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{ September/07/2010 }
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Article 81 Guardianship Prectice: Perspectives From the Bench & Bar
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News & ArticlesAugust/1/2010 Torts and Civil PracticeBy: Laura M. Jordan, Esq. Duquette v Oliva, et al. (Egan, Jr., J., 508785 [7/1/10]) Plaintiff sought to amend her complaint to add a breach of contract claim against defendant, her plastic surgeon, in addition to her already pled medical malpractice claims concerning her dissatisfaction with her breast augmentation surgery. In reversing Supreme Court and allowing the amendment, the Court noted plaintiff’s breach of contact claim showed some merit sufficient to grant the motion. Namely, plaintiff submitted evidence that defendant agreed prior to the surgery to provide her with D-cup sized breasts but failed to do so. Additionally, defendant recommended smooth implants, to which plaintiffs agreed, but instead implanted textured implants when confronted with a box of textured implants during the surgery, acknowledging at his deposition that they were the wrong implants. The Court felt this evidence showed some merit to plaintiff’s claim that defendant breached “an express special promise to effect a cure or to accomplish some definite result.” Workers’ Compensation Deemed Bar to Action Len v State of New York, et al. (Spain, J., 508159 [6/17/10]) In December 2006, claimant’s decedent fell to his death while working at Lock 9 of the Erie Canal. At the time, decedent was employed by defendant New York State Canal Corporation. Claimant initiated a wrongful death and pain and suffering action against three defendants; New York State Canal Corp., New York State Thruway Authority and the State of New York. When faced with defendants’ motion to dismiss/summary judgment, claimant conceded the action against the Corporation was barred by the Workers’ Compensation Law, but argued neither the Authority nor the State of New York were protected by the exclusivity provision of Workers’ Compensation Law § 11. Supreme Court granted defendants’ motion to dismiss all claims and on appeal the Appellate Division affirmed. The main question on appeal was whether the Authority could be deemed the employer of decedent, which required defendant to establish the Authority was a parent corporation of the Corporation and the Corporation functioned as the alter ego of the Authority. It was clear to the Court, based upon the statutory framework establishing both entities and their operation and management, the Authority is indistinguishable from the Corporation with regard to canal operations and, therefore, entitled to invoke Workers’ Compensation Law § 11. The Court also noted claimant’s proposed Labor Law § 240 (1) and § 241 (6) claims lacked merit as decedent was performing routine maintenance at the time of his injury (clearing tree debris) and was not acting to alter a structure but was merely implementing a change that was inherent to the dam itself (moving the movable parts of the dam). Malicious Prosecution Claim Improperly Dismissed Nieminski v Cortese-Green, et al. (Per Curiam, 508765 [6/10/10]) Plaintiff brought a malicious prosecution claim and defamation action against defendant, her next door neighbor, after plaintiff was found not guilty of harassment in the second degree, a charge that was brought against plaintiff at defendant’s insistence in local criminal court. Although Supreme Court dismissed the claims upon defendant’s motion for summary judgment, the Appellate Division reinstated the malicious prosecution cause of action. There are four main elements to a malicious prosecution claim and the Court found plaintiff raised triable issues of fact sufficient to meet each element. Specifically, plaintiff’s proof establish defendant approached and provided the police with the information which formed the basis for the accusatory instrument and took an active role in pushing the proceedings forward and enforcing an order of protection; that the criminal proceeding terminated in plaintiff’s favor; that a jury could find defendant acted without probable cause in commencing the criminal proceedings and was merely acting in retaliation for plaintiff’s frequent reports to authorities about defendant’s own conduct; and that defendant acted with malice, which could be inferred if a jury found lack of probable cause. Labor Law § 241 (6) - Hoisting Rought v Price Chopper Operating Co., et al. (Lahtinen, J., 508229 [5/27/10]) In this 3-2 Labor Law decision, the fact pattern is very detailed and I encourage you to read the opinion if you are involved in a possible “hoisting” case. Plaintiff brought this action to recover for injuries he sustained while attempting to move heavy commercial wires in an electrical room in a building under construction. Plaintiff was struck by the bundle of heavy wires, causing him to twist and fall. Defendant moved for summary judgment to dismiss the complaint and, as discussed herein, plaintiff’s Labor Law § 241 (6) claim survived. The Court found the facts supported a finding sufficient to implicate 12 NYCRR 23-6.2 (a) (1), (2) in that the wires were being hoisted, with the help of a forklift as a power source, when the rope being used snapped under the heavy weight and tension and the bundle of wires struck plaintiff with great weight and force. There was a dissent worth reading, which argues the regulation at issue should not apply because there was no proof that the forklift, rope and pulleys used during the process actually lifted or suspended the wires that caused plaintiff’s fall. “Serious Injury” Question of Fact – Pre-existing Injury Tandoi v Clarke, (Cardona, P.J., 509564 [7/15/10]) Plaintiff was injured in a rear end auto accident and brought suit claiming serious injury under the “significant limitation of use” category. Plaintiff subsequently filed a motion for partial summary judgment as to liability and serious injury, which was denied as to the issue of serious injury. Plaintiff appealed and the Court affirmed, however for different reasons than Supreme Court. While the Appellate Division found plaintiff met her initial burden of proof establishing that she sustained a serious injury in this category, the Court nonetheless found defendant set forth proof establishing a triable question of fact. Specifically, defendant’s expert orthopedist opined plaintiff suffered from disc degeneration, which preexisted the accident, and while she may have exacerbated her degenerative changes and symptomotology, such aggravation of her preexisting condition would have been mild and temporary. Given that none of plaintiff’s experts diagnosed her with aggravation of a preexisting condition or dealt with that issue in their affidavits on the motion, the only proof in that regard came from defendant’s expert and was sufficient to create a question of fact. Remember…make sure your experts deal with all significant points raised by your opposition. (From the June 2010 Newsletter |
 
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