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THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners’ application to deem the late notice of claim timely served nunc pro tunc should not have been granted. Apparently petitioners’ child tripped and fell on a stairwell at at her school. The fact that the school was aware of the child’s injury at the time does not mean the school was aware of a potential lawsuit. The year-long delay was not adequately explained; infancy is not enough. And the petitioners did not show the school was not prejudiced by the delay:

The appellant’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable” … . The petitioner mother stated in an affidavit submitted in support of the application that the school nurse called her on the day of the accident, advising her that her daughter fell on the stairs and injured her right foot. This statement, however, did not provide the appellant with actual knowledge of the facts underlying the petitioners’ claim of negligent supervision … .. Similarly, although the petitioner mother stated in her affidavit that she spoke to an employee of the appellant about the accident approximately two months after it occurred, the mother’s affidavit indicates that the employee had no information or details to share. Moreover, letters sent by the petitioners’ attorneys to the appellant did not advise it of the essential facts underlying the negligent supervision claim. J. G. v Academy Charter Elementary Sch., 2022 NY Slip Op 02251, Second Dept 4-6-22

​Practice Point: An application to serve a late notice of claim against a school may be granted if the school had timely knowledge of the claim. But that doesn’t mean timely knowledge of the injury or the incident. It means timely knowledge of the potential lawsuit.

 

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IN THIS MEDICAL MALPRACTICE CASE, WHETHER DEFENDANT REGISTERED NURSE AND DEFENDANT PHYSICIAN’S ASSISTANT GAVE PLAINTIFF THE APPROPRIATE DISCHARGE INSTRUCTIONS AFTER DISOVERING A LUMP IN PLAINTIFF’S BREAST CREATED A QUESTION OF FACT; THERE WAS A QUESTION OF FACT WHETHER THE DOCTOR WHO COSIGNED THE PHYSICIAN ASSISTANT’S CHART SHOULD HAVE REVIEWED THE CHART (FIRST DEPT).

The First Department, reversing Supreme Court, determined questions of fact precluded summary judgment in favor of defendant registered nurse (Varas), defendant physician’s assistant (Rogan), and defendant doctor who cosigned the physician assistant’s chart (Shaukat). Plaintiff alleged she was told the lump in her breast was a cyst and was given no follow-up instructions. Defendants allege plaintiff was given the appropriate follow-up instructions (to rule out cancer). Several months later plaintiff was diagnosed with stage IV breast cancer:

Defendants Varas and Rogan made a prima facie showing that they did not depart from the applicable standard of care in providing plaintiff with verbal or written discharge instructions … . There are disputed issues of fact, however, that preclude summary judgment, including what, if anything at all, plaintiff was told upon discharge.

Dr. Shaukat established prima facie that she did not depart from the applicable standard of care through her expert physician’s opinion that cosigning a physician assistant’s chart “is a customary administrative function in major accredited hospitals,” and that she acted within that standard of care by cosigning plaintiff’s chart. In opposition, however, plaintiff raised an issue of fact through her expert physician’s opinions that “this function is not merely administrative”; that, in accordance with American Medical Association policy, “physician[s] must review the [physician assistants’] work to ensure conformity with the standard of care, not to simply rubberstamp medical records for ‘administrative’ purposes only”; and that Dr. Shaukat failed to conform to this standard of care by not recognizing alleged deficiencies in plaintiff’s chart and by not instructing Rogan to call plaintiff to tell her that she required imaging promptly in order to rule out a more serious condition, such as breast cancer … . Almonte v Shaukat, 2022 NY Slip Op 02221, First Dept 4-5-22

​Practice Point: In this medical malpractice case, whether a registered nurse and a physician’s assistant gave plaintiff adequate discharge instructions after discovery of a lump in plaintiff’s breast raised a question of fact. In addition, whether the doctor who cosigned the physician assistant’s chart should have reviewed the chart raised a question of fact.

 

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ALTHOUGH THE RECORDS OF TRAFFIC INFRACTIONS ARE SEALED PURSUANT TO CPL 160.55, THE RECORDS OF A VIOLATION OF NYC ADMINISTRATIVE CODE 19-190(b), AN UNCLASSIFIED MISDEMEANOR WHICH CRIMINALIZES STRIKING A PEDESTRIAN WHO HAS THE RIGHT OF WAY, ARE NOT SEALED; THEREFORE PLAINTIFF IS ENTITLED TO DISCOVERY OF THOSE RECORDS IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this vehicle-pedestrian accident case was entitled to the records of the driver’s guilty plea to an unclassified misdemeanor (under the NYC Administrative Code), which criminalizes striking a pedestrian who has the right of way: The unclassified misdemeanor is not covered by the sealing statute, Criminal Procedure Law (CPL) 160.55 which seals records of Vehicle and Traffic Law infractions:

… [Defendant driver] was arrested, charged, and subsequently pled guilty to Administrative Code of City of NY § 19-190(b), an unclassified misdemeanor, and to Vehicle and Traffic Law § 1146(c)(1), a traffic violation, for failing to yield to plaintiff’s decedent and causing him injury. Plaintiff … now seeks the records pertaining to [the driver’s] unclassified misdemeanor. The City defendants argue that these records are not discoverable because they overlap with [the driver’s] traffic infraction records, which are sealed pursuant to CPL 160.55.

Under CPL 160.55, all records and papers relating to the arrest or prosecution of an individual convicted of a traffic infraction or violation, following a criminal action or proceeding, shall be sealed and not made available to any person or public or private agency … . Plaintiff is entitled to [the driver’s] records pertaining to his unclassified misdemeanor, as the records are not subject to CPL 160.55, and it does not appear that they were sealed … . To the extent these records contain references or information related solely to [the driver’s] sealed traffic violation case, the City must redact or remove it from its production. Lu-Wong v City of New York, 2022 NY Slip Op 02226, First Dept 4-5-22

Practice Point: Although the records of traffic infractions are sealed under CPL 160.55, the records of a violation of the NYC Administrative Code, which criminalizes striking a pedestrian who has the right-of-way, are not subject to that sealing statute. Therefore the plaintiff in this vehicle-pedestrian accident case was entitled to those records.

 

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THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT).

The First Department noted that the trial judge properly allowed plaintiff to call her treating physician to rebut the testimony of defendants’ expert, even though the doctor’s testimony could have been presented in her case-in-chief:

The trial court providently exercised its discretion in permitting plaintiff to call her treating radiologist as a rebuttal witness … . While plaintiff’s radiologist’s testimony could have been offered as part of her case-in-chief, and her failure to offer the testimony at that time deprived her of the right to make use of it as affirmative evidence, she still had the right to offer the testimony in order “to impeach or discredit” the testimony of defendants’ expert radiologist … . Reinoso v New York City Tr. Auth., 2022 NY Slip Op 02242, First Dept 4-5-22

Practice Point: In a civil case, a judge has the discretion to allow a plaintiff to present rebuttal evidence which could have been presented in the case-in-chief.

 

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PLAINTIFFS STATED A CAUSE OF ACTION FOR MEDICAL MALPRACTICE BY ALLEGING THE TREATMENT OF PLAINTIFF’S DECEDENT AGAINST THE WISHES OF DECEDENT AND DECEDENT’S HEALTH-CARE AGENTS PROLONGED DECEDENT’S PAIN AND SUFFERING; THE “WRONGFUL LIFE” LINE OF CASES DOES NOT APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined plaintiff stated a cause of action sounding in medical malpractice by alleging the treatment of plaintiff’s decedent against decedent’s wishes and the wishes of his health-care agents prolonged his pain and suffering. This action was distinguished from the “wrongful life” line of case which held that being born alive with disabilities does not constitute an injury in New York [therefore a medical malpractice lawsuit alleging the parents should have been advised to terminate the pregnancy does not state a cause of action]. Supreme Court had based its dismissal of the complaint on a Second Department case (Cronin) which followed the “wrongful life” line of reasoning. The First Department refused to follow the Second Department:

… [In] Cronin, it appears that plaintiff sought damages based on a claim “that the defendant wrongfully prolonged the decedent’s life by resuscitating him against the express instructions of the decedent and his family” (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent’s pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent’s wishes expressed in his advance directives as reaffirmed by his health care agents … .Greenberg v Montefiore New Rochelle Hosp., 2022 NY Slip Op 02194, First Dept 3-31-22

Practice Point: A decision in one appellate-division department does not bind another department. Here the “wrongful life” line of cases did not preclude a medical malpractice action alleging the treatment of plaintiff’s decedent against decedent’s wishes and against the wishes of decedent’s health-care agents prolonged decedent’s pain and suffering.

 

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PLAINTIFFS’ EXPERT DID NOT ADDRESS THE OPINION OF DEFENDANTS’ EXPERT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court and dismissing the complaint in this medical malpractice case, determined the defendants’ motion for summary judgment should have been granted because plaintiffs’ expert did not address the defendants’ expert’s opinion. The defense expert averred plaintiff’s problems were caused by cancer. Plaintiffs’ expert took the position plaintiff never had cancer, a position contradicted by the record:

Defendants made a prima facie showing of entitlement to summary judgment through their expert, who averred that defendants’ treatment of plaintiff was within the standard of care and any difficulties with the treatment were caused by plaintiff’s underlying cancer. Plaintiffs’ expert failed to address that opinion, and thus failed to rebut defendants’ showing of entitlement to summary judgment … . Instead, the expert took the position that plaintiff never had cancer, a fact contradicted by the record … .. While plaintiff’s cancer had an unusual presentation, and pathologists initially disagreed as to whether she had an invasive jaw cancer, she was ultimately successfully treated by oncologists with surgery, radiation, and gene therapy. Plaintiffs’ expert entirely ignored plaintiff’s treatment from 2016 to 2017 for a rare variant of squamous cell carcinoma, as well as her 2018 treatment for a reoccurrence … . Given those omissions, plaintiffs did not rebut defendants’ prima facie showing of entitlement to summary dismissal of the negligence and medical malpractice claims against them…. . Mulroe v New York-Presbyt. Hosp., 2022 NY Slip Op 02204, First Dept 3-31-22

Practice Point: If the defendants’ expert in a med mal case makes a prima facie showing defendants’ treatment was within the standard of care and the plaintiffs’ expert does not address that opinion, defendants’ motion for summary judgment will be granted. Med mal cases, at the summary judgment stage, turn on the experts’ affidavits. Every argument raised by the movant’s expert must be addressed by the plaintiff’s expert to raise a question of fact.

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ALTHOUGH THE MUNICIPALITY PROVED IT DID NOT HAVE WRITTEN NOTICE OF THE ICY SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, IT DID NOT PROVE THAT PILING SNOW ALONG THE EDGE OF THE SIDEWALK DID NOT CREATE THE ICY CONDITION; THE MUNICIPALITY WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality did not demonstrate it did not create the icy condition on the sidewalk where plaintiff slipped and fell by piling snow along the sidewalk which melted and froze:

“While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence, a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement” … . Pirrone v Metro N. Commuter R.R., 2022 NY Slip Op 02144, Second Dept 3-30-22

Practice Point: Here the municipality did not prove it did not create the icy-sidewalk condition by piling snow removed from the sidewalk along the edge of the sidewalk where it melted and froze. Therefore, even though the municipality did not have written notice of the icy condition, there was a question of fact whether the municipality created the condition. The municipality’s motion for summary judgment should not have been granted.

 

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THE METEOROLOGIST’S AFFIDAVIT SUBMITTED TO SHOW THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL WAS NOT ACCOMPANIED BY THE RECORDS RELIED UPON BY THE AFFIANT; THE AFFIDAVIT THEREFORE HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the parking-lot-owner’s (RGP’s) motion for summary judgment in this slip and fall case should not have been granted under the storm-in-progress rule. The meteorologist’s affidavit was not accompanied by the records the affidavit relied upon:

… RGP failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule. In support of its motion, RGP relied upon an affidavit and report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value … . Canciani v Stop & Shop Supermarket Co., LLC, 2022 NY Slip Op 01986, Second Dept 3-23-22

Practice Point: An affidavit submitted to prove the contents of records which are not attached has no probative value.

 

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THE COMPANY WHICH STAFFED THE HOSPITAL EMERGENCY ROOM DID NOT DEMONSTRATE THE PHYSICIANS WHO TREATED PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION WERE INDEPENDENT CONTRACTORS, AS OPPOSED TO EMPLOYEES FOR WHOM THE COMPANY WOULD BE VICARIOUSLY LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant NES, which staffed the hospital emergency room, should not have been granted summary judgment in this medical malpractice action. NES alleged the emergency room physicians who treated plaintiff (Perez) were independent contractors, not employees, and therefore NES was not vicariously liable for the acts or omissions of the physicians:

… [T]he evidence submitted in support of NES’s motion did not eliminate all triable issues of fact as to whether the emergency room physicians who treated Perez were independent contractors … . Although the physician agreement between NES and one of the physicians who treated Perez designated the physician an independent contractor, among other things, NES’s contract with Lutheran [the hospital] raises triable issues of fact regarding NES’s involvement in the training of the physicians with whom it contracted and the extent of NES’s obligation to participate in quality assurance and peer review activities and implement quality improvement plans … . Additionally, NES failed to submit any evidence regarding how the physicians with whom it contracted were paid … . Perez v NES Med. Servs. of N.Y., P.C., 2022 NY Slip Op 02031, Second Dept 3-23-22

Practice Point: In this medical malpractice action, the plaintiff sued the company which staffed the emergency room under a contract with the hospital. The staffing company moved for summary judgment arguing the treating physicians were independent contractors, not employees, and, therefore, the company was not vicariously liable for the acts or omissions of the physicians. The motion should not have been granted. The decision lays out the criteria for the independent-contractor versus employee analysis.

 

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PLAINTIFFS’ LEGAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS’ 2010 BREACH OF A CONDOMINIUM-SALE CONTRACT ACTION WAS DISMISSED ON STATUTE OF FRAUDS GROUNDS; WHEN A WRITTEN CONTRACT SUBSEQUENTLY SURFACED, DEFENDANT ATTORNEYS DID NOT MOVE TO RENEW, VACATE OR APPEAL THE ORDER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed. Plaintiffs, apparently represented by defendant attorneys, brought a 2010 action for breach of a condominium-sale contract which was dismissed on statute of frauds grounds (no written contract). When the written contract for the condominium sale surfaced, the defendants did not move to renew, vacate or appeal the order:

Regardless of whether the dismissal on statute of frauds grounds was ultimately correct, defendants should have known that the condominium claims, which involved the sale of real property, would be subject to the statute of frauds and thus would require reference to a written contract (General Obligations Law § 5-703[2]); that the statute of frauds could be raised and adjudicated on a motion to dismiss under CPLR 3211(a)(5); and that a dismissal under the statute of frauds would be on the merits, thus precluding any future claim for damages on the sale of the condominium … . As a result, with respect to the condominium sale, it cannot be determined as a matter of law that plaintiffs failed to plead a claim for legal malpractice based upon defendants’ actions in litigating the breach of contract claim. Komolov v Popik, 2022 NY Slip Op 01966, First Dept 3-22-22

Practice Point: The defendant attorneys apparently represented plaintiffs in their 2010 action for breach of a condominium-sale contract. The 2010 action was dismissed on statute of frauds grounds. Subsequently a written contract surfaced and defendant attorneys did not move to renew, vacate or appeal the order. Plaintiffs’ legal malpractice complaint should not have been dismissed.

 

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