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SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND.

The Second Department determined Supreme Court should not have imposed sanctions on defendants in this medical malpractice action. The action was premised on the failure of a suture which had to be repaired by a subsequent surgery. The suture at issue was thrown away at the time of the second surgery. Plaintiff failed to demonstrate the defendants threw away the suture with a culpable state of mind:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind,’ and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . Where evidence has been intentionally or willfully destroyed, its relevance is presumed … . However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party’s claim or defense … . * * *

… Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion to impose sanctions against the defendants for the wilful spoilation and destruction of evidence, as the plaintiff failed to demonstrate that the defendants were obligated to preserve the broken suture at the time of its destruction, that the suture was destroyed with a “culpable state of mind,” and/or that the destroyed suture was relevant to the plaintiff’s claim … . In any event, the plaintiff failed to establish that the defendants were on notice that the suture might be needed for future litigation … . Golan v North Shore-Long Is. Jewish Health Sys., Inc., 2017 NY Slip Op 01342, 2nd Dept 2-22-17

 

NEGLIGENCE (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/MEDICAL MALPRACTICE (EVIDENCE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/EVIDENCE (MEDICAL MALPRACTICE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/SPOLIATION (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)

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PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION.

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined Supreme Court properly denied the defendants’ motion for summary judgment in this medical malpractice action. The dissent found the plaintiffs’ experts’ opinions too speculative to raise a question of fact. The opinion is fact-specific and cannot be fairly summarized here:

In sum, defendants submitted expert affirmations that established prima facie that they did not depart from good and accepted medical practice or that any such departure was not a proximate cause of [plaintiff’s]  injuries … . In opposition, plaintiffs submitted expert opinions that raised issues of fact as to the following alleged departures: the premature release of [plaintiff] from postanesthesia care unit, the failure to identify and treat his overdose or adverse reaction to morphine, and the failure to timely respond to his cardiorespiratory arrest … . Severino v Weller, 2017 NY Slip Op 01325, 1st Dept 2-21-17

NEGLIGENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EVIDENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)

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FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

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NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE.

The First Department, reversing Supreme Court, determined plaintiff’s notice of claim in this medical malpractice action was timely served as a matter of law under the continuous treatment doctrine. Two justices, in a concurring decision, agreed that the action should not have been dismissed, but argued there was a question of fact whether the continuous treatment doctrine applied:

On January 25, 2006, plaintiff served a notice of claim on defendant HHC. At the 50-h hearing in June 2006, plaintiff testified that while her last actual medical treatment at Lincoln Hospital occurred on October 19, 2005, when hospital personnel removed the sutures from her leg, she received a follow-up appointment to return to Lincoln Hospital on October 24, 2005. Plaintiff stated that she arrived at Lincoln Hospital for treatment on that date, but was informed that the staff could not locate her medical records and that she should return to the Hospital in one week, on October 31, 2005. Plaintiff testified that she did, in fact, return on October 31, only to have the staff inform her that they did not accept her insurance and that she should seek treatment elsewhere.

… [P]laintiff argued, her last treatment date was October 31, 2005 and thus, she had timely served her notice of claim on January 25, 2006. Hill v New York City Health & Hosps. Corp., 2017 NY Slip Op 00914, 1st Dept 2-7-17

 

MUNICIPAL LAW (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)

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DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED.

The Second Department determined Supreme Court should have granted plaintiffs’ motion to set aside the verdict in this medical malpractice action. The defendants’ notice of the expert opinion evidence to be presented at trial did not notify plaintiffs that the expert would testify plaintiff’s stroke was caused by a piece of calcium, not a blood clot. Plaintiffs’ malpractice theory was based entirely on the allegation a blood clot was the cause of the stroke. The court explained the notice requirements:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside the verdict in favor of [defendants] and against the plaintiffs on the issue of liability. Pursuant to CPLR 3101(d)(1)(i), [defendants] were required to disclose “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, . . . and a summary of the grounds for each expert’s opinion.” Here, [the] expert witness disclosure only revealed expert testimony that [plaintiff’s] stroke was not caused by his atrial fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the stroke was caused by calcification. [Defendant] failed to demonstrate good cause for not disclosing the substance of his expert’s causation theory until trial … . The revelation of the defendants’ causation theory at trial prejudiced the plaintiffs’ ability to prepare for trial because they did not have adequate time to consult or retain an expert neuroradiologist … . Rocco v Ahmed, 2017 NY Slip Op 00207, 2nd Dept 1-11-17

NEGLIGENCE (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRCTICE (DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, NOTICE OF EXPERT OPINION, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EXPERT OPINION (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)

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ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE.

The Fourth Department, over a dissent, determined the motion to dismiss the medical malpractice cause of action was properly denied. The negligence cause of action against the hospital stemming from the same facts had previously been dismissed. Plaintiff was released from the hospital and found two hours later, disoriented and frost-bitten. The hospital, in the negligence cause of action, was found to have no duty to prevent plaintiff from leaving the hospital against medical advice and no duty to ensure plaintiff’s safe return home. However, allegations that the assessment plaintiff’s medical and mental status and the discharge of plaintiff from the hospital were not in accordance with good and accepted medical practice stated a cause of action in medical malpractice:

Although “no rigid analytical line separates the two” … , we have long recognized the distinction between an ordinary negligence cause of action against a hospital and/or a physician … and a medical malpractice cause of action against a hospital and/or a physician … . We note that there is no prohibition against simultaneously pleading both an ordinary negligence cause of action and one sounding in medical malpractice … . It is simply beyond cavil “that an action for personal injuries may be maintained, in the proper case, on the dual theories of medical malpractice or simple negligence where a person is under the care and control of a medical practitioner or a medical facility” … . Moreover, in a proper case, both theories may be presented to the jury … .

Here, the medical malpractice cause of action alleges, inter alia, that defendant did not properly assess plaintiff’s medical and mental status and rendered medical care that was not in accordance with good and accepted medical practice, and that the discharge of plaintiff was not in accordance with good and accepted medical practices. Ingutti v Rochester Gen. Hosp., 2016 NY Slip Op 08615, 4th Dept 12-23-16

NEGLIGENCE (MEDICAL MALPRACTICE, ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE)

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PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED.

The Third Department, in a full-fledged opinion by Justice Peters, determined certain causes of action in this medical malpractice suit should have been allowed to go to the jury. Defendant’s motion for a directed verdict should not have been granted. Most of the opinion is fact-generated and cannot be summarized here. The law surrounding a directed verdict in this context, including the applicability of the doctrine of res ipsa loquitur, was explained. A plaintiff is not required to eliminate all other possible causes of injury to make out a prima facie case:

A directed verdict is only appropriate “when, viewing the evidence in a light most favorable to the nonmoving part[y] and affording such part[y] the benefit of every inference, there is no rational process by which a jury could find in favor of the nonmovant[]” … . “[A] plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” … . “[T]o establish proximate causation, the plaintiff must demonstrate that the defendant’s deviation from the standard of care was a substantial factor in bringing about the injury” … . A plaintiff in a medical malpractice action may also rely on the doctrine of res ipsa loquitur … , which “permits the jury to infer negligence and causation sufficient to establish a prima facie case based on circumstantial evidence” … . “Notably, a plaintiff is not required to eliminate all other possible causes of the injury in order to establish a prima facie case” of medical malpractice … . * * *

“Whether or not res ipsa loquitur was applicable here, plaintiff presented sufficient evidence of negligence to go to the jury” on two of her three theories of liability … . Upon the evidence submitted, Supreme Court properly rejected plaintiff’s first theory of liability as a matter of law at the close of plaintiff’s proof, yet provided no explanation for dismissing the entire complaint, and we can perceive none under the circumstances of this case given the existence of two viable and independent theories of liability that were supported by sufficient trial proof … . Majid v Cheon-Lee, 2016 NY Slip Op 08572, 3rd Dept 12-22-16

 

NEGLIGENCE (PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (DIRECTED VERDICT, MEDICAL MALPRACTICE, PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/DIRECTED VERDICT (MEDICAL MALPRACTICE, PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)

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MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE.

The Second Department determined mother could not recover for emotional distress based upon alleged in utero medical malpractice when the baby is born alive. Here the baby was born alive but not conscious and died eight days later:

When an infant who is injured by medical malpractice while in utero survives the pregnancy, the infant may seek damages for his or her injuries … . If the pregnant mother suffers an independent injury as a result of malpractice, she may commence suit to recover for her own personal injuries … . If the malpractice causes a stillbirth or miscarriage, the mother can recover for emotional injuries even without showing that she suffered an independent physical injury … . However, where, as here, the alleged medical malpractice causes in utero injury to a fetus that is born alive, the mother cannot recover damages for emotional harm … . Ward v Safajou, 2016 NY Slip Op 08394, 2nd Dept 12-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/MEDICAL MALPRACTICE (MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/IN UTERO INJURY (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/EMOTIONAL DISTRESS (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)

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JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET.

The First Department, over a dissent, determined the driver who caused the injury to plaintiff’s leg was properly excluded from the verdict sheet in this medical malpractice action. Only the treatment of the leg injury (amputation) was before the jury, not the original injury:

[T]he court [did not] err in denying defendants’ request to place the driver of the vehicle that struck plaintiff, who settled prior to institution of the instant action, on the verdict sheet. Defendants are subsequent tortfeasors, and the jury was correctly charged that its award was to be limited to the exacerbation of the original injury caused by malpractice … . Defendants’ argument that plaintiff’s original injury and subsequent amputation were indivisible is without merit, in that the experts testified as to what the condition of the leg would have been if it had been saved … . Defendants’ arguments concerning General Obligations Law § 15-108 are academic, given that the court reduced the judgment based upon the settlement received by the settling driver. Marin v New York City Health & Hosps. Corp., 2016 NY Slip Op 08294, 1st Dept 12-8-16

NEGLIGENCE (MEDICAL MALPRACTICE, JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET)/MEDICAL MALPRACTICE (JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET)

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MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT.

The Second Department determined plaintiff’s motion to serve a late notice of claim should have been granted. The plaintiff served a notice of claim 30 days after the 90-day time limit expired, but defendant NYC Health and Hospitals Corporation conducted a 50-h hearing. After serving the summons and complaint, the plaintiff moved for leave to file a late notice of claim:

General Municipal Law § 50-e(5) permits a court to extend the time to serve a notice of claim. In determining whether to grant such an extension, the court must consider various factors, of which the ” most important'” is “whether the public corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter” … .

Under the circumstances of this case, in which the defendant received a late notice of claim less than one month after the expiration of the 90-day period, which it accepted and with respect to which it conducted an examination pursuant to General Municipal Law § 50-h, the defendant acquired actual knowledge of the essential facts underlying the claim within a reasonable time after the expiration of the 90-day period … . Brunson v New York City Health & Hosps. Corp., 2016 NY Slip Op 07618, 2nd Dept 11-16-16

 

MUNICIPAL LAW (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/NOTICE OF CLAIM (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)

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