APPELLATE PRACTICE GROUP – REPRESENTATIVE CASES

G&S Obtains Affirmance of Summary Judgment Based on Assumption of Risk
APPELLATE DIVISION, Second Department, ---N.Y.S.2d ---, 2013 NY Slip Op 04330

The plaintiff, a patron at our clientís bowling alley, was supervising her children. Plaintiff was injured when she attempted to slap her sonís hand away from the opening of the ball-return machine and got her own hand caught in it. Plaintiff claimed her right thumb was crushed with nerve damage and loss of range of motion along with carpal tunnel syndrome. We moved for summary judgment dismissing the complaint based on the assumption of risk doctrine and based on evidence the ball-return machine was not in a defective condition. In opposition, the plaintiff submitted an affidavit of an expert in sports-accident reconstruction who concluded that the ball-return machine was defective. We counter-argued that the expert failed to identify any specific industry standard applicable to the subject ball-return machine upon which he relied. Moreover, we argued that the expertís opinion the warnings regarding the ball-return machine were inadequate failed to raise a triable issue of fact, since the plaintiff testified she was aware at the time of the accident that a person was not supposed to put their hand into the machine. The trial courtís dismissal of the complaint was affirmed after full briefing and oral argument.

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G&S Obtains an Affirmance of its Prior Dismissal of Plaintiffís Complaint Based on Assumption of the Risk - 2013

Plaintiff, an experienced softball player, was injured during an evening league softball game at an illuminated field owned by the co-defendant Town, when he slipped and fell on a concrete pathway adjacent to the rear of the outfield while running to catch a ball. G&S represented the operator of the softball league. We argued that plaintiff consented to the commonly appreciated risks inherent in softball including those associated with the construction of and conditions upon the playing field.

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G&S Obtains a Reversal of a Denial of its Motion to Dismiss Labor Law § 240(1) Claim on the Grounds that Plaintiff's was not Injured From Work Covered by the Statute - 2013
APPELLATE DIVISION, FIRST DEPARTMENT, --- N.Y.S.2D ----, 2013 NY SLIP OP 02202

Plaintiff was injured when he fell upon a 30 degree slanted metal roof he had ascended to drill several holes in order to attach a temporary sign. G&S moved the court below to dismiss the Labor Law §§ 240(1), 200 and common law negligence claims. With respect to the §240(1) claim, G&S argued that plaintiff was not "altering" the building as that term is defined by the Labor Law since he was only making a slight change to the building. Although the trial court denied the motion, the First Department reversed. With respect to the Labor Law §200 and common law negligence claim, the First Department reversed and dismissed these claims on the grounds plaintiff fell as a result of the smooth slanted nature of the roof which was inherently slippery and not due to any dangerous condition that defendants had notice of. The Court stated that the danger was just as apparent to the plaintiff as it would have been to defendants.

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G&S Obtains Affirmance of Dismissal of Medical Malpractice Claim on behalf of Emergency Room Physician who was Alleged to have Failed to Admit Plaintiff and/or Diagnose a Stroke - 2013
APPELLATE DIVISION, FIRST DEPARTMENT, --- N.Y.S.2D ----, 2013 NY SLIP OP 02174

Plaintiff appeared at the emergency room where G&S's client was working as an emergency room attending. The record reveals that our client ordered tests and discharged the patient with instructions to see his internist and neurologist. Despite plaintiff's symptoms, he was not diagnosed as having a stroke until two weeks later. We submitted an expert affidavit that our client did not deviate from accepted standards of medical treatment and that any admission of the plaintiff would have only been for 72 hours at the most, and accordingly, any alleged departure would not have been the proximate cause of the injury. The trial court agreed and dismissed the action which was affirmed by the First Department. The First Department also rejected plaintiff's claim, made for the first time on appeal, that our client failed to diagnose a cardiac thrombus in his artificial heart valve which later caused the stroke. The Court held it was too late to argue this and that it was against the weight of the record, in any event.

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G&S Obtains a Dismissal after Reversal of a Medical Malpractice Claim Against it Client on the Grounds that Plaintiff's Release to Codefendant also Released our Client Despite the Absence of Consideration - 2013
APPELLATE DIVISION, FIRST DEPARTMENT, --- N.Y.S.2D ----, 2013 NY SLIP OP 02027

Plaintiff visited the emergency room presenting with finger pain, bruising and loss of range of motion. After a negative x-ray, he was discharged without a diagnosis of fracture, with an instruction to follow up with the hand clinic. At the clinic our client, a general surgeon, saw the plaintiff for continued pain and sent him for a repeat x ray which was again negative. Plaintiff claims he was ultimately diagnosed with a mal-united fracture which lead to a significant finger deformity with claimed loss of future earnings capacity. Plaintiff claimed our client failed to refer him to a specialist and failed to diagnose the fracture.

After the case was on the trial calendar, it became stayed due to the bankruptcy of the codefendant hospital. While the case was still stayed, the plaintiff reached a settlement with the debtor. Plaintiff exchanged a release in exchange for an allowed bankruptcy claim which plaintiff ultimately only received 10 cents on the dollar for. A so-ordered stipulation of settlement was entered by the bankruptcy court, which noted that plaintiff intended to resume prosecution of the state court action against our client and another co-defendant doctor. Neither our office nor co-defendant’s attorneys participated in the bankruptcy settlement which included a general release that listed the debtor as "releasee." The release however, further stated that it released the employees of the releasee. This was significant because our client was an employee of the debtor at the time of the alleged malpractice. Further included in the release was language which provided for the release of joint tortfeasors.

Upon inspecting the release, we moved to amend our answer to include the affirmative defense of release and moved to dismiss the action. Plaintiff opposed the motion on the ground that the bankruptcy court had exclusive jurisdiction over the motion. The trial judge allowed the amendment, but denied the motion to dismiss finding that the release should be read in conjunction with the bankruptcy stipulation which made it clear that plaintiff did not intend to release the non-settling codefendants.

On appeal, we argued that it was inappropriate to look outside the four corners of the release where its language was clear and unambiguous. Plaintiff took the position adopted by the trial court and also opposed the appeal by submitting an amended release executed by his client without the language releasing our client. The Appellate court unanimously reversed, finding that it was inappropriate for the lower court to have resorted to parole evidence extrinsic to the document. The Court also rejected plaintiff’s argument that the amended release made the appeal moot since plaintiff never obtained an order from the lower court reforming the release. The Court also rejected plaintiff’s argument based on mutual mistake on the grounds that no evidence was submitted by the hospital as to any mistake and because plaintiff failed to make this argument below.

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Medical Malpractice – Affirmance of Verdict – Comments During Openings and Summation Proper
Appellate Division, Second Department, --- N.Y.S.2d ----, 2010 WL 5094695

G&S obtained a defense verdict in this medical malpractice action arising from the admission of the 74 year old decedent, with a two day history of shortness of breath and a lengthy past medical history of hypertension and asthma. During the admission she was noted to have some respiratory distress. Our client, an infectious disease physician, provided an infectious disease consult and concluded the decedent had a lower lobe pneumonia. After her condition worsened the decedent checked out against medical advice. After she later expired the cause of death was aspergillosis resulting in multi organ failure. On appeal from the defense verdict, plaintiff claimed that comments made during defense openings and summation were improper. The Appellate Division disagreed finding they were based on evidence presented at trial.

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Premises Liability – Reversal of Denial of Motion for Summary Judgment – No Duty to Install Guardrail on Loading Dock
Appellate Division, First Department, 73 A.D.3d 407, 901 N.Y.S.2d 21

Worker brought action against premises owner and lessee, seeking damages for personal injuries sustained when he fell four feet off edge of loading side of loading dock. The Supreme Court, Bronx County, Larry S. Schachner, J., denied defendants' motions for summary judgment. The Appellate Division held that defendants had no duty to install a guardrail or other safety measures designed to prevent a fall based on the absence of prior falls and expert affidavit that neither the NYC Building Code nor OSHA regulations required that guardrails be erected at the loading side of loading docks. We argued that plaintiffís expert's affidavit was conclusory and wrongfully relied on a subsequent repair. The OSHA safety standards cited by plaintiff's expert were inapplicable because they are limited to the safety practices of employers.

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Medical Malpractice – Affirmance of Summary Judgment – Claim of Detached Retina from LASIK Surgery
Appellate Division, Second Department, 72 A.D.3d 1068, 900 N.Y.S.2d 120

Plaintiff claims that after LASIK eye surgery he recovered almost perfect vision in both eyes. After a later car accident in which he sustained contusions to his chin and head plaintiff was diagnosed with a detached retina in his left eye and underwent surgery to reattach the retina but suffered a severe loss of vision in the left eye. The Appellate Division held that defendants established entitlement to judgment as a matter of law by providing, an expert affirmation of an expert ophthalmologist that there was no evidence in the literature of a causal relationship between LASIK surgery and retinal detachment caused by myopia or lattice degeneration, and that the plaintiff's retinal detachment was not the result of the LASIK surgery,but rather, of the head trauma he suffered in a car accident one year after the surgery.

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Premises Liability – Dismissal of Suit Alleging Premises Owner Failed to Prevent Abduction and Sexual Asault of an Infant
Appellate Division, First Department, 71 A.D.3d 578, 898 N.Y.S.2d 25

Plaintiff's infant left the Health Center where family members had gone for treatment, to see if her family had gone to a nearby fast food restaurant. Upon finding otherwise, she returned to the front lobby security desk in the company of an unidentified man who had approached her outside the building. The child did not respond to the guard's inquiry as to whether her mother was a visiting patient, but she did offer her mother's name, which the guard then announced over the building's intercom system. The mother did not appear. The child, meanwhile, engaged in a conversation with the unidentified man who persuaded her that he had seen her family a half a block away from the building. The unidentified man appeared to the guard to be genuinely concerned about the child's welfare. The child and the man left the building together, without informing the security guard, although the guard did observe their departure. The Court held that the abduction and sexual assault of the infant was unforeseeable, given all the circumstances and thus there was no basis for finding that defendants had breached their obligation to implement reasonable, minimal security measures in light of the largely criminal-free Health Center environment. The defendants were not found to have assumed an additional duty in the absence of evidence the child was lulled into relying on the security guard's assistance nor was there any evidence that the child was placed in a more vulnerable position than when she first walked into the lobby with the unidentified male. The court also agreed that the Health Center's security agreement with the security firm extended the security benefits to third parties such as plaintiffs.

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Premises Liability – Indemnification Obligation Extinguished by Lease Termination
65 A.D.3d 1114, 886 N.Y.S.2d 411

The Court affirmed the trial court's grant of summary judgment dismissing the third-party contractual indemnification claim against our client in a case involving a fall down stairs to basement of our client’s employee. Although the indemnification claim was clear cut, after the accident, the client and third-party plaintiff landlord, negotiated an early end to the lease. The client paid $100,000 consideration in order to have the lease terminated. The termination agreement did not provide for the indemnification agreement to survive the termination of the lease. The landlord argued that the termination agreement did not extinguish existing rights and obligations only future ones.

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Chiropractic Malpractice – Additions to Treatment Record
Appellate Division, Second Department, 62 A.D.3d 839, 879 N.Y.S.2d 192

The Court affirmed the trial court's grant of summary judgment, dismissing the third-party claim of a defendant/third-party plaintiff neurologist that spinal manipulations performed by our client, a chiropractor, caused the plaintiff's carotid artery dissection. We moved for summary judgment on the grounds that both our client and the plaintiff's parents testified that no such manipulations were performed and that nothing in our client's records indicated that he performed manipulations. Third-party plaintiff argued that additions to our client's records, made after the commencement of the primary litigation, explicitly stating that no manipulation were performed, raised an issue of fact as to whether manipulations were actually performed. The trial court accepted third-party plaintiff's "consciousness of guilt" type argument and found that issues of fact existed as to whether manipulations were performed. It nonetheless granted summary judgment on other grounds (that our client did not know or should have known that the plaintiff suffered any condition which rendered spinal manipulations contraindicated). The Appellate Division affirmed the dismissal on the grounds argued by us in our initial motion, rejecting the trial court's finding that the treating chiropractor's additions to his records created an issue of fact as to whether manipulations were actually performed. This decision has ramifications for future case where additions are made to medical records but the "additions . . . d[o] not contradict [] earlier entries."

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Recreational Tort – Assumption of the Risk
Appellate Division, First Department, 41 A.D.3d 318, 838 N.Y.S.2d 70

The Court affirmed the trial court's grant of summary judgment dismissing the claim of an intermediate ice skater who alleged she fell as a result of bumpy/choppy ice at our client's ice rink. We moved for summary judgment on the grounds that plaintiff had impliedly assumed the risk of her injury, in that she had admitted at her deposition that she was aware of the deteriorating condition of the ice and had, nevertheless, continued to skate. Plaintiff opposed the motion by submitting the affidavit of an expert in the field of ice rink management, who argued that our client's policy of cleaning the ice every 90 minutes, without regard to the actual condition of the ice was unreasonable, and that our client had a duty on the date of the accident to clean the ice prior to the expiration of the 90 minutes, to address the deteriorating condition. The First Department fortunately rejected this argument in favor of our analysis, since the acceptance of plaintiff's argument would have dealt a major blow to the doctrine of assumption of the risk in New York, and would have placed considerable new burdens on operators of recreational activities.

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Recreational Tort – Negligent Supervision, Proximate Cause
Appellate Division, Third Department, 30 A.D.3d 865, 817 N.Y.S.2d 435

The Court affirmed the trial court's grant of summary judgment dismissing a camper's claim who sustained a trimalleolar ankle fracture after he jumped onto the back of his counselor who "turned, grabbed him and pushed him down." The plaintiff alleged negligent supervision since his bunkmates were engaged in wrestling and "horseplay" with the counselor, which lead to the incident. The Court held that "[a] certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children's camps. It is only to be discouraged when it becomes dangerous". Although the Court applied the standard of care of a reasonable parent under the circumstances, it neverthless held that "a parent, teacher or other person entrusted with the care of supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline". The Court also held that the teenage camper's impulsive and reckless conduct proximately caused the accident.

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Recreational Tort – Assumption of the Risk
Appellate Division, Second Department, 814 N.Y.S.2d 733

The Court affirmed the dismissal of the complaint against our client on the basis of assumption of the risk where the plaintiff was injured in a baseball game while not wearing a catcher's mask. The Court rejected the plaintiff's argument that our client had a duty to not only provide the equipment, but to make sure that the equipment was used. The Court held that since the plaintiff was an experienced softball player, he had assumed the risk of being hit by the bat.

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Psychiatric Malpractice – Failure to Diagnose
Appellate Division, First Department, 805 N.Y.S.2d 332

In a decision of great importance to psychiatrists, this decision revitalized and expanded upon a 20 year old precedent which provides that, if a psychiatrist is requested by a medical physician to to do a consult with regard to the patient's emotional condition, he will not be liable for failing to diagnose or make an appropriate referrals for medical conditions. The Court affirmed dismissal of the complaint even though the plaintiff had alleged that the medications prescribed by the psychiatrist masked the symptoms of the physical ailment which delayed her eventual diagnosis.

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Automobile Liability – Serious Injury
Appellate Division, First Department 788 N.Y.S.2d 63

Here, we established that a herniated disc was not a serious injury under the New York no fault law. The First Department found that plaintiff's expert's submission failed to establish causation between the injury (herniated disc, lost range of motion) and the accident. Notably, the Court characterized the other diagnostic findings of plaintiff's expert to be "conclusory" and "tailored to meet statutory requirements". The Court also found a failure of objective evidence with regard to either the extent, duration or degree of plaintiff's physical limitations.

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Lead Paint – Duty of Managing Agent
Appellate Division, First Department 787 N.Y.S.2d 259

The grant of summary judgment against our client in this case was a topic of discussion in the defense community even before it went up on appeal. The result, was a new touchstone in lead litigation. The Court affirmed the dismissal of the complaint against a managing agent because it had not exclusively managed the building, and thus could not be held liable for failure to abate a nuisance pursuant to statutory law (Local Law 1)..

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Premises Liability – Interpretation of Building Code
Appellate Division, First Department, 784 N.Y.S.2d 26

A theater patron brought an action against a theater, after breaking his neck falling down a set of stairs, claiming they violated the building code. We argued that the plaintiff's testimony failed to provide evidence of a problem with the stairs and plaintiff's expert failed to establish a building code violation. The trial court dismissed the action and the First Department affirmed, agreeing with our position that alleged code provision violated was not applicable because the stairs were not "interior stairs" as defined by the Building Code, and moreover, that the current Building Code did not apply since the theater was constructed in 1921.

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Insurance Coverage – Bad Faith
Appellate Division, 768 N.Y.S.2d 16, First Department

The Plaintiff was the excess insurance carrier for a general contractor in a serious construction accident case that was settled by the excess and primary carrier for the general contractor. Although the codefendant owner of the premises agreed that the settlement was reasonable, it refused contribute anything more than $50,000 to the settlement for its vicarious liability pursuant to the Labor Law. The general contractor's carriers rejected the offer as insufficient. The underlying case was settled with the excess carrier reserving its right to seek a 1/3 contribution (or $1 million) from the owner's carrier, Valley. A declaratory judgment action was instituted by the excess carrier and the owner's carrier counterclaimed against the excess and primary carrier for bad faith, alleging that they had manipulated the settlement by assigning $1 million dollars of liability to the owner, notwithstanding that the only basis of liability against the owner was statutory pursuant to the Labor Law. After the trial court found for the general contractor's carriers and ordered the owner's carrier to reimburse the excess carrier for $1 million dollars and dismissed the claims for bad faith, the decision was appealed. We represented the primary carrier to the bad faith claim. We argued that the primary carrier could not be found liable for bad faith since prior to the settlement it had tendered the limits of its policy and thus, had done everything in its power to protect the interests of its coinsured, the owner. Further, we argued that bad faith requires that the defendant carrier have exercised exclusive control over the insured's defense, which element did not exist, since the owner insisted on having its own representation. The decision of the trial court reversed to the extent of requiring Valley to contribute $1 million dollars to the settlement, but affirmed with respect to its dismissal of the bad faith claim.

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Construction Litigation – Labor Law
Appellate Division, Second Department 767 NYS2d 832

Plaintiff allegedly injured his back at a construction project affixing steel beams when he ran out of bolts. He ascended to obtain a large bucket of new bolts and then tied a rope to the wire handle and proceeded to lower the 80-90 lb. bucket off the edge of the open deck floor, to where he was working, when he was injured when he lost control of the rope. Plaintiff asserted various claims pursuant to the New York Labor Law, including sections §240(1), 200 and §241(6). The lower court granted our motion for summary judgment and dismissed all the Labor Law claims. The lower court found, among other things, that TA \s "§240(1)" \c 0TA \s "§240(1)" \c 0§240(1) was not applicable because "the accident involved neither a falling object nor a fall by plaintiff as those terms are defined by the statute." We argued to the appellate court that the load was completely within plaintiff's own control and hence not a "hazard" from which he had to be protected, since he could easily could have split the load into two buckets and lowered both of them, one at a time. The trial court's decision was affirmed. The Court found that "while the injured plaintiff's back injury was tangentially related to the effects of gravity upon the bucket of steel bolts he was lowering, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law "§240(1)".

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Intentional Tort – Defamation
Appellate Division, Second Department 765 NYS2d 648

A defamation action brought against a social worker, after the report of child abuse that she filed with the Department of Social Services ("DSS") was determined to be unfounded. After our motion for summary judgment was granted by the trial court the father appealed. He claimed the social worker's motives were suspect and that had no right to claim immunity as a "mandatory reporter" within the meaning of the Social Services Law. We argued that as a mandatory reporter, she did not have to await conclusive evidence of abuse or maltreatment, but rather was compelled to act on her reasonable suspicions, and that the law allowed her a degree of latitude to err on the side of protecting children who may be suffering from abuse. Further, we argued that there was insufficient evidence of malice or gross negligence which would otherwise be necessary to overcome the qualified immunity that mandatory reporters are granted by statute. The trial court's decision was affirmed.

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