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THE BUILDING DEFENDANTS DEMONSTRATED THE AREA WHERE PLAINTIFF ALLEGED SHE SLIPPED AND FELL ON WATER ON THE FLOOR WAS INSPECTED AND FOUND TO BE DRY CLOSE IN TIME TO THE ALLEGED FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit of a building porter stating that the area where plaintiff slipped and fell was dry when he inspected shortly before the alleged fall warranted granting defendants’ summary judgment motion. Plaintiff alleged she slipped and fell on water ono the floor:

…[T]the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the hazardous condition or have actual or constructive notice of it. In support of the motion, the defendants submitted a transcript of the deposition testimony and affidavit of the building’s porter, which established that, shortly before the accident, the porter traversed the hallway where the accident occurred, inspected the floor for wetness, and observed that the floor was dry … . Serebrenik v Chelsea Apts., LLC, 2022 NY Slip Op 04658, Second Dept 7-20-22

Practice Point: When a defendant brings a summary judgment motion in a slip and fall case, the motion papers must demonstrate the defendant did not create the alleged dangerous condition and did not have notice of the alleged dangerous condition. If defendant can show the area was inspected close in time to the fall and the area was clean (or dry in this case), the defendant will have demonstrated a lack of constructive notice of the condition. Absent evidence to the contrary presented in opposition, summary judgment in favor of the defendant is warranted.

 

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ALTHOUGH THE STEP WAS MARKED AND THERE WAS A WARNING SIGN, THERE WAS EVIDENCE THE STEP AND THE SIGN COULD NOT BE SEEN WHEN THE AREA WAS CROWDED; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS STAIR-FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stair-fall case should not have been granted. Although there was evidence the single step in defendant’s nightclub was marked and there was a warning sign, there was also evidence the area was crowded, obscuring the step and the sign:

… [T]he defendants’ submissions demonstrated that the single-step riser was located between the dance floor and another area of the premises, such that persons exiting the dance floor in that direction would traverse the area where the step was located and a crowd could form, obscuring both a warning sign which was below eye level, and the step which was painted white. The plaintiff testified at her deposition that the premises were crowded, and that she did not see the step or the paint on the step. Another witness testified at her deposition that the premises were so crowded that the witness could not see the floor. Kernell v Five Dwarfs, Inc., 2022 NY Slip Op 04624, Second Dept 7-20-22

Practice Point: Here the step where plaintiff allegedly fell was marked and there was a warning sign. But there was evidence that when this area of defendants’ nightclub was crowded neither the step nor the sign could be seen. Defendants’ motion for summary judgment in this stair-fall case should not have been granted.

 

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THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MOTORCYCLE WAS SO CLOSE AS TO CONSTITUTE AN IMMEDIATE HAZARD WHEN DEFENDANT ATTEMPTED TO MAKE A LEFT TURN ACROSS PLAINTIFF’S LANE OF TRAFFIC; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this intersection traffic accident case should not have been granted summary judgment. Plaintiff motorcyclist collided with defendants’ vehicle as defendant driver was attempting to make a left turn crossing plaintiff’s lane of traffic. The Second Department determined there was a question of fact about whether plaintiff’s motorcycle was so close as to constitute an immediate hazard at the time defendant initiated the turn:

Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” … . A violation of this statute constitutes negligence per se … .

The plaintiff failed to meet his prima facie burden of demonstrating entitlement to judgment as a matter of law on the issue of liability. In support of his motion, the plaintiff submitted, inter alia, the transcripts of his deposition testimony and that of the defendants. This evidence, when viewed in the light most favorable to the defendants, as the nonmoving parties, raised triable issues of fact as to whether, at the time the defendant driver initiated her turn, the plaintiff’s motorcycle was “so close as to constitute an immediate hazard” … . DePass v Beneduci, 2022 NY Slip Op 04622, Second Dept 7-20-22

Practice Point: Vehicle and Traffic Law 1141 prohibits making a left turn when oncoming traffic is “so close as to constitute an immediate hazard.” Plaintiff motorcyclist collided with defendant’s car as defendant attempted a left turn across plaintiff’s lane of traffic. Supreme Court granted plaintiff’s motion for summary judgment but the Second Department held there was a question of fact whether plaintiff was ‘”so close as to constitute an immediate hazard” when defendant initiated her turn.

 

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INFANT PLAINTIFF WAS INJURED WHEN HE INADVERTENTLY SLAPPED A DISPLAY CASE IN THE HALL OF A SCHOOL AND THE GLASS SHATTERED; THERE WAS EVIDENCE A SIMILAR INCIDENT HAD OCCURRED IN THE PAST AND SOME OF THE PANELS IN THE DISPLAY CASE WERE MADE OF SHATTERPROOF PLEXIGLASS; PLAINTIFF’S PREMISES-LIABILITY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s premises-liability cause of action against defendant school district should not have been dismissed. Infant plaintiff was pretending to play basketball when he inadvertently slapped a display case in the hall of the school and the glass shattered. There was evidence glass in the display case had shattered before and some of the glass panels were made of shatterproof plexiglass:

The defendant’s evidence in support of the motion did not eliminate triable issues of fact as to whether it had notice of the allegedly dangerous or defective condition because, among other things, the head custodian of the school testified at his deposition that at least one other glass panel in a similar display case in the school had shattered prior to the accident … . Further, the evidence submitted in support of the defendant’s motion failed to eliminate all triable issues of fact as to whether the glass panel was open and obvious and not inherently dangerous. In particular, the evidence demonstrated that the display case where the accident occurred contained two panes of shatterproof plexiglass and one glass pane and that the infant plaintiff was under the impression that the display case was made entirely of unbreakable material. R.B. v Sewanhaka Cent. High Sch. Dist., 2022 NY Slip Op 04616, Second Dept 7-20-22

Practice Point: Here a glass panel in a display case located in the hallway of a school shattered when plaintiff-student slapped it. There was evidence a similar incident occurred in the past, and some of the panels in the display case were made of shatterproof plexiglass. Therefore there was evidence the school had notice of the dangerous condition and there was a question whether the dangerous condition was open and obvious.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT WAS NOT CONCLUSORY AND SPECULATIVE; DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Falkovsky’s) motion for summary judgment in this medical malpractice case should not have been granted. Although the doctor made out a prima facie case demonstrating there was no departure form good and accepted medical malpractice, plaintiff’s expert raised questions of fact about whether defendant should have considered cardiac disease in his differential diagnosis:

[Plaintiff] presented to Falkovsky … with complaints of loss of taste and appetite for two weeks, the unintentional loss of ten pounds, and two episodes of dizziness and vomiting that resolved on their own. During a follow up visit on March 17, 2015, Falkovsky noted … that blood work had revealed that the decedent had anemia. Falkovsky believed the cause of the decedent’s symptoms was most likely a neoplasm, and referred the decedent to a gastroenterologist and a nephrologist. On March 19, 2015, the decedent was examined by a nephrologist, who noted … that the decedent had lower extremity edema. The decedent underwent an endoscopy with his gastroenterologist on March 25, 2015, which revealed … reflux and gastritis. A renal sonogram performed on April 11, 2015, showed that the decedent had a right renal cyst and a possible angeomyolipoma. The decedent died on April 16, 2015. An autopsy revealed that the decedent died as a result of atherosclerotic and hypertensive cardiovascular disease. * * *

… [T]he opinions of the plaintiff’s expert were not speculative and conclusory … . The plaintiff’s expert opined, inter alia, that Falkovsky departed from the standard of care by failing to include cardiac disease in his differential diagnosis based upon the decedent’s symptoms in light of his medical history, and failing to order proper tests or to refer the decedent to a cardiologist for cardiac-related tests, which resulted in a lack of proper treatment that could have prevented the decedent’s death. Shirley v Falkovsky, 2022 NY Slip Op 04659, Second Dept 7-20-22

Practice Point: A conclusory or speculative expert affidavit will not raise a question of fact in a medical malpractice case. Here plaintiff’s expert opined that defendant doctor should have considered cardiac disease in his differential diagnosis, based on plaintiff’s symptoms, which included swelling of the lower extremities. Plaintiff died from his cardiac disease. Supreme Court should not have found plaintiff’s expert’s affidavit to have been speculative and conclusory and therefore should not have granted the doctor’s motion for summary judgment.

 

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PLAINTIFF DID NOT PRESENT EXPERT OPINION TO SUPPORT THE ALLEGATION HE INHALED SUFFICIENT AMOUNTS OF ASBESTOS TO HAVE CAUSED HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this asbestos-exposure case did not raise a question of fact about whether his exposure to asbestos was sufficient to have caused his cancer. Plaintiff alleged he was exposed to asbestos when he installed defendant ABI’s vinyl floor tiles. Defendant presented evidence from simulation studies and plaintiff offered no expert evidence in opposition:

In Nemeth v Brenntag N. Am. (___ NY3d ___, 2022 NY Slip Op 02769 [2022]), the Court of Appeals, while recognizing its conclusion in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) that precise qualification of exposure to a toxin is not always required, stated that causation nonetheless requires plaintiff to provide proof of “sufficient exposure to a substance to cause the claimed adverse health effect” … . …

Plaintiff challenges the opinion proffered by ABI’s expert, who relied upon calculations arising from experiments funded by defendants, in determining that decedent was exposed, if at all, to asbestos in amounts similar to those in ambient air, an exposure insufficient to cause cancer. While the reliability of those calculations could pose an issue of credibility, the fact that they were performed by a paid expert does not automatically invalidate their conclusions. Plaintiff offered no expert to counter ABI’s calculation of decedent’s cumulative lifetime exposure, and thus no question of fact was raised as to its validity … . Killian v A.C. & S., Inc., 2022 NY Slip Op 04610, First Dept 7-19-22

Practice Point: Here defendant presented evidence of simulation studies to show that plaintiff’s exposure to asbestos was not sufficient to have caused his cancer and plaintiff presented no expert evidence in opposition. Defendant’s motion for summary judgment should have been granted.

 

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THE PROOF AT TRIAL DID NOT DEMONSTRATE PLAINTIFF INHALED SUFFICIENT LEVELS OF ASBESTOS WHEN USING DEFENDANT’S TALCUM POWDER TO HAVE CAUSED HER MESOTHELIOMA; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant J & J’s motion to set aside the verdict in the asbestos-exposure trial should have been granted. Plaintiffs, as a matter of law, did not demonstrate the exposure to asbestos in defendant’s talcum powder caused plaintiff’s mesothelioma:

At trial, plaintiffs failed, as a matter of law, to carry their burden “to establish sufficient exposure to a substance to cause the claimed adverse health effect” … . To make such a showing, a plaintiff must present expert testimony providing a “scientific expression of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease” … . Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert’s estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J’s talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question … . Thus, the medical expert’s testimony that mesothelioma could have resulted from “a significant exposure above normal background levels” was insufficient. Matter of New York City Asbestos Litig., 2022 NY Slip Op 04611, First Dept 7-19-22

Practice Point: This is another decision in a group of four decisions released on the same day by the First Department finding plaintiff’s expert evidence failed, as a matter of law, to demonstrate plaintiff had inhaled enough asbestos to have caused lung disease.

 

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PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEMONSTRATE PLAINTIFF INHALED ENOUGHT ASBESTOS FIBERS TO CAUSE HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff did not present sufficient expert evidence that his exposure to asbestos from defendant ABI’s vinyl floor tiles and sheet flooring caused his cancer. Plaintiff was an electrician and he alleged he worked in close proximity to workers installing ABI’s flooring:

[I]n asbestos exposure and other toxic tort cases, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” …  As to specific causation, “there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the [relevant] harm” … .

… “[B]ecause there are times that ‘a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,’ ‘it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community'” … . …

Plaintiff’s opposition failed to raise any issue of fact as to specific causation. A showing that the decedent “work[ed] in dust laden with asbestos generated from products containing asbestos” accompanied by “expert testimony that dust raised from manipulating asbestos products ‘necessarily’ contains enough asbestos to cause mesothelioma” is not enough … . Plaintiff’s medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not, however, provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent’s lung cancer … .Pomponi v A.O. Smith Water Prods. Co., 2022 NY Slip Op 04612, First Dept 7-19-22

Practice Point: The general evidentiary requirements for a plaintiff’s prima facie case in an asbestos-exposure care are clearly explained. Plaintiff’s expert evidence was not sufficient to raise a question of fact about whether the exposure caused his cancer.

 

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WHETHER PLAINTIFF INHALED ENOUGH ASBESTOS TO CAUSE HIS CANCER WAS THE SUBJECT OF COMPETING SIMULATION STUDIES; PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant ABI’s motion for summary judgment in this asbestos-exposure case should have been granted. Plaintiff sold vinyl floor tiles made by ABI. Plaintiff alleged when he cut, manipulated and broke the tiles in demonstrations for customers, he inhaled asbestos fibers which were embedded in the vinyl tiles. The Fist Department found the expert evidence did not demonstrate plaintiff was exposed to sufficient levels of asbestos to cause lung cancer:

ABI had the burden to tender sufficient evidence to demonstrate the absence of any material issues of fact as to causation … . Once this burden was met, it would fall to plaintiff to produce evidentiary proof, in admissible form, establishing that there were disputed material issues of fact … . * * *

The dispute based upon the competing simulation studies about whether the decedent was exposed to asbestos in an amount that exceeded ambient levels typically found in non-occupational settings is not enough to avoid summary judgment. … [S]imply showing that exposures to a toxin were “‘excessive'” or “‘far more'” a certain threshold (ambient) is not enough … . … [P]laintiff had the “‘difficult, if not impossible,'” task of establishing that his decedent had a sufficient exposure to asbestos to have caused his lung cancer … . [Plaintiff’s expert] does not provide any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much in haled asbestos would have caused lung cancer generally and the decedent’s lung cancer in particular. Dyer v Amchem Prods. Inc., 2022 NY Slip Op 04609, First Dept 7-19-22

Practice Point: This decision includes a useful discussion of the proof requirements in an asbestos-exposure case. The decision characterized the plaintiff’s task of demonstrating sufficient exposure to cause cancer as “difficult, if not impossible.”

 

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IN A REAR-END COLLISION CASE, THE ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY IS NOT SUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this rear-end collision case did not raise a question of fact by alleging plaintiff stopped suddenly:

… [P]laintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he had activated his right turn signal, had slowed to a speed of approximately five miles per hour, and was attempting to make a right turn when his vehicle was struck in the rear by the defendants’ vehicle … .

In opposition, the defendants submitted an affidavit of the defendant driver in which he averred that the plaintiff’s vehicle stopped short suddenly, causing the defendants’ vehicle to collide with the plaintiff’s vehicle. The defendants’ assertion that it was the sudden stop of the plaintiff’s vehicle which caused the accident was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the rear-end collision … . Gil v Manhattan Beer Distribs., LLC, 2022 NY Slip Op 04537, Second Dept 7-13-22

Practice Point: The defendant in a rear-end collision case does not raise a question of fact about a non-negligent explanation for the accident by alleging plaintiff stopped suddenly.

 

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