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CLAIMS AGAINST DEFENDANT NURSING HOME SOUNDED IN MEDICAL MALPRACTICE AND IN NEGLIGENCE, REQUIRING ANALYSES USING DIFFERENT CRITERIA; SOME CAUSES OF ACTIONS SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined some of plaintiff’s causes of action alleging medical malpractice and negligence against defendant nursing home should have been dismissed. The complaint alleged plaintiff’s decedent, a double amputee, was left unsupervised and fell from his bed. The Fourth Department noted the complaint alleged claims sounding in medical malpractice and in negligence:

… [T]he complaint … alleges several claims sounding in medical malpractice … [and] ]he summary judgment standard for medical malpractice claims should apply to those claims. … [P]laintiff alleges that defendants failed to “provide proper services to the decedent[,] . . . provide . . . adequate . . . staff[ing,] . . . change and/or adjust the decedent’s care plan . . . [, and] adequately formulate and/or promulgate a care plan in accordance with a comprehensive assessment[],” all of which sound in medical malpractice because they challenge defendants’ assessment of the decedent’s need for supervision … . * * * … [P]laintiff raised a triable issue of fact … by submitting the affidavit of her own expert, who opined that defendants deviated from the standard of care insofar as they did not amend the decedent’s care plan to require greater supervision after he was noted to be experiencing confusion and delirium … .  Plaintiff’s expert did not, however, address the claims regarding inadequate staffing procedures and training, and those claims are accordingly deemed abandoned … .

… [P]laintiff’s claims that defendants were negligent in failing to follow the care plan and to equip the decedent’s wheelchair with a seatbelt sound in ordinary negligence inasmuch as they relate to defendants’ general duty to safeguard the nursing home’s residents, measured by “the capacity of [a resident] to provide for his or her own safety” … and “the [resident’s] physical and mental ailments known to the [agency’s] officials . . . and employees” … . … Defendants met [their] burden with respect to the claim alleging negligence in failing to equip the decedent’s wheelchair with a seatbelt by submitting evidence that they formulated a plan of care that addressed the decedent’s risk of falling, and that a restrictive lap belt was not used in their facility. Plaintiff failed to raise a triable issue of fact in opposition with respect to that claim inasmuch as plaintiff’s expert failed to opine how a nonrestrictive lap belt would have prevented the subject accident … . Noga v Brothers of Mercy Nursing & Rehabilitation Ctr., 2021 NY Slip Op 05189, Fourth Dept 10-1-21

 

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PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT).
A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD; I.E., ISSUES THAT CAN BE RAISED ON APPEAL; HERE THE MOTION WAS BASED ON MATTERS OUTSIDE THE RECORD AND SHOULD HAVE BEEN DENIED ON THAT GROUND (FOURTH DEPT).
THE NONDOMICILIARY DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK; NEW YORK DID NOT HAVE PERSONAL JURISDICTION OVER THIS TRUST LITIGATION (FOURTH DEPT).
THE DEFENDANT CONSTRUCTION COMPANY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE SIGN ON THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL AND DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE FOR THE PRESENCE OF THE SIGN ON THE SIDEWALK (FOURTH DEPT).
THE NEW YORK STATUTE DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER WOULD BE UNCONSTITUTIONAL AS APPLIED IF THE CALIFORNIA OFFENSE UPON WHICH THE DESIGNATION IS BASED WAS NON-VIOLENT; MATTER REMITTED FOR A RULING WHETHER THE CALIFORNIA OFFENSE WAS VIOLENT OR NON-VIOLENT (FOURTH DEPT).
THE SPECIAL PROSECUTOR APPOINTED TO HANDLE DEFENDANT’S CASE DID NOT MEET THE QUALIFICATIONS IN THE COUNTY LAW; CONVICTIONS REVERSED AND INDICTMENT DISMISSED (FOURTH DEPT).
THE GENETIC MARKER TESTING TO ESTABLISH PATERNITY SHOULD NOT HAVE BEEN ORDERED IN THE ABSENCE OF A HEARING TO DETERMINE THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).
LEGAL SENTENCE FOR A PERSISTENT FELONY OFFENDER DRASTICALLY REDUCED IN THE INTEREST OF JUSTICE PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BASED UPON APPELLATE COUNSEL’S FAILURE TO CONTEND THE SENTENCING COURT ABUSED ITS DISCRETION (FOURTH DEPT).

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