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IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE FAMILIARITY WITH THE APPLICABLE STANDARD OF CARE, WAS SPECULATIVE AND CONCLUSORY AND DID NOT ADDRESS ALL THE ASSERTIONS MADE BY DEFENDANTS’ EXPERTS; THE DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit from plaintiff’s expert did not demonstrate familiarity with the applicable standard of care, was speculative and conclusory, and did not address all the allegations raised by defendants’ experts:

… [T]he plaintiff failed to raise a triable issue of fact by submitting a redacted physician’s affidavit. “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge[,] or experience” necessary to establish the reliability of his or her opinion …  Here, the redacted physician’s affidavit failed to lay the requisite foundation for the affiant’s familiarity with the applicable standard of nursing care … . Moreover, the opinions of the plaintiff’s expert that the defendants deviated from the applicable standard of care were speculative, conclusory, and nonresponsive to the specific assertions raised by the defendants’ experts … . Blank v Adiyody, 2023 NY Slip Op 05243, Second Dept 10-18-23

Practice Point: In a med mal action, in the context of a summary judgment motion, an expert’s affidavit must demonstrate familiarity with the applicable standard of care, must not be speculative or conclusory, and must address all the assertions made by the opposing party’s expert(s).

 

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THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:

The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e. Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23

Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.

 

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THE DRIVER OF THE FIRE ENGINE RESPONDING TO AN EMERGENCY STRUCK PLAINTIFF’S STOPPED CAR WHILE MAKING A RIGHT TURN FROM A LANE TO THE LEFT OF PLAINTIFF; IT WAS NOT DEMONSTRATED THE FIRE-ENGINE DRIVER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS (SECOND DEPT).

The Second Department determined the city was entitled to summary judgment in this traffic accident case involving a fire engine responding to an emergency. Plaintiff had stopped in the right lane and was struck by the fire engine as it made a right turn from the lane to the left of plaintiff, or possibly from the oncoming lane. The Second Department determined the city had demonstrated, as a matter of law, the reckless-disregard standard was not triggered:

“The reckless disregard standard requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … . “The reckless disregard standard, which requires that a plaintiff show more than a momentary judgment lapse on the part of the defendant, allows emergency personnel to act swiftly and resolutely while at the same time protecting the public’s safety” … .

… [T]he defendants demonstrated, prima facie, that the applicable standard of care was reckless disregard, as Roberts [the engine driver] was engaging in conduct specified in Vehicle and Traffic Law §§ 1104(b)(2) and 1104(b)(4) at the time of the collision … . The defendants further demonstrated, prima facie, that Roberts’s conduct did not rise to the level of reckless disregard for the safety of others … . Moore v City of New York, 2023 NY Slip Op 05128, Second Dept 10-11-23

Practice Point: The fact that the fire engine struck plaintiff’s stopped car while making a right turn from a lane to the plaintiff’s left did not raise a question of fact about whether the engine-driver demonstrated a reckless disregard for the safety of others.

 

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THE FIVE-YEAR DELAY BETWEEN PLAINTIFF-DECEDENT’S DEATH AND THE MOTION TO SUBSTITUTE AN ADMINISTRATOR DID NOT WARRANT DISMISSAL OF THE ACTION; DECEDENT HAD BEEN AWARDED SUMMARY JUDGMENT ON LIABILITY IN THIS TRAFFIC-ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the four year delay in appointment of an administrator and the addition one year in moving for substitution in this traffic accident case did not warrant dismissal of the action:

… [T]he approximately four-year delay in obtaining letters of administration followed by an approximately one-year delay in moving for substitution shows a lack of diligence … . However, even if the “explanation for the delay is not satisfactory, the court may still grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action, in light of the strong public policy in favor of disposing of matters on the merits” … .

Here, where the decedent was awarded summary judgment on the issue of liability against the defendants, the action has potential merit … . Further, the defendants provided mere “conclusory allegations of prejudice based solely on the passage of time” … . This record reflects that the defendants will suffer little or no prejudice as a result of the delay, particularly because this case, which is set for a trial on damages only, is likely to turn on medical records and an extant deposition transcript … . Hemmings v Rolling Frito-Lay Sales, LP, 2023 NY Slip Op 05125, Second Dept 10-11-23

Practice Point: Plaintiff had been awarded summary judgment on liability in this traffic accident case. Plaintiff died and there was a five-year delay before the motion to substitute an administrator. The action should not have been dismissed.

 

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THE “TIME WHEN” THE ALLEGED SEXUAL ABUSE TOOK PLACE IN 1997 WAS ADEQUATELY ALLEGED IN THE CLAIM IN THIS CHILD VICTIMS ACT SUIT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act action sufficiently described when the alleged sexual abuse took place:

… [T]he Court of Claims incorrectly determined that the claim was insufficient to satisfy Court of Claims Act § 11(b)’s “time when” requirement … . The claimant’s allegations, including that the abuse occurred in approximately 1997 when she was approximately 15 years old by a named employee of the facility shortly after her arrival at the facility, provided sufficient information to enable the State to investigate and ascertain its liability under the circumstances … . Ford v State of New York, 2023 NY Slip Op 05124, Second Dept 10-11-23

Practice Point: In Child Victims Act cases where the alleged sexual abuse took place decades ago, the courts are forgiving when determining the sufficiency of the “time when” allegations. Here the allegations claimant was abused by a named employee in 1997, when she was 15, shortly after her arrival at the facility, were deemed sufficient.

 

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THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY PLAINTIFF DID NOT IDENTIFY THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this slip and fall case was entitled to summary judgment because plaintiff, the administrator of plaintiff’s decedent’s estate, could not identify the cause of plaintiff’s decedent’s fall. Plaintiff’s decedent died from a brain injury incurred by the fall in a bathroom. Although the complaint alleged the floor was wet and slippery, that allegation was not supported by any of the circumstantial evidence. Plaintiff’s decedent said he had lost his balance:

Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party … , the defendants demonstrated, prima facie, that the plaintiff was unable to identify the cause of the decedent’s accident without engaging in speculation, since the evidence demonstrated that the plaintiff was unable to identify how the decedent’s accident occurred or what dangerous condition or defect, if any, in the men’s bathroom caused the decedent’s fall … . In opposition, the plaintiff failed to raise a triable issue of fact. Cruz v Flatlands Christian Ctr., Inc., 2023 NY Slip Op 05120, Second Dept 10-11-23

Practice Point: If the cause of a slip and fall cannot be identified without speculation, the action will be dismissed.

 

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IN THIS REAR-END COLLISION CASE, THE DRIVER OF THE REAR VEHICLE ALLEGED THE OTHER VEHICLE CHANGED LANES ABRUPTLY AND CAME TO A STOP IN FRONT OF HIM; THAT CONSTITUTED A NON-NEGLIGENT EXPLANATION WHICH RAISED A QUESTION OF FACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this rear-end traffic accident case, determined defendant raised a question of fact about a non-negligent explanation for his striking the car in front:

At his deposition, Guo Lin Wu [the driver of the United vehicle] testified that the Castillo/Lopez vehicle changed lanes abruptly in front of the United vehicle and then came to a sudden stop. Guo Lin Wu’s deposition testimony, if true, would constitute a nonnegligent explanation for his actions, and would establish that Castillo’s negligence was a proximate cause of the accident … . The differing versions of events raised issues of credibility to be resolved by the factfinder … . Balanta v Guo Lin Wu, 2023 NY Slip Op 05111, Second Dept 10-11-23

Practice Point: Ordinarily a rear-end collision with a stopped vehicle warrants summary judgment in favor of the stopped vehicle. Here the driver of the rear vehicle raised a question of fact by alleging the other vehicle changed lanes abruptly and stopped in front of him.

 

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PLAINTIFF BUS PASSENGER WAS INJURED WHEN THE BUS DRIVER TOOK ACTION IN AN EMERGENCY; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff-bus-passenger’s injuries resulted from the bus driver’s reaction to an emergency:

In this action for personal injuries arising from a fall on a public bus, defendants established prima facie entitlement to judgment as a matter of law by demonstrating that their bus driver was presented with an emergency situation that was not of his own making when a vehicle abruptly swerved into his lane without signaling, and that he took reasonable action by braking to avoid a collision … .

In opposition, plaintiff failed to submit any evidence tending to show that the bus driver created the emergency or could have avoided a collision by taking a different action other than applying the brakes … . Plaintiff’s claim that an issue of fact is raised by conflicting testimony over whether the driver braked abruptly or gradually is unavailing. The undisputed evidence demonstrates that the driver was required to take immediate action to avoid striking the vehicle and that braking with sufficient force to prevent an accident was a reasonable response to the emergency … . Febres v Metropolitan Transp. Auth., 2023 NY Slip Op 05095, First Dept 10-10-23

Practice Point: Defendants demonstrated the bus driver took justifiable action in an emergency. Plaintiff, a bus passenger, was injured by the movement of the bus. Defendants were entitled to summary judgment.

 

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THE MOTION TO BIFURCATE THE LIABILITY AND DAMAGES ASPECTS OF THE TRIAL IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; STATEMENTS MADE TO HEALTHCARE PERSONNEL AND MEDICAL RECORDS WERE RELEVANT TO LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion to bifurcate the trial (liability versus damages) in this slip and fall case should not have been granted. Plaintiff made statements to medical personnel which were relevant to liability:

Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he fell from an “upper patio or balcony” of an apartment building … . We agree with plaintiff that Supreme Court abused its discretion in granting defendants-respondents’ motion to bifurcate the trial with respect to the issues of liability and damages. “As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried separately” … . Here, however, we conclude that the issue of liability is not distinct from the issue of plaintiff’s injuries because plaintiff made statements to several of his medical care providers following his fall that render the testimony of several medical witnesses as well as hospital and medical records relevant to the liability phase of the trial. Plaintiff has thus established that bifurcation would not “assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” … .  Bogumil v Greenbaum Family Holdings, LP, 2023 NY Slip Op 05069, Fourth Dept 10-6-23

Practice Point: It is usual to bifurcate the liability and damages aspects of negligence trials. Here plaintiff’s statements to medical personnel and his medical records were relevant to liability as well as damages. The motion to bifurcate should not, therefore, have been granted.

 

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DEFENDANT PROPERTY OWNERS PRESENTED NO EVIDENCE TO DEMONSTRATE WHEN THE STEPS WHERE PLAINTIFF SLIPPED AND FELL WERE LAST INSPECTED OR CLEANED; THEREFORE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined there was a question of fact whether defendants created or had notice of the slippery condition of the steps alleged to have caused plaintiff’s slip and fall. Defendants presented no evidence about when the steps were last cleaned or inspected:

Defendant Bruhilde Koenig testified during her deposition that she painted the concrete steps leading down to plaintiff’s basement apartment with nonslip paint, and that she never had issues with the patio being slippery when wet prior to plaintiff’s accident. However, she presented no testimony as to the condition of the steps on the day of the accident or as to when the steps had most recently been inspected or cleaned. Plaintiff testified that it was “wet and misty” at the time of the accident, that he observed standing water on the steps, and that he had previously asked Koenig to place safety strips on the staircase, as he and his daughter had slipped and fallen in the past during rainy weather. Plaintiff also testified that the steps were “irregular” and not “very well uniformed [sic].” Plaintiff has raised a triable issue of fact as to whether defendants created or had notice of the alleged defect. Iaccarino v Koenig, 2023 NY Slip Op 05037, First Dept 10-5-23

Practice Point: In a slip and fall case, the property owner cannot demonstrate a lack of notice of the slippery condition without presenting evidence demonstrating when the area was last inspected or cleaned.

 

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