New York Personal Injury Attorneys Blog

In Patricia Ross v. Brookdale University Hospital and Medical Center, Decided August 12th, 2008, The Second Department held that where The Court vacated the plaintiff’s note of issue but did not dismiss the case the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have the matter restored to the trial calendar. The Court reasoned as follows;

"Contrary to the defendant's contention, the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have this matter restored to the trial calendar. Although the Supreme Court purportedly vacated the note of issue pursuant to 22 NYCRR 202.21(e), vacatur under that court rule is warranted only with respect to actions which are not ready for trial or where "it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of [that] section in some material respect" (id.). Here, the note of issue was vacated solely by virtue of the fact that the "[p]laintiff's attorney fail[ed] to appear 2 times" at the call of the trial calendar. Accordingly, the plaintiff, in moving to restore the action to the trial calendar, was under no obligation to submit an affidavit of merit or to show "the reasons for the acts or omissions which led to the note of issue being vacated," since such submissions are required only in connection with "[m]otions to reinstate notes of issue vacated pursuant to" § 202 of the Uniform Rules for Trial Courts (22 NYCRR 202.21[f]). Further, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see Kohn v Citigroup, Inc., [*2]29 AD3d 530, 532; Brannigan v Board of Educ. of Levittown Union Free School Dist., 307 AD2d 945; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, it was not dismissed, but rather designated as "inactive." Since the matter was not dismissed due to the plaintiff's failure to appear at a compliance conference (see 22 NYCRR 202.27; Dergousova v Long, 37 AD3d 645), or for any other reason, there was no requirement that the plaintiff submit an affidavit of merit or an explanation as to why the case was removed from active status. Hence, the Supreme Court did not err in restoring the action to active status (id.; cf. Lopez v Imperial Delivery Serv., 282 AD2d 190), regardless of the sufficiency of the plaintiff's affidavit of merit or explanation as to why the matter was marked inactive."

In Campuzano v. Board of Education of the City of New York, JJ Lyons Associates, Inc; Decided on August 12, 2008, The First Department reversed the denial of Plaintiffs’ motion for partial summary judgment on Labor Law § 240(1) and granted the motion. The facts as set forth in The opinion of The Court were as follows;

"Plaintiff Joaquin Campuzano and a coworker, while performing asbestos abatement work, were removing a heavy duct from a ceiling by cutting it with an acetylene torch. They started this work on a scaffold, but Campuzano determined it was dangerous to work that way, and decided instead to set up a ladder adjacent to the scaffold. While Campuzano was standing on the ladder and holding the hoses for the torch, a portion of the duct fell, hitting him and the ladder and knocking him to the ground."

In granting plaintiffs’240(1) Motion The Court held;

"Plaintiffs made a prima facie showing that defendants violated Labor Law § 240(1), i.e., failed to provide Campuzano with an adequate safety device, and that the violation was a proximate cause of the accident. Thus, plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on their Labor Law § 240(1) claim (see Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287 [2008]; see also Panek v County of Albany, 99 NY2d 452, 458 [2003]). In opposition, defendants failed to raise a triable issue of fact regarding whether the ladder was an adequate safety device or Campuzano's own acts or omissions were the sole proximate cause of the accident (see Kosavick, supra; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). In particular, there is no evidence controverting Campuzano's assertions that the ladder was a safer method of proceeding with the assigned job; that the scaffold was too small for two employees safely to stand on while performing the work; [*2]and that Campuzano was never instructed not to use a ladder in addition to the scaffold. Thus, summary judgment should be granted to plaintiffs on their Labor Law § 240(1) claim."

In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;

" Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). "

"On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant."

"On February 6, 2006, UHNY moved for summary judgment dismissing the complaint on the ground that UHAZ, not UHNY, owned the truck, and that UHI was an inactive New York corporation that did not, on November 9, 2004, operate any rental outlets in this state. UHNY also argued that any attempt by plaintiff to amend the complaint to add UHAZ should be denied because the amended action would be commenced subsequent to the effective date of the Graves Amendment."

" Plaintiff, while admitting that the wrong company had been sued, cross moved to amend the complaint pursuant to CPLR 3025(b) to add UHAZ, arguing that under CPLR 203(a), such amendment should "relate back" to the original commencement date of the action, which preceded the effective date of the Graves Amendment. Plaintiff argued that a claim against UHAZ would be based on the same occurrence as the claim against UHNY, and UHAZ was "united in interest" with UHNY."

The Court held as follows;

"The Court of Appeals has recently addressed the issue of when an action is "commenced" for the purpose of applying the preemption provisions of the Graves Amendment. Pursuant to CPLR 304, an action is "commenced" by filing a summons and complaint or summons with notice. "Thus, under the statute's plain language, any action filed prior to August 10, 2005 has been commenced' and therefore removed from the federal statute's pre-emptive reach" (Jones v Bill, 10 NY3d 550, 2008 NY LEXIS 1474, 2008 WL 2276211, *3). In addressing the very situation that this case presents, the Court discussed New York's statutory scheme regarding interposition of claims against a "defendant or a co-defendant united in interest" (CPLR 203[c]), and the requirement that joinder of additional parties and interposition of claims against those parties must occur within the context of an existing action, holding that "[n]othing in the language of the Graves Amendment suggests that it bars vicarious claims asserted in an amended pleading in an action commenced prior to its effective date" (10 NY3d at __, 2008 NY LEXIS 1474 at *5-6, 2008 WL 2276211 at *3).

Therefore, since the action herein was commenced 12 days prior to the effective date of the Graves Amendment, it was removed from the pre-emptive reach of the statute, and plaintiff's motion should have been granted."

Our Partner Robert Conason will be conducting The Direct Examination of Plaintiff's Automotive Expert at The New York City Chapter of ABOTA Masters in Trial Program on Friday, October 24th. The Program will be held at the New York County Lawyers Association.

Robert Conason will be speaking at The New York State Trial Lawyers Institute's renowned Decisions Program on Trial Practice. Our Partner Rhonda Kay prepared the written materials on this subject for the course book which reports on over 100 cases that have come down within the last year in the area of Trial Practice. The New york City program will be held on Friday & Saturday, September 12 & 13, 2008: 9am to 5pm at The BMCC Tribeca Performing Arts Center @ BMCC199 Chambers Street New York City, New York 10007. For more information click here.

Robert Conason will be participating in The Brooklyn Law School symposium, "The Products Liability Restatement: Was it a Success?," scheduled for November 13th and 14th, 2008. Bob will be on the panel discussing The Restatement and Design Defect §2(b) on November 13th.

From The New York Law Journal, Thursday, July 31, 2008;

Our partner, Ben Rubinowitz, and Evan Torgan, a member of Torgan & Cooper," write that too often, trial lawyers use demonstrative exhibits only in the one part of the trial during which the exhibit is offered - usually direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present - jury deliberations."

Our partners Jeffrey Bloom and Richard Steigman have co-authored an article entitled "The Impact of Arons: A Look at the Court of Appeals' Decision to Allow Ex Parte Interviews of Treating Doctors and Where We Go from Here." The Article is in The Spring 2008 Edition of Bill Of Particulars published by The New York State Trial Lawyers Institute.

Our Partner, Ben Rubinowitz, will be a Team Leader at NITA'S Trial Advocacy Program to be held at Hofstra University School of Law from August 8th to 13th. Ben has served as a Team Leader for more than 25 years. This program is an intensive Trial skills program in which NITA'S "learning by doing" method is employed. For more information click here.

In Koenig v. Lee, Decided on July 15, 2008, The 2d. Department dismissed plaintiff's complaint for personal injuries suffered in an Automobile Accident based on the Emergency Doctrine. The facts set forth by The Court were as follows;

"Here, the evidence submitted by the appellants in support of their motion for summary judgment established that the plaintiff's vehicle, which had been traveling southbound, was virtually stopped in the left turn lane of the roadway. According to his deposition testimony, as the defendant Song B. Lee drove in the left lane of northbound traffic, he was forced to swerve across the center line. In so doing, his car collided with the plaintiff's, forcing the plaintiff's vehicle to move backward and into the left travel lane of the southbound traffic. The appellants' vehicle, traveling in that lane, then collided with the rear of the plaintiff's vehicle. According to the plaintiff's deposition testimony, the second collision occurred one or two seconds after the first. According to the deposition testimony of the appellant Joel H. Cohen, he had no awareness that an accident was taking place until the moment his vehicle collided with the plaintiff's."

In dismissing plaintiff's complaint The Court Held;

"Thus, the evidence submitted by the appellants in support of their motion for summary judgment established that Joel H. Cohen was faced with an instantaneous cross-over emergency, not of his own making, leaving him with only a second or two to react and virtually no opportunity to avoid a collision (see Lee v Ratz, 19 AD3d 552, 554; Boos v Bedrock Materials, Inc., 16 AD3d 447, 447; Gonzalez v City of New York, 295 AD2d 122, 122; Caban v Vega, 226 AD2d 109, 111; Koch v Levenson, 225 AD2d 592, 593; Williams v Econ, 221 AD2d 429, 430). Under these circumstances, the appellants established their prima facie entitlement to judgment as a matter of law. Mere speculation that Joel H. Cohen may have failed to take some unspecified accident-avoidance measures or in some other way contributed to the occurrence of the accident is insufficient to defeat the appellants' motion for summary judgment (see Boos v Bedrock Materials, Inc., 16 AD3d at 447; Sirico v Beukelaer, 14 AD3d 549, 549; Mehring v Cahill, 271 AD2d 415, 415-416; Lyons v Rumpler, 254 AD2d 261, 262-263; Caban v Vega, 226 AD2d at 111; Williams v Econ, 221 AD2d at 430). In opposition, the plaintiff failed to raise a triable issue of fact as to whether Joel H. Cohen's reaction to the emergency was unreasonable, or whether any negligence on his part prior to the cross-over contributed to the bringing about of the emergency (see Lee v Ratz, 19 AD3d at 554)."

The lesson to be learned is that in a New York Automobile Accident in which the Emergency Doctrine may be implicated GET AN EXPERT. A qualified accident reconstruction expert is able, using long accepted methodology, to analyze a driver's perception of a situation as a hazard, to analyze the driver's decision as to how to avoid the hazard and to analyze the driver's performance as to the actions undertaken to avoid the hazard. The qualified expert will be able to give opinions on the driver's reaction time from perception of the hazard and whether the driver reacted in a timely manner in order to avoid the hazard.

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the machine properly or to follow warnings which caused the plaintiff’s injury. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer is crucial. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a machine. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Machine design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the machine. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.

In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.

For more information on Deposing the Defendant's Design Engineer on Culpable Conduct contact Anthony Gair at Gair, Gair Conason Steigman and Mackauf.

In D'Amato v. Yap, et al., Decided July 8th 2008, The 2d. Department held that while plaintiffs were not entitled to Summary Judgment on liability they were entitled to a unified trial on liability and damages. The facts set forth in The Court's opinion were as follows;

"The seven-year-old infant plaintiff, Nicholas D'Amato (hereinafter Nicholas), tripped and fell while playing with friends in the basement of the home of the defendants Medardo N. Yap and Gloria Yap, just after his friend, the defendant James Yap, shut off the light to the basement. When Mrs. Yap arrived home, one of James's friends told her that Nicholas had fallen in the basement on some tools and hurt his eye, and showed her the spot where he had fallen. When Nicholas went home, he told his mother that he poked himself in the eye with his finger when his hand slipped on a doorknob.

The next morning, his eye was swollen shut. After seeing his pediatrician, Nicholas and his mother went to an eye specialist who sent them to the New York Eye and Ear Hospital, where they learned that his right eye had a ruptured globe and lacerated cornea. When the doctors who treated Nicholas rejected the explanation that he poked himself in the eye as inconsistent with the severity of his injuries, he told them that he tripped in James's house and fell onto a tool which stuck him in the eye."

In granting a unified trial the Court held;

"..... the evidence of Nicholas' injuries had an important bearing on the issue of liability, which entitled the plaintiffs to a unified trial of the issues of liability and damages (see Pechersky v Queens Surface Corp., 18 AD3d 842, 843; Vazquez v Costco Cos., Inc., 17 AD3d 350, 352; Lind v City of New York, 270 AD2d 315, 316; DeGregorio v Lutheran Med. Ctr., 142 AD2d 543). "

The following basic items should be included in plaintiff's initial Notice For Discovery and Inspection in an Elevator Accident Case occurring in The City of New York and adapted in other areas of the State. See below.

1. A copy of the contract with (Defendant Elevator Co.) pursuant to which they provided maintenance for the elevators at (Defendant Building Owners).

2. All work records for the subject elevator for a period of five (5) years prior to the accident alleged in the complaint herein.

3. All correspondence between (Defendant Owner) and the (defendant elevator company) for a period of five years prior to the date of the accident herein.

4. All estimates relating to the elevator from any and all contractors or others.

5. Inspection reports regarding the subject elevator prepared by (Defendant Elevator Co.). for five years prior to (Date of Accident).

6. The names of all (Defendant Elevator Companies).employees who inspected the elevator for the five year period prior to (Date of Accident).

7. Repair recommendations and/or proposals with regard to the subject elevator submitted by (Defendant Elevator Company)to (Defendant Owner)for the five years prior to (Date of Accident).

8. Service reports for the subject elevator prepared by (Defendant Elevator Co.) for the five year period prior to (Date of Accident).

9. Invoices submitted by (Defendant Elevator Co.) to (Defendant Owner) for the 5 year period prior to (Date of Accident).

10. All documents regarding all 2 year, 5 year and Local Law 10 testing done by (Defendant Elevator Co.) on the elevator at (Building Location).

11. The names of any and all inspection agencies utilized by the defendant, (Elevator Co.) to inspect the elevator at (Building Location). together with the names of the companies insurance carriers.

12. A complete copy of all applicable insurance policies and excess insurance policies, including all self-insured retentions and any other form of insurance afforded defendants which was in effect on the date of the accident herein.

13. (Defendant Elevator CO.) maintenance log for the elevator involved in the occurrence herein.

14. All records of any upgrades made to the elevator involved in the occurrence herein.

15. All bills, cancelled checks, invoices, and/or other proof of payment for 5 year, 2 year, 1 year and local law 10 testing.

If an Electric Elevator is involved ANSI /ASME Standard A17.2.1 should be consulted. If a Hydraulic Elevator is involved ANSI/ASME Standard A17.2.2 should be consulted.

Murray v. New York City Health & Hospitals Corporation June 24th, 2008
WARNING
The 2d. Department upheld the dismissal of plaintiff's action for wrongful death resulting from medical malpractice when the plaintiff's counsel failed to appear for a final conference. The Court held;

In Bradley vIBEX Construction, et al. decided June 26th, 2008, The First Dept. reversed the lower Court's decision denying plaintiffs' motion to set aside a verdict for defendants and granted the motion and directed judgment be entered in favor of plaintiffs on the issue of liability pursuant to § 240(1), and remanded for a trial on damages and apportionment of fault among defendants.

The Court held that plaintiffs' motion for partial summary judgment was properly denied. It further held the denial of plaintiffs' motion for a directed verdict on the issue of liability was proper as there was an issue of fact as to whether the alleged violation of § 240(1) proximately caused his accident. However, in granting plaintiffs' motion to set aside the verdict The Court held;

In Morales v. D & A Food Service, et.al; June 25th 2008, The Court Of Appeals in reversing The First Depatrment's dismissal of plaintiff's Section 240(1) claim held;

"The order of the Appellate Division should be reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiff's cross motion for partial summary judgment on his Labor Law § 240 (1) cause of action against defendant Santomero granted and certified question answered in the negative.

Contrary to defendant's argument, plaintiff's work constituted an alteration within the meaning of Labor Law § 240 (1) (see Joblon v Solow, 91 NY2d 457, 465 [1998]). In light of our recent decision in Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333 [2008]), defendant's contention that he lacks a sufficient nexus with plaintiff to support liability under section 240 (1) is without merit. Since plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his section 240 (1) claim and defendant failed to raise a triable issue of fact in opposition thereto, plaintiff is entitled to partial summary judgment on liability. "

The facts as set forth in The Appellate Division's decision were that;

"Without obtaining landlord's approval or even notifying landlord, tenant hired plaintiff to make repairs and changes to the premises. On plaintiff's last scheduled day of work, tenant supplied him with an extension ladder to enable him to reach the top of a 10-to 12-foot wall, where he drilled a hole and passed through telephone cables. As plaintiff began to descend the ladder, which was leaning against the wall and was not held by anyone, it slipped and he fell to the floor."

"Because the work was performed without landlord's knowledge, and in violation of the lease requirement that tenant obtain prior consent, the landlord cannot be held liable under Labor Law § 240(1)"

In Guzman v 4030 Bronx Blvd. Assoc. L.L.C., Appellate Division, First Department, Decided on June 19, 2008 The Court held;

"While plaintiffs' expert is qualified to render an opinion on the extent of plaintiff Tyrone Guzman's neurological deficits and may testify that those deficits are consistent with a history of head trauma, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded. However, we conclude that the trial court erred in dismissing this action without affording plaintiffs the opportunity to retain another expert witness to establish the nature of Tyrone Guzman's physical injury and its cause, and we remand this matter for further proceedings."

The lower Court had precluded the plaintiff's neuropsychologist from testifying as to causation regarding the infant plaintiff's head injury and dismissed the plaintiff's case. In reversing the Court held that plaintiff's should have been granted "......a continuance pursuant to CPLR 4402 to enable them to retain a medical expert to testify concerning causation."

The lesson to be learned is that plaintiff's in a New York Personal Injury Action must carefully analyze what experts will be required to establish causation. In this case a neurologist should have been retained who was qualified to interpret CT Scans and MRI's and the findings in the medical records with regard to causation. That said see the well reasoned dissent of Hon. David SAXE, which would have allowed the neuropsychologist to testify as to causation.