Personal Injury Update January 2023

Personal Injury Update January 2023

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released in January 2023 which address issues in “Personal Injury.”

The “Personal Injury” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these CLE update courses. A link to the written materials for this course (“Personal Injury Reversal Report January 2023”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 1 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Personal Injury Reversal Report January 2023”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Personal Injury Reversal Report January 2023

Attorney Affirmation Personal Injury Update January 2023

Evaluation Survey Personal Injury Update January 2023

Topics Covered in the “Personal Injury Update January 2023” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the Pages in the “Personal Injury Reversal Report January 2023”

 

JANUARY 2023 PERSONAL INJURY REVERSAL REPORT

BATTERY, INMATES, CORRECTIONS OFFICERS, EMPLOYMENT LAW, RESPONDEAT SUPERIOR. 6

THE ASSAULT AND BATTERY OF CLAIMANT-INMATE BY CORRECTIONS OFFICERS OCCURRED WITHIN THE SCOPE OF THE OFFICERS’ EMPLOYMENT AND WAS REASONABLY FORESEEABLE; THEREFORE THE STATE, AS THE OFFICERS’ EMPLOYER, COULD BE LIABLE FOR THE ASSAULT AND BATTERY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (THIRD DEPT). 6

DISCOVERY DISPUTE, ATTORNEYS, AFFFIRMATION OF GOOD FAITH. 7

PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 7

EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE, INFANCY TOLL, STATUTE OF LIMITATIONS. 8

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)I IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). 8

EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE. 9

THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT). 9

LABOR LAW-CONSTRUCTION LAW. 10

A HEAVY DOOR FELL ON PLAINTIFF’S HAND AS HE AND A CO-WORKER ATTEMPTED TO LIFT THE DOOR ONTO A TRUCK; NO LIFTING DEVICES WERE AVAILABLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 11

PLAINTIFF ALLEGEDLY FELL INTO A DITCH WHICH WAS COVERED BY A TARP; THE FACT THAT PLAINTIFF WAS THE ONLY WITNESS AND THE ALLEGATION PLAINTIFF COULD HAVE TAKEN A DIFFERENT ROUTE DID NOT PRECLUDE SUMMARY JUDGMENT I N PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

PLAINTIFF STRUCK HIS HEAD AS HE FELL AND WAS INJURED BY THE ABRUPT STOP OF HIS FALL BY THE SAFETY HARNESS AND LANYARD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 12

LABOR LAW-CONSTRUCTION LAW. 13

PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS FALL; THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 13

LABOR LAW-CONSTRUCTION LAW. 14

THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT). 14

MEDICAL MALPRACTICE, INFORMED CONSENT. 15

A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT). 15

MEDICAL MALPRACTICE, VICARIOUS LIABILITY. 16

ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE P ROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). 16

PRODUCTS LIABILITY, JURISDICTION, FOREIGN CORPORATIONS. 17

NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). 17

PRODUCTS LIABILITY, UNIFORM COMMERCIAL CODE, IMPLIED WARRANTIES. 18

THE COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF IMPLIED WARRANTY FOR A PARTICULAR PURPOSE OR BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (FIRST DEPT). 18

RETIREMENT AND SOCIAL SECURITY LAW. 19

PETITIONER POLICE OFFICER FELL TWICE AT NIGHT WHILE INVESTIGATING SUSPICIOUS ACTIVITY; HE FELL IN A THREE-FOOT DEEP HOLE WHEN CHECKING OUT A HOUSE AND HE FELL DOWN SOME STAIRS CHECKING OUT A PARKING LOT; NEITHER FALL WAS A COMPENSABLE “ACCIDENT” (THIRD DEPT). 19

SLIP AND FALL, APPEALS, SUMMARY JUDGMENT, SEARCH THE RECORD. 20

THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT). 20

SLIP AND FALL, CIVIL PROCEDURE, WORKERS’ COMPENSATION. 21

HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). 21

SLIP AND FALL, CONSTRUCTIVE NOTICE. 22

DEFENDANT SUPERMARKET DID NOT OFFER PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED OR CLEANED PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE GRAPES ON THE FLOOR (FIRST DEPT). 22
SLIP AND FALL, ESPINAL EXCEPTIONS. 23

IN THIS SLIP AND FALL CASE, THE DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO ADDRESS ANY

ESPINAL EXCEPTION IN ITS ANSWER BECAUSE PLAINTIFF DID NOT ALLEGE AN EXCEPTION APPLIED; PLAINTIFF DID NOT DEMONSTRATE THAT AN ESPINAL EXCEPTION APPLIED IN OPPOSITION TO SUMMARY JUDGMENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 23

SLIP AND FALL, INDEPENDENT MEDICAL EXAMINATION. 24

PLAINTIFF SLIPPED AND FELL COMING OUT OF THE SHOWER, INJURING HER GENITAL AND PELVIC AREAS; DEFENDANTS WERE ENTITLED TO AN INDEPENDENT MEDICAL EXAMINATION WHICH MIRRORED THE EXAM DONE BY PLAINTIFF’S OWN PHYSICIAN, INCLUDING A GYNECOLOGICAL EXAM AND A FULL PELVIC EXAM; SUPREME COURT HAD DENIED THE FULL PELVIC EXAM; THERE WAS AN EXTENSIVE DISSENT (FIRST DEPT). 24

SLIP AND FALL, LANDLORD-TENANT, DANGEROUS CONDICTION. 26

PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT). 26

SLIP AND FALL, MUNICIPAL LAW. 27

THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS ROAD-DEFECT SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE NINE-MONTH DELAY WAS NOT EXPLAINED; THE CITIY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT; AND PETITIONER DID NOT SHOW THE CITY WOULD NOT BE PREJUDICED BY THE DELAY (SECOND DEPT). 27

SLIP AND FALL, OUT-OF-POSSESSION LANDLORD. 28

THE TERMS OF THE LEASE DID NOT DEMONSTRATE DEFENDANT OUT-OF-POSSESSION LANDLORD DID NOT HAVE A DUTY TO MAKE NONSTRUCTURAL FLOOR REPAIRS; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 28

SLIP AND FALL, PROXIMATE CAUSE. 29

ALTHOUGH PLAINTIFF ALLEGED HE TRIPPED OVER A HOSE HE HAD PLACED ON THE STEPS, THERE WAS A QUESTION OF FACT WHETHER INADEQUATE LIGHTING WAS ANOTHER PROXIMATE CAUSE OF THE SLIP AND FALL (SECOND DEPT). 29

TOXIC TORTS, ASBESTOS EXPOSURE, SUMMARY-JUDGMENT EVIDENCE REQUIREMENTS. 30

DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT PLAINTIFF’S EXPOSURE TO ASBESTOS WHEN MAINTAINING DEFENDANT’S PRODUCTS DID NOT CONTRIBUTE TO PLAINTIFF’S ASBESTOS-INJURIES; AT THE SUMMARY JUDGMENT STAGE, IT IS NOT ENOUGH FOR DEFENDANT TO ARGUE PLAINTIFF COULD NOT PROVE CAUSATION (THIRD DEPT). 30

TOXIC TORTS, JURISDICTION. 31

DEFENDANT MANUFACTURED VALVES CONTAINING ASBESTOS; ALTHOUGH DEFENDANT HAD A SMALL OFFICE IN NYC THE VALVES WERE MANUFACTURED AND SOLD IN CONNECTICUT, WHERE PLAINTIFF LIVED AND WORKED; THE RELATIONSHIP BETWEEN NEW YORK AND PLAINTIFF’S CLAIMS WAS NOT SUFFICIENT FOR NEW YORK JURISDICTION (FIRST DEPT). 31

TRAFFIC ACCIDENTS, LEGAL MALPRACTICE, FAILURE TO SEEK DAMAGES FROM TORTFEASOR PERSONALLY. 32

PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT ATTORNEY NEGLIGENTLY FAILED TO PURSUE DAMAGES IN EXCESS OF THE POLICY LIMITS AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT DID NOT DEMONSTRATE PLAINTIFF WOULD NOT HAVE PREVAILED AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 32

TRAFFIC ACCIDENTS, CORPORATION LAW, VENUE. 34

EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT). 34

TRAFFIC ACCIDENTS, DAMAGES, EVIDENCE, PRIOR INJURY. 35

MEDICAL (SURGICAL) RECORDS IN A NO-FAULT FILE RELATED TO A PRIOR INJURY SUFFERED BY PLAINTIFF SHOULD NOT HAVE BEEN ADMITTED IN THIS DAMAGES TRIAL; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT). 35

TRAFFIC ACCIDENTS, MOTION TO DISMISS, DOCUMENTARY EVIDENCE. 36

THE EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WITHIN THE MEANING OF CPLR 3211(A)(1); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 36

TRAFFIC ACCIDENTS, MUNICIPAL LAW, IMMUNITY. 37

THE CITY IS NOT ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY WHEN ENGAGED IN THE PROPRIETARY FUNCTION OF MAINTAINING ROADS; IN THE ABSENCE OF A STUDY TO DETERMINE THE RISKS OF A HIGHWAY DESIGN, THE CITY IS NOT ENTITLED TO QUALIFIED IMMUNITY; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF SIGNS AND ROADWAY MARKINGS WAS A PROXIMATE CAUSE OF THE INTERSECTION TRAFFIC ACCIDENT (FIRST DEPT). 37

VERDICT SHEETS, JUROR CONFUSION. 38

NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 38