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SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS.

The Second Department, reversing Supreme Court, determined defendant oncologist, Khulpateea, was entitled to summary judgment dismissing the malpractice complaint on statute of limitations grounds. The court held that the “continuous treatment doctrine” did not apply to extend the statute. Plaintiff's decedent saw Khulpateea several times, after referral from decedent's gynecologist, and Khulpateea performed surgical procedures on decedent. It was only the last procedure which discovered the cancer. Each procedure was deemed to constitute a discrete event which did not anticipate ongoing treatment by Khulpateea:

“To establish that the continuous treatment doctrine applies, a plaintiff is required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” … . “Continuity of treatment is often found to exist when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during th[e] last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past'” … . Here, the plaintiff failed to show that there was a continuous course of treatment. The diagnostic services performed by Khulpateea were discrete and complete, and not part of a course of treatment … . Moreover, the plaintiff failed to submit evidence showing that the decedent and Khulpateea contemplated further treatment after the follow-up visit … . The decedent did not schedule another appointment with Khulpateea until she returned to see him in 2005, and she only did so then because [her gynecologist] referred her to him … . Nisanov v Khulpateea, 2016 NY Slip Op 02062, 2nd Dept 3-23-16

NEGLIGENCE (MEDICAL MALPRACTICE, SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS)/MEDICAL MALPRACTICE (SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS)

DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the sidewalk defect which allegedly caused plaintiff's fall was trivial as a matter of law. The defendants submitted insufficient or conflicting evidence of the dimensions of the defect and the photographs were not dispositive:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury” … .

In support of its motion, [one of the defendants] failed to submit any measurements of the dimensions of the alleged defective condition.  * * *

… [The other defendant] submitted conflicting evidence as to the dimensions of the alleged defective condition, including the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and measurements performed by its expert, and it is impossible to ascertain from the photographs submitted in support of the motion whether the alleged defective condition was trivial as a matter of law … . Padarat v New York City Tr. Auth., 2016 NY Slip Op 02064, 2nd Dept 3-23-16

NEGLIGENCE (DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED.

The First Department determined defendants, including defendant SSA, had made a prima facie showing of entitlement to summary judgment in this slip and fall case, but the plaintiff raised a question of fact whether an identified defect in the sidewalk caused her fall. The court noted that hearsay evidence supplied in opposition to the motion was properly considered because it was not the only evidence submitted in opposition. The case is a rare example of each side submitting evidence of all the required “slip and fall” elements:

Defendants made a prima showing of their entitlement to summary judgment, by submitting deposition testimony and an affidavit from SSA's managing member stating that SSA never did any work on the sidewalk where plaintiff fell, that he never received complaints about the sidewalk or curb prior to plaintiff's accident, and that he never observed the alleged hazardous curb and sidewalk condition while making his regular, twice-weekly inspections of the strip mall … .

In opposition, plaintiff raised triable issues of fact. Plaintiff testified that she fell when her left foot stepped into a hole-like depression in the curb/sidewalk, and she marked photographs to show where she fell. Plaintiff also submitted her daughter's affidavit, wherein she averred that after receiving a call about her mother's fall, she responded quickly to the scene of the accident and found her mother on the sidewalk. According to the daughter, her mother pointed to a broken and cracked curb/sidewalk condition and stated that the defective condition caused her to fall. This hearsay statement may be relied upon to defeat summary judgment where, as here, it is not the only evidence submitted in opposition to the motion … . The daughter added that the photographs taken of the sidewalk/curb seven months after the accident, and the area of the photographs her mother marked, accurately depicted the broken condition of the curb/sidewalk as it appeared on the date of the accident. The photographs show a broken curb/sidewalk. Taken together, the evidence raises triable issues of fact whether the broken sidewalk/curb caused plaintiff's fall, and whether the defective condition existed for a sufficient period of time prior to the accident for defendants to have discovered and remedied it … . Uncyk v Cedarhurst Prop. Mgt., LLC, 2016 NY Slip Op 02037, 1st Dept 3-22-16

NEGLIGENCE (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED)/EVIDENCE (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED) HEARSAY (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED)/SLIP AND FALL (ALL REQUIRED ELEMENTS OF SLIP AND FALL ADDRESSED BY BOTH SIDES IN SUMMARY JUDGMENT MOTION)

VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.

The First Department determined a new trial on liability was required. The plaintiff fractured her ankle walking over cobblestones to board a bus which had parked five feet from the curb. The jury found plaintiff was negligent but her negligence was not the proximate cause of her injury. The First Department concluded the verdict was inconsistent and against the weight of the evidence:

The jury's finding that plaintiff was negligent, but that such negligence was not the proximate cause of her injuries, is inconsistent and against the weight of the evidence. The issues “are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . McKenzie v New York City Tr. Auth., 2016 NY Slip Op 01918, 1st Dept 3-17-16

NEGLIGENCE (VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)/VERDICTS (NEGLIGENCE, VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)/SLIP AND FALL (VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)

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HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE.

The Second Department determined defendant hospital (HHC) was entitled to summary judgment in an action stemming from injuries caused by a mentally ill patient after discharge from defendant hospital. The patient, four days after discharge, attacked and stabbed employees of the residential facility where the patient resided. The hospital medical records supported the conclusion the patient did not qualify for involuntary psychiatric observation at the time of his release. The plaintiff's expert's opposing affidavit was conclusory and speculative:

“[D]octors or a governmental subdivision of the State that employs them cannot be held responsible for damages resulting from the actions of a psychiatric patient who has been released when the patient's release is a matter of professional judgment” … . For liability to attach, it must be shown that the decision to release the patient was “something less than a professional medical determination” founded upon careful examination of the patient … . “Evidence of a difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice” … . * * *

… [T]he plaintiffs submitted an expert affirmation opining that HHC deviated from accepted standards of medical practice and failed to make a careful examination by failing to contact [the patient's] psychiatric providers … and his … caseworker to inquire as to his condition and history of violence before making the determination whether to discharge him, and that those deviations proximately caused the plaintiffs' injuries. However, the expert failed to explain what, if any, information HHC did not already have which those parties could have provided, and which would have been necessary for a careful examination of whether [the patient] continued to meet the legal criteria for involuntary psychiatric observation, care, and treatment. The expert also failed to address the evidence that [the patient] did not meet the criteria for involuntary psychiatric observation, care, and treatment at the time of his discharge … . Stephen v City of New York, 2016 NY Slip Op 01827, 2nd Dept 3-16-16

NEGLIGENCE (MEDICAL MALPRACTICE, HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE)/MEDICAL MALPRACTICE (HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE)

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QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT.

The Second Department determined plaintiff raised a triable question of fact whether defendant neurologist (Lombard) conducted an adequate suicide assessment of plaintiff's decedent. Plaintiff's decedent committed suicide one week after the assessment:

The evidence submitted in support of [defendants'] motion, including an expert affirmation of a psychiatrist, demonstrated, prima facie, that Lombard did not depart from good and accepted standard of medical practice in his treatment of the decedent … . However the [defendants] failed to establish, prima facie, that none of the alleged departures was a proximate cause of the decedent's death, as the affirmation of the … expert was silent on the issue of proximate cause. As such, in order to defeat the motion, the plaintiff was only required to show the existence of a triable issue of fact as to a departure from good and accepted medical practice … .

The plaintiff raised a triable issue of fact as to whether Lombard departed from good and accepted medical practice by failing to obtain the decedent's records from his prior mental health care providers, including the records from the … emergency room where the decedent had been seen earlier on the day he met with Lombard, and by conducting an inadequate suicide assessment … , such that Lombard's treatment decision was “something less than a professional medical determination” … . “A decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment” … . Gallen v County of Rockland, 2016 NY Slip Op 01803, 2nd Dept 3-16-16

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT)/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT)/SUICIDE  (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT)

DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE.

The Second Department determined summary judgment was properly granted to defendant taxi driver in a car-accident case. Plaintiff was in an accident caused by black ice and was standing in the roadway near the cars involved. Defendant taxi driver (Favors) applied his brakes when he saw the cars stopped in the roadway ahead but slid on the black ice and struck one of the vehicles, pinning plaintiff. The court held the emergency doctrine entitled the taxi driver to summary judgment:

Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context … . While a driver's actions in an emergency situation usually present a triable issue of fact, “summary judgment may be granted when the driver presents sufficient evidence to establish the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue'” … .

Here, the evidence submitted by the taxi defendants in support of their motion demonstrated, prima facie, that Favors faced an emergency situation. Favors' encounter with three cars that had recently crashed on the Van Wyck and which blocked two lanes of traffic was sudden and unexpected … . He applied the brakes as soon as he saw these cars, but black ice on the highway caused his car to slide. Favors had no reason to suspect that ice would be present on the highway and, therefore, the presence of black ice was also sudden and unexpected … . In light of these facts and the evidence establishing that Favors was not speeding, that the events leading to Favors' collision with Alma's vehicle transpired over a matter of seconds, and that he tried to steer his taxi to avoid the other vehicles, the taxi defendants established, prima facie, that Favors was presented with an emergency situation and that he reacted as a reasonable person would under the circumstances … . Kandel v FN; Taxi; Inc., 2016 NY Slip Op 01809, 2nd Dept 3-16-16

NEGLIGENCE (DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE)/EMERGENCY DOCTRINE (DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE)

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EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED.

The First Department concluded the trial judge improperly precluded the plaintiff in a medical malpractice action from presenting expert evidence alleging defendant doctor departed from the standard of care by failing to tie off plaintiff's decedent's femoral artery. The First Department determined the relevant theory had been raised in the bills of particular and notice of the expert's testimony had been timely provided (eight months before trial). A new trial was ordered before a different judge because the record demonstrated the trial judge's bias in favor of the defendants:

The trial court improvidently exercised its discretion in granting the motion and in dismissing the complaint based on the preclusion of evidence. Defendants' argument that they had no notice of plaintiffs' theory and were unfairly surprised is unavailing. The theory concerning vascularization of decedent's left leg was adequately disclosed in plaintiff's original and supplemental bills of particulars. Further, while CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time … , here plaintiff served the CPLR 3101(d) expert disclosure notice about eight months before trial, which was sufficient notice … . Furthermore, during that period, defense counsel were present at several pretrial conferences and raised no objections to the expert disclosure, nor did they reject the notice… .

Given the improper preclusion of evidence, plaintiffs are entitled to a new trial … . Further, the matter should be remitted for trial before a different Justice, as the record shows that the trial court was biased in favor of defendants … . Dedona v DiRaimo, 2016 NY Slip Op 01779, 1st Dept 3-15-16

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/MEDICAL MALPRACTICE (EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/JUDGES (BIAS IN FAVOR OF DEFENDANTS REQUIRED ASSIGNMENT OF NEW TRIAL TO A DIFFERENT JUDGE)

DEFENDANT’S FAILURE TO DEMONSTRATE WHEN AREA WHERE PLAINTIFF FELL WAS LAST INSPECTED OR CLEANED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the defendant YMCA's failure to demonstrate when the area where plaintiff fell had last been inspected or cleaned required denial of the YMCA's motion for summary judgment:

Plaintiff alleges that she slipped and fell on a puddle of water that was on the floor of a YMCA owned and maintained by defendants. The YMCA made a prima facie showing that it did not cause or create the alleged condition, because plaintiff testified that she did not see the YMCA's employees working at the accident location prior to the incident and did not know where the water came from … . The YMCA also made a prima facie showing that it lacked actual notice of the alleged condition, because the building engineer for the premises averred that he oversaw the maintenance of the premises and did not receive complaints about water on the floor prior to the accident … . However, the YMCA failed to make a prima facie showing that it lacked constructive notice of the alleged defect. The building engineer failed to aver as to when the YMCA's employees last cleaned or inspected the accident location before the incident occurred … . Graham v YMCA of Greater N.Y., 2016 NY Slip Op 01777, 1st Dept 3-15-16

NEGLIGENCE (SLIP AND FALL, DEFENDANT'S FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF SUMMARY JUDGMENT)/SLIP AND FALL (SLIP AND FALL, DEFENDANT'S FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF SUMMARY JUDGMENT)

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PHARMACIST’S DUTY OF CARE CLEARLY ARTICULATED AFTER IN-DEPTH ANALYSIS; SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE/WRONGFUL DEATH CAUSES OF ACTION AGAINST THE PHARMACIST AND PHARMACY SHOULD HAVE BEEN GRANTED.

The Second Department, in a full-fledged opinion by Justice Miller, reversing Supreme Court, determined defendant pharmacist and pharmacy (the CVS defendants) were entitled to summary judgment dismissing the negligence/wrongful death causes of action against them. Plaintiff’s decedent was prescribed hydromorphone for pain (up to eight milligrams every three hours). The prescription was filled by defendant pharmacist. Shortly after returning home from the hospital and taking an eight milligram dosage of hydromorphone, plaintiff’s decedent gasped for air and died. The autopsy identified the cause of death as acute hydromorphone intoxication. Noting that the duty of care owed to a patient by a pharmacist had not been clearly articulated, the Second Department issued a comprehensive opinion tracing the historical role of pharmacists and several analogous standards of care. The court concluded the pharmacist has a duty to accurately fill a doctor’s prescription and need not inquire further unless there exists a clear-cut contraindication for use of the medication. No such contraindication was apparent here. The court described the pharmacist’s duty as follows:

… [W]e conclude that, when a pharmacist has demonstrated that he or she did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, that pharmacist cannot be held liable for negligence in the absence of evidence that he or she failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication … . Abrams v Bute, 2016 NY Slip Op 01627, 2nd Dept 3-9-16

NEGLIGENCE (PHARMACIST’S DUTY OF CARE CLEARLY ARTICULATED)/PHARMACISTS (DUTY OF CARE IN DISPENSING MEDICATION CLEARLY ARTICULATED)

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