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ALTHOUGH DEFENDANTS DID NOT SEE THE PLAINTIFF, THERE IS A QUESTION OF FACT WHETHER A PATIENT-PHYSICIAN RELATIONSHIP WAS CREATED BASED UPON ANOTHER DOCTOR’S ORDER THAT PLAINTIFF BE SEEN BY THOSE DEFENDANTS WITHIN ONE OR TWO DAYS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice action should not have been granted. One of the issues was whether defendants, who had never seen plaintiff, could be found to have had a patient-physician relationship based upon the failure to schedule an appointment within the time-frame ordered by another doctor:

… [P]laintiff acknowledges that she never received treatment from or spoke with Connolly or Retina Associates. Instead, plaintiff relies on a notation in her medical records from Twin Tiers stating that Rosenberg initially requested that she be evaluated by Retina Associates within one to two days and that a later appointment was scheduled only after Connolly apparently informed Twin Tiers that she “could wait to be seen until next week.” Moreover, after allegedly giving this advice regarding timing, Retina Associates scheduled the appointment beyond that acceptable time frame — for 13 days later. * * *

Viewing the evidence in a light most favorable to plaintiff, a triable factual question exists regarding whether the notation in Twin Tiers’ chart — attributing a comment to Connolly regarding scheduling of treatment — is sufficient to establish an implied physician-patient relationship between plaintiff and Connolly or Retina Associates … . Marshall v Rosenberg, 2021 NY Slip Op 04180, Third Dept 7-1-21

 

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PETITIONER’S INCAPACITATING INJURIES EXCUSED THE DELAY IN FILING A NOTICE OF CLAIM; ALTHOUGH THE MUNICIPALITY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT, IT SUFFERED NO PREJUDICE FROM THE DELAY (SECOND DEPT).

The Second Department determined the petitioner’s catastrophic injuries constituted a reasonable excuse for the delay in filing a notice of claim and, although the municipality did not have timely notice of the potential lawsuit, the municipality was not prejudiced by the delay:

As a result of the accident, the petitioner allegedly sustained a depressed skull fracture and a subdural hematoma with midline shift, and underwent an emergency craniotomy. The petitioner allegedly has been continuously hospitalized and confined to a bed and a wheelchair, cannot speak, and is fed through a feeding tube.

Due to a mistaken belief as to which municipality owned the location of the accident, the petitioner’s attorneys initially commenced a proceeding against the County of Nassau, the Village of Oyster Bay Cove, and the Town. However, in April 2019, the petitioner’s attorneys allegedly learned for the first time that the accident location was in Laurel Hollow. …

The petitioner’s incapacitating injuries constituted a reasonable excuse for the delay in serving Laurel Hollow with a notice of claim … . Although a police aided case report … did not provide Laurel Hollow with actual knowledge of the essential facts constituting the claim, the petitioner established that Laurel Hollow would not be prejudiced by the delay. Of note, the roller that the petitioner was operating at the time of the accident has been continuously preserved by the petitioner’s employer pursuant to a court order. Matter of Davis v Incorporated Vil. of Laurel Hollow, 2021 NY Slip Op 04133, Second Dept 6-30-21

 

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ALTHOUGH AN ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A DANGEROUS CONDITION IN THE GRASSY STRIP BETWEEN THE SIDEWALK AND THE CURB, HERE THE PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION; IN ADDITION, THE VILLAGE CODE DID NOT IMPOSE TORT LIABILITY ON PROPERTY OWNERS, AN ISSUE PROPERLY CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s motion for summary judgment in this sidewalk slip and fall case should have been granted. Although, pursuant to the Vehicle and Traffic Law, defendant can be responsible for a dangerous condition in the grassy strip between the sidewalk and a curb, here defendant demonstrated he did not create the condition and the village code did not impose tort liability on abutting property owners. Although the “village code” issue was not raised below, it was a purely legal issue that can be considered on appeal:

The grass strip situated between a sidewalk and a roadway is part of the sidewalk (see Vehicle and Traffic Law § 144; Code of the Village of Westbury [hereinafter Village Code] § 215-2 … ). “‘An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty'” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by demonstrating that he did not create the alleged dangerous condition or cause that condition through a special use of the sidewalk … . In addition, while Village Code § 215-12 imposes a duty on owners and occupants of abutting land to keep sidewalks free of obstructions, the Village Code does not specifically impose tort liability for breach of that duty … . Although the defendant did not make an argument based on the provisions of the Village Code in support of his motion before the Supreme Court, his argument in this regard is reviewable on appeal because it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised at the proper juncture … . Lamorte v Iadevaia, 2021 NY Slip Op 04126, Second Dept 6-30-21

 

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THE LEGAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS NO WRITTEN RETAINER AGREEMENT AND THEREFORE NO ATTORNEY-CLIENT RELATIONSHIP; THE COMPLAINT ALLEGED WORDS AND ACTIONS SUFFICIENT TO ASSERT THE EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice action should not have been dismissed on the ground there was no retainer agreement and therefore no attorney-client relationship:

As to the legal malpractice cause of action, the … defendants contend that they had no attorney-client relationship with the plaintiff. An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists … . Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship … . Edelman v Berman, 2021 NY Slip Op 04120, Second Dept 6-30-21

 

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THE BREACH OF CONTRACT CAUSE OF ACTION ALLEGING DEFENDANT ATTORNEY OVERBILLED SHOULD HAVE SURVIVED THE MOTION TO DISMISS DESPITE THE DISMISSAL OF THE LEGAL MALPRACTICE CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for breach of contract alleging overbilling by defendant attorney (Drexel) should have survived the motion to dismiss, even though the legal malpractice cause of action was properly dismissed:

… [T]he Supreme Court should have denied that branch of [defendant-attorney] Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services … . In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work … . Dubon v Drexel, 2021 NY Slip Op 04119, Second Dept 6-30-21

 

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THE ALLEGATION PLAINTIFF WOULD HAVE WON HIS WORKERS’ COMPENSATION HEARING HAD HIS ATTORNEY PRESENTED EYEWITNESS TESTIMONY WAS TOO SPECULATIVE TO SUPPORT A LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed. Plaintiff alleged he would have won his Workers’ Compensation hearing had his attorney presented the testimony of alleged eyewitnesses to his alleged fall from a ladder. The claim that, “but for” the attorney’s negligence, the plaintiff would have won the hearing was deemed too speculative:

“To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … .

… The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory … . Denisco v Uysal, 2021 NY Slip Op 04118, Second Dept 6-30-21

 

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14-YEAR-OLD PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH RETRACTED BLEACHERS DURING A BASKETBALL PRACTICE DRILL IN WHICH BOUNDARY LINES WERE TO BE IGNORED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment in this negligent supervision case should have been granted. The 14-year-old plaintiff was participating in a basketball practice drill in which the boundary lines of the court were to be ignored. When plaintiff attempted to retrieve a ball that went over the boundary line she was pushed into the retracted bleachers. The Third Department held plaintiff assumed the risk of injury during that form of practice:

“The primary assumption of risk doctrine . . . encompasses risks involving less than optimal conditions” … . The opinion of plaintiff’s expert that the drill could have been safer by utilizing the boundary lines of the basketball court and having more space was insufficient to raise an issue of fact given that the failure to do so did not unreasonably increase the inherent risks of the drill or playing basketball … . Plaintiff’s expert likewise failed to cite to any specific industry standard violated by defendants … . Furthermore, there is no indication in the record that the boundary lines of the basketball court acted as, or were intended to be, a safety mechanism to prevent a player’s collision with the bleachers. Because plaintiff did not satisfy her burden, defendants’ motion should have been granted … . Secky v New Paltz Cent. Sch. Dist., 2021 NY Slip Op 04071, Second Dept 6-24-21

 

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DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EIGHT-YEAR-OLD SON WAS MORE THAN HALFWAY ACROSS THE STREET WHEN STRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this pedestrian accident cause should not have been granted. Plaintiff’s eight-year-old son was struck by defendant and there was evidence the child was more than halfway across the road at the time he was struck:

… [T]he evidence submitted by the defendant in support of her motion, including a transcript of her own deposition testimony, failed to eliminate triable issues of fact as to whether she was free from fault in the happening of the accident and, if not free from fault, whether the child’s purported negligence was the sole proximate cause of the accident … . The evidence the defendant submitted indicated that the front passenger side of her vehicle came into contact with the child who, approaching from the defendant’s left, was more than halfway across the winding and curved roadway prior to impact (see Vehicle and Traffic Law §§ 1146[a], 1180[a], [e] …). Sage v Taylor, 2021 NY Slip Op 04048, Second Dept 6-23-21

 

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DEFENDANT RADIOLOGIST WAS ASKED TO EVALUATE A MAMMOGRAM AS A ROUTINE-SCREENING PROCEDURE AND, ACCORDING TO HIS EXPERT, DID SO IN ACCORDANCE WITH ACCEPTED PRACTICES; PLAINTIFF WAS DIAGNOSED WITH BREAST CANCER A YEAR LATER; THE RADIOLOGIST’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over an extensive dissent, determined the radiologist’s motion for summary judgment in this medical malpractice (failure to diagnose) action should have been granted. The radiologist was asked to evaluate a “routine-screening” mammogram and indicated there were no suspicious findings. A year later plaintiff was diagnosed with breast cancer and she died a little more than three years after that. From the radiologist’s perspective, the Second Department concluded, there was nothing to indicate that cancer was suspected and that anything more than a routine-screening was prescribed by plaintiff’s physician:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … . “The question of whether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion” … .

Here, the radiology defendants established, prima facie, that [defendant] Blumberg discharged his duty to the decedent in accordance with accepted practice for radiologists … . Siegel-Goldman, the radiology defendants’ expert, concluded that Blumberg’s interpretation of the April 21, 2010 mammogram was in conformity with accepted practices. …

… [T}he mere fact that the decedent indicated on the mammography worksheet that she experienced some pain in her left breast did not impose a heightened duty of care on Blumberg, who never saw or treated the decedent, and whose only role was to interpret the mammography images and report his findings to the prescribing physician … . Mann v Okere, 2021 NY Slip Op 04014, Second Dept 6-23-21

 

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NO ONE, INCLUDING DEFENDANT DRIVER, SAW THE 17-MONTH-OLD BEFORE HEARING A LOUD “THUMP” AND FINDING THE CHILD LYING BEHIND DEFENDANT’S CAR; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver did not eliminate all questions of fact about whether she was negligence. Defendant driver heard a loud “thump” and plaintiff’s decedent, a 17-month old child, was found lying on the ground right behind defendant’s car. No one saw the impact:

Shortly before the accident, the driver had dropped off a passenger in a residential cul-de-sac, with several young children playing nearby. After pulling into a driveway and reversing out in the opposite direction, the driver began moving her vehicle forward again when she heard a loud “thump”—which was also heard by at least four other witnesses in the vicinity. Believing that her vehicle had come into contact with a parked car to her right, the driver began reversing her vehicle when a man outside urgently directed her to stop. Upon exiting the vehicle, the driver observed the infant lying on the ground “right behind” her vehicle, on the passenger side. The infant was taken to a hospital, where she died of her injuries the following day. The driver did not see the infant prior to the accident, and the record does not indicate that anyone actually observed the contact between the infant and the defendants’ vehicle. …

Under the circumstances presented, the evidence submitted by the defendants was insufficient to meet their prima facie burden of proof, since it failed to eliminate all triable issues of fact regarding the driver’s alleged negligence, including her ability to see the infant prior to the accident … . Danziger v Elias, 2021 NY Slip Op 04008, Second Dept 6-22-21

 

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