Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

In DiBartolomeo v. St. Peter’s Hospital, 73 A.D.3d 1326 (3d Dept. May 13, 2010), plaintiff’s decedent fell and struck his head while walking down a temporary curb ramp used during construction at St. Peter’s and died 20 days later.  Plaintiff initiated this premises liability action and defendant moved for summary judgment asserting plaintiff was unable to establish defendant’s negligence was a proximate cause of plaintiff’s decedent’s injuries or that defendant had notice of the alleged defective condition.  The Appellate Division affirmed the lower court’s denial of defendant’s motion, noting that defendant did not meet its initial burden with only an attorney affidavit and attached exhibits, which failed to provide a factual basis for the relief sought.  Furthermore, plaintiff’s proof, including an expert affidavit, was sufficient to create traible questions of fact on proximate cause and notice. 

In MacLeod v. County of Nassau, 2010 NY Slip Op. 04344 (2d Dept. May 18, 2010), the court excused a late filing of a summons and complaint under the application of CPLR 2001.  In this case, the plaintiffs mistakenly filed a summons and complaint for their personal injury action under the index number assigned to the concluded disclosure proceeding, instead of paying an additional index number fee, obtaining a new index number, and filing the summons and complaint under the new index number. The only real consequence of this mistake was that, when the plaintiffs subsequently, and properly, obtained a new index number and paid the new index number fee, the defendant had a potentially viable argument that the statute of limitations against it had since expired.

The lower court determined that the late filing precluded suit.  The Appellate Division reversed stating that, as is evident from the plain language of CPLR 2001, when a court determines whether to permit the correction of a mistake with respect to the commencement of an action, or determines whether that mistake must be disregarded, the key question is whether, if the correction of the mistake is permitted, or the mistake is disregarded, a substantial right of the defendant would be prejudiced. The court held that since defendant failed to present any facts to establish prejudice, application of CPLR 2001 saved the late filing.

In Kooper v. Kooper, 2010 NY Slip Op. 04147 (2d Dept. May 11, 2010), the Appellate Division, Second Department, definitively disapproved of the application of the “special circumstances� standard with regard to the discovery of documents from nonparties.  The discovery rule for nonparties, governed by CPLR 3101(4), states that a party seeking disclosure from a nonparty must give notice “stating the circumstances or reasons such disclosure is sought or required� from the nonparty.  Until the Kooper decision, courts within the second department have been applying the pre 1984 standard, which required a showing of “special circumstances� to defeat a motion to quash a subpoena duces tecum served on a nonparty. 

Disclosure in New York civil actions is guided by the principle of “full disclosure of all matter material and necessary in the prosecution or defense of an action� (CPLR 3101[a]).  The Second Department acknowledges that the new standard requires something beyond the requirement of materiality and necessity (yet less than a showing of special circumstances), but states that the analysis should not be limited to a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty.  Rather, supervision of discovery should be left to the sound discretion of the trial courts. 

New York’s Appellate Division, Third Department is now the only remaining court to apply the “special circumstances� standard for disclosure against a nonparty, and it will be interesting to see whether the recent decision in Kooper will affect future outcomes in the Third Department.   

In Bowles v. Clean Harbors Environmental Services, Inc., 2010 N.Y. Slip Op. 03016 (3d Dept. April 15, 2010), the Appellate Division, Third Department, affirmed the dismissal of plaintiff’s claim alleging certain violations of the Labor Law and common-law negligence. 

In this case, Schenectady International, Inc. hired defendant to clean certain on-site bulk chemical storage tanks.  Pursuant to Schenectady International’s safety policies, defendant could not enter or begin cleaning any tank until Schenectady International inspected the air quality in the particular tank and issued a confined space permit. 

During the course of the cleaning operation, plaintiff was employed by Schenectady International to inspect the air quality and issue a confined space permit before defendant could start working.  Plaintiff used a ladder to place a meter on the top of the tank, which fell out from underneath him, causing plaintiff to fall ten feet, sustaining serious injuries. 

Plaintiff commenced this action against defendant alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6).  Defendant moved for summary judgment dismissing the complaint.  The lower court dismissed, finding that defendant had no authority to supervise or control the plaintiff’s work and, therefore, could not, as a matter of law, be liable under any theory of law submitted by plaintiff.

The Appellate Division affirmed holding that defendant was not the owner, owner’s agent or a contractor, therefore could not be liable under the Labor Law.  The Court further agreed that because defendant had no supervisory control over the plaintiff’s inspection of the tank, plaintiff’s common-law claims were also properly dismissed. 

In Simons v. Bassett Health Care, et al., 2010 N.Y. Slip. Op. 03818 (3d Dept. May 6, 2010), plaintiff brought a medical malpractice action alleging that defendants deviated from accepted medical standards by failing to disclose a June 9, 2003 bone scan result, thereby preventing a timely diagnosis and appropriate follow-up care which could have lessened or prevented the consequences of meningioma. 

In December 2001, plaintiff became a patient of defendant Bassett Health Care and over the next several years, received treatment from a variety of medical conditions.  On June 9, 2003, plaintiff received a whole body bone scan in connection with a bone fracture in plaintiff’s foot.  The radiologist noticed an abnormality in the right side of plaintiff’s skull and recommended a CT scan to rule out meningioma.  According to plaintiff, she was never advised of these findings and a CT scan was not performed until November 2004.  After the November 2004 CT scan, plaintiff was diagnosed with meningioma. 

Defendants moved to dismiss plaintiff’s medical malpractice action by presenting undisputed proof that the action was commenced approximately three years and eight months after the alleged failure of defendants to communicate or act upon the June 9, 2003 bone scan and X-ray results.  The burden then shifted to plaintiff to demonstrate triable issues of fact as to whether the continuous treatment doctrine tolled the statute of limitations. 

The Court determine that where, in a case such as this, it is alleged that a medical practitioner fails to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition.  The Court found that plaintiff presented sufficient evidence to suggest that treatment provided from June 2003 through November 2004, made express reference to complaints of or ongoing treatment of her symptoms of meningioma, thus presenting a factual question as to whether there was a continuous treatment of meningioma.          

 

       

 

In Dolaway v. Urology Associates of Northeastern New York, PC, N.Y. Slip Op.  02891 (3d Dept. April 8, 2010), plaintiff underwent endoscopic surgery to remove a kidney stone, and two broken pieces of guide-wire sheathing were left in his ureter. Alleging that plaintiff was injured as a result of defendant surgeon’s failure to, among other things, remove all of the sheathing at the conclusion of the surgery, plaintiffs commenced this medical malpractice action. Defendants later moved for summary judgment dismissing the complaint, and Supreme Court denied the motion and determined that plaintiff could rely on the doctrine of res ipsa loquitur to prove his case.  However, at trial, Supreme Court found that the doctrine was inapplicable and dismissed the complaint.

On appeal, the court determined that the Supreme Court erred in concluding that the evidentiary doctrine of res ipsa loquitur was inapplicable.  Inasmuch as Supreme Court had previously determined that res ipsa loquitur was available to plaintiff and no appeal was taken from that legal determination, the court determined that the doctrine of law of the case should have been applied to give it preclusive effect at the time of trial.

 

The case of Tselebis v. Ryder Truck Rental Inc., 2010 Slip Op. 01442 (1st Dept. Feb. 18, 2010) involves an accident between a truck and a motorcycle.   The plaintiff, driver of the motorcycle, testified that he had no recollection of the accident.  The driver of the truck testified that although he entered into the intersection against a red light it was due to his truck’s brake failure.  Nevertheless, the court determined, summary judgment in favor of the plaintiff was warranted.  The court stated that defendant’s admission that he entered the intersection while the traffic light was red constituted a prima facie showing of liability on his part.  The proffer of brake failure by defendant was insufficient to raise a triable factual issue with respect to liability.

The court discussed that a defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep the brake in good working order.  Here, defendant failed to meet the first prong in light of defendant’s testimony of the problems he experienced with the truck’s brakes prior to the accident. 

The court stated that plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question.  The court reminds that a plaintiff’s own culpable conduct no longer stands as a bar to recovery in an action for personal injury and that freedom from comparative negligence is not a required component of a plaintiff’s prima facie showing on a motion for summary judgment.

In Singh v. United Cerebral Palsy, et al., 2010 N.Y. Slip Op. 01602 (1st Dept. Feb. 25 2010), plaintiff brought a personal injury action against the building owner, alleging that the owner had actual and constructive notice of the alleged defect in an automatic door that injured plaintiff and was otherwise negligent in failing to conduct regular inspections of the doors.  A third-party action was brought against Reliable Doors Corp. (“Reliable�), the company contracted to perform maintenance work on the automatic doors.  United Cerebral Palsy (“UCP�) moved for summary judgment dismissing the complaint.  In denying UCP’s motion, the Court held that factual issues existed as to the applicability of the doctrine of res ipsa loquitur.

In order to submit a case to a trier of fact based on the theory of res ipsa loquitur, a plaintiff must establish that the event (1) was a kind that ordinarily does not occur in the absence of someone’s negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary actions or contributions on the part of the plaintiff.  The focus of UCP’s motion was on the second factor, arguing that the sensor mechanism controlling the automatic door was not within its exclusive control because Reliable was responsible for performing repair work on the doors.  However, the Court determined, res ipsa loquitur does not require sold physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control.  In denying the motion, the Court found that the fact that reliable may have occasionally performed repair services on the sensor mechanism did not, as a matter of law, remove the sensor from UCP’s exclusive control. 

           

Facing growing political pressure, on March 11, 2010, Attorney General Andrew M. Cuomo appointed former Chief Judge Judith S. Kaye as independent counsel to take over his office’s investigation of Governor David A. Paterson.  The investigation centers on the allegations that Paterson misused State Police personnel to intervene in an aide’s domestic violence case and improperly accepted World Series tickets.  Mr. Cuomo said it was best to bring in a figure like Ms. Kaye so there would be no taint of conflict of interest surrounding his office’s probe of either case at a time when the attorney general is widely thought to be preparing a run for governor. 

In Caulkins v. Vicinanzo et al., 2010 N.Y. Slip. Op. 10727 (3d Dept. March 4, 2010), plaintiff brought a malpractice action against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants moved for summary judgment dismissing the complaint. In response, plaintiff put forth a sworn affidavit from a chiropractor, who had relied on unsworn MRI reports.  The Third Department acknowledged that “[u]ncertified medical records and unsworn letter or reports are of no probative valueâ€� in opposing a summary judgment motion.  However, in holding that the affidavit could rely on unsworn documents, the Court relied on the Court of Appeals decision in Pommells v. Perez, 4 N.Y..3d 566, 577 n. 5 (1995), which stated: “Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence.”