In a Labor Law action seeking damages for a fall from the roof of a building under construction, the Fourth Department determined Supreme Court should have dismissed the town’s motion for contractual indemnification against plaintiff’s employer because the contract was not intended to be retroactive to the day of the injury. The Fourth Department explained […]
In a wrongful death action, the Fourth Department determined that plaintiff, decedent’s brother, was entitled only to pecuniary loss for funeral expenses. In explaining pecuniary loss, the court wrote: Damages in a wrongful death action are limited to “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for […]
The Fourth Department, over a dissent, allowed a legal malpractice action to go forward, finding that the plaintiff’s failure to appeal the dismissal of the underlying federal medical malpractice action did not preclude the related legal malpractice action. In the federal action, the court determined a physician was an independent contractor, not a government employee, […]
The Fourth Department determined Supreme Court had erred in denying certain of plaintiff’s discovery demands in a medical malpractice case alleging injuries sustained by infant plaintiff during birth. The materials deemed material and necessary (and not unduly burdensome to produce) included: standards for fetal monitoring and pediatric advancement of life support; a protocol entitled “Circulating […]
In a medical malpractice case, the Fourth Department reversed Supreme Court’s setting aside the jury verdict which found the negligence of one defendant (Caputo) was not a substantial factor in causing plaintiff’s injuries. In addition, over a dissent, the Fourth Department found the use of juror affidavits to correct a mistake in the verdict was […]
In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury: The expert contends that, if that CT […]
In reversing Family Court and granting father’s petition for a modification of a prior custody order awarding custody to mother, the Fourth Department wrote: “Generally, a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will […]
The Fourth Department, over a dissent, affirmed Family Court’s termination of mother’s parental rights. The dissent argued that the misdiagnosis of both the mother’s and child’s psychological conditions rendered the efforts to reunite the mother with the child inadequate. The Fourth Department wrote: Contrary to the contention of the mother, Family Court properly determined that […]
The Third Department reversed Supreme Court’s striking of defendant’s answer as a penalty for defendant’s not appearing at a pre-trial conference as ordered: Generally speaking, and based upon sound underlying policy, there is a strong judicial preference for determination of issues upon the merits …. Consistent with this policy, defendant’s failure to comply with the […]
The Third Department affirmed the dismissal of plaintiff’s civil rights complaint based upon a release signed by the plaintiff. The court determined that plaintiff’s allegations did not create a question of fact about whether the release was the product of duress. The relevant legal principles, including the principle that contracts signed under duress are voidable, […]
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