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EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT DISCLOSURE NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED.

The First Department, in remanding for a new trial, determined (1) the expert disclosure notice provided by the defense was sufficient, and (2) plaintiff should have been allowed, during the trial, to submit an expert disclosure notice for a rebuttal witness.  Plaintiff alleged his foot was run over by a bus:

After the defense rested, plaintiff’s attorney sought permission to call two rebuttal witnesses. He submitted a CPLR 3101(d)(1) notice for an expert in biomechanical medicine, arguing that the disclosure notice for Dr. Kurtz had provided no indication that the doctor’s opinion was based on the lack of tread marks or injury to the metatarsals and ankle. He argued that the notice’s insufficiency had not allowed him to prepare an expert witness to address these issues directly. His proposed expert would demonstrate, by use of an anatomical model of a foot, that plaintiff’s foot could have been positioned after he fell in such a manner that when the bus wheel rolled over his foot, his ankle and upper foot would not have been injured as Dr. Kurtz claimed. The court denied his request based on the timing of the notice and its reasoning that no rebuttal was needed. …

We find that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify … . * * *

… [N]otwithstanding the delay by plaintiff in providing a CPLR 3101(d)(1) disclosure for his medical expert, the trial court, in the interest of justice, should have permitted the medical expert to testify in rebuttal. The court had allowed Dr. Kurtz to opine that there were inconsistencies between the claim of how the accident occurred and the resulting injuries, and although the testimony was not in his expertise, it was heard by the jury and opened the door to the necessity for plaintiff to produce a medical expert to attempt to rebut those opinions. Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394, 1st Dept 11-10-16

 

CIVIL PROCEDURE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EVIDENCE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/REBUTTAL EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)

ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN TO THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the rope (connected to a tree and a metal stanchion in a building atrium) which caused plaintiff to trip and fall was a non-actionable open and obvious condition:

[Defendant] moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that the subject metal stanchions and connecting rope were open and obvious, and not inherently dangerous. The Supreme Court denied [defendant’s] motion.

[Defendant] met its prima facie burden by showing that the subject rope and stanchions, which were known to the plaintiff, were open and obvious, and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact… . LeComples v More Specialized Transp., Inc., 2016 NY Slip Op 07298, 2nd Dept 11-9-16

 

NEGLIGENCE (ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/OPEN AND OBVIOUS (ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted in this slip and fall case. The plaintiff could not identify the cause of his fall as he attempted to board a bus:

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Although “[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident[,] . . . mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” … . Hahn v Go Go Bus Tours, Inc., 2016 NY Slip Op 07294, 2nd Dept 11-9-16

NEGLIGENCE (PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT)/SLIP AND FALL (PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT)

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COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF.

The Second Department determined the county could not be held liable for flooding by a brook which overflowed its banks. There was not special relationship between the county and the plaintiff:

“[A] municipal corporation is not liable for failure to restrain waters between banks of a stream or to keep a channel free from obstructions it did not cause. Absent any special duty owed to the private landowners, a municipal corporation cannot be held liable for failing to provide adequate flood protection” … . Here, the County demonstrated that it did not owe a special duty to the plaintiff, and that the overflow was caused by natural phenomena, rather than its conduct. In opposition, the plaintiff failed to raise a triable issue of fact. Kimball Brooklands Corp. v County of Westchester, 2016 NY Slip Op 07297, 2nd Dept 11-9-16

MUNICIPAL LAW (COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/IMMUNITY (COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/NEGLIGENCE (FLOODING, COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/ENVIRONMENTAL LAW (FLOODING, COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/FLOODING (COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF

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DEFENSE EXPERT’S CONCLUSORY ASSERTIONS DID NOT RAISE A QUESTION OF FACT ABOUT THE ALLEGATIONS THE NEGLIGENT PRESCRIPTION OF TWO DRUGS CAUSED HEART DAMAGE.

The Court of Appeals, with a concurrence and a three-judge dissent, determined defendant’s motion for summary judgment was properly denied in this medical malpractice action. The complaint alleged the negligent prescription of two drugs caused heart damage. The majority concluded that conclusory statements in the defense expert’s affidavit did not raise a question of fact about the plaintiff’s allegations of malpractice:

Here, defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s AV heart block. These conclusory statements did not adequately address plaintiff’s allegations that the concurrent Lipitor and azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the azithromycin prescription, defendant’s expert failed to “tender[] sufficient evidence to demonstrate the absence of any material issues of fact” … as to proximate causation and, as a result, defendant was not entitled to summary judgment. Because defendant failed to meet his prima facie burden, it is unnecessary to review the sufficiency of the plaintiff’s opposition papers … .  Pullman v Silverman, 2016 NY Slip Op 07107, CtApp 11-1-16

NEGLIGENCE (MEDICAL MALPRACTICE, DEFENSE EXPERT’S CONCLUSORY ASSEERTIONS DID NOT RAISE A QUESTION OF FACT ABOUT THE ALLEGATIONS THE NEGLIGENT PRESCRIPTION OF TWO DRUGS CAUSED HEART DAMAGE)/MEDICAL MALPRACTICE (DEFENSE EXPERT’S CONCLUSORY ASSEERTIONS DID NOT RAISE A QUESTION OF FACT ABOUT THE ALLEGATIONS THE NEGLIGENT PRESCRIPTION OF TWO DRUGS CAUSED HEART DAMAGE)

QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT.

The Third Department determined there was a question of fact whether the defect in a sidewalk was trivial, and whether plaintiff could identify the cause of her fall. Therefore, defendant’s motion for summary judgment was properly denied:

Photographs of the sidewalk where plaintiff fell depict a deteriorated area with various cracks in several adjacent slabs on the side of the walk bordering the street. In the location where plaintiff alleges her accident occurred, the deteriorated area takes up approximately one third of the sidewalk. The photographs reveal that the cracked section of concrete where plaintiff fell is depressed below the surface of the rest of the sidewalk, creating a raised, irregular vertical edge measuring, as previously noted, approximately one inch high and 18 inches long. In view of the length and depth of the crack where the fall occurred, the uneven surface of the walkway and the overall size of the deteriorated area, we agree with Supreme Court that it cannot be determined as a matter of law that the condition “was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … .

Defendant likewise failed to meet its burden to prove on a prima facie basis that plaintiff’s identification of the location of her fall was too uncertain to establish that the defect was the proximate cause of the fall. A defendant can meet this burden by proving “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . However, even when a plaintiff is unable to identify the cause of a fall with certainty, “a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[] show[s] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … .

Here, although plaintiff acknowledged the delay in identifying the cause of her fall, she testified that she knew that her toe had caught on some object and decided to examine the location in question because she knew that it was “where something has to be.” She identified the cracked area as “exactly that spot that [her] shoe caught.” Brumm v St. Paul’s Evangelical Lutheran Church, 2016 NY Slip Op 07079, 3rd Dept 10-27-16

 

NEGLIGENCE (QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SLIP AND FALL (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SIDEWALKS (SLIP AND FALL, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/TRIVIAL DEFECTS (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)

PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiff’s conflicting evidence about how long a puddle of water had been on defendant store’s floor precluded summary judgment, without regard for the sufficiency of defendant’s opposing papers. Plaintiff testified she didn’t see the puddle before she fell and she and her daughter had been shopping for 15 minutes prior to the fall. . Plaintiff’s daughter testified she saw the puddle when they first entered the store and they had been shopping for 45 minutes prior to the fall:

… [T]he plaintiff failed to make a prima facie showing of her entitlement to judgment as a matter of law on the issue of liability. The plaintiff’s submissions provided conflicting evidence with respect to how long the puddle had been on the floor prior to the plaintiff’s accident, and were insufficient to demonstrate, prima facie, that the defendant had actual notice of the puddle, or that it had existed for a sufficient length of time for the defendant’s employees to discover and remedy it. The plaintiff’s submissions also failed to demonstrate, prima facie, that she was free from comparative fault … . Hernandez v Conway Stores, Inc., 2016 NY Slip Op 07001, 2nd Dept 10-26-16

NEGLIGENCE (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)/SLIP AND FALL (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)/SUMMARY JUDGMENT (SLIP AND FALL, (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)

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PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH.

The First Department, over a two justice dissent, determined plaintiffs’ experts had presented sufficient evidence to warrant a Frye hearing in this medical malpractice case. The plaintiffs’ baby suffered neurological damage caused by a rapidly growing tumor. The question tackled by the experts was whether the tumor was detectable prior to birth (ultrasound). The majority concluded plaintiffs’ experts had presented sufficient evidence that the tumor may have been detectable to warrant a hearing. The dissent argued the evidence presented by the plaintiffs’ experts was not sufficient to raise a question of fact:

Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing … to determine (1) whether it is generally accepted in the medical and scientific communities that a physician may offer an opinion to a reasonable degree of medical certainty as to when a tumor such as the infant plaintiff’s tumor would have been detectable by ultrasound examination; and (2) whether it was possible to use any formula, including a doubling formula, to assess whether a neuroblastoma would have been detectable at the ultrasound of the infant plaintiff performed at 30.9 weeks … .

The dissent’s assertion that the opinions of plaintiffs’ experts were “speculative” and “unsupported by the record” puts the cart before the horse. As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing. Sepulveda v Dayal, 2016 NY Slip Op 06949, 1st Dept 10-25-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)

PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS.

The Second Department determined plaintiff’s motion for summary judgment in this car accident case was properly denied because plaintiff did not demonstrate the absence of comparative fault:

There can be more than one proximate cause of an accident … . Accordingly, a plaintiff moving for summary judgment on the issue of liability in a personal injury action has the burden of establishing, prima facie, not only the defendant’s negligence, but also the absence of his or her comparative fault … . Here, although the plaintiff demonstrated that [defendant] was negligent … , the plaintiff failed to demonstrate the absence of his own comparative fault … . The plaintiff’s failure to satisfy his burden required the denial of his motion without regard to the sufficiency of the evidence that the defendants submitted in opposition … . Padilla v Biel, 2016 NY Slip Op 07009, 2nd Dept 10-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/SUMMARY JUDGMENT (NEGLIGENCE, PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/COMPARATIVE NEGLIGENCE PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/VEHICLE ACCIDENTS (PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)

CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT.

The Court of Appeals determined defendant youth hockey association could not be held liable for an assault by one spectator on another spectator after the hockey game:

On this record, the criminal assault on plaintiff was not a reasonably foreseeable result of any failure to take preventive measures. While defendant owed a duty to protect spectators from foreseeable criminal conduct, the scope of that duty is defined by the likelihood that the aggressive behavior would lead to a criminal assault. Defendant took measures to address player and spectator conduct. The behavior of the fans, however inappropriate, certainly did not create the risk that failure to eject any specific spectator would result in a criminal assault, particularly since such an assault had never happened before … .

Plaintiff argues that defendant’s failure to enforce the Zero-Tolerance policy by ejecting spectators constitutes independent evidence of negligence. The policy provides that “the on-ice official” will remove spectators using “obscene, racial or vulgar language” from the game. However, the “[v]iolation of a[n] [organization]’s internal rules is not negligence in and of itself” … , and where an internal policy exceeds “the standard of ordinary care,” it “cannot serve as a basis for imposing liability” … . Pink v Rome Youth Hockey Assn., Inc., 2016 NY Slip Op 06946, CtApp 10-25-16

 

NEGLIGENCE (CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGEN/ASSAULT (NEGLIGENCE, CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT)/SPECTATORS (HOCKEY GAME, (CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT)

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