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Criteria for Setting Aside a Verdict As a Matter of Law and Setting Aside a Verdict As Against the Weight of the Evidence Explained

The Second Department determined Supreme Court should not have directed a verdict in favor of the plaintiff after a jury verdict in favor of the defendant.  The facts were such that the jury could have found fault on the part of the plaintiff and the defendant, but the jury could not have found the defendant was free from fault.  Therefore, the trial court should not have directed a verdict for the plaintiff, but rather should have found the verdict against the weight of the evidence and ordered a new trial.  The Second Department explained the different criteria for setting aside a verdict as a matter of law and setting aside a verdict as against the weight of the evidence:

CPLR 4404(a) provides, in relevant part, that: “[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence” (CPLR 4404[a]). The Court of Appeals has recognized that the setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards … . For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is “simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis of the evidence presented at trial” … . However, “[w]hether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . ” When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view'” … . “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence” … . Thus, rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence … . Where a court makes a finding that a jury verdict is not supported by sufficient evidence, it “leads to a directed verdict terminating the action without resubmission of the case to a jury” … . Where a court finds that a jury verdict is against the weight of the evidence, it grants a new trial … . Ramirez v Mezzacappa, 2014 NY Slip Op 06808, 2nd Dept 10-8-14

 

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Monetary Sanction Against Plaintiff’s Attorney and Striking of Complaint Deemed Appropriate Where Discovery Delays Unexplained

The Fourth Department determined a $2090.00 sanction against plaintiff’s attorney and the striking of the complaint in a slip and fall case were appropriate based upon plaintiff’s discovery delays:

…[W]e conclude that, under the circumstances, Supreme Court did not abuse its discretion in imposing sanctions on plaintiff’s attorney for what the court characterized as “excessive and inexcusable delay” in providing discovery responses … . …[W]e reject plaintiff’s contention that the court applied an incorrect legal standard in striking the complaint and dismissing [the action]. “[T]he type and degree of sanction [for a discovery violation] will be left to the discretionary authority of the trial court which will remain undisturbed absent an abuse thereof” … . “While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of [the court’s] discretion . . . , striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” … . Here, the court properly determined that defendant met its initial burden of establishing willful, contumacious or bad faith conduct by plaintiff, thereby shifting the burden to plaintiff to offer a reasonable excuse … . Allen v Wal-mart Stores Inc, 2014 NY Slip Op 06695, 4th Dept 10-3-14

 

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“Error In Judgment” Jury Instruction Properly Given/Defense Verdict Not Against the Weight of the Evidence

In reversing Supreme Court, the Fourth Department determined the “error in judgment” jury instruction was properly given and the defense verdict should not have been set aside as against the weight of the evidence:

We conclude that the court erred in granting that part of plaintiffs’ motion to set aside the verdict in favor of Dr. LaRussa and Associates on the ground that it should not have given an error in judgment charge to the jury with respect to Dr. LaRussa’s alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of Dr. LaRussa was against the weight of the evidence. We therefore modify the order accordingly. Based upon Dr. LaRussa’s testimony that he exercised [*2]his professional judgment in choosing between acceptable alternatives, along with expert testimony that there were such acceptable alternatives, we conclude that the court properly gave an error in judgment charge … . There was also evidence that Dr. LaRussa considered and chose between medically acceptable treatment alternatives at plaintiff’s postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care of plaintiff … . Furthermore, we conclude that “the preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict [finding that Dr. LaRussa was not negligent] could not have been reached upon any fair interpretation of the evidence” … . Beebe v St Joseph’s Hosp Health Ctr, 2014 NY Slip Op 06711, 4th Dept 10-3-14

 

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Police Accident Report Did Not Notify City of Negligence on the Part of the City—Petition to Serve Late Notice of Claim Properly Denied

In affirming the denial of a petition to serve a late notice of claim, the Second Department noted that, although a police accident report was generated, the report did not provide notice of any negligence on the part of the city:

The petitioner contends that the City acquired such knowledge by virtue of a police accident report made by a police officer at the scene of the accident. However, for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation … . Here, the police accident report did not provide the City with actual notice of the essential facts constituting the petitioner’s claim that the City was negligent in the happening of the subject accident or that the petitioner sustained any injuries as a result of the City’s alleged negligence … . Kuterman v City of New York, 2014 NY Slip Op 06560, 2nd Dept 10-1-14

 

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The Kinds of Damages Recoverable in a Property-Damage Action Stemming from Allegedly Defective Doors and Windows Explained in Some Depth—Economic Loss Rule Re: Strict Products Liability and Negligence—Consequential and Special Damages Re: Contract—When an Issue Can Be Raised for the First Time on Appeal Explained

In an action stemming from allegedly defective windows and doors which allowed the intrusion of water, the Second Department sorted out the interplay between tort claims and contract claims and the types of damages recoverable under each legal theory.  Among the issues discussed in some depth: the economic loss rule re: strict products liability and negligence; and consequential and special damages re: contract.  The court noted that the “economic loss rule” issue was raised for the first time on appeal and then explained why it still could consider the argument:

…[W]e note that the appellant did not raise before the Supreme Court its contention that the causes of action to recover damages for negligence and based on strict products liability insofar as asserted against it are barred by the economic loss rule. Nevertheless, this is a purely legal argument that appears on the face of the record and could not have been avoided had it been brought to the attention of the Supreme Court. Thus, the issue may be considered by this Court even though it is being raised for the first time on appeal… .

“The economic loss rule provides that tort recovery in strict products liability and negligence against a manufacturer is not available to a downstream purchaser where the claimed losses flow from damage to the property that is the subject of the contract and personal injury is not alleged or at issue” … . The rule is applicable to economic losses to the product itself as well as consequential damages resulting from the defect … . Therefore, when a plaintiff seeks to recover damages for purely economic loss related to the failure or malfunction of a product, such as the cost of replacing or retrofitting the product, or for damage to the product itself, the plaintiff may not seek recovery in tort against the manufacturer or the distributor of the product, but is limited to a recovery sounding in breach of contract or breach of warranty … .

Here, the plaintiff alleges, inter alia, that it sustained economic losses generated by the repair and replacement of the glass doors and windows of a building due to the failure of such doors and windows to properly prevent water intrusion. The fabrication and/or installation of those doors and windows were the subject of its agreement with the appellant. To the extent that the plaintiff seeks to recover losses generated by the repair and replacement of these doors and windows pursuant to causes of action sounding in negligence or strict products liability, such causes of action are prohibited by the economic loss rule. …

However, the plaintiff also claims that the intrusion of water caused by the defective windows and doors resulted in injury to other structural elements of the building, such as flooring and walls. These losses constitute damage to “other property” that was not the subject of the parties’ agreement and, accordingly, support a valid tort cause of action … . We note that, while the other structural elements of the building may have been damaged as a consequence of the infiltration of water through allegedly defective windows and doors, such losses do not constitute “consequential damages,” also known as “special damages,” as that term is used in contract law. Consequential or special damages usually refer to loss of expected profits or economic opportunity caused by a breach of contract … . ). Although the plaintiff may not recover such traditional consequential contract damages pursuant to a tort cause of action, the complaint does state causes of action against the appellant to recover damages for negligence and based on strict products liability to the extent that those causes of action seek to recover damages for injury to structural elements of the building other than the allegedly defective windows and doors themselves, which were the subject of the parties’ contract… . 126 Newton St LLC v Allbrand Commercial Windows and Doors Inc, 2014 NY Slip Op 06563, 2nd Dept 10-1-14

 

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In a Personal Injury Trial, Defense Counsel Should Have Been Permitted to Question Plaintiff About Possible Fraud in Income Tax Returns

The Fourth Department determined defense counsel in a personal injury trial should have been allowed to cross-examine plaintiff about possible fraud in plaintiff’s income tax returns.  A new trial was ordered.  The Fourth Department noted that defense counsel would have been bound by plaintiff’s answers and could not have introduced extrinsic evidence:

Here, based on his reading of IRS Publication 51 and plaintiff’s federal tax returns, defendant’s attorney had a good faith basis to ask plaintiff about the propriety of her filing status. Moreover, if plaintiff had improperly filed federal tax returns as head of household in order to receive a tax credit to which she was not entitled, it raises the possibility that she may have committed tax fraud. We conclude that evidence that plaintiff may have committed tax fraud has “some tendency to show moral turpitude to be relevant on the credibility issue” …. Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant’s attorney would have been bound by plaintiff’s answers concerning her federal tax returns without “refuting [those] answers by calling other witnesses or by producing extrinsic evidence” (Prince, Richardson on Evidence § 6-305 [Farrell 11th ed]…), we nevertheless conclude that defendant’s attorney should have been allowed to ask the questions … . Young v Lacy, 2014 NY Slip Op 06417, 4th Dept 9-26-14

 

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Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips

The Second Department determined Supreme Court should not have granted defendant’s motion for summary judgment in a slip and fall case.  Although the assumption of risk doctrine could apply to a slip and fall on a diving board, here the plaintiff alleged the traction strips on the board were unreasonably worn:

Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . One “obvious” risk inherent in the recreational activity of diving is the risk of being injured from slipping on the diving board’s surface and falling off the diving board … . In moving for summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of primary assumption of risk, the defendant failed to establish, prima facie, that the allegedly dangerous condition, consisting of the depleted traction strips, did not unreasonably increase the abovementioned risk … . The defendant’s submissions, which included the transcripts of a General Municipal Law § 50-h hearing and the plaintiff’s deposition, demonstrated the existence of a triable issue of fact as to whether the allegedly dangerous condition unreasonably increased that risk … . Freeman v Village of Hempstead, 2014 NY Slip Op 06298, 2nd Dept 9-24-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

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'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Question of Fact Whether Three-Family Residence Was Owner-Occupied–Administrative Code’s Exemption from Liability for Failure to Remove Ice and Snow May Not Apply

The Second Department determined Supreme Court should not have granted the property owner’s motion for summary judgment in a slip and fall case.  Although the NYC Administrative Code exempts owner-occupied one- two- and three-family residential properties from liability for the failure to remove snow and ice from an abutting sidewalk, the property owner failed to demonstrate the property was owner-occupied:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . However, this liability shifting provision does not apply to the failure to remove snow and ice from the sidewalk of “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The purpose of the exception is to recognize ” the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair'” … .

Here, the defendant property owner … failed to make a prima facie showing that he is entitled to judgment as a matter of law on the theory that he is exempt from liability pursuant to Administrative Code of City of NY § 7-210(b). Although there was evidence that the subject property was a three-family residence, [the owner’s] deposition testimony raises issues of fact as to whether the premises were “owner occupied” within the meaning of Administrative Code § 7-210(b)… . Medina v City of New York, 2014 NY Slip Op 06302, 2nd Dept 9-24-14

 

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Motion for Leave to File Late Notice of Claim Properly Denied—Injuries to Infant Plaintiff Consistent with Premature Birth

The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks’ gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff’s motion (General Municipal Law § 50-e[5]). The infant plaintiff’s mother’s excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son’s injuries were caused by defendant Health and Hospital Corporation’s (HHC) malpractice, are not reasonable. Nor is her attorney’s assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC … .

Further, the medical records demonstrate that the infant plaintiff’s condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff’s malpractice … . Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders … . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14

 

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