kenall.

Pursuant to CPLR § 504, all actions against a county shall be tried in that county.  However, the courts can permit venue in another county upon a showing of compelling circumstances.  In this negligence action to recover for personal injuries, plaintiff sued the County of Chemung and Vector Construction in Erie County, where plaintiff resides.  Following a motion by the County to change venue to Chemung County, and a cross-motion by plaintiff to remain in Erie County, Supreme Court granted defendant’s motion, denied plaintiff’s cross-motion and moved the case to Chemung County.  On appeal, the Court reversed Supreme Court’s ruling finding plaintiff set forth compelling circumstances to support venue remaining in Erie County while defendant failed to establish more than a minimal inconvenience to a retired County employee if venue was in Erie County.  Plaintiff’s proof consisted of affidavits from his non-party treating physicians who provided him medical care for the injuries related to the litigation and indicated traveling to Chemung County to provide testimony would be a tremendous hardship on their medical practices and also affidavits from two employees of plaintiff’s employer (an eyewitness to the accident and the project manager) who reside in Erie County and stated traveling to Chemung County for trial would cause them significant inconvenience.    

Plaintiff and her sons entered a Stewart’s shop, which had a sign near the door indicating “wet floor”, but the floor inside the shop appeared dry.  Plaintiff was injured when she turned the corner of an aisle and slipped and fell on a large amount of liquid being pushed toward her by defendant’s employee using a cleaning-stripping machine.  Following a jury trial, the jury found both plaintiff and defendant negligent but determined that only defendant’s negligence was a proximate cause of the accident.  In affirming the verdict, the Appellate Division noted that defendant’s counsel stipulated at trial that the floor where the accident took place was not in a reasonably safe condition and that while plaintiff could have been more careful when entering the store, a jury could have reasonably concluded that plaintiff may not have known or had reason to know the area where she fell was slippery. 

While pumping gas into his mother’s vehicle, plaintiff unknowingly spilled gasoline on his clothing when the gas pump nozzle popped out of the car’s fuel tank.  Plaintiff then got back into the vehicle and attempted to light a cigarette, causing his clothes to ignite and burn the right side of his body.  Following his injury, plaintiff made claim for no-fault insurance benefits with defendant GMAC.  GMAC denied the claim and this action ensued.  In finding that plaintiff is not entitled to no-fault benefits for the injuries he sustained when lighting his cigarette, the Court noted that use of the vehicle must be a proximate cause of the injury sustained for entitlement to no-fault insurance benefits and that, in this circumstance, the vehicle itself was not the cause of his damages.

A 19-year old Ithaca College student was injured when she fell over a balcony at a student apartment building located on the Ithaca College campus.  Plaintiff initiated an action against Ithaca College seeking compensation for her injuries and Ithaca College in turn brought an action seeking contribution against the five students who lived in the subject apartment pursuant to General Obligations Law § 11-100 and common-law negligence.  Two of the students, Adams and O’Connell moved for summary judgment dismissing the third-party claims against them.  Supreme Court granted both students’ motions to dismiss the common-law negligence claims and the statutory claims against O’Connell but denied Adams’ motion to dismiss the statutory claims alleged against him.  The proof established that Adams drove a fellow third-party defendant to the store to purchase alcohol for the party and also drank a “shot” of liquor with the 19 year-old plaintiff at the party.  Therefore a question of fact existed as to whether Adams assisted in providing alcohol to the plaintiff.

Following an accident in which plaintiff was injured when a police vehicle collided with her vehicle; plaintiff’s attorney submitted a written request to Defendant City of Schenectady Police Department to preserve both vehicles in their “immediate post-accident condition.”  However, plaintiff was not permitted to inspect the police vehicle while it was stored in the police station parking lot and the defendant subsequently moved the police vehicle to a remote, outdoor storage site where the vehicle was vandalized prior to plaintiff being provided with the opportunity to inspect it.  Thereafter, plaintiff commenced a Special Proceeding to preserve evidence and Supreme Court ordered defendant to preserve all evidence in its current condition and to put the police vehicle inside.  Despite the Court’s order, defendant failed to move the police vehicle inside.  Plaintiff then commenced this negligence action and moved to strike defendant’s answer based upon spoliation of evidence.  Supreme Court denied plaintiff’s motion to strike the answer but found plaintiff was entitled to an adverse inference instruction given defendant’s negligent spoliation of evidence, which the Appellate Division upheld.  With regard to the collateral estoppel issue presented in this case, the Court reminds us that a determination concerning a traffic violation should not be given collateral estoppel effect in a subsequent negligence action.

Plaintiff, a pizza delivery person, was injured when he fell down an unlit stairwell while delivering a pizza to a second-floor tenant of an apartment building owned by defendant.  Plaintiff commenced this action against the owner alleging that he breached a duty owed to plaintiff to maintain his building in a reasonably safe condition by not providing proper stairwell lighting.  Defendant moved for summary judgment to dismiss the complaint, plaintiff moved for summary judgment as to liability, and Supreme Court denied both motions.  On appeal, the Court reserved the denial of defendant’s motion finding defendant met his burden by demonstrating he maintained his building in a reasonably safe condition by providing a ceiling chandelier on the first floor and a wall sconce on the second floor with working light switches to operate these fixtures located at the bottom and top of the subject stairwell.  Notably, there had never been any complaints with regard to lighting in the stairwell and no injuries reported regarding stairwell lighting.  Also, it appears that no regulation or law with regard to stairwell lighting was applicable to this case. 

This case arose after plaintiff, a professional painter, sustained injuries when he fell from a ladder that slipped out from under him while painting the second-story porch railing of a single-family home.  Plaintiff sought to avoid the homeowner exemption to his Labor Law § 240 and 241 claims by claiming defendant directed and controlled his work.  However, Supreme Court granted defendant’s motion to dismiss those causes of action because the owner did not significantly participate in the project even though she explained the work to be done, asked that the plaintiff not use a bucket truck and provided him with a ladder.  While affirming Supreme Court’s dismissal of the § 240 and 241 claims, the Appellate Court reserved Supreme Court’s denial of summary judgment to dismiss plaintiff’s negligence and § 200 claims.  The Court found defendant provided a safe work site despite plaintiff’s contentions as the defects and dangers of the ladder used by defendant were readily observable to plaintiff and plaintiff testified that he knew the ladder did not have rubber feet and that the railing that he placed the ladder against was wobbly.

Plaintiff, an electrician, was injured while pulling wires through a drop ceiling when the A-frame ladder he was standing on started to “walk” out from under him, causing plaintiff and the ladder to fall.  At the time of his injury, plaintiff was working for a subcontractor of defendant RSM at a store owned by defendant Advanced Auto Parts.  Among other causes of action, plaintiff initiated an action against defendants pursuant to Labor Law § 240 (1), contending defendants did not supply him with a safety device appropriate for the task of pulling electrical wires through the ceiling.  In support of their motion for summary judgment to dismiss the complaint, defendants’ expert engineer opined, following his inspection of the scene and ladder, that the ladder supplied to plaintiff was safe and proper equipment for the job.  Furthermore, plaintiff’s supervisor averred that plaintiff had admitted the ladder fell because he did not set the side bars of the ladder properly after moving it prior to the accident.  The Court found plaintiff’s Labor Law § 240 (1) should have been dismissed given this unrefuted proof presented by defendants.

Plaintiff was injured when he slipped and fell on a wood deck at defendant Saratoga National Golf Club, Inc. that was constructed a few months prior to the accident.  It was raining on the date of the accident and the wood deck on which plaintiff slipped and fell was wet.  In opposition to defendant’s motion for summary judgment, plaintiff produced sufficient proof to establish a question of fact regarding whether defendant created a dangerous or defective condition in constructing the wood deck.  Notably, plaintiff submitted proof that 1) the wood deck was not sloped away from the clubhouse as originally planned, 2) an architect from the firm who prepared the original design for the deck testified at his deposition that constructing a deck without a slope that allowed water to puddle was not constructed with good and accepted architectural practices due to safety issues and 3) the construction project manager testified at his deposition that building a deck without a slope away from the building was also contrary to good and accepted building practice because it could create puddling resulting in slipping hazards.  Furthermore, plaintiff presented proof that a punch-list created by another architect monitoring the project found the wood deck was “too slick [and] ponding is occurring on top.”  As plaintiff fell on the wet wood decking after stepping into a puddle, and given the proof presented by plaintiff regarding defendant’s construction of the deck, the Court found defendant’s motion for summary judgment should have been denied.  

Unlike the case above, defendant in this action was entitled to summary judgment dismissing plaintiff’s slip and fall case after plaintiff failed to raise any triable question of fact with regard to defendant’s liability for plaintiff’s fall on ice outside of defendant’s bank.  Defendant met its initial burden of proof for summary judgment through testimony of the defendant’s assistant VP and operations officer, and through bills from a snow removal contractor hired by defendant, establishing there was no precipitation on the day of the fall, it had been clear weather for days prior, the area at issue was otherwise free of snow and ice and defendant did not create the condition.  In opposition to defendant’s motion, plaintiff was unable to present any proof that defendant created the condition or had actual notice of the ice.  Furthermore, plaintiff’s testimony that the ice was very small and that he did not notice it when he entered the bank or until after he fell only supported defendant’s contention that it did not have constructive notice of the alleged dangerous condition.

This class action was certified pursuant to Public Health Law § 2801-d, which provides for nursing home residents to recover for deprivation of certain rights and for negligence.  The named plaintiff, Flemming, settled his private causes of action and subsequently moved pursuant to CPLR 907, 908 and 909 for an order approving settlement of the class action of behalf of its 242 members, including plaintiff Flemming.  Plaintiff requested the settlement of $950,000 be used to compensate the class members, pay attorneys fees and expenses, notify class members, administer the settlement and provide an incentive award to plaintiff Flemming.  One of the class members, Mouris, opposed the settlement terms regarding payment of fees and expenses and requested an order awarding her attorneys fees related to presenting her objections to the proposed class action settlement terms.  Supreme Court denied Mouris’s objections and approved the class action settlement, including a $35,000 incentive award to plaintiff Flemming.

On appeal by Mouris, the Appellate Court reduced the attorneys fees awarded to the amount originally requested by class counsel ($425,000), which was greater than a one-third percentage but less than the amount awarded by Supreme Court using the lodestar method.  The Court noted this was a complex case, involving an area of law without much case law, and took over six years to prosecute.  With regard to the incentive award to plaintiff Flemming, the Court reversed Supreme Court’s decision stating New York law does not authorize incentive awards for named plaintiffs in class actions.  Lastly, the Court also reversed Supreme Court’s award of $40,000 to the class action settlement administrator as there was insufficient proof submitted to support this amount and remitted the matter back to Supreme Court for determination of the reasonable value of the settlement administrator’s services and expenses.  The Appellate Court also denied Mouris’s request for counsel fees and expenses incurred in raising her objections to the settlement terms as there is no statutory authority to allow for shifting of counsel fees under this circumstance.  

Youmans v Maple Ski Ridge, Inc. (Spain, J., 503825 [07/24/08])

With colder weather approaching, it is good to know that slipping on snow is an assumed risk of snow tubing.  Plaintiff was injured when he slipped and fell over a snow berm on a snow tubing run at Maple Ski Ridge.  The ski center had a duty to exercise care to make the conditions as safe as they appear to be.  The plaintiff’s case was dismissed on summary judgment as defendant established the plaintiff assumed the risk of falling on snow, a commonly appreciated and obvious risk inherent in the sport of snow tubing, and plaintiff failed to present any facts establishing defendant concealed or unreasonably enhanced the danger, created conditions above those inherent in the activity, or acted recklessly or intentionally. 

Pesta v City of Johnstown and Peter Luizzi & Brothers Contracting, Inc. (Lahtinen, J., 503596 [07/17/08])

 Plaintiff, an employee of third-party defendant Luizzi, was gravely injured when he was struck by a dump truck owned by Luizzi while working on a paving construction site for the third-party plaintiff, City of Johnstown.  Luizzi had contracted with the City of Johnstown to perform the paving and had four insurance policies in effect at the time of the accident.    The City of Johnstown moved for summary judgment on its indemnity claim against Luizzi and, in the meantime, the plaintiff’s action settled but preserved the third-party action.  In granting the City of Johnstown’s motion for summary judgment on its indemnification claim, the Court reviewed the language of the four insurance policies purchased by Luizzi and held the antisubrogation rule did not apply because coverage for the accident was excluded under the terms of the four policies. 

McDaniel v Keck, et al. (Lahtinen, J., 502903/504292 [07/17/08])

New York State’s Good Samaritan statute is designed to encourage medical professionals to provide aid to those in need without fear of liability claims.  In this case, defendant Keck, a nurse, volunteered her nursing services to a child who was injured on a farm.  Defendant Keck was not under any duty to aid the injured child, did not expect monetary compensation for her services and aided the child immediately after the accident occurred, in the farmhouse where the child went to after being hurt.  As there was no contention of gross negligence on the part of defendant Keck, her actions are protected by the Good Samaritan law.

Eaton v Keyser, et al. (Lahtinen, J., 504519 [07/31/08])

Plaintiff was injured in an automobile accident that occurred in Tennessee on January 27, 2004.  Following the accident, plaintiff remained in Tennessee for two years, convalescing, before returning to New York.  Plaintiff then commenced a New York action to recover for his injuries on January 18, 2007.  Defendants, owner and operator of the car plaintiff was traveling in at time of accident, moved to dismiss the action as time-barred by the Tennessee one-year statute of limitations.  In denying defendants’ motion, the Court found plaintiff was a resident of the State of New York at the time of the accident. Plaintiff was born and raised in New York and, at the time of the accident, he maintained his personal belongings in New York, received mail in New York, possessed a New York identification card and only intended on visiting his father in Tennessee at the time of the accident, not establishing his residency there.

Thompson v Seligman, et al. (Stein, J., 504314 [07/31/08])

Plaintiff hired defendant Seligman to represent her in a workers’ compensation claim for injuries she received while cleaning rooms at the Gideon Putman Hotel.  Plaintiff also inquired about suing the Hotel for her pain and suffering, which Seligman stated could not be done based upon his belief that she was employed by the Hotel.  After the three year statute of limitations on her pain and suffering claim expired, plaintiff learned she could have brought such a third-party claim because she was not employed by the Hotel at the time of her injury but was employed by AMFAC.  Plaintiff initiated a legal malpractice action against Seligman for failing to timely advise her of her potential third-party claim against the Hotel and defendant moved for summary judgment dismissing the complaint.  In finding a triable question of fact existed as to whether defendant fulfilled his duty to plaintiff to investigate the availability of a third-party claim, the Court noted that while the Hotel’s workers’ compensation carrier paid plaintiff her benefits, plaintiff’s W-2 statement and her pay stubs clearly indicated she was employed by AMFAC. Notably, there was no evidence that defendant ever reviewed those documents or made any further inquiry to identify plaintiff’s employer at the time of the accident.

Neissel v Rennselaer Polytechnic Inst., et al. (Carpinello, J., 503209 [08/07/08])

Plaintiff, a 24 year old journeyman high voltage electrician, was severely injured after coming into contact with energized high voltage equipment he was repairing at RPI.   During the trial of the action seeking compensation for his injuries, the jury found plaintiff 20% at fault for his injuries.  Among other things, the jury awarded plaintiff $3 million for his future pain and suffering, reduced by 20% due to his fault.  In sustaining the significant damage award, the Court noted that plaintiff received third, fourth and fifth degree burns to his arms, torso and right hand, sustained significant permanent muscle loss, cannot regulate heat due to skin grafts, lacks normal strength and sensation in his arms, and suffers from post-traumatic stress disorder, social isolation and panic attacks. 

Johnson, et al. v First Student, Inc., et al. (Kane, J., 503434 [08/14/08])

In this automobile accident case, plaintiff was rear-ended by a bus owned by defendant First Student and operated by defendant Kristopherson.  Immediately prior to the accident, plaintiff was stopped waiting for oncoming traffic to pass so that she could make a left-hand turn.  Following a jury trial, the defendants were found not negligent and plaintiff moved to set aside the verdict, which was denied.  On appeal, the Court held the jury verdict could not stand given the presumptions of proof and evidence presented at trial and remitted the case for a new trial.  However, within its decision, the Appellate Court reminds us of the importance of the motion for a directed verdict.  Because plaintiff did not move for a directed verdict on the issue of liability, the Appellate Court was not able to reverse and entered judgment on plaintiff’s behalf on the issue of liability.  In failing to make the motion for directed verdict, plaintiff conceded that the issue of liability was one for the jury and could not be decided as a matter of law.

Matter of the Arbitration between Central Mutual Ins. Co. v Bemiss (Rose, J., 504288 [08/14/08])

The respondent in this matter was injured in a multicar accident and was offered one of the tortfeasor’s full liability policy in settlement.  Respondent also had SUM coverage under her insurance policy and provided written notification to her insurer (petitioner) of her intent to enter into the settlement, with no response provided by petitioner.  Respondent then proceeded to settle with a second tortfeasor from the accident, but for less than that tortfeasor’s liability policy limits.  This time, respondent did not provide any notification to her insurer of her intentions to settle with the second tortfeasor.  Respondent provided releases to both tortfeasors, without preserving petitioner’s subrogation rights.  Respondent demanded arbitration of her SUM claim and petitioner sought to permanently stay arbitration.  In holding that respondent has lost her claim to SUM benefits, the Court cited language from respondent’s policy with petitioner, which stated “An insured shall not otherwise settle with any negligent party, without our written consent, such that our subrogation rights would be impaired.”  The Court found that this provision did not impede settlement but rather encouraged settlement and receipt of SUM benefits while protecting the insurer’s subrogation rights.

Caruso v Northeast Emergency Medical Assoc., P.C. (Carpinello, J., 502939 [08/21/08])
(Disclaimer:  Powers & Santola, LLP represent Plaintiffs)

In a prior action, plaintiffs settled medical malpractice claims against Ellis Hospital and Dr. Pasquariello, in which Ellis Hospital paid plaintiffs $1 million in cash and assigned to plaintiffs the hospital’s indemnifications rights against defendant Northeast Emergency for the $1 million the hospital paid plaintiffs.  Defendant Northeast Emergency was the employer of Dr. Pasquariello at the time of the underlying malpractice and had an indemnification agreement with Ellis Hospital.  A settlement was placed on the record in open court and a General Release was signed by plaintiffs, which named defendant Northeast Emergency in the release.  Subsequently, plaintiffs, as assignees of Ellis Hospital’s indemnification rights, initiated this indemnification action against defendant Northeast Emergency and defendant moved to dismiss the complaint, arguing, among other things, that the action was barred by the General Release signed in the underlying malpractice action.  Following plaintiffs’ cross-motion for summary judgment, Supreme Court granted defendant’s motion and dismissed the complaint stating plaintiffs’ claims were barred by the General Release.  On Appeal, the Court found that the General Release contained several glaring irreconcilable ambiguities, which required examination of parole evidence to determine the parties’ true intentions.  Following review of parole evidence, including the settlement stipulation place on the record in open court, the Court found plaintiffs clearly intended to preserve their indemnification rights against defendant and a contrary conclusion would be an injustice to plaintiff and result in an unintended windfall to defendant.  Summary judgment was therefore denied. 

(From the August 2008 Newsletter)

New Theory of Recovery “Related Back” to Original Claims

Leclaire v Fort Hudson Nursing Home, Inc. (Cardona, P.J., 504050 [06/19/08])

In this nursing home negligence case, plaintiff sought to amend her complaint to add a claim under Public Health Law § 2801-d, which was first alleged in her bill of particulars and not included in her original complaint.  Defendant claimed the Public Health Law claim was barred by the three-year statute of limitations as it wasn’t raised in plaintiff’s bill of particulars or motion to amend the complaint prior to the three-year statute expiring.  The Appellate Court agreed with Supreme Court that as plaintiff’s Public Health Law claim was merely a new theory arising out of the same occurrence which formed the basis for the original claims, the Public Health Law claim related back to the time of the original complaint and was not time barred.

Labor Law

Allen v Telergy Network Service, Ins., et al. (Malone, Jr. J., 503970 [06/19/2008])

Defendants in this case were granted summary judgment by Supreme Court, dismissing plaintiffs’ claims sounding in common-law negligence, violations of Labor Law §§ 200, 240(1) and § 241(6), and third-party contractual beneficiary.  Plaintiff (subcontractor) was injured while attempting to repair the gear drive on a trenching machine he was using to perform trench work on a highway construction project to lay fiber optic cable.  Plaintiff’s Labor Law § 200 and common-law negligence claims were dismissed because plaintiff was injured due to the manner in which he was performing his repair of his employer’s machine, using his employer’s tools, and not because of any unsafe or dangerous condition that existed at the work site for which the general contractor/owner had notice of.  There was also no evidence that defendants had notice of any dangerous condition related to plaintiff’s repair of the unique trenching machine, or control over the manner and method of the repair work, or direct supervision or control over the work at the time of the accident.  Plaintiff’s Labor Law §241(6) claim was properly dismissed because the alleged violation of 12 NYCRR 23-9.5 (f) (indicating blade of machine must be in contact with ground prior to operator leaving controls of machine) was contradicted by plaintiff’s own deposition testimony indicating he embedded the saw blade in the ground prior to initiating his repairs. Lastly, plaintiff’s third-party contractual beneficiary claim was dismissed because the highway work permit did not constitute a contract and no contract for the project indicated any intent to encompass a subcontractor’s repair of its own unique machines.

McKeighan v Vassar College, et al. (Cardona, P.J. 504126 [07/10/08])

Plaintiff, a subcontracting roofer, was injured while working on the roof of a building owned by defendant Vassar College during a construction project that was managed by the general contractor, defendant Kirchoff. Supreme Court granted summary judgment to plaintiff on his Labor Law § 240 (1) claim and the Appellate Court affirmed.  The proof established that plaintiff fell 27 inches down the side of a wall that he was trying to cross, without the assistance of a ladder or other safety device, while holding his roofing work materials.  On prior occasions at the work site, defendant Kirchoff had provided a stepladder to negotiate the wall plaintiff had fallen over, but the stepladder was not provided on the day of the accident and had been missing for two weeks despite the workers requests for its return to that location.  Defendant Kirchoff’s own safety director indicated that use of a ladder was the proper way to negotiate the wall plaintiff fell over.  The Court found defendants violated § 240 (1) in failing to provide an appropriate device for workers to safely access their elevated work area in that it was foreseeable that workers could be injured in attempting to traverse the wall without a ladder.

Emergency Doctrine

Aloi v County of Tompkins, et al. (Kane, J. 503969 [06/19/08])

Schlanger v John Doe, as Agent of Best General Rental, et al. (Malone, Jr. J. 504049 [07/10/08])

Within these two appeals, the Third Department reminds us that under most circumstances, it is the trier of fact who must determine if a particular situation constitutes an emergency and whether a driver’s actions were reasonable and prudent given the “emergency situation” they were presented with.  In both of these cases, summary judgment should have been denied to the defendants whom evoked the emergency doctrine as questions of fact were raised regarding the reasonableness of the defendant drivers’ responses to the “emergencies” that they were respectfully confronted with.

Product Liability

Fitzpatrick v Currie, et al. and Subaru of America Services, Inc. (Spain, J.P. 503960 [06/19/08])

Plaintiff sustained injuries to his face and eye when an air bag deployed following an automobile collision in which he was a front-seat belted passenger in a Subaru.  After plaintiff initiated a products liability claim against Subaru alleging the air bag was defective, Subaru moved for summary judgment, which was granted.  In affirming Supreme Court’s dismissal of plaintiff’s products liability claim, the Court agreed that defendant made a prima facie showing through expert proof that the air bag was not defective in design or manufacture and that the air bag operated just as it should have in this accident to protect plaintiff from injuries caused by striking solid surfaces in the car upon impact.  In opposition to the motion, plaintiff failed to submit any expert proof regarding the alleged defective design or manufacture of the air bag, which was necessary in a complex case such as this to defeat summary judgment.

Aransky v Comfort Mart Dist., Inc., et al. (Rose, J. 503546 [06/19/08]

Plaintiff initiated this action after severely cutting his fingers on the sharp metal part of a roof bracket that he grabbed onto while trying to prevent himself from falling off a roof after the ladder he was standing on slipped out from underneath him.  In granting summary judgment to the manufacturer of the roof bracket that cut plaintiff, the Court found defendant’s sharp product was not the proximate cause of plaintiff’s injuries but rather plaintiff’s actions constituted intervening causes of his injuries.  Notably, plaintiff was aware of the sharp edges of the roof bracket prior to his accident, he chose to remove his safety gloves, and chose to remain on the ladder even though his co-worker was not holding the ladder for him anymore. 

Schlanger v John Doe, as Agent of Best General Rental, et al. (Malone, Jr. J. 504049 [07/10/08])

In this product liability action, plaintiff successfully evoked the doctrine of res ipsa loquitur against defendant Best General to defeat defendant’s motion for summary judgment.  While defendant Best General was transporting a backhoe owned by them, a window in the backhoe shattered and sent glass flying back toward other vehicles traveling on the roadway behind the tractor trailer carrying the backhoe.  Plaintiff was injured when a vehicle trying to avoid the shattered glass swerved into plaintiff’s vehicle.  In utilizing the doctrine of res ipsa loquitur, plaintiff established that a backhoe window would not normally shatter absent negligence, that defendant Best General was in exclusive control over the backhoe during the transport and that plaintiff did not cause the window to shatter or otherwise contribute to the event which led to his injuries.

Trip and Fall 

Mazerbo v Murphy (Cardona, P.J. 503380 [06/19/08])

Plaintiff was able to establish defendant building owner had constructive notice of a dangerous condition, namely a tripping hazard created by heaving and sinking concrete underneath carpeting, which was a recurring and pervasive problem in the area near where plaintiff tripped on a bump under the carpet and fell.  Although defendant did not have actual notice of the bump that plaintiff tripped on, plaintiff did present proof that defendant had previously received complaints regarding unevenness of the concrete under the carpet in the area where plaintiff fell and that defendant had, in the past, tried to fix the problem.  Therefore, a question of fact existed as to whether defendant had constructive notice of the defect in the floor that caused plaintiff’s injuries.

Assumption of the Risk

Pantalone v Talcott, et al. (Kane, J. 504054 [06/26/08])

In this snowmobile accident case, the defendant driver of the snowmobile and the defendant owner of the snowmobile moved for summary judgment to dismiss the complaint of the injured plaintiff, who was a passenger on the snowmobile when it struck a knoll, became airborne and crashed down.  Defendants contended that plaintiff assumed the risks inherent in voluntarily participating in the sport of snowmobiling and therefore should not be entitled to recovery.  However, the Court noted that sporting participants do not consent to reckless, intentional or negligent conduct which creates an unreasonable increased risk to the participant.  In denying defendants’ motions, the Court cited to plaintiff’s proof establishing that the defendant driver was only 15 years old, had operated the snowmobile less than 10 times prior to the accident, was operating the machine at an excessive rate of speed (50 mph), failed to use caution or to slow down when her vision became impaired by sun glare, and failed to brake or slow down when approaching bumps or the knoll which caused the accident.  Given the facts of the accident, a jury must determine whether the doctrine of assumption of the risk applies to this case.  

Lincoln v Canastota Central School Dist. (Stein, J. 504426 07/10/08])

Plaintiff injured his knee while playing basketball on a court outside defendant’s elementary school.  Plaintiff claimed defendant failed to properly maintain and repair the basketball court, which created an unsafe condition causing plaintiff’s injury.  The proof on defendant’s motion for summary judgment established the basketball court was in a state of significant disrepair which was open and obvious.  In finding that it was a matter of common experience that such conditions could lead to injury while playing, the Court dismissed plaintiff’s case stating the defendant had performed its duty by making the conditions as safe as they appeared to be and plaintiff assumed the risk of injury therefrom.

Resch v Briggs, et al. (Kavanagh, J., 503769 [05/8/08])

When a summons and complaint were date stamped one day after the statute of limitations had expired, defendants move to dismiss the complaint pursuant to CPLR § 3211 (a) (5) and plaintiff initiated an Article 78 procedure seeking to compel the County Clerk to date stamp the complaint as received prior to the expiration of the statute of limitations.  In affirming Supreme Court’s denial of defendant’s motion and directing the summons and complaint be date stamped as received 4 days prior to the expiration of the statute of limitation, the Court relied on proof presented by plaintiff regarding the routine administrative practices in place in the Sullivan County and Supreme Court Clerk’s offices at the time of the delivery of the summons and complaint to the Supreme Court Clerk to conclude that the County Clerk received the summons and complaint no later then four days prior to the expiration of the statute of limitations.  Therefore, as filing is considered delivery of the summons and complaint to the clerk and because the clerk must date stamp the papers at the time of filing (CPLR § 304), plaintiff’s proof that the summons and complaint were delivered to the County Clerk prior to the statute of limitations expiring established the action was timely commenced.

Page v Marusich (Malone Jr., J., 503819 [05/8/08])

In a dental malpractice lawsuit, plaintiffs moved in limine for a Frye hearing to exclude defendant’s expert’s testimony regarding the development of plaintiff’s cancer, which motion was denied.  During the trial, plaintiffs renewed their request for a Frye hearing, which was denied, and, thereafter, moved pursuant to CPLR 4404 (a) to set aside the verdict in defendant’s favor based upon Supreme Court’s refusal to conduct a Frye hearing.  On appeal, the Court agreed with Supreme Court’s determination that a Frye hearing was not warranted as plaintiff’s challenge to defendant’s expert’s testimony regarding cancer progression and cell type did not involve novel science or a disagreement over a scientific methodology or technique but rather was challenging the expert’s credibility, which was an issue for the jury to resolve.

Boyle v Fox, et al. (Peters, J.P., 503695 [5/15/08])

Plaintiffs brought a medical malpractice action alleging negligent administration and monitoring of Gentamicin, which caused her to suffer inner ear damage.  Defendants moved to dismiss the action as time-barred by the 2 ½ year statute of limitations.  Plaintiff was prescribed Gentamicin in May 2003 by defendants, which use was subsequently discontinued on June 16, 2003 due to plaintiff developing inner ear symptoms.  The plaintiffs’ lawsuit was not commenced until November 2006.  Plaintiff’s only medical records dated less than 2 ½ years prior to the commencement of the action have no reference to plaintiff complaining of symptoms related to her inner ear damage or to her receiving any treatment for such conditions alleged in her complaint.  In noting that the “continuing nature of a diagnosis is insufficient to satisfy the requirement of the [continuous treatment] doctrine,” the Court found Supreme Court properly dismissed the complaint as time-barred. 

Prior Notice of Defective Condition

Habib v Baldini, et al. (Kane, J., 503799 [5/15/08])

Plaintiff was allegedly injured when her apartment bedroom window dropped onto her head while she was looking out the window.  Plaintiff commenced an action against the owner of the apartment and manager of the property for her injuries and defendants moved for summary judgment arguing they had no notice of the defective window prior to plaintiff’s accident.  Because plaintiff established that prior to her accident she provided a handwritten note to the defendant property manager complaining “windows falling apart” and also testified that she specifically complained to defendant about how the window would fall down when she tried to open it, plaintiff met her burden to defeat summary judgment on grounds of lack of notice of the allegedly defective condition.

Nolan v Union College Trust of Schenectady, NY (Malone Jr., J., 503854 [5/15/08])

The Court ordered a new trial on damages for future pain and suffering unless the plaintiff stipulates to a reduced award of $450,000 from the $1.5 million stipulated to by plaintiff following a jury trial in which the jury awarded plaintiff $7.5 million for future pain and suffering.  While acknowledging that pain and suffering awards are not subject to precise quantification, the court cited to “comparable cases” and found that $1.5 million deviated from reasonable compensation.  In this action, plaintiff suffered from recurrence of her DVT condition after falling in a manhole on defendant’s property.  As for her future pain and suffering, plaintiff was unable to walk long distances or sit for prolonged periods of time, had pain in her legs, was required to take blood thinning medicine shots in her abdomen and had to avoid potentially traumatic activities.  Furthermore, testimony established it would be risky for plaintiff to become pregnant.  According to the Court, plaintiff did not suffer from debilitation, permanent, life-changing injuries of the type that would justify a $1.5 million award for future pain and suffering.

Andrews v Scalia and Glens Falls Hosp. (Spain, J., 503953 [5/15/08])

Through this appeal, the Court is reminding us that under the emergency room doctrine, a hospital may be held vicariously liable for the acts of an independent doctor if the patient enters the hospital through the emergency room to seek treatment from the hospital and not a particular physician.  In this case, the Court found defendant hospital did not meet its burden of proof on its summary judgment motion regarding its vicarious liability for the actions of an independent physician who treated plaintiff when he presented to the emergency room and sought medical treatment not from any particular physician but from the hospital.  The proof established that plaintiff did not know the physician who treated him in the ER, did not request that physician or anyone in that physician’s group to treat him, and the physician himself could not recall the circumstances by which he came to treat plaintiff in the ER on that particular date.

Myers v Community General Hosp. of Sullivan County and Mueller (Peters, J., 503891 [5/29/08])

The Supreme Court provided plaintiff with three opportunities to “cure” what the court characterized as a nonresponsive bill of particulars in this medical malpractice action.  Plaintiff failed to oppose the application made by defendants for an order of preclusion and Supreme Court provided plaintiff with 30 additional days to comply with the order for a responsive supplemental bill of particulars and warned continued failure on plaintiff’s part would result in dismissal of the action.  Plaintiff failed to comply within 30 days, defendant moved to dismiss pursuant to CPLR 3126, and Supreme Court dismissed the action.  On this appeal, the Court held Supreme Court’s order dismissing the action for failure to comply with discovery was appropriate and would not be disturbed as plaintiff’s willfulness can be inferred by her conduct.

Cody v State of New York (Rose, J., 503910 [6/5/08])

Plaintiff was injured on a construction project when he stepped onto a piece of plywood placed over an opening in a platform covering a stairwell.  The sheet of plywood was not secured and plaintiff fell to the stairs below.  In reversing the Court of Claim’s ruling finding no proximate cause, the Court held that the platform itself provided insufficient protection against the risk of falling into the stairwell and therefore a violation of Labor Law § 240 (1) occurred.  The Court noted that a violation of the statute occurs “where a scaffold or elevated platform is inadequate in and of itself to protect workers against elevation-related hazards encountered while assembling or dismantling that device, and it is the only safety device supplied”  As the plywood platform itself was the only safety device provided and it failed to protect plaintiff from falling, defendant violated the statute as a matter of law and such violation was clear cause of plaintiff’s injuries. 

Norton v Albany County Airport Authority, et al. (Spain, J. 501323A/B [6/5/08])

Plaintiff commenced actions in negligence, strict products liability and express and implied warranties following injuries she sustained when automatic sliding glass doors at the airport suddenly closed on her wrist.  Motions for summary judgment were brought by all defendants, with the airport moving for summary judgment to dismiss plaintiff’s complaint.  In response, plaintiff successfully invoked the theory of res ipsa loquitur to defeat defendant’s motion.  The Court highlights that the plaintiff was not required to eliminate all possible alternative explanations for the event but rather only had to demonstrate the “likelihood of causes other then the defendant’s negligence is so reduced that the greater probability lies at defendant’s door.”  In this case, the defendant performed all maintenance on the doors, the evidence showed public tampering an unlikely cause, and record evidence established that defendant did not adequately inspect the doors as set forth in the owner’s manual. 

 Levine et al. v New York State Thruway Authority (Malone, Jr., J., 502955 [6/12/08])

Following a trial in the Court of Claims, defendant was found liable for an automobile accident that injured claimant when his vehicle collided with a construction tractor trailer making an unauthorized U-turn on Interstate 87 in the area of construction.  Defendant had a nondelegable duty to maintain its highway in a reasonably safe condition and such duty included giving adequate warning of dangerous conditions.  Defendant’s maintenance and protection of traffic plan (MPT) for the construction project on Interstate 87 required a series of warning signs, speed reduction signs, lane closure signs, flags and cones to be placed at various intervals in the construction zone prior to work beginning.  The construction project contract also called for U-turn permits for certain construction vehicles at official crossovers, provided that adequate warning signs were placed on both sides of the highway ahead of the U-turn location.  At trial, plaintiff presented evidence that no signs, lights or other safety devices were in place at the time of the accident to warn drivers on Interstate 87 of the construction area and the potential for vehicles making U-turns.  Although defendant submitted some conflicting evidence on this issue, the Court found no reason to disturb the Court of Claims finding that defendant breached its nondelegable duty to maintain a safe roadway by failing to provide adequate warning of known hazards such as vehicles making U-turns. 

Torts and Civil Practice
By Timothy J. Higgins, Esq.
Powers & Santola
thiggins@powers-santola.com

Three actions were combined into this claim arising out of the tragic drowning of four young adults near the Split Rock Falls swimming hole on the Boquet River in Essex County, within the confines of the defendant’s Adirondack State Park.  The decedents were summer camp counselors who died trying to save a fourth counselor who had gone into a whirlpool area downstream from the main swimming hole.  The whirlpool, characterized as a “drowning machine” by claimants’ counsel, was turbulent and the water level was 15 feet higher than normal due to recent heavy rains.  The Court of Claims (Milano, J.) denied the State’s motion for summary judgment but the Third Department reversed and dismissed all three claims, concluding the whirlpool area was an open and obvious hazard.  Also significant to the appellate court was the fact that the turbulent waters were not easily accessible, making the whirlpool a danger “that defendant did not owe a duty to neutralize”.

Plaintiff claimed 18 minutes of tanning at defendant’s salon caused her 2^nd-degree burns over 65% of her body.  The salon acknowledged that the bulbs it used for tanning were stronger than bulbs used elsewhere, but that customers were warned in advance of “the definite risk of serious sunburn”.  Supreme Court (Relihan, J., Broome Co.) denied defendant’s motion for summary judgment and the Third Department affirmed, noting that defendant’s proof did not include consent forms allegedly signed by plaintiff and concluding that it could not be said as a matter of law that the risk of sunburn posed by the stronger bulbs was so open and obvious that there was no duty to warn.

The plaintiff tripped and fell while leaving Congress Park where she and her family saw a fireworks show on the 4^th of July.  The City moved for summary judgment arguing that it had no prior written notice of the allegedly dangerous condition (an elevation difference between a grassy area and the lip of a curb) and no duty to provide lighting at the location of the fall.  Supreme Court (Williams, J., Saratoga Co.) granted the motion and the Third Department affirmed, agreeing that the City did not have prior written notice (required by the City Charter) and concluding that the “slight height differential” between the grass and the curb was in an area not intended for walking and further that it was not the kind of dangerous situation that the City had a duty to illuminate.

The Third Department here reversed Supreme Court’s (Williams, J., Saratoga Co.) decision granting the defendant summary judgment against a plaintiff who slipped and fell while she was an inmate at the county jail.  The plaintiff, 17 years old at the time, was cleaning a shower stall and slipped on the soapy floor as she ran from the area immediately after turning on the water (intended to wash away the soap).  The Appellate Division determined that the County failed to show that the plaintiff could have avoided the slippery surface by cleaning and rinsing the shower stall by a safer method, and offered no evidence that they made available equipment (such as floor mats or water shoes) that would have reduced the risk of slippage.

Plaintiff, appearing pro se, claimed he was hurt when he slipped in water located on the floor outside his cell at the county jail.  But plaintiff testified at deposition that he did not see the water before his fall, nor did he know of anyone else who saw the water before the fall.  Supreme Court (Hummel, J., Rensselaer County) granted the defendant’s motion for summary judgment which the Third Department affirmed.  An apparently fatal blow to the plaintiff’s case was that his opposition to the summary judgment motion consisted of only a memorandum of law in which he argued, among other things, that “it was of ‘no concern’ to him ‘how [the water] got on the floor, how long it was there or even who put it there’”.

The plaintiff’s daughter, at the time a 10-year old in elementary school, slipped and fell on a playground.  Her mother, who worked at the school, went to get her car to take the child to the emergency department and left the girl with the school nurse.  When the mother arrived in her car, the nurse allegedly released the child and told her she could walk, after which the girl fell again and injured her right ankle.  The Third Department affirmed Supreme Court’s (Sise, J., Fulton Co.) decision denying summary judgment, noting that even if the nurse did not owe a common-law duty to “hold up” the child, a person who voluntarily undertakes an act for which she has no legal obligation must thereafter act with reasonable care or be subject to liability for negligence.

Although a disagreement between expert witnesses is frequently enough to create a question of fact denying summary judgment, the general rule did not apply here when one of the expert affidavits lacked a factual or scientific basis for its conclusions.  Supreme Court (Catena, J., Schenectady Co.) granted summary judgment and the Third Department affirmed, dismissing the claims of the plaintiff who fell on an interior staircase after he delivered propane to the school’s outdoor tank.  The plaintiff went into the school to have the delivery invoice signed, and asked for directions to a bathroom, which took him up and down a small set of wooden stairs, on which slipped and fell. Plaintiff’s expert claimed application of a finish to the steps made them “significantly more dangerous, especially when wet” but stopped short of claiming the finish was not properly applied or that it didn’t meet the relevant slip-resistant standard.

The Third Department here reversed Supreme Court (Hummel, J., Columbia Co.) and dismissed the plaintiff’s case which arose out of a verbal altercation between two high school freshmen which culminated in one student striking the other in the face, causing the loss of two teeth.  Schools are under a duty to supervise students but when injuries result from intentional acts of fellow students, the plaintiff must show the school had sufficient notice or knowledge that the dangerous conduct could reasonably have been anticipated and that negligent supervision was the proximate cause of the injuries. The punching student did have a disciplinary record but the Third Department found it insufficient to put the school district on notice of the situation that it characterized as “so sudden and spontaneous that no amount of supervision would have prevented it”.

Plaintiff sued defendant for breach of contract and the jury returned a verdict for $184,456.  Pursuant to CPLR 5001, plaintiff was also entitled to interest on the award, and the statute reads that when “damages were incurred at various times”, the court should compute interest beginning at a “single reasonable intermediate date”. Supreme Court (Lebous, J., Broome Co.) selected a date that was about the mid-point of the four-year contract, which the Third Department agreed was reasonable and therefore affirmed the decision below.

In 1998, plaintiff was hurt in a fall from a ladder while working for the defendant on an IBM property.  He sued for damages under §240 and at the start of trial in 2006 settled his case by stipulation the terms of which called for IBM to mail to him a $500,000 settlement draft within 21 days.  Payment wasn’t made by the deadline.  IBM was insured by Reliance which went into receivership in 2001, which meant payment of the claim needed the approval of the Liquidation Bureau of the State Insurance Department. The plaintiff, 83-years old at the time of settlement, refused to sign a new stipulation acknowledging that payment of the settlement might be significantly delayed. Defendants moved to amend the original stipulation of settlement based on a mistake and the plaintiff cross-moved for summary judgment.  Supreme Court (Work, J., Ulster Co.) granted the cross-motion and the Third Department affirmed, noting that when the settlement was placed on the record, no mention was made that IBM’s insurer was in receivership or that payment might by delayed beyond the agreed-upon 21 days.

Claimant was injured in a fall during a construction project on the exterior walls of a state prison in Malone, Franklin County. Prior to trial, the Court of Claims dismissed his Labor Law §240 cause of action and the Third Department affirmed.  At trial, claimant lost again when the Court (Schweitzer, J.) found that there was no Industrial Code Rule 12 violation as needed to win on a claim under Labor Law §241(6).  The Third Department affirmed this time too, agreeing that even if Rule 12 had been violated, claimant did not prove that the violation caused the accident.

Plaintiff brought suit after being shot in the eye with a paint ball.  The shooter was a young man who lived in the home where the injury occurred, but he was not related in any way to the homeowners.  Plaintiff won a default judgment against the 20-year shooter, and then tried to collect on the judgment by way of the defendant’s insurance policy which defined an “insured” to include “persons under the age of 21 and in the care of” the homeowners.  Supreme Court (Relihan, J., Tompkins Co.) declared Hanover had no obligation to satisfy the judgment and the Third Department affirmed upon a finding that the shooter (who “paid rent when he had the money”) was simply a “boarder” in the home and that the homeowners “did not undertake any financial, disciplinary or emotional responsibility for him”.

A jury in Albany County Supreme Court returned a defense verdict and the plaintiff’s motion to set aside that verdict was denied by the Court (McNamara, J.).  There was “sharply conflicting evidence and expert opinions” regarding the merits of the plaintiff’s contention that the surgeon who operated on her right ankle was responsible for a circular thermal burn on her right calf.  The Third Department rejected plaintiff’s appeal, finding the jury had sufficient support in the record for its verdict, and further concluded that allegedly improper questions about plaintiff’s past drug use did not deprive her of a fair trial. 

(*Plaintiff’s appellate counsel: Michael J. Hutter of Powers & Santola, LLP)

Plaintiff claimed in this action that the defendant obstetrician, among other things, should have delivered her baby by C-section because vaginal delivery of the large for gestational age fetus caused a brachial plexus (nerves that operate arm and shoulder function) injury to the infant.  The jury found for the defendant.  Plaintiff claimed on appeal that Supreme Court (Monserrate, J., Schenectady Co.) erroneously failed to charge the jury on her “lack of informed consent” cause of action and did not ask on the verdict sheet whether that and other omissions by defendant were deviations from the standard of medical care.  The Third Department rejected both arguments and affirmed, finding plaintiff waived any challenge to the informed consent charge by failing to object before the jury began deliberations and noting that even had the issue been timely raised, that Supreme Court did not err.

The defendant corporation leased property from New York’s State Thruway Authority at the Malden rest area in Ulster County where one of its food service restaurants was operated by a non-party pursuant to a franchise agreement.  Plaintiff claimed she was hurt when a pair of handicap-accessible, electrically-operated doors at the rest area entrance closed suddenly and struck her from behind.  McDonald’s moved for summary judgment arguing, in part, that it owed no duty to the plaintiff and other “public users” by virtue of its franchise agreement with the operator of the restaurant.  Supreme Court (Kavanagh, J., Ulster Co.) denied the motion and the Third Department affirmed.  McDonald’s evidence in support of the motion did not establish, as a matter of law, that as an out-of-possession landlord it “lacked control over the doors” alleged to have caused plaintiff’s injuries.  Furthermore, said the Court, the lease agreement between McDonald’s and the Thruway Authority is not determinative of the question whether the Authority, or McDonald’s, or its franchisee was responsible to maintain and repair the automatic doors at the entrance.

(From the April 2008 Newsletter)

Trial of the plaintiff’s claim for damages arising out of a rear-end auto accident was the setting for consideration of an important evidentiary question.  As framed by the Appellate Division: May a treating physician testify to the content of a non-testifying radiologist’s report on an MRI which was ordered by the treating physician?  Affirming the ruling by Supreme Court (Kavanagh, J., Ulster Co.), the Third Department says ‘Yes’. The Court found it significant that the treating expert physician was not acting as a “conduit for the testimony of the report’s author” by simply dictating to the jury the MRI interpretation of the radiologist. Rather, the expert rendered a medical opinion based on the MRI report as well as his physical exams of the plaintiff and her other medical records.  By so doing, the MRI report and interpretation of the radiologist became “merely…a link in the chain of data” on which the witness relied in forming his opinion.  Also relevant to the Court was the fact that the MRI was “clearly a test routinely relied upon by neurologists in treating and diagnosing” patients with back pain.

Plaintiff delivered a child at the defendant hospital but one day after discharge required readmission and surgical treatment of a virulent infection which spread throughout her internal organs.  After hearing evidence supporting the claims of negligent failure to recognize the infection prior to discharge, the jury returned a verdict for the plaintiffs that included past and future pain and suffering awards of $5 million for the wife and $750K for her husband.  Supreme Court (Sise, J., Fulton Co.) reduced the total of future damages for both plaintiffs from $4.5 million to $2.25 million. The Third Department modified even further, reducing the total pain and suffering recovery of the husband from $500K to $200K.  The AD also found the trial court properly limited the testimony of a hospital nurse to facts and observations but not opinions because the nurse was not included in the defendants’ expert witness disclosure.  Lastly, it was improper for Supreme Court to put conditions on defense counsel’s pre-trial interviews of plaintiff’s treating doctors, but the restrictions did not result in prejudice that requires reversal of the verdict or a new trial.

(*Plaintiff’s appellate counsel: Michael J. Hutter of Powers & Santola, LLP)

Plaintiffs’ medical malpractice claims alleged negligent performance of a surgery and substandard follow-up care during office visits, the last of which was some five months after the operation.  The lawsuit was filed three days before the three-year anniversary of the surgery, and defendants moved for summary judgment contending expiration of the 2½-year statute of limitations.  Supreme Court (Kramer, J., Schenectady Co.) permitted the plaintiffs to amend their complaint to allege fraudulent concealment of medical malpractice and thereafter denied the motion for summary judgment.  The Third Department reversed and dismissed the complaint as untimely, further noting the lack of any “clear and convincing evidence” from the plaintiffs that late filing of the complaint resulted from fraud, deception or misrepresentation by the defendant.

Plaintiff alleged her injuries resulted from a fall on a staircase at defendant’s restaurant, but the case was dismissed by Supreme Court (Dawson, J., Clinton Co.) as untimely. Plaintiff admitted that her suit was filed three years and two days after she fell, but claimed the defendant should be estopped from asserting a statute of limitations defense because she relied on an inaccurate “date of accident” in a letter to her lawyer from the defendant’s insurance carrier. The Third Department affirmed Supreme Court’s decision, finding the plaintiff failed to show affirmative wrongdoing by the defendant that “deliberately induced” the fatal delay in filing suit.

This plaintiff slipped and fell while on a walkway leading into the defendant’s house which she had been hired to clean.  Although there was a snowstorm in progress at the time of the fall, plaintiff attributed her fall to a patch of ice that formed before the storm began.  Supreme Court (Pulver, J., Greene Co.) granted defendant’s motion for summary judgment and the Third Department affirmed, concluding that defendant offered undisputed proof that a storm was happening at the time of the fall and that plaintiff’s theory of the accident was both speculative and not supported by her evidence.

A claim for damages alleging violation of Labor Law §200 requires proof that a defendant contractor exercised some supervisory control over the performance of the work.  This proof was lacking in the plaintiff’s case, which was dismissed by Supreme Court (Mulvey, J., Tompkins Co.) and affirmed by the Third Department.  Plaintiff worked for a prime contractor on the construction project but evidence that his supervisor had “conversations about safety” with an employee of the defendant contractor did not constitute proof that the defendant had the authority to control the work that resulted in the injury.

Plaintiff was part of a work crew doing a night time renovation of a supermarket that was open for business during the day.  He was hurt in a fall from a stepladder that he believed happened when he slipped due to a greasy substance on his work boots. The Third Department affirmed Supreme Court’s (Kramer, J., Schenectady Co.) dismissal of the plaintiff’s claims under Sections 240 and 241(6), but reinstated the claim (against one defendant) premised on a failure to comply with the common-law negligence standard codified in §200. Plaintiff acknowledged that the ladder did not fall, was adequate for the job and was properly placed, causing the demise of his §240 cause of action. The §241(6) claim did not survive because the plaintiff’s supporting Rule 23 provisions were either non-specific or not applicable to the facts of the case. The §200 claim of the plaintiff against the property owner survived due to that defendant’s failure to show, as a matter of law, that it did not create the alleged dangerous condition and did not have actual or constructive notice that it existed prior to the injury.

Liability was conceded in this motor vehicle action, and after a non-jury trial, Supreme Court (Relihan, J., Broome Co.) found for the plaintiff, concluding that he sustained a “serious injury” under Insurance Law §5102(d) in the 90/180 days category. The Third Department affirmed, finding sufficient “objective medical evidence of an injury or impairment of a nonpermanent nature which would have caused the alleged limitations on plaintiff’s daily activities” and that such activities were curtailed “to a great extent rather than some slight curtailment”.

Pre-existing injuries, the bane of many a plaintiff’s case, proved the downfall of Willie Coston.  He claimed cervical and lumbar spine injuries as a result of two accidents (Nov. 2002 and Feb. 2003) and supported his claim of “serious injury” with a treating doctor’s affirmation.  But the physician made no reference to the plaintiff’s prior accidents and injuries, including a 20-foot fall from a ladder in 1992 that resulted in degenerative disc disease and the need to walk with a cane, a gunshot wound to the upper chest, a 1999 car crash in which plaintiff was ejected from the vehicle and a fall in 2000 that aggravated his low back pain. The prior accidents and injuries so muddied the causal connection of the newly-claimed injuries to the latest auto accidents that the Third Department found it was proper for Supreme Court (Work, J., Ulster Co.) to grant the defendants’ motion for summary judgment.

Supreme Court (Kramer, J., Schenectady Co.) granted defendant’s motion for summary judgment upon a finding that plaintiff’s proof didn’t meet the requirements of any of the four categories of “serious injury” she alleged.  The Third Department affirmed, noting that plaintiff’s only medical proof was the report of a doctor hired to perform the DME (defense medical examination), and that the report contained no opinions regarding permanency of the alleged injuries or whether plaintiff “suffered from any physical limitations or was restricted in her activities”.

(From the March 2008 Newsletter)

Quinones v. Community Action Commission (Kane, J., 12/27/07)
            Plaintiff and her daughter were passengers in a van that collided with another car. The van driver moved for summary judgment contending she was not at fault because the other driver created an emergency situation when she veered into the opposite lane, making it impossible for the defendant to avoid the crash.  Supreme Court (Meddaugh, J., Sullivan Co.) and the Third Department found summary judgment improper given “divergent factual situations” described by the defendant and the plaintiff mother, who among other things, testified that the defendant was exceeding the speed limit, talking on her cell phone and did not apply the brakes prior to impact.

Lohraseb v. Miranda (Kane, J., 12/27/07)
            Plaintiff and defendant are sisters who were in a van being driven through Virginia on the way home from a family vacation.  The van was hit by another vehicle while the defendant was making a left turn at an intersection controlled by a traffic light.  Plaintiff’s motion for summary judgment on liability was granted by Supreme Court (Kramer, J., Schenectady Co.) and affirmed on appeal.  Defendant was ticketed after the crash and pleaded guilty to failure to yield the right of way.  The guilty plea is “some evidence of negligence” but was compelling proof on the motion when defendant failed to offer any explanation for the plea (such as the convenience of entering a plea instead of traveling out of state to contest the ticket).

Moran v. City of Schenectady (Spain, J., 1/3/08)
            A car-pedestrian accident in Schenectady resulted in a suit which included as defendants two engineering and construction companies that had worked on a plan to renovate the traffic signal system in the area where the plaintiff was injured while trying to cross State Street.  Supreme Court (Kramer, J., Schenectady Co.) granted those defendants summary judgment on the theory they owed no duty to the plaintiff.  The Third Department affirmed finding no proof that the claim met one of the three exceptions to the general rule that a breach of a contractual obligation does not, by itself, “impose tort liability to noncontracting third parties upon the promisor”.

Stringer v. Musachia (Mercure, J., 12/27/07)
           Plaintiff, a self-employed contractor, was injured when he fell from a ladder while building a shed on the defendant’s property.  Supreme Court (Ceresia, J., Greene Co.) granted his cross-motion for summary judgment on liability under Labor Law §240(1), rejecting the defense argument that plaintiff acted an unpaid volunteer and therefore was not an “employee” entitled to the protections of the statute.  A divided (3-2) Appellate Division reversed and dismissed the plaintiff’s complaint in its entirety. Plaintiff conceded at deposition that he agreed to build the shed in exchange for an invitation to join in a hunting trip held annually on defendant’s property, that he paid his own travel expenses on the trip and that he neither expected nor received payment for the construction work.  That, said the majority, made plaintiff a “volunteer” under no obligation to complete the shed, which brought his efforts outside the protections of §240(1).

Favreau v. Barnett & Barnett, LLC (Carpinello, J., 1/3/08)
            Plaintiff (assisted by a co-worker) was walking backwards up a roof carrying a piece of sheetrock.  A few feet before reaching the peak of the roof he stepped on ice and fell, but did not fall off the roof or slide downward.  Supreme Court (McGill, J., Clinton Co.) denied defendant’s request to dismiss the §240(1) cause of action, but the Third Department reversed, again by a 3-2 majority, concluding that “plaintiff’s alleged injury did not flow from the application of the force of gravity” and that his fall on ice was not due to an elevation differential and “could have happened at ground level”.

Chicago Title v. Mazula (Peters, J., 1/3/08)
            The third-party defendant was an attorney retained in an estate matter by a woman who owned property with her late husband as tenants by the entirety. The lawyer represented the widow in the sale of the property, after which problems with the deeds affecting title resulted in suit by the purchaser against the widow, who brought a third-party claim against the attorney.  Supreme Court (Dawson, J., Clinton Co.) granted the lawyer’s motion for summary judgment finding that the third-party claim was not timely commenced (3-year SOL; CPLR 214(6)). The Third Department agreed with the trial court that the “continuous representation” toll did not apply, as the services rendered by the lawyer in 2004 and 2005 were for estate work and not for the widow individually.

Estate of LaMore v. Sumner (Rose, J., 12/27/07)
            Plaintiff, the son of decedent LaMore, sued individually and on behalf of the estate of his father, seeking money damages for emotional distress and permission to remove decedent’s remains to New Hampshire (where plaintiff lives).  Based on the mistaken belief there was no room left in the family burial plot in Granville, decedent was interred in a different plot in the same cemetery.  After learning of the mistake, the burial vault was then disinterred and reinterred in the family plot.  The burial arrangements were made by decedent’s sister and a local funeral director, both of whom were named as defendants.  Affirming summary judgment to the defendants in Supreme Court (Krogmann, J., Washington Co.), the Third Department noted that New York does not recognize a cause of action for wrongful disinterment, and that there was no evidence substantiating a claimed violation of the common-law right of sepulcher, which assures the next of kin’s right to have immediate possession of a body for preservation and burial.  Removal of decedent’s remains to New Hampshire for burial was permitted, but plaintiff’s application to have the expense of same charged to defendants failed.

Avina v. Verburg (Mercure, J.P., 1/31/08)
            The Third Department affirmed Supreme Court’s (McDonough, J., Albany Co.) summary judgment dismissal of the plaintiff’s case.  The fall happened on a concrete sidewalk located between exterior stairs and the entrance to defendants’ residence, as the plaintiff was in the process of delivering a 12-pound fruit basket.  Plaintiff alleged and hoped to rely upon a building code violation, but the Courts found that the lack of a handrail on the stairs was not a proximate cause of the fall, that the fall occurred on the defendants’ walkway and not the stairs, and that freezing rain falling at the time of the accident created the icy condition that led to the slip and fall.

(From the February 2008 Newsletter)

Medical malpractice