Feldman, Kronfeld & Beatty Law Blog

Wednesday, November 4, 2015

1st Judicial Department, Appellate Division Roundup: October 29, 2015 Edition

In this edition, the 1st Department takes a hard look at some rulings and verdicts at trial. 

Patricia Imperati v. David S. Lee, MD

This is a medical malpractice case, and an unusual reach by plaintiff's counsel. The plaintiff wanted to amend the complaint to allege a cause of action of wrongful death. Defense counsel, in opposition, submitted evidence that plaintiff was seriously ill before the alleged malpractice, and didn't die until nearly two years after the malpractice, with many procedures and care in between. The most important part, though, was that plaintiff's counsel failed to include an affidavit from a medical expert testifying that there was a causal connection between the death and the alleged malpractice despite the difference in time and treatment, and only included a conclusory assertion of the affirmation by plaintiff's counsel. The Court denied the amendment.

Helena Ashton v. EQR Riverside A, LLC

The plaintiff won a non-jury trial in Civil Court, which was reversed by the Supreme Court and the reversal was affirmed. The height differential between a recessed well, covered in carpeting, and the surrounding marble tile caused the plaintiff's fall. The plaintiff introduced evidence that the defendants created the condition by glying the carpet to the floor of the well, failing to install a drainage system under the well, and improperly maintained the carpet, causing the carpet to become matted. However, the plaintiff's expert did not examine the carpet that was present on the day of the accident and there was no evidence that the replacement carpet was identical, and the plaintiff's expert failed to cite any industry standard or authoritative treatise supporting his opinion concerning proper maintenance and design of the area. Therefore the Court found, as a matter of law, the plaintiff failed to meet their burden of proving that the defendant had constructive or actual notice of the defective condition.

Maria Sikora v. Earth Leasing Property Limited Liability Company

Constructive notice issues for freezing of the sidewalks has been an area of difficulty. When the sidewalk has been exposed to above-freezing temperatures for a long period of time, the Courts have usually found that the defendants did not have a responsibility to clear the sidewalks for snow and ice as it should have melted. However, here, because of the significant snow and ice buildup for the two weeks prior to the slip and fall and the comparatively short time frame in which it could have melted, the defendant did not show that the icy condition could not have been present at the time of plaintiff's fall. Furthermore, it did not present evidence as to the last time the sidewalk was inspected or written record of snow or ice removal; therefore, it could not meet the burden that even if it had snowed, it would have been cleared at the time of the plaintiff's fall.

William Davis v. Shana Turner

In this motor vehicle accident case, the defendant failed to rebut the plaintiff's showing that, as a matter of law, the defendant caused the accident by pulling out of a parked position and into a lane of moving traffic without making sure it was safe to do so in violation of the Vehicle and Traffic Law.

Santa Roman v. Sullivan Paramedicine, Inc.

After a jury verdict was entered finding that one of the defendants was 20% liable for the motor vehicle accident, the trial judge granted a motion to set aside the jury verdict as against the weight of the evidence and dismissed the complaint against that defendant. The Court reversed and reinstated the jury verdict. Since the defendant created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions, and there was evidence that this defendant struck a vehicle in front of it in the rear, there was reason to reinstate the jury verdict. In short, in a three-car collision, the middle car can be held liable after striking another car in the rear if its car creates a "lane obstruction" and increases the risk of rear-end collisions, thereby getting rid of the standard rule that cars that are struck in rear-end collisions have no comparative negligence.

TRIAL EVIDENCE: Lisette Cruz v. City of New York

Elements of non-party witness statements in trial evidence were discussed here: 1) the identity of a witness used to lay the foundation of a non-party statement does not need to be disclosed during discovery in order to be called to testify during the trial; 2) a document which has a signature that a non-party witness admits "looks like hers" but denies signing the document may be introduced into evidence as a non-party statement, 3) non-party witness statements may be properly admitted, even if not provided in discovery, if there is no indication in the record that production of the statement was sought and refused.

STATUTE OF LIMITATIONS: John Kahegias v. Waldo Avenue Building

In this property damage action, a defective catch basin caused flooding on the plaintiff's property. However, the plaintiff first noticed the damage in 2006 and that is when the action accrued. But, since the flooding was a continuous wrong and gave rise to successive causes of action that accrued each time the wrong was committed, the plaintiff was only barred to recover from damage that was caused prior to the statute of limitations deadline.

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