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PLAINTIFF’S MOTION TO SET ASIDE THE JURY VERDICT IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED, THE COURT GRANTED THE MOTION BASED UPON REMARKS MADE BY DEFENSE COUNSEL DURING SUMMATION, REMARKS TO WHICH NO OBJECTION HAD BEEN MADE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to CPLR 4404 (a) to set aside the jury verdict in this personal injury case should not have been granted. The jury found that plaintiff did not suffer a serious injury within the meaning of the no-fault law (Insurance Law § 5102(d)), and awarded plaintiff $50,000 for lost wages, reduced by $25,000 for failure to wear a seatbelt. The trial judge granted the motion in the interest of justice primarily based upon comments made by defense counsel during summation, comments to which no objection was made:

… [T]he Supreme Court identified eight specific statements made by defense counsel in his closing that the court characterized as improper, in addition to the remarks quoted above. However, none of these statements were objected to. We recognize that common courtesy requires that an attorney allow opposing counsel the opportunity to argue his or her case to the jury without undue or repetitive interruptions. Nevertheless, where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection and for the court to rule on the objection, to direct the jury to disregard any improper remarks, and to admonish counsel from repetition of improper remarks … . Where objection is not, or cannot appropriately be, interposed during summation, counsel should, upon the conclusion of the summation, make appropriate objections, seek curative instructions, or request a mistrial … . Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial … . This standard was not met in this case. We stress that the plaintiff’s counsel made no complaint regarding the allegedly prejudicial nature of the defendant’s closing statement until after an adverse verdict was rendered. The verdict that the plaintiff did not sustain a serious injury was supported by the evidence, and the jury had ample reason to reject the plaintiff’s claims and accept the arguments of the defendants.

Accordingly, we reverse the order insofar as appealed from, deny the branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages, and reinstate the jury verdict. Kleiber v Fichtel, 2019 NY Slip Op 03778, Second Dept 5-15-19

 

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ALTHOUGH NO ESPINAL FACTORS WERE ALLEGED BY PLAINTIFF IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER DEFENDANT’S ORAL CONTRACT WITH THE PROPERTY OWNER TO REMOVE ICE AND SNOW ENTIRELY REPLACED THE PROPERTY OWNER’S DUTY, AND WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF A RECURRENT ICY CONDITION, PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The plaintiff leased the ground floor apartment and defendant, the plaintiff’s mother, leased the second floor apartment. Plaintiff slipped and fell on ice on the exterior front steps of the two-family house. Defendant demonstrated she had a contractual arrangement with the property owner to remove ice and snow and, because plaintiff was not a party to the agreement, no duty of care was owed plaintiff (no Espinal factors were alleged by the plaintiff). But defendant raised questions of fact in opposition:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, the Court of Appeals has recognized three exceptions to the general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Here, the defendant established … entitlement to judgment as a matter of law by demonstrating that she did not owe a duty of care to the plaintiff, since the plaintiff was not a party to the oral agreement between the defendant and the property owner … . Since the plaintiff did not allege facts in her pleadings that would establish the possible applicability of any of the Espinal exceptions, the defendant … was not required to affirmatively establish that these exceptions did not apply

However, in opposition … , the plaintiff raised a triable issue of fact as to whether … .  defendant’s oral agreement with the property owner regarding maintenance was comprehensive and exclusive so as to entirely displace the property owner’s duty to maintain … the exterior front steps and the gutter … . Additionally, the plaintiff raised a triable issue of fact as to whether the defendant had actual notice of an alleged recurrent dangerous condition regarding ice formation on the steps due to the leaky gutter, and was thus chargeable with constructive notice of each specific occurrence of the condition … .  Sampaiolopes v Lopes, 2019 NY Slip Op 03835, Second Dept 6-15-19

 

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SUMMARY JUDGMENT IS NOT APPROPRIATE IN A MEDICAL MALPRACTICE ACTION WHERE THERE ARE CONFLICTING MEDICAL EXPERT OPINIONS ABOUT A DEPARTURE FROM ACCEPTED STANDARDS OF CARE, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined plaintiff’s expert affidavit raised questions of fact about whether defendant’s treatment of plaintiff’s decedent departed from accepted standards of practice. Granting summary judgment to defendants is not appropriate where there are conflicting medical expert opinions:

… [V]ascular surgeon Jon Kirwin from Kings County Hospital surgically created an arteriovenous fistula (hereinafter AVF) in the decedent’s upper left arm as an access site for dialysis treatments. … [D]uring one of the decedent’s scheduled dialysis visits … , a nurse examined the decedent and, believing that the AVF was infected, conferred with … [the] attending nephrologist, who directed that the decedent be transferred to Kings County Hospital’s emergency room for evaluation. The decedent presented to Kings County Hospital where he was evaluated by Kirwin, who cleared him for dialysis. The decedent underwent dialysis at Kings County Hospital without incident that day, and two days later reported to Utica for his scheduled dialysis treatment. The decedent underwent dialysis at Utica on August 27, 2010, and August 30, 2010, without incident. On August 31, 2010, the decedent was found unconscious at home and died on the way to the hospital. The cause of death was a rupture of the AVF. * * *

… [I]n support of their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them, the moving defendants submitted expert affirmations that established, prima facie, that none of them departed from good and accepted standards of medical practice in their treatment of the decedent and that no alleged departure was the proximate cause of the plaintiff’s injuries … . However, in opposition, the plaintiff raised triable issues of fact through her expert affirmations as to whether the defendants departed from accepted standards of practice by continuing with dialysis on an AVF that presented with infection and aneurysmal dilatation and whether the continued dialysis caused the AVF to rupture. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury” … . Hutchinson v New York City Health & Hosps. Corp., 2019 NY Slip Op 03775, Second Dept 5-15-19

 

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GRANDMOTHER WAS IN THE ZONE OF DANGER WHEN PIECES OF THE FACADE OF A BUILDING FELL AND KILLED HER TWO-YEAR-OLD GRANDCHILD, BECAUSE GRANDMOTHER IS NOT ‘IMMEDIATE FAMILY’ SHE CANNOT RECOVER UNDER A NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS THEORY, THE MOTION TO AMEND THE COMPLAINT TO ADD THAT THEORY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined the grandmother of a two-year-old child who witnessed the child’s death was not a member of the child’s “immediate family” and therefore could not recover for negligent infliction of emotional distress, despite the grandmother’s being in the zone of danger when the child was struck by falling pieces of a building-facade. The motion to amend the complaint to add the negligent infliction of emotional distress cause of action should not have been granted:

… [I]n Trombetta v Conkling (82 NY2d 549, 551), the Court of Appeals held that a niece could not recover damages for negligent infliction of emotional distress for witnessing the death of her aunt, despite the fact that the niece’s mother had died when the niece was 11 years old, and the aunt had allegedly been the maternal figure in the niece’s life. At the time of the accident, the plaintiff was 37 years old and her aunt was 59 years old (see id. at 551). In rendering its determination, the Court of Appeals stated: “On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond” (id. at 553).

In Jun Chi Guan v Tuscan Dairy Farms (24 AD3d 725), this Court held that the relationship of grandparent and grandchild does not constitute “immediate family” so as to permit recovery for negligent infliction of emotional distress. In Jun Chi Guan, the plaintiff grandmother was pushing her infant grandson in a stroller, when a truck owned and operated by the defendants struck the stroller, killing the infant (see id. at 725). This Court rejected the grandmother’s argument that she should be considered immediate family because she was the family member who spent the most time with the infant during his waking hours (see id. at 726). Further, this Court held that “it is not appropriate for this Court to expand the class [of persons constituting immediate family] absent further direction from the Court of Appeals or the New York State Legislature” (id.). Greene v Esplanade Venture Partnership, 2019 NY Slip Op 03771, Second Dept 5-15-19

 

DEFENDANT ASSERTED SHE THOUGHT PLAINTIFF’S CAR WOULD GO THROUGH THE YELLOW LIGHT AT AN INTERSECTION AND DEFENDANT RAN INTO THE REAR OF PLAINTIFF’S CAR WHEN IT CAME TO A SUDDEN STOP, DEFENDANT’S ASSERTION DID NOT CONSTITUTE A NON-NEGLIGENT EXPLANATION FOR THE REAR-END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant, in this traffic accident case, failed to raise a question of fact about a non-negligent explanation for the rear-end collision. Defendant asserted that it “appeared” the lead vehicle and plaintiff’s vehicle (behind the lead vehicle) were going to go through the yellow light at the intersection. Defendant further asserted that the lead vehicle came to a sudden stop, plaintiff’s vehicle struck the lead vehicle, and then defendant’s vehicle struck the plaintiff’s. The court held that defendant should have anticipated the sudden stop because of the yellow light:

The defendant driver’s assertion that the plaintiff’s vehicle came to a sudden stop, standing alone, was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision between the plaintiff’s vehicle and the defendants’ vehicle … . Even if, as the defendant driver asserted, the plaintiff had come to a sudden stop at the traffic light, the defendant driver should have anticipated that the plaintiff’s vehicle might come to a stop at the intersection, especially where, according to the defendant driver’s own affidavit, the traffic light already turned yellow … . The defendant driver was under a duty to maintain a safe distance between her vehicle and the plaintiff’s vehicle, notwithstanding that it “appeared” to her that the lead vehicle and the plaintiff’s vehicle were “going to attempt to beat the light'” … . Therefore, in opposition to the plaintiff’s prima facie showing, the defendants failed to raise a triable issue of fact. Catanzaro v Edery, 2019 NY Slip Op 03762, Second Dept 5-15-19

 

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NEW TRIAL ORDERED BECAUSE THE INCONSISTENCY IN THE VERDICT SHEET COULD NOT BE REMEDIED AFTER THE JURY WAS DISCHARGED, THE JURY HAD AWARDED PLAINTIFF-STUDENT $1 MILLION IN A SUIT AGAINST A SCHOOL DISTRICT STEMMING FROM BULLYING BY OTHER STUDENTS (THIRD DEPT).

The Third Department determined a new trial was necessary because of an inconsistency in the jury’s answers on the verdict sheet. The trial court attempted to cure the inconsistency after the jury was discharged by speaking with the jury foreman, who was still in the courthouse when the problem was noticed. The jury had awarded plaintiff-student $1 million in a negligent supervision suit against a school district stemming from bullying by other students:

The taking of this verdict was fatally flawed. Pursuant to CPLR 4111 (c), when the answers on a verdict sheet “are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial” … . The jury’s consideration of question No. 5 was inconsistent with its answer to question No. 4 and should have been brought to the jury’s attention with a curative charge, followed by a return to deliberations to resolve the inconsistency … . However, because the jury had already been discharged, this was not possible and Supreme Court’s consultation with the jury foreperson alone, although done in open court, could not take the place of full jury reconsideration … . In essence, the window of opportunity for Supreme Court to fix the problem closed when the other jurors left the courthouse. Supreme Court’s subsequent efforts, while well intentioned, were futile and, given this timeline, our only course of action is to order a new trial … . Motta v Eldred Cent. Sch. Dist., 2019 NY Slip Op 03714, Third Dept 5-9-19

 

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DEFENDANT HOUSING AUTHORITY DEMONSTRATED THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD BEEN INSPECTED ON THE MORNING OF THE ACCIDENT AND THERE HAD BEEN NO PRIOR COMPLAINTS ABOUT A WET CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined that defendant New York City Housing Authority’s (NYCHA’s) motion for summary judgment in this stairway slip and fall case was properly granted. Plaintiff alleged she slipped on a wet condition that was recurrent. The NYCHA presented evidence the stairway had been inspected the morning of the accident and there had been no prior complaints about a wet condition:

NYCHA established, prima facie, that it did not create or have actual or constructive notice of the condition alleged by the plaintiff to have caused the accident … . The deposition testimony of the building caretaker who was on duty the morning of the accident was sufficient to establish that the area where the plaintiff fell was inspected that morning before the plaintiff’s accident occurred, and would have been cleaned if there were any hazardous conditions present during the inspection. Furthermore, in regard to the claim that it had constructive notice of a recurrent dangerous condition, NYCHA submitted evidence that no complaints about the condition of the stairwell had been received for one year prior to and including the morning of the plaintiff’s accident. Pagan v New York City Hous. Auth., 2019 NY Slip Op 03608, Second Dept 5-8-19

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, HEARSAY IS ADMISSIBLE IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this slip and fall case should not have been granted. The complaint alleged plaintiff’s decedent tripped over a raised portion of a sidewalk. The evidence included plaintiff’s decedent’s explanation of the cause of the fall as described by plaintiff-wife. Defendants argued plaintiffs could not prove the cause of the fall because decedent’s statements were inadmissible hearsay. The Second Department noted that hearsay is admissible in opposition to a summary judgment motion as long as it is not the only evidence. Here there was circumstantial evidence of the cause of the fall:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact. They failed to demonstrate that the cause of the decedent’s fall could not be established by admissible evidence, either direct or circumstantial … . While the defendants contend that the plaintiff’s deposition testimony as to what the decedent told her as to how the accident occurred constituted inadmissible hearsay, hearsay may be considered on a motion for summary judgment so long as the hearsay evidence is not the only evidence of a triable issue of fact … . The defendants’ submissions included the plaintiff’s own deposition testimony concerning her personal observations of the location of the accident shortly after the event and photographs of the claimed defect. Thus, the defendants failed to carry their burden of demonstrating that the plaintiff could not establish, through direct or circumstantial evidence, that the decedent tripped and fell as the result of a defect in the sidewalk.

Further, since the defendants failed to submit evidence as to when they last inspected the sidewalk, they failed to establish lack of constructive notice of the allegedly defective condition of the sidewalk … . Kontorinakis v 27-10 30th Realty, LLC, 2019 NY Slip Op 03579, Second Dept 5-8-19

 

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THE HOSPITAL DEFENDANT WAS PROPERLY PRECLUDED FROM PRESENTING THE CPLR ARTICLE 16 DEFENSE AFTER THE OTHER POTENTIALLY LIABLE DEFENDANTS HAD BEEN SEVERED FROM THE ACTION AT THE HOSPITAL DEFENDANT’S REQUEST, AND AFTER THE HOSPITAL DEFENDANT HAD REPRESENTED TO THE COURT THE OTHER POTENTIALLY LIABLE DEFENDANTS WOULD NOT BE PART OF THE TRIAL, TWO JUSTICE DISSENT, THE HOSPITAL DEFENDANT’S REQUEST FOR THE ERROR IN JUDGMENT JURY INSTRUCTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant hospital was properly precluded from presenting a CPLR article 16 defense (pursuant to the defense, a party deemed 50% liable or less pays only that portion of the damages) in this medical malpractice action. Plaintiff’s decedent was first treated at defendant hospital and then at defendant rehabilitation facilities (the Elderwoods). When plaintiff’s decedent was treated at the hospital she was given a high dosage of medication, Simvastatin, and that high dosage was continued at the Elderwoods. The dosage was four times higher than plaintiff’s decedent’s usual dosage. The high dosage caused plaintiff’s decedent’s extreme suffering and death. Earlier in the litigation, the Elderwoods moved for severance, the defendant opposed and the motion was denied. As the trial approached defendant moved to sever the Elderwoods, and represented to the court that the Elderwoods involvment would not be “a topic in the main action.” Then, at the trial, after plaintiff rested, defendant gave notice that it would present evidence of the Elderwoods’ negligence and asked to have them included on the verdict sheet pursuant to CPLR article 16. Noting that the plaintiff was not able to address the article 16 defense during the jury selection and trial, the Fourth Department held that the defendant was properly precluded from presenting the defense. The court also held that defendant’s request for an error in judgment jury instruction was properly denied:

We agree with defendant that the fact that the third-party action was severed does not extinguish a defendant’s article 16 defense. But, in this case, defendant represented before the trial started that the topic of care at the Elderwoods would not be discussed. If defendant had not made this representation, then plaintiff could have preempted or otherwise addressed this anticipated defense through opening statements and plaintiff’s own lay and expert witnesses in plaintiff’s case in chief, and thus could have suggested that the Elderwoods were not negligent before resting. As plaintiff’s counsel asserts, he could have examined his witnesses at trial differently had he known that the topic of the Elderwoods’ care, and thus the CPLR article 16 defense, was still on the table. …

It is well settled that “a doctor may be liable only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” . An “error in judgment” charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … .

This case does not fall within that narrow category … . There was simply no evidence that there was any judgment made by hospital personnel to administer 80 mg/daily of Simvastatin to decedent. Mancuso v Health, 2019 NY Slip Op 03520, Fourth Dept 5-3-19

 

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LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF BITTEN BY TENANT’S DOG (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the landlord’s motion for summary judgment in this dog-bite case should have been granted. The landlord was aware the tenant had a dog, and could have required the removal of the dog, but was not aware whether the dog had vicious propensities. The court noted that theories of common-law negligence are not applicable:

It is well established that ” [t]o recover against a landlord for injuries caused by a tenant’s dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises[,] (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog’ ” … . Here, it is undisputed that defendant was aware that a dog was kept on the premises by his tenants and that he could have required them to remove or confine the dog. Nevertheless, defendant met his initial burden on the motion by establishing as a matter of law that he lacked actual or constructive knowledge that his tenants’ dog had any vicious propensities … .

Furthermore, to the extent that plaintiff’s complaint includes a negligence cause of action, we conclude that the court erred in failing to dismiss that cause of action inasmuch as “[c]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence” … . Toher v Duchnycz, 2019 NY Slip Op 03487, Fourth Dept 5-3-19

 

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