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THE DENIAL OF DEFENDANT’S MOTION TO LIMIT THE EXPERT TESTIMONY PLAINTIFF COULD OFFER AT TRIAL DID NOT LIMIT THE ISSUES TO BE TRIED; THEREFORE ANY APPEAL MUST AWAIT THE CONCLUSION OF THE TRIAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined defendant doctor could not appeal the denial of defendant’s motion to limit the expert testimony which plaintiff could offer at trial in this medical malpractice action. The motion court’s ruling did not limit the issues to be tried. Therefore an appeal must be brought after trial:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Here, Supreme Court’s decision merely permits the infant to offer various testimony of his expert witnesses and does not limit the scope of issues to be tried … . Therefore, appellate review of the court’s ruling “must await the conclusion of a trial so that the relevance of the proffered evidence, and the effect of [the court’s] ruling with respect thereto, can be assessed in the context of the record as a whole” … . Accordingly, this appeal must be dismissed … . C.H. v Dolkart, 2019 NY Slip Op 05614, Third Dept 7-11-19

 

PLAINTIFF’S ACTION AGAINST DEFENDANT FOR LETTING PLAINTIFF USE A SCISSORS LIFT SURVIVED SUMMARY JUDGMENT; PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY ENTRUSTED THE LIFT TO HIM, KNOWING HE DID NOT KNOW HOW TO OPERATE IT; PLAINTIFF WAS INJURED WHEN THE LIFT TIPPED OVER AND PLAINTIFF FELL 25 FEET (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant building contractor negligently entrusted a scissors lift to plaintiff, who was injured when the lift tipped over:

Given the testimony regarding plaintiff’s alleged lack of experience operating the subject scissor lift, the alleged observations by defendant’s employees of plaintiff’s operation thereof, Reagles’ [defendant’s project superintendent’s] assumption as to plaintiff’s level of training and his subsequent knowledge that an employee of defendant was allegedly made aware, prior to the accident, that plaintiff was not familiar with and/or trained in the use and operation of the scissor lift, we find that defendant failed to meet its prima facie burden of establishing the absence of a triable issue of fact, specifically as to whether defendant knew or should have known that plaintiff lacked the requisite training and experience necessary to safely operate the subject scissor lift at the time it was entrusted to him, rendering his subsequent use thereof unreasonably dangerous … . Moreover, the issue of proximate cause is generally more appropriately resolved by the trier of fact … . Further, although it is undisputed that plaintiff was the sole operator of the scissor lift, we find a question of fact also exists as to whether plaintiff’s injuries were a foreseeable result of defendant’s negligent entrustment of the lift to plaintiff … . Hull v The Pike Co., 2019 NY Slip Op 05611, Third Dept 7-11-19

 

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NEGLIGENT SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES IN THIS STUDENT-PUSHES-STUDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s motion for summary judgment in this negligent supervision, student-pushed-by-student, case should have been granted. Negligent supervision was not the proximate cause of the injury:

… [T]he infant plaintiff, a kindergarten student at a school in the defendant … School District … , allegedly was injured when she was pushed into a wall by a fellow kindergarten student while they were lining up outside their classroom before the afternoon session. …

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . However, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury and summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted … .

Here, the School District established, prima facie, that the incident occurred in so short a period of time that any negligent supervision on its part was not a proximate cause of the infant plaintiff’s alleged injuries … . M.P. v Central Islip Union Free Sch. Dist., 2019 NY Slip Op 05553, Second Dept 7-10-19

third party assault

PLAINTIFF ALLEGED SHE FELL OVER A WORKER WHEN SHE ATTEMPTED TO STEP OFF AN ELLIPTICAL MACHINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted. Plaintiff was on an elliptical machine and allegedly fell over a worker who was working near the machine:

Summary judgment was not warranted in this action, because plaintiff’s deposition testimony that she felt “stuck” as she attempted to step off the elliptical machine, coupled with defendant’s maintenance worker’s testimony that his right leg was stretched out next to the elliptical machine on which plaintiff was exercising, cleaning the outlets in the area, and that plaintiff’s foot hit his foot, causing her to lose balance and fall, were together sufficient to raise a triable issue as to whether plaintiff’s injuries were caused by defendant’s negligence … . An incident report prepared by the manager consistently recounts that plaintiff fell over a worker. Ausch-Alteras v Equinox – 85th St., Inc., 2019 NY Slip Op 05478, First Dept 7-9-19

 

DEFENDANT GYM DID NOT DEMONSTRATE AN ACCUMULATION OF DUST ON THE BASKETBALL COURT FLOOR WAS INHERENT IN THE SPORT OR OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF THE RISK DOCTRINE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the assumption of the risk doctrine did not entitle defendant gym to summary judgment. Plaintiff was playing basketball when he allegedly slipped and fell on an accumulation of dust on the indoor court:

An owner may not be held liable if the injury results from certain conditions inherent in a participant’s outdoor game of basketball  … . The same is true if a condition on an indoor basketball court is otherwise open and obvious … .

Here, defendant failed to establish that accumulated dust on an indoor basketball court is inherent in the sport of basketball. Nor did defendant establish that the alleged condition was an open and obvious one … . Samuels v Town Sports Intl., LLC, 2019 NY Slip Op 05477, First Dept 7-9-19

 

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CONTINUOUS REPRESENTATION DOCTRINE DID NOT APPLY TO TWO DISTINCT AND SEPARATE ACTIONS, LEGAL MALPRACTICE ACTION TIME-BARRED (FIRST DEPT).

The First Department determined the continuous representation doctrine did not apply and the legal malpractice action was time-barred. Plaintiff was represented by defendant law firm in a 2005 divorce. Plaintiff’s ex-wife then sued plaintiff alleging he fraudulently concealed an asset in the divorce proceedings. Defendant law firm successfully defended the fraud action. 12 years after the divorce action ended, plaintiff sued the law firm for malpractice, asking to be relieved of the obligation to pay the law firm’s legal fees in the fraud action:

The motion court correctly found that this action, which was commenced 12 years after the divorce action ended, is barred by the applicable three-year statute of limitations … . Contrary to plaintiff’s contentions, the continuous representation doctrine is inapplicable, because defendants were retained under two separately executed retainer agreements in the divorce action and the fraud action … . The first retainer agreement expressly stated that it did not cover any services following the entry of a final judgment of divorce. Thus, there was no mutual understanding that further representation was necessary on the specific subject matter of the malpractice claim … . Moreover, the divorce action and the fraud action, although related, were two distinct and separate actions … . Etzion v Blank Rome, LLP2019 NY Slip Op 05468, First Dept 7-9-19

 

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STATEMENTS MADE IN CONNECTION WITH A HOSPITAL’S QUALITY ASSURANCE INVESTIGATION ARE PRIVILEGED PURSUANT TO THE EDUCATION LAW AND PUBLIC HEALTH LAW; THE STATEMENTS ARE NOT DISCOVERABLE IN THE MEDICAL MALPRACTICE ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a concurrence, and refusing to follow the 2nd Department, determined certain statements made in connection with a hospital’s (SUNY Upstate’s) quality assurance investigation were privileged pursuant to the Education Law and Public Health Law and therefore were not subject to discovery in this medical malpractice action:

“The New York State Education Law shields from disclosure the proceedings [and] the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program’ ” ( … see Public Health Law § 2805-m [2]). Although there is an exception to that privilege, “the exception is narrow” … and is limited to “statements made by any person in attendance at such a [quality assurance] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting” (Education Law § 6527 [3]; see Public Health Law § 2805-m [2] …).

Here, the “statements” at issue were provided shortly after the incident and were obtained as part of SUNY Upstate’s quality assurance investigation. The statements, however, were not made at a quality assurance committee meeting; nor were they made in response to any inquiries initiated by the committee … . None of the defendants appeared at any committee meeting. Thus, we agree with SUNY Upstate and defendants that plaintiff’s proposed construction of the statutory exception would not give any practical effect to the phrase “in attendance,” but rather would render that phrase meaningless … . Further, the Court of Appeals specifically instructed that the exception is “narrow and limited to statements given at an otherwise privileged peer review meeting” … .  Following plaintiff’s proposed construction “would extend the [statutory] exception to a point where it would swallow the general rule that materials used by a hospital in quality review and malpractice prevention programs are strictly confidential” … . Nowelle B. v Hamilton Med., Inc., 2019 NY Slip Op 05464, Fourth Dept 7-5-19

 

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ALTHOUGH THE TWO THYROID SURGERIES WERE PERFORMED BY THE SAME DOCTOR, THE 2005 SURGERY AND THE 2010 SURGERY WERE DISCRETE EVENTS; THE STATUTE OF LIMITATIONS WAS NOT TOLLED BY THE CONTINUOUS TREATMENT DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the medical malpractice action based upon a 2005 thyroid surgery by the same doctor who performed the 2010 thyroid surgery was time-barred. The two surgeries were discrete events and the statute of limitations was not tolled by the continuous treatment doctrine:

Defendants established that [the 2005] claims are time-barred inasmuch as more than 2½ years elapsed between the date of the alleged conduct and the commencement of the action … , and plaintiff failed to raise an issue of fact in opposition. Contrary to plaintiff’s contention, the continuous treatment doctrine does not apply. It is undisputed that plaintiff did not treat with Dr. Chahfe in relation to the 2005 surgery after her final follow-up appointment in 2005, and that she did not return to Dr. Chahfe until 2010. The surgical procedures in 2005 and 2010 were ” discrete and complete’ events that cannot be linked by way of the continuous treatment doctrine” … , and there was no evidence of anticipated further treatment related to the 2005 procedure at the time plaintiff left Dr. Chahfe’s care in 2005 … . Angelhow v Chahfe, 2019 NY Slip Op 05437, Fourth Dept 7-5-19

 

QUESTION OF FACT WHETHER THE EMERGENCY DOCTRINE APPLIED IN THIS TRAFFIC ACCIDENT CASE; DEFENDANT SAW THE VEHICLE WHICH SUBSEQUENTLY RAN THE STOP SIGN AND THOUGHT IT WAS GOING TOO FAST TO STOP; QUESTION OF FACT WHETHER DEFENDANT SHOULD HAVE TAKEN EVASIVE ACTION (FOURTH DEPT).

The Fourth Department determined defendant did not eliminate questions of fact in this traffic accident case about whether the emergency doctrine applied. Defendant was behind plaintiffs’ motorcycle when a vehicle (operated by Buck) ran a stop sign, broadsided a truck (operated by Matthew) which then collided with the motorcycle. There was evidence defendant’s vehicle then struck the motorcycle. Defendant testified she saw the Buck vehicle approaching the stop sign and thought it was going too fast to stop, The Fourth Department determined there was a question of fact whether defendant should have slowed down at that point:

In determining whether the actions of a driver are reasonable in light of an emergency situation, both the driver’s awareness of the situation and his or her actions prior to the occurrence of the emergency must be considered … . Here, defendant’s deposition testimony established that she saw Buck’s car on the access road approaching the stop sign “very, very fast,” “like he was still on the Thruway,” and that she also observed Matthew’s pick-up truck approaching the intersection. Defendant was “very conscious . . . because [she knew] there [were] a lot of accidents that happen on this road because people do not pay attention to the stop sign at that [a]ccess [r]oad,” and she “start[ed] to get nervous” that Buck’s vehicle was moving too fast to stop for the stop sign. Despite defendant’s awareness that the intersection presented a particular danger and her observations of Buck’s vehicle, however, defendant did not slow down, move over, or apply her brakes until after she saw Buck’s vehicle “smash into the truck.” At that point, defendant did not know where the motorcycle was in relation to her minivan. We thus conclude that issues of fact exist whether defendant, in taking no evasive action and in making no effort to slow down, or move over, or otherwise attempt to avert the impending collision, responded reasonably under the circumstances … . Gilkerson v Buck, 2019 NY Slip Op 05435, Fourth Dept 7-5-19

 

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ALTHOUGH THE ATTORNEY REPRESENTING HIS MOTHER’S ESTATE IN A MEDICAL MALPRACTICE/WRONGFUL DEATH ACTION MAY BE A WITNESS, UNDER THE PARTICULAR FACTS OF THE CASE, DISQUALIFICATION PURSUANT TO THE ADVOCATE-WITNESS RULE WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the attorney representing his mother’s estate in the medical malpractice/wrongful death action may be a witness, the advocate-witness rule, under the particular facts of this case, did not require disqualification:

… [T]he advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation  … . Rule 3.7(a) of the Rules of Professional Conduct … provides that, in general, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” There is an exception to this rule when “disqualification of the lawyer would work substantial hardship on the client”… . Further, the advocate-witness rule generally does not control where the attorney is also a litigant … . However, estate representatives represent the interests of the estate’s beneficiaries, rather than their own. Therefore, generally, the advocate-witness rule will prevail over a fiduciary-attorney’s right to self-representation … . …

Here, the other distributee affirmed that his interests in the lawsuit are identical to those of the plaintiff, whom he wished would remain as attorney for the estate. Accordingly, while the plaintiff is not a party in his individual capacity, his personal property interests as one of two distributees of the estate are at stake (see EPTL 5-4.4[a] …), and his interests appear to be identical to those of the estate … . Furthermore, the plaintiff affirmed that his attempt to retain different counsel for the estate was unsuccessful, such that his disqualification as counsel would essentially foreclose the claim, working substantial hardship on the estate and its distributees … . Greenberg v Grace Plaza Nursing & Rehabilitation Ctr., 2019 NY Slip Op 05390, Second Dept 7-3-19

 

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