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PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES, COOKING, TRANSPORTIING THE CHILDREN, AND CARED FOR THE INJURED PLAINTIFF, WARRANTED A $40,000 AWARD FOR LOSS OF SERVICES; THE JURY HAD AWARDED $0 DAMAGES (FIRST DEPT).

The First Department, remanding for a new trial unless the parties stipulate to a damages award of $40,000 for loss of services, determined the jury’s award of $0 damages constituted a material deviation from reasonable compensation:

Plaintiff wife testified that after the injured plaintiff’s accident, she assumed full responsibility for household chores, cooking, and transportation for plaintiffs’ children, and also had to care for the injured plaintiff. This testimony is sufficient to support an award for past loss of services … . Lind v Tishman Constr. Corp. of N.Y., 2024 NY Slip Op 05540, First Dept 11-12-24

Practice Point: Consult this decision for some insight into the value of “loss of services” in a personal injury case.

 

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ACCORDING TO THE MEDICAL RECORDS, PLAINTIFF PROVIDED HER TREATING PHYSICIAN WITH A DESCRIPTION OF HER SLIP AND FALL WHICH DIFFERED FROM HER DESCRIPTION IN HER DEPOSITION TESTIMONY; PLAINTIFF’S MOTION TO QUASH THE SUBPOENA SERVED ON THE PHYSICIAN SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to quash the subpoena served on plaintiff’s treating physician, Dr. Monfett, in this slip and fall case should not have been granted. The medical records revealed plaintiff told the treating physician she tripped and fell breaking up a fight in a subway station. Plaintiff testified she fell because of a broken sidewalk in front of defendant’s building. The court noted that the statement in the medical record may be inadmissible hearsay without the physician’s testimony linking the statement to the plaintiff:

Dr. Monfett’s deposition is material and necessary to the defense because plaintiff’s account of her accident to the doctor conflicts with her deposition testimony, and this discrepancy bears directly on defendants’ potential liability, as well as plaintiff’s credibility … . Furthermore, the deposition is necessary because plaintiff’s statements in the medical record likely would be inadmissible as hearsay without the doctor’s testimony attributing them to her … . Defendants were not required to demonstrate “special circumstances” warranting Dr. Monfett’s deposition because they seek to depose him “solely with regard to plaintiff’s account of the accident, not for any expert medical opinion regarding plaintiff’s diagnosis or treatment” … . Ogando v 40 X Owner LLC, 2024 NY Slip Op 05491, First Dept 11-7-24

Practice Point: Here defendants subpoenaed plaintiff’s treating physician because the statement attributed to plaintiff in her medical records differed from her description of the trip and fall in her deposition testimony. The defendants were not seeking to depose the physician as an expert concerning plaintiff’s diagnosis or treatment, but rather were focused on plaintiff’s apparently conflicting account of the accident, which would be inadmissible hearsay without the physician’s testimony.

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised a question of fact in this medical malpractice action alleging the failure to timely diagnose a stroke:

Where a plaintiff in a medical malpractice action alleges a failure to timely diagnose a condition, the plaintiff must show that the departures from the standard of care delayed diagnosis and decreased the chances of a better outcome or increased the injury … . The plaintiff submitted an affirmation of an emergency medicine physician who opined, inter alia, that the hospital’s staff failed to take a thorough history of the decedent’s symptoms and failed to provide an interpreter for that purpose in contravention of the applicable standard of care. The plaintiff also submitted an affirmation of a radiologist, who opined that a CT scan of the decedent’s brain performed on the day that the decedent presented to the hospital showed an infarct and that the hospital’s radiologist had failed to recognize this evidence of a stroke. The plaintiff’s emergency medicine expert opined that had the decedent been properly and timely diagnosed, treatment options were available, including the possible administration of tPA or the use of certain other medications.

Under these circumstances, the plaintiff raised triable issues of fact as to whether there was a departure from the standard of care and whether such departure decreased the chances of a better outcome or increased the decedent’s injuries … . Hanna v Staten Is. Univ. Hosp., 2024 NY Slip Op 05435, Second Dept 11-6-24

Practice Point: Here plaintiff’s expert raised a question of fact about whether the stroke diagnosis was timely and whether the delay decreased the chances of a better outcome.

 

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IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, affirming Supreme Court’s denial of the county’s motion for summary judgment, expressly disagreeing with contrary rulings in the First and Fourth Departments, determined a municipal agency which assumes custody over a child for the purpose of placing the child in foster care owes a special duty to the child. In this Child Victims Act case, plaintiff alleged sexual abuse during the 1970’s by her foster father and, during a different foster placement, by her adult neighbor:

The Court of Appeals has long held that “an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . In this case, we consider how this rule applies in the context of claims against municipalities for the negligent placement and supervision of children in foster care. In contrast to the recent holdings of the Appellate Division, First and Fourth Departments, we conclude that a municipal agency owes a special duty to a foster child upon assuming legal custody of that child. An agency that assumes custody of a foster child, and which selects and supervises that child’s foster parents, necessarily owes a duty to the child “more than that owed the public generally” … . Thus, where, as here, a plaintiff asserts causes of action to recover damages for harm suffered by a foster child due to the negligent performance of a governmental function and alleges facts sufficient to show that the defendant municipal agency assumed legal custody over that child, that plaintiff need not prove any additional facts in order to satisfy the special duty rule. Adams v Suffolk County, 2024 NY Slip Op 05428, Second Dept 11-6-24

Practice Point: A municipality’s liability for negligence in performing a governmental function is predicated upon owing the injured party a special duty, over and above that owed to the general public. Here, disagreeing with contrary holdings in the First and Fourth Departments, the Second Department held a county which assumes custody of a child for placement in foster care owes a special duty to that child.

 

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THE ATTORNEY’S “CERTIFICATE OF TRANSLATION” DID NOT INCLUDE SUFFICIENT DETAIL ABOUT THE ATTORNEY’S KNOWLEDGE OF THE SPANISH LANGUAGE; THEREFORE THE TRANSLATION OF PLAINTIFF’S AFFIDAVIT WAS NOT ADMISSIBLE AND SUMMARY JUDGMENT WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, reversing summary judgment in favor of plaintiff in this traffic accident case, determined the attorney’s “certificate of translation” was not sufficient to render plaintiff’s affidavit, written in Spanish, admissible:

… [P]laintiff submitted an affidavit in which he averred, among other things, that the “affidavit was translated to me from English to Spanish prior to my signing by a person who speaks Spanish as it is my native language and the language I understand best.” The plaintiff also submitted a certificate of translation by an associate attorney at his counsel’s law office in which the associate attorney affirmed, without elaboration, that she is fluent in English and Spanish and competent to translate documents from one language to the other. Under these circumstances, the conclusory certificate of translation does not contain sufficient detail concerning the extent of the associate attorney’s knowledge of the Spanish language. As such, the associate attorney’s certificate of translation was insufficient to state the associate attorney’s qualifications, rendering the plaintiff’s affidavit inadmissible (see CPLR 2101[b] …). Reyes v Underwood, 2024 NY Slip Op 05466, Second Dept 11-6-24

Practice Point: Here plaintiff’s affidavit in support of summary judgment was in Spanish. An attorney provided a “certificate of translation” which did not include sufficient detail about the attorney’s knowledge of the Spanish language. Therefore the affidavit was inadmissible.​

 

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case were entitled to summary judgment, in part because they demonstrated they did not have actual or constructive notice of the water on the floor in the laundry room where plaintiff allegedly fell:

… [T]he defendants established, prima facie, that they maintained their premises in a reasonably safe condition and that they did not create the alleged hazardous condition or have actual or constructive notice of its existence … . In support of their motion, the defendants submitted, inter alia, a transcript of the deposition testimony of the plaintiff, who testified that she did not see any water when she was last in the laundry room approximately 40 minutes prior to the accident. The defendants also submitted evidence that the machine was serviced by a vendor three days prior to the incident and that when the vendor left the premises, the machine was in working condition. When the vendor inspected the machine again on the day of the accident, the vendor determined that the machine was in working condition and that any leak was caused by the use of too much soap. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual notice of a recurring hazardous condition and, thus, could be charged with constructive notice of the subject condition. The plaintiff’s daughter’s affidavit submitted in opposition to the motion merely showed that the defendants had a general awareness that, at times, water leaked from the machine at issue … . Daniel v York Terrace, Inc., 2024 NY Slip Op 05432, Second Dept 11-6-24

Practice Point: In this slip and fall case, defendants demonstrated the area where plaintiff allegedly slipped and fell had been inspected 40 minutes prior to the fall and there was no water on the floor. In addition the defendants demonstrated the washing machine was serviced three days before the fall. That proof was sufficient to demonstrate, prima facie, that defendants did not have actual or constructive notice of the water on the floor.

 

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PLAINTIFF WAS INJURED BY A FALLING TREE LIMB; THE CITY AND COUNTY, AS PART OWNERS OF THE TREE, CANNOT BE LIABLE BECAUSE THERE WERE NO VISIBLE SIGNS OF DECAY; THE PRIVATE PARTY WHOSE NEIGHBOR WAS INJURED BY THE FALLING LIMB, HOWEVER, MAY BE LIABLE BECAUSE HE WAS AWARE THE LIMB WAS WEAK (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that the city and county defendants (part owners of the tree) could not be held liable for injuries caused by a falling tree limb because there were no visible signs of decay. The defendant property-owner, whose neighbor was struck by the limb, however, may be liable because he was aware the limb was weak:

Accepting for purposes of the respective motions that the City and the Land Bank are part owners of the tree, we note, and the parties do not otherwise suggest, that neither had actual notice of any potential danger posed by the tree, thus requiring that the contribution claim against both entities be established on a theory of constructive notice. To that end, “the concept of constructive notice with respect to liability for falling trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm” … . Weaver v Metsker, 2024 NY Slip Op 05380, Third Dept 10-31-24

Practice Point: In order to demonstrate the county and city, part owners of a tree along with a private party, had constructive notice that a tree limb posed a danger of falling, there must have been some visible sign of decay.

Practice Point: Even if there are no visible signs of decay, a private party who owns a tree may be liable for a neighbor’s injury from a falling limb if he or she is aware the limb was “weak.”

 

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AFTER SKIING ALL DAY AND RETURNING THE EQUIPMENT, CLAIMANT SLIPPED AND FELL ON ICE AND SNOW IN A PARKING LOT; THE ASSUMPTION OF THE RISK DOCTRINE DOES NOT APPLY; THE COURT NOTED THAT INADMISSIBLE HEARSAY, HERE AN INCIDENT REPORT, MAY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF IT DUPLICATES NON-HEARSAY (THIRD DEPT). ​

The Third Department, reversing (modifying) the Court of Claims, determined that the assumption of the risk doctrine did not apply to claimant who had finished skiing for the day and was walking to his car in the parking lot when he sipped and fell on ice and snow. The court noted that inadmissible hearsay, here and incident report, may be considered on a summary judgment motion where it duplicates non-hearsay evidence:

… [I]t is undisputed that [claimant] fell at a time when he was finished skiing for the day, and he no longer had any ski equipment on or near his person. He was, instead, returning to his parked vehicle, intending to exit defendants’ property entirely. As a matter of law, [claimant] was not engaged in any facet of skiing at the time that he was injured, and the primary assumption of risk doctrine is therefore inapplicable … . * * *

To the extent that defendants argue that the incident report, as well as certain aspects of Weichsel’s testimony, is inadmissible hearsay and thus may not be relied upon by claimants, we first note that such evidence was proffered by defendants in support of their own motion. In any event, inadmissible hearsay may be considered at the summary judgment stage where it exists alongside admissible evidence in support of the same argument … . Weichsel v State of New York, 2024 NY Slip Op 05384, Third Dept 10-31-24

Practice Point: The assumption of the risk doctrine does not apply to a skier who, after skiing all day and returning the equipment, slips and falls in the parking lot.

Practice Point: Inadmissible hearsay, here an incident report, can be considered on a summary judgment motion it it duplicates non-hearsay.

 

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DEFENDANTS IN THIS REAR-END COLLISION CASE WERE ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS’ STOPPED VEHICLE WAS HIT FROM BEHIND AND PUSHED INTO PLANTIFF’S VEHICLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Menegos defendants were entitled to summary judgment in this rear-end collision case. The Menegos defendants demonstrated their vehicle had come to a stop behind plaintiff’s vehicle before it was struck from behind and pushed into plaintiff’s vehicle:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “‘A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence'” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision” … . Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle “may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Beltre v Menegos, 2024 NY Slip Op 05322, Second Dept 10-30-24

Practice Point: In a rear-end collision case, if a stopped car is hit from behind and pushed into the car in front, the driver of the stopped car is not negligent.

 

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:”

The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice … . Phillips’s opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent’s prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent’s cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent’s injuries and ultimate death … . Miller-Albert v EmblemHealth, 2024 NY Slip Op 05340, Second Dept 10-30-24

Practice Point: In medical malpractice cases, at the summary judgment stage, the action survives or fails based upon the quality of the expert affidavits. Conclusory or speculative assertions in expert affidavits have no probative value.

 

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