Feldman, Kronfeld & Beatty Law Blog

Monday, November 16, 2015

1st Judicial Department, Appellate Division Roundup: November 5, 2015 Edition

In this edition of the Roundup, we're limited by only three personal injury related cases decided on November 5 - a medical malpractice, a workplace injury indemnification dispute, and a summary judgment motion on the slope of the interior floor of an apartment on a slip-and-fall.

Michael Ferrante v. Metropolitan Transportation Authority

Michael Ferrante is a "sandhog", someone who works in the tunnels beneath the city of New York. The law firm of Feldman, Kronfeld & Beatty often represent construction workers and those who have suffered injury from construction accidents. Here, Mr. Ferrante is working on a project connecting Metro North Station with Pennsylvania Station. One of the defendants, Kelley Engineered Equipement, LLC, designed a transporter used in that project. Mr. Ferrante was asked to stand on top of the transporter while it was carrying a roadheader, or a machine used to mine the tunnel. The transported tipped over, and Mr. Ferrante was injured. While this was a motion for summary judgment for Kelley to get out of the case, Mr. Ferrante's immediate employer, Dragados-Judlaw, may have been aware that the roadheader would be unstable unless loaded with its boom arm configured to offset any off-side on the load. Therefore, Kelley was not able to get out of the case.

Julio Anthony Lopez v. Vincent Gramuglia, DPM

Dr. Gramuglia, a podiatrist, is alleged in this case to have failed to diagnose a condition called "deep vein thrombosis" or DVT, a medical condition that caused plaintiff's pulmonary embolism. Mr. Lopez, the plaintiff, is alleging medical malpractice against the defendant doctor. The Court sides with the doctor, finding that the doctor did deviate from care in failing to account plaintiff's risk factors for developing DVT, since there was not evidence of the risk factors for the case at bar.

Jorge DaSilva v. KS Realty, LP

This is a unique case, because it involves a tenant suing the landlord for personal injury due to defects within the plaintiff-tenant's apartment. In this case, the plaintiff alleged that the sloping condition in his apartment caused his desk chair to roll on the hallway floor, which caused him to fall. The defendant was able to defeat the case on summary judgment because he had an expert who gave an opinion that the 4% slope in the area where plaintiff allegedly fell was not a dangerous condition and was not a proximate cause of the accident. The plaintiff's expert failed to address how the slope was a proximate cause of plaintiff's fall from his chair.

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