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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN ALLOWED TO OFFER A SPECULATIVE CONCLUSION ABOUT HOW PLAINTIFF WAS INJURED WHICH WAS NOT SUPPORTED BY ANY EVIDENCE IN THE RECORD; PLANTIFF ALLEGED THE STEP STOOL SHE WAS STANDING ON COLLAPSED; THE DEFENSE EXPERT TESTIFIED SHE COULD HAVE FALLEN ONTO THE STOOL; THE DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the verdict in this products liability case should have been set aside. Plaintiff alleged she was injured when a step stool collapsed as she stood on it. The defendant’s expert testified she could have fallen onto the stool. There was no evidence in the record to support the expert’s opinion, which was objected to by plaintiff. The defense verdict, therefore, should have been set aside:

Following the accident, one of the injured plaintiff’s coworkers discarded the step stool in the trash. At the trial on the issue of liability, the defendant’s expert testified, over the plaintiffs’ objection, that the injured plaintiff’s accident may have occurred because she slipped and fell onto the step stool. Over the plaintiffs’ objection, the jury was asked the question: “Did the subject step stool collapse under the [injured] plaintiff while she was standing on it on October 22, 2013, causing the [injured] plaintiff’s accident?” The jury answered “No,” thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did. * * *

We agree with the plaintiffs that the evidence so preponderates in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence … . Moreover, the testimony of the defendant’s expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence … . Montesione v Newell Rubbermaid, Inc., 2021 NY Slip Op 01253, Second Dept 3-3-21

 

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PLAINTIFF’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT LAY A FOUNDATION FOR AN OPINION OUTSIDE THE EXPERT’S FIELD AND DID NOT REBUT THE OPINIONS OF DEFENDANT’S EXPERT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice case should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact because there was no foundation for the expert’s opining outside the expert’s field of emergency medicine:

The affirmation of the plaintiff’s expert, a physician with training in emergency medicine, lacked probative value as it failed to specify that the expert had any specific training or expertise in neurology or in the diagnosis and treatment of strokes, or how she became familiar with the applicable standards of care … . Moreover, the plaintiff’s expert failed to rebut the opinions of the defendant’s expert or articulate how the defendant’s alleged deviations from the accepted standard of care were a proximate cause of the plaintiff’s injuries … . Laughtman v Long Is. Jewish Val. Stream, 2021 NY Slip Op 01251, Second Dept 3-3-21

 

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BECAUSE THE ORDER DISMISSING THE INITIAL COMPLAINT DID NOT SPECIFY CONDUCT CONSTITUTING NEGLECT TO PROSECUTE, THE SIX-MONTH TOLL OF THE STATUTE OF LIMITATIONS PURSUANT TO CPLR 205 (a) APPLIED AND THE ACTION WAS TIMELY; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a strong dissent, determined that the foreclosure was timely commenced pursuant to CPLR 205 (a) within six months of the dismissal of the initial complaint. The six-month toll of the statute of limitations pursuant to CPLR 205 (a) does not apply to a dismissal for neglect to prosecute. However, the order dismissing the action for neglect to prosecute must specify the conduct constituting neglect. The majority concluded the order did not include any specific findings of neglect. The dissent disagreed:

Contrary to the defendant’s contention and the finding of our dissenting colleague, the 2010 action was not dismissed for neglect to prosecute, a category of dismissal that renders CPLR 205(a) inapplicable. “Where a dismissal is one for neglect to prosecute the action . . . , the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 205[a]). Here, the order dated April 6, 2017, “did not include any findings of specific conduct demonstrating ‘a general pattern of delay in proceeding'” … . Moreover, by dismissing the 2010 action without prejudice, the Supreme Court “permitted the plaintiff to avail itself of CPLR 205(a) to recommence the foreclosure action” … . Deutsche Bank Natl. Trust Co. v Baquero, 2021 NY Slip Op 01246, Second Dept 3-3-21

 

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PLAINTIFF HUSBAND IN THIS DIVORCE ACTION INSTALLED SPYWARE WHICH INTERCEPTED DEFENDANT WIFE’S PHONE CALLS AND THEN DESTROYED THE CONTENTS OF THE INTERCEPTION; THE INTERCEPTION VIOLATED DEFENDANT WIFE’S ATTORNEY-CLIENT PRIVILEGE; SANCTIONS FOR SPOLIATION OF EVIDENCE PROPERLY INCLUDED STRIKING THE CAUSES OF ACTION FOR SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION AND ATTORNEY’S FEES (SECOND DEPT).

The Second Department determined plaintiff husband in this divorce action was properly sanctioned for spoliation of evidence by striking from the complaint the causes of action seeking spousal support, equitable distribution and attorney’s fees. The husband had installed spyware which allowed interception of defendant wife’s phone calls. Evidence of what was intercepted was destroyed. It was assumed that the interceptions violated defendant wife’s attorney-client privilege:

… Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable … the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. “Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . … ” …  Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” … . C.C. v A.R., 2021 NY Slip Op 01243, Second Dept 3-3-21

 

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SUPREME COURT SHOULD HAVE DEFERRED TO THE NYC BOARD OF STANDARDS AND APPEALS’ INTERPRETATION OF AN AMBIGUOUS ZONING RESOLUTION WHICH ALLOWED THE CONSTRUCTION OF A 55 STORY CONDOMINIUM BUILDING; THE BUILDING IS COMPLETE AND THE DOCTRINE OF MOOTNESS APPLIES TO PRECLUDE THE APPEAL (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, reversing Supreme Court, determined Supreme Court should have deferred o the judgment of the NYC Board of Standards and Appeals (BSA) which allowed the construction of a 55 story condominium building. At issue was an ambiguous Zoning Resolution and the relationship between zoning lots and tax lots. The First Department held that the BSA had the necessary expertise to interpret the relevant statute and Supreme Court should have allowed the BSA’s interpretation to stand. In addition, the First Department found that the mootness doctrine had not been waived and the doctrine applied to the appeal because the building was fully completed and so steps to halt construction had been taken during the lengthy litigation:

The BSA’s interpretation of the relevant subdivision was “neither irrational, unreasonable nor inconsistent with the governing statutes” … . It rationally interpreted the resolution and properly considered Amsterdam’s reliance on the DOB’s [NYC Department of Building’s] longstanding Minkin Memo and the history of the block, as several other buildings on the block were issued certificates of occupancy, even though they also include partial tax lots. “When an agency adopts a construction which is then followed for ‘a long period of time,’ such interpretation ‘is entitled to great weight and may not be ignored'” … . …

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy”… . In the construction context, “several factors [are] significant in evaluating claims of mootness[,] [c]hief among them [being] a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … . Matter of Committee for Environmentally Sound Dev. v Amsterdam Ave. Redevelopment Assoc. LLC, 2021 NY Slip Op 01228, First Dept 3-2-21

 

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CARRIER PROPERLY ORDERED TO PAY FOR CLAIMAINT’S PAIN TREATMENT WITH MEDICAL MARIJUANA (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Egan, determined the Workers’ Compensation Board properly issued a variance allowing coverage for medical marijuana for treatment of claimant’s pain. The opinion is too detailed to fairly summarize here. The carrier’s federal conflict preemption and statutory (Public Health Law) exemption arguments were rejected:

“The federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law” … . At issue here is conflict preemption, “which occurs when compliance with both federal and state law is a physical impossibility, or where the state law at issue . . . stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” … .

* * * [R]equiring the carrier to reimburse claimant … does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling “the legitimate and illegitimate traffic in controlled substances” … , particularly where, as here, claimant was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates. Matter of Quigley v Village of E. Aurora, 2021 NY Slip Op 01174, Third Dept 2-25-21

 

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PLAINTIFFS’ ACTION STEMMING FROM PFOA CONTAMINATION PROPERLY SURVIVED SUMMARY JUDGMENT; THE DOCTRINE OF PRIMARY JURISDICTION DID NOT APPLY; QUESTIONS OF FACT RAISED ABOUT THE DUTY OF CARE, PROXIMATE CAUSE, PRIVATE NUISANCE, TRESPASS AND PUNITIVE DAMAGES (THIRD DEPT).

The Third Department determined plaintiffs’ complaint in this PFOA contamination case properly survived defendant’s motion for summary judgment. The court found that the doctrine of primary jurisdiction did not apply, defendant owed plaintiffs a duty of care, defendant did not demonstrate it did not proximately cause the alleged injuries, there was a question of fact on the private nuisance and trespass causes of action, and the punitive damages claim was proper. With respect to the doctrine of primary jurisdiction, the court wrote:

[The] doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views”… . Defendant argues that the various regulatory agencies, who have the requisite expertise, have been investigating the matter at issue and that the recovery sought by plaintiffs is already being provided by these agencies. We disagree. Although defendant points to an announcement that the Department of Health will be providing medical monitoring, this announcement merely stated that a study was being proposed and that, if funded, the study would last for five years. Contrary to defendant’s representation, there was no definitive statement that the medical monitoring would be provided. As to the remediation of plaintiffs’ private wells, the consent order and other announcements, upon which defendant relies, do not address all of the relief requested by plaintiffs in the second amended complaint. Accordingly, defendant’s argument is without merit. Burdick v Tonoga, Inc, 2021 NY Slip Op 01178, Third Dept 2-25-21

 

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ALTHOUGH THE PUBLIC HEALTH LAW GAVE THE DECEDENT’S DAUGHTER THE AUTHORITY TO EXECUTE THE NURSING HOME’S ADMISSION AGREEMENT ON BEHALF OF HER FATHER, THE PUBLIC HEALTH LAW DID NOT GIVE HER THE AUTHORITY TO SIGN A BINDING ARBITRATION AGREEMENT ON HER FATHER’S BEHALF; THEREFORE THE DECEDENT’S WIFE WAS NOT BOUND BY THE ARBITRATION AGREEMENT IN HER SUIT AGAINST THE NURSING HOME (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff wife’s adult daughter had the authority, pursuant to the Public Health Law, to execute the nursing home’s admission agreement on behalf of plaintiff’s husband (her father), who was deemed incapable of making health-care related decisions. In addition to the admission agreement, plaintiff’s daughter signed a binding arbitration agreement on her father’s behalf. After plaintiff’s husband died, plaintiff sued the nursing home which asserted that that the matter was subject to the arbitration agreement. The First Department held that, pursuant to the Public Health Law, plaintiff’s daughter had the authority to sign the admission agreement, because it related to her father’s health care, but she did not have the authority to sign the arbitration agreement:

The authority of the decedent’s daughter to act as a “surrogate” decision-maker pursuant to PHL 2994-d at the time decedent was admitted to JHL was limited to making decisions regarding “[a]ny treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition” (PHL 2994-a[12]). Although she had authority, pursuant to PHL 2994-d, to execute the Agreement for purposes of admitting her father into the facility for health care treatment, she did not have the authority to execute the Binding Arbitration Agreement on his behalf. Such agreement was entirely optional and had no bearing on the father’s health care. Accordingly, it is entirely outside of the purview of surrogate decision-maker’s authority set forth in PHL 2994-d. Gayle v Regeis Care Ctr., LLC, 2021 NY Slip Op 01197, First Dept 2-25-21

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; THE ROPE AND FRAME USED TO PREVENT A HEAVY OBJECT FROM FALLING WHEN PLAINTIFF DETACHED IT FROM THE WALL DID NOT WORK (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor law 240(1) cause of action. Plaintiff was struck by a 200 pound fire damper when it fell from the wall. A co-worker was holding a rope tied to the damper and looped over a temporary frame. When plaintiff broke the last weld securing the fire damper the co-worker who was holding the rope was unable to keep the damper from falling:

… [T]he statute is violated where an object, while being hoisted or secured, falls because of the absence or inadequacy of a safety device of the kind enumerated in the statute … , including where, as here, the inadequacy or absence of a safety device results in the uncontrolled descent of an object … . Here, plaintiff was entitled to summary judgment because the rope proved inadequate to prevent the damper from falling … .

The eight-foot fall of the 200-pound damper that plaintiff was tasked with removing was not an ordinary construction site peril but an elevation-related hazard, within the ambit of Labor Law § 240(1), which was required to be secured against unregulated descent to prevent it from falling on plaintiff … . Further, regulating its descent to prevent it from falling would not have been contrary to the purpose of work … . Mayorga v 75 Plaza LLC, 2021 NY Slip Op 01204, First Dept 2-25-21

 

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QUESTION OF FACT WHETHER AN OPEN AND OBVIOUS CONDITION–A STEEP EMBANKMENT NEXT TO A GRASSY WALKWAY–SHOULD HAVE BEEN MADE SAFE BY THE INSTALLATION OF A RAILING OR BARRIER (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Kapnick, over a dissent, determined the defendant property owner’s (COU’s) motion for summary judgment in this slip and fall case should not have been granted. COU owned a campground for developmentally disabled persons. Plaintiff, a developmentally disabled adult, slipped on a narrow grassy walkway and fell down the adjacent steep embankment, striking his head on one of the rocks at the bottom. The First Department held there were questions of fact whether the accident was foreseeable and whether the area should have been made safe with a barrier or handrail:

… [A]n issue of fact does exist as to whether COU violated its duty to maintain the premises in a reasonably safe condition by failing to erect a railing or barrier along the walkway. “A landowner must act as a reasonable [person] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . Indeed, “the duty of the owner or occupier will vary with the likelihood of plaintiff’s presence at the particular time and place of the injury. While [plaintiff’s] status is no longer determinative, considerations of who plaintiff is and what [his or her] purpose is upon the land are factors which, if known, may be included in arriving at what would be reasonable care under the circumstances” … .

… [A] landowner or occupier “has a duty to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property by posting warning signs or otherwise neutralizing dangerous conditions” … . “[E]ven if a hazard qualifies as ‘open and obvious’ as a matter of law, that characteristic merely eliminates the property owner’s duty to warn of the hazard, but does not eliminate the broader duty to maintain the premises in a reasonably safe condition” … . “A landlord’s duty to maintain premises in a reasonably safe condition … is not satisfied by permitting a highly dangerous — but correctible — condition to remain, simply because the dangerous condition is obvious” … . Aberger v Camp Loyaltown, Inc., 2021 NY Slip Op 01188, First Dept 2-25-21

 

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