Feldman, Kronfeld & Beatty Law Blog

Thursday, October 15, 2015

2d Judicial Department, Appellate Division Roundup: October 7, 2015 Edition

This is a particular exciting edition of the Roundup, as there are three big cases dealing with complicated issues, including one involving a multi-million dollar verdict for the plaintiffs. There are several cases having to deal with threshold and serious injuries in motor vehicle accidents, as well as a number of cases dealing with bread-and-butter litigation issues. We'll explore more, after the jump . . . 

Robert Loja et al. v. Katherine Lavelle et al.

On October 24, 2008, Robert Loja was working for Sleepy Hollow Landscaping Lawn Care, Inc. on Benedict Avenue in Tarrytown, Westchester County, New York. He had parked his truck in a lane of traffic on Benedict Avenue and had put down cones, a garbage can, and a "men working" sign behind it. As he was putting up the trailer ramp to the truck, defendant Eileen Lavelle was blinded by the sun about 100 feet away from the trailer, and struck the truck from the rear. Mr. Loja was pinned between the car and the truck, and one of his legs were amputated.

A jury found for the plaintiff, $2,500,000 for past pain and suffering, $3,000,000 for future pain and suffering, $1,100,000 for future loss of income, $3,225,018 for future medical expenses, $500,000 for past loss of services, and $500,000 for future loss of services. But the jury also found that the plaintiff was 30% at fault and Sleepy Hollow Landscaping 60% at fault.

The Court found that the jury's apportionment of fault was not supported by a fair interpretation of evidence. It ordered that, unless the parties stipulated to 10% of the fault to Loja, 50% of the fault to Lavelle, and 40% of the fault to Sleepy Hollow Landscaping, the liability portion of the trial would have to be re-done.

Melvon Moore v. City of New York et al.

The plaintiff, a 15-year-old sophomore at the Boys and Girls High School in Bedford-Stuyvesant at the time of the accident, was attacked by a group of boys near PS 262. Police officers told the crowd to disperse, and then drove away. Immediately afterwards, the plaintiff was shot in the back and paralyzed from the waist down. He and his mother sought to recover against the City and the NYPD for failing to provide special protection to Mr. Moore because he was in the vicinity of a school at the time of dismissal, and provided physical protection to Mr. Moore after he was attacked but before he was shot.

The Court dismissed the case. Police protection is a classic governmental function, and so unless someone can prove a special duty, the case will be dismissed since a municipality or a municipal authority like the NYPD cannot be held responsible for negligent acts for classic government functions. In this case, the plaintiff did not prove that he justifiably relied upon the physical protection of the police officers to protect him against being attacked by gunfire.

Melissa Elif Guctas v. Joanna Pessolano

The plaintiff was a newborn infant at the time of the injury. During the plaintiff's birth, the attending obstetricians, Joanna Pessolano and Jane Ponterio, allowed a second-year resident in obstetrics to actively participate in the Cesarean section of the plaintiff's mother at St. Vincent's Catholic Medical Center. During the operation, the newborn sustained a one-inch-long cut on her upper right cheek. This case was brought for two theories: (1), that the Cesarean was conducted without proper informed consent, and (2), that the resident committed malpractice in her conduct during the operation.

The Court dismissed the action. It found that there was enough medical evidence to conclude as a matter of law that a reasonably prudent person would not have declined to undergo the Cesarean, including the fact that the infant plaintiff was in cardiac distress and the mother, because she was in pain, asked the obstetricians to perform the Cesarean immediately before it was performed. It also found that, because the resident was under the direct supervision, direction, and control of the attendings, the resident could not be found to have exercised sufficient independent medical judgment to be liable for medical malpractice.

Threshold Cases

Samuel Murphy v. Shamekia Hurdle

In this motor vehicle case, the defendant's orthopedist did not affirmatively state that the subject accident had NOT caused those limitations. Therefore, even though he had no proof that the significant limitations in the plaintiff's cervical spine was caused by the accident, it was not enough to grant summary judgment in favor of the plaintiff for failing to prove a serious injury within the meaning of Insurance Law § 5102(d).

David Peralta v. Edward Kravitz

Because the defendant failed to address the 90/180 category of Insurance Law § 5102(d), the defendant failed to rebut all of the possible theories that the plaintiff sustained an serious injury and the defendant's motion for summary judgment was denied.

Gabriel Rivera v. Andrew Ramos

The plaintiff and defendant both submitted competent medical evidence raising a triable issue of fact as to whether the plaintiff sustained a serious injury to his cervical spine. However, since the defendant's expert made a speculative and conclusory opinion based on the review of an unspecified MRI report, the defendant's proof was insufficient to establish a lack of causation and the motion for summary judgment was dismissed.

David Goldstein v. Jose Baez

The defendant's expert found significant limitations in the range of motion of the cervical spine of the defendant and admitted that there was a probable causal relationship between the subject accident and the plaintiff's injuries, so the defendant's motion for summary judgment was dismissed.

Practice Tips

VENUE: Norma Puleo v. Shore View Center for Rehabilitation and Health Care

The plaintiff was a resident of the Shore View Center in the later months of 2011, and died in early 2012. Before she was admitted, her daughter signed an Admission Agreement with a forum selection clause stating that each of the parties to the agreement submitted to the exclusive jurisdiction of Suffolk County courts. The medical malpractice suit was brought in Kings County and successfully removed to Suffolk County, which the Court upheld, because the forum selection clause was not unreasonable or would deprive her of her day in court.

PREMATURITY: Tanya Bonilla v. Bangert's Flowers et al

In this slip and fall case on a sidewalk, the defendant Bangert's Flowers moved for summary judgment before the owner of the property had appeared in the action or submitted responsive pleadings. The plaintiff demonstrated that a deposition of the owner may result in disclosure of evidence relevant to the issue of whether Bangert's Flowers had a duty to maintain the sidewalk, and that the information was in the exclusive control of Bangert's Flowers and the owner.

DISCOVERING INCIDENT REPORTS: Guillermo Ramirez v. New York City Transit Authority

In this action, the plaintiff asked for an unredacted copy of an incident report as they had only been given a redacted copy. After an in camera review, the motion court granted the plaintiff's review of the report. The Appellate Division reversed that decision, finding that the demand for the unredacted report was overbroad, and that the redacted portions of the report were not material and necessary to the prosecution of the action.

IMEs: Leon Marashaj v. Howard Rubin

The plaintiff was set to be examined by two orthopedic examinations, one from Dr. Afshin Razi and one by Dr. Steven Sclafani. After the examination of plaintiff's spine by Dr. Razi, the plaintiff refused to appear for an examination by Dr. Sclafani, as he had already appeared for an examination by Dr. Razi. It was demanded that Dr. Razi do the examination of both plaintiff's spine and knee, and the motion court granted the plaintiff's motion. The Appellate Division reversed, as it had an affidavit from Dr. Razi that Dr. Razi did not specialize in knees and did not feel comfortable examining and giving a proper opinion. Most plaintiff's trial lawyers should consider demanding an affidavit of non-speciality of the specific body part from the first examining physician to allow the second examining physician to do the examination of that body part.

AMENDING PLEADINGS: Inna Tokhmakhova v. H.S. Brothers II Corp.

The plaintiff failed to sue the correct party, H.S. Brothers Corporation, and tried to use CPLR 305(c) to allow the court to expand its jurisdiction to a party that was not served and the statute of limitations had passed. The Court did not allow the plaintiff to do so.


Two years after the note of issue was failed, the plaintiff moved for leave to serve an amended bill of particulars. In order to allow the late amendment, the plaintiff needed to prove reasonable excuse for the delay and that the amendment was meritorious. The excuse of law office failure did not rise to the level of reasonable excuse, but the plaintiff failed to move properly with the excuse in its original papers or with admissible medical evidence that the amendment had merit. The Court denied the motion.

FAILING TO FILE A NOTE OF ISSUE: Misun Lee v. Cyrus Rad et al

Failing to file a timely note of issue in Queens may doom the plaintiff's case, but not under these facts. Despite the fact that the plaintiff missed the filing date, and was facing dismissal pursuant to CPLR 3216, the plaintiff cross-moved to strike the Answer because the defendant had failed to appear for a court-ordered deposition. The plaintiff demonstrated that, because of the unresolved discovery dispute, they were unable to timely file a note of issue, and since the defendant had contributed to that inability, the plaintiff was not required to demonstrate a meritorious cause of action. The CPLR 3216 dismissal was reversed, and the case survived.

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