COURT OF APPEALS DECISIONS


Franchini v. Palmieri, 307 A.D.2d 1056, 763 N.Y.S.2d 381, 2 003 N.Y. Slip Op. 16307, N.Y.A.D. 3 Dept., Aug 07, 2003
Motorist brought negligence action to recover for injuries allegedly sustained in a motor vehicle accident. The Supreme Court, Schenectady County, Reilly, J., granted defendant's motion for summary judgment. Motorist appealed. The Supreme Court, Appellate Division, Rose, J., held that motorist failed to establish that she had a serious injury resulting from her automobile accident and affirmed Supreme Court's decision.

The Court of Appeals upheld this decision. See Franchini v. Palmieri, 1 N.Y.3d 536, 807 N.E.2d 282, 775 N.Y.S.2d 232, 2003 WL 22770115, 2003 N.Y. Slip Op. 18878 (N.Y. Nov 25, 2003) (NO. 3/, 170SSM21)

Butler ex rel. Butler v. Rafferty, 100 N.Y.2d 265, 792 N.E.2d 1055, 762 N.Y.S.2d 567, 2003 N.Y. Slip Op. 14808, N.Y., Jun 10, 2003
Personal injury action was brought against co-owner of residence, by parents of minor injured in fall from bunk bed in portion of residence in which co- tenant resided. The Supreme Court, Albany County, Malone, Jr., J., entered summary judgment for defendant and appeal was taken. The Supreme Court, Appellate Division, 291 A.D.2d 754, 738 N.Y.S.2d 440, affirmed, and plaintiffs appealed. The Court of Appeals, Rosenblatt, J., held that defendant did not control portion of house where accident occurred, and thus could not be held liable for injuries sustained by minor. Affirmed.

APPELLATE DIVISION DECISIONS


Cromp v Ahluwalia, 43 A.D.3d 1389 (4th Dep't 2007).
Supreme Court (Daley, J.) granted plaintiff’s motion to preclude defendant’s expert witness based upon the witness’ failure to bring his complete file with him to court at the time of his testimony, set aside the verdict in defendant’s favor and granted plaintiff’s motion for a new trial. Defendant appealed and the Fourth Department reversed and reinstated the favorable jury verdict. In so doing, the Fourth Department held there was no requirement in the Fifth Judicial District that an expert bring to court all materials used by the expert in formulating his/her opinion.

Imbierowicz v A.O. Fox Memorial Hospital, 43 A.D.3d 503 (3rd Dept., 2007)
This is a medical malpractice case in which decedent’s wife alleged that defendants failed to diagnose decedent’s fatal heart condition resulting in his premature death. After a six (6) week trial, the jury awarded plaintiff $100,000 to each of decedent's two children, and $1,050,000 to wife for past and future pecuniary damages. Defendants appealed.

The Supreme Court, Appellate Division, Rose, J., reversed the jury verdict and remitted for a new trial holding that Supreme Court (Spargo, J.) had improperly instructed the jury that decedent’s wife had a lesser burden of proof as to negligence, and, thus, new trial was warranted as to liability of physician, cardiologist, and provider; and that the economist's opinion of value of patient's lost earnings was speculative and lacked a proper foundation.

Superintendent of Ins. of State v. Chase Manhattan Bank, 43 A.D.3d 514 (3rd Dept., 2007)
State Superintendent of Insurance, as liquidator of subsidiary insurance company, brought action against various financial entities which had entered into credit and lending agreements with subsidiary's holding company. Superintendent alleged that financial entities knew or should have known that subsidiary of holding company was or would be rendered insolvent by a debt restructuring plan entered into between financial entities and holding company, whereby holding company would borrow $13 million from its subsidiary. The Supreme Court, Schenectady County, Williams, J., granted Superintendent's motion to compel and denied defendants' cross motions for summary judgment. Defendants appealed.
The Supreme Court, Appellate Division, Crew III, J.P., affirmed the Supreme Court’s decision and held that:
(1) genuine issues of material fact precluded summary judgment in favor of financial entities, and
(2) probable cause existed to believe that financial entities were aided by counsel so as to support motion to compel.

Thomas v. Benedictine Hosp., 296 8 A.D.3d 781, 779 N.Y.S.2d 587, 2004 N.Y. Slip Op. 04813, Jun 10, 2004
Plaintiff alleges that the Hospital failed to diagnose plaintiff's fractured ankle and filed a medical malpractice claim against hospital and physicians. The Supreme Court, Ulster County, Bradley, J., denied plaintiff's motion to compel hospital to produce certain individuals for examination. Plaintiff appealed. The Supreme Court, Appellate Division, Spain, J., held that: (1) Supreme Court was justified in denying plaintiff's request to depose hospital further, and (2) although plaintiff's failure to comply with Supreme Court's order directing her to depose physician was willful, it was not prejudicial. Supreme Court (Bradley, J.) dismissed this case. The Appellate Division, Third Department, affirmed this dismissal.

Hoffman v. Samaritan Hospital, 26 A.D.3d 889, 775 N.Y.S.2d 397, 2004 N.Y. Slip Op. 02797, April 15, 2004.
Plaintiff alleges that the Hospital negligently used an unsterile instrument during her surgery causing her to contract a serious infection. Supreme Court (Canfield, J) dismissed this case. The Appellate Division, Third Department, affirmed this dismissal.

Woodell v. International Paper Co., 305 A.D.2d 910, 760 N.Y.S.2d 584, 2003 N.Y. Slip Op. 14369, N.Y.A.D. 3 Dept., May 22, 2003
Mechanic brought action against owner and seller of turbine under scaffold law for injuries he allegedly sustained while servicing turbine as part of job duties. The Supreme Court, Saratoga County, Williams, J., granted defendants' motions for summary judgment, and mechanic appealed. The Supreme Court, Appellate Division, Carpinello, J., held that scaffolding law was inapplicable to injuries.

Davis v. Eddy Cohoes Rehabilitation Center, 307 A.D.2d 637, 762 N.Y.S.2d 530 (Mem), 2003 N.Y. Slip Op. 16163, N.Y.A.D. 3 Dept., Jul 24, 2003
Appellate Division affirmed Supreme Court's decision denying plaintiff's motion to compel discovery.

Laconte v. Bashwinger Ins. Agency, 305 A.D.2d 845, 758 N.Y.S.2d 562 (Mem), 2003 N.Y. Slip Op. 14174, N.Y.A.D. 3 Dept., May 15, 2003
Appellate Division reversed Supreme Court's denial of defendant's motion for summary judgment holding that the evidence demonstrated that plaintiff failed to overcome the presumption that he had read and understood his insurance policy which excluded coverage for the loss which he sustained.

Hanover Insurance Co. v. Cannon Express Corp., 1 A.D.3d 358, 766 N.Y.S.2d 853 (Mem), 2003 N.Y. Slip Op. 18042, N.Y.A.D. 2 Dept., Nov 03, 2003
Appellate Division reversed Supreme Court's decision to confirm an arbitration award as he evidence established that Hanover was aware that Cannon's attorney, whose office was located in Albany, New York, was handling this matter but instead send the notice of intention to arbitrate was sent to Cannon's headquarters in Arkansas, rather than to its local representative, as required by 11 NYCRR 65.10(d)(2)(iii).

McCreesh v. Hoehn, 307 A.D.2d 638, 762 N.Y.S.2d 527 (Mem), 2003 N.Y. Slip Op. 16164, N.Y.A.D. 3 Dept., Jul 24, 2003
Appellate Division affirmed Supreme Court's decision granting defendant's motion for summary judgment finding that plaintiff failed to sustain a serious injury within the meaning of the No-Fault Law.

Ross v. Curtis-Palmer Hydro-Electric Co., 295 A.D.2d 723, 743 N.Y.S.2d 630, 2002 N.Y. Slip Op. 04839, N.Y.A.D. 3 Dept., Jun 13, 2002
Appellate Division affirmed Supreme Court's decision dismissing plaintiff's case at the close of evidence finding that the general contractor did not exercise necessary supervision and control of subcontractor's employee to be liable for his back injury under the Labor Law.

Torns v. Samaritan Hosp., 305 A.D.2d 965, 761 N.Y.S.2d 126, 2003 N.Y. Slip Op. 14553, N.Y.A.D. 3 Dept., May 29, 2003
Patient brought medical malpractice action against hospital and others in connection with care she received when undergoing surgery for her broken leg. The Supreme Court, Rensselaer County, Canfield, J., denied hospital's cross- motion for summary judgment, and hospital appealed. The Supreme Court, Appellate Division, Peters, J., held that: (1) genuine issue of material fact precluded summary judgment on issue of hospital's vicarious liability, and (2) hospital could not be held liable for medical malpractice based on its alleged failure to have an available pacemaker.

Grzelecki v. Shankar, 768 N.Y.S.2d 47, 2003 N.Y. Slip Op. 19059, N.Y.A.D. 3 Dept., Dec 04, 2003
Appellate Division reversed Supreme Court's denial of defendant's summary judgment motion finding that plaintiff's two expert witness affidavits were insufficient to defeat defendants' summary judgment motions.

Blysma v. J.V. Warren, 296 A.D.2d 637, 744 N.Y.S.2d 564, 2002 N.Y. Slip Op. 05732, N.Y.A.D. 3 Dept., Jul 03, 2002
Appellate Division reversed Supreme Court's denial of defendant's motion for summary judgment holding that (1) stairway was not passageway or other working surface within meaning of statute governing workers' safety for demolition, construction, and excavation work, and thus county and county sewer district were not liable for employee's injuries, and (2) contractor did not have sufficient control over renovation job site to give rise to liability.

Caudill v Adirondack Medical Center, 290 A.D.2d 845, 736 N.Y.S.2d 283, 2002 N.Y. Slip Op. 00497, Jan. 24, 2002.
Plaintiff alleges that the Hospital negligently cared for her prior to the birth of her daughter resulting in the infant sustained serious personal injuries. Supreme Court (Demarest, J) dismissed this case. The plaintiffs did not perfect their appeal.

Yamin v. Ashok Baghel, et al., 728 N.Y.S.2d 520 (N.Y.A.D. 3 Dept.,2001)
Over the past decade significant legislation and regulations, at both the Federal and State levels, have significantly limited the use of restraints. This is the first appellate case in the State of New York to directly address the issue of liability of extended care facilities for patient falls premised on an allegation that the resident should have been restrained.

The Third Department, after a discussion of the Federal and State regulations relative to restraints, found that neither the long term facility nor the attending physicians deviated from any standard of care in failing to restrain the plaintiff. On the contrary, the Court held that less restrictive means of fall prevention, such as requirement of a call button, instruction of its use and frequent monitoring, were appropriate and agreed that the use of physical restraints prior to plaintiff's fall would have violated Federal and State law.

FEDERAL CASES


Page v. Monroe, __F.Supp__, 2007 WL 1458201 (N.D.N.Y. 2007).
Two minor children brought an action against their pediatrician alleging she failed to take steps to prevent sexual abuse by their half-brother including calling the “hot line.” In granting the pediatrician’s motion for summary judgment Judge Kahn noted that abuse by a sibling, who is not the caregiver for the children, is not reportable to the New York State Registrar of Suspected Abuse.

In addition, there was no deviation from accepted medical practice in Dr. Monroe’s handling of the situation where Dr. Monroe addressed Mrs. Page’s concerns, directed that the girls not be left unattended with their brother, asked the Mother to bring the child into the office to be seen and the Mother told the doctor the children were in counseling. Debra Young authored the brief submitted on behalf of Dr. Monroe.

Additional noteworthy cases:


Parkinson v. Cozzalino, et. al., 238 F.3d 145 C.A.2 (N.Y., 2001)
In this significant ruling, the Second Circuit reversed the decision of the lower Court and found that absolute prosecutorial immunity extends to the conduct of prosecutors while an appeal is pending. The firm argued this case on behalf the defendant/prosecutors.

Fisher v. Jackstadt, 738 N.Y.S.2d 707 (N.Y.A.D. 3 Dept.,2002)
Ms. Butler recently had a defense verdict in the action "Fisher v. Jackstadt" after a 4 day trial in Essex County before Judge Dawson. Though Fisher claimed to have sustained a torn rotator cuff in an accident with our client, the jury found the plaintiff was not injured in the motor vehicle accident.

Albany Medical Center Hosp. V. Denis, 161 A.D.2d 1030, 557 N.Y.S.2d 523 (N.Y.A.D. 3 Dept., May 24, 1990)(NO. 58874)
This frequently cited case deals with the confidentiality of quality assurance/medical review records. In reversing a decision of Supreme Court, the Appellate Division quashed a subpoena served upon Albany Medical Center seeking quality assurance minutes and policies/procedures of the Department of Surgery. The case is also notable because it applied the QA protections to actions/proceedings other than medical malpractice. The materials had been sought in a professional misconduct proceeding for use in cross-examining a surgeon who testified as an expert witness.

Allen V. Cloutier Const. Corp., 56 A.D.2d 348, 393 N.Y.S.2d 185 (N.Y.A.D. 3 Dept., Mar 24, 1977)
Held that Labor Law § § 200 and 240 imposed a nondelegable duty upon owners and contractors despite the fact that those entities did not exercise any control or supervision over construction site.

Brownell v. Roadway Package System, Inc., 185 F.R.D. 19 (N.D.N.Y. March 19, 1999)
When outside counsel is retained to investigate an allegation of sexual harassment, are notes from their investigation later discoverable when the same firm is retained to represent the employer in a Title VII action? Yes, if the defendant raises a defense of adequate investigation. This case discusses the attorney/client privilege, waiver of the privilege and exceptions thereto. A "must read" for labor law attorneys who try to wear two hats.

DiMarco v. Rome Hosp., and Murphy Memorial Hosp., 952 F.2d 661 (2nd cir.(N.Y.), Jan 02, 1992)(NO. 500, 91-7747, 91-7777, 501, 91-7725, 91-7779, 502, 637); 1991 WL 336000 (N.D.N.Y., Jul 01, 1991) (NO. 88-CV-1258)
Plaintiff, a physician who brought a civil rights action against a hospital and hospital officials, asserted that they had retaliated against him because he exercised his free speech rights. The court held that to determine whether a physician who lost staff privileges had a valid claim of retaliation by hospital officials for his public speech, the lower court had to determine whether his speech related to a matter of public concern and then weigh the degree of public concern expressed by the physician against the government's interest in effective and efficient fulfillment of responsibilities to the public.

Enu v. Sobol, 171 A.D.2d 302, 576 N.Y.S.2d 378 (N.Y.A.D. 3 Dept., Nov 14, 1991)(NO. 61657)
The Court vacated a finding of professional misconduct against a Board Certified Urologist where the expert witness from the Department of Health was a general surgeon. It remitted the case for further proceedings and an explanation as to why the testimony of the surgeon should receive more weight than the two Board Certified Urologists who testified on behalf of the Respondent.

Fieldhouse v. Stamford Hosp. Soc. Inc., 233 A.D.2d 540, 649 N.Y.S.2d 527
In a suit for wrongful termination, the Court found Plaintiff to be an "at will" employee. The provisions of the Employee Manual did not change that status.

In the Matter of A-85-04-38(138 Misc.2d 786)
The Court found that a patient's right to a privileged relationship with her psychologist and psychiatrist outweighed the authority of the Office of Professional Medical Conduct to obtain records from those mental health providers. The allegations of misconduct were found to be too remote to the mental health treatment.

Majewski v. Broadalbin-Perth Cent. School Dist., 231 A.D.2d 102, 661 N.Y.S.2d 293 (N.Y.A.D. 3 Dept., Jul 10, 1997) (NO. 78976); 169 Misc.2d 429, 653 N.Y.S.2d 822, 116 Ed. Law Rep. 354 (N.Y.Sup., Nov 19, 1996)(NO. 83054)
The sentinel case in which the Court ruled that the Workers Compensation Reform Act abrogating the long-standing rule of Dole v. Dow apportionment (as codified in Article 14 of the CPLR), applies prospectively from September 10, 1996 (based upon date of suit) in precluding third-party claims for common-law contribution against an injured plaintiff's employer absent "grave injury" (as that term is defined by the Workers Compensation Law), and further, limits third-party claims for indemnification only to where there exists written contracts expressly providing for contractual indemnification between the parties.

Pace v. Unity House of Roman Catholic Diocese of Albany, 167 A.D.2d 739, 563 N.Y.S.2d 309 (N.Y.A.D. 3 Dept., Nov 21, 1990) (NO. 61146)
The Court declined to expand the rule that a physician/hospital was not liable for alleged torts of institutions to which patients were referred, absent knowledge of an unsafe condition or the ability to exercise control. In this case, the Plaintiff claimed to have been raped at a facility to which he had been referred by the defendant hospital.

Romano v. Stanley, 90 N.Y.2d 444, 684 N.E.2d 19, 661 N.Y.S.2d 589, 1997 N.Y. Slip Op. 06230 (N.Y., Jul 01, 1997)(NO.102)
Court of Appeals held that the "visibly intoxicated" standard of the General Obligation Law section 11-101 (more commonly known as the Dram Shop Act) is not automatically satisfied by circumstantial proof of elevated blood alcohol or urine alcohol levels insofar as the effects of alcohol vary from individual to individual depending upon tolerances. The Court confirmed that the purpose of the "visibly intoxicated" standard was to ensure "notice" of a customer's condition to the tavern owner before the bar might be subject to loss of its liquor license or to civil liability.

Ross v. Curtis-Palmer Hydro-Electric Co., 241 A.D.2d 650, 660 N.Y.S.2d 172 (N.Y.A.D. 3 Dept., Jul 10, 1997)(NO. 78629); 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49; 180 A.D.2d 385, 585 N.Y.S.2d 516 (N.Y.A.D. 3 Dept., Jun 11, 1992)(NO. 64062)
§241(6) of the New York Labor Law requires owners and contractors to provide reasonable and adequate protection and safety. A cause of action premised upon this statute calls for vicarious liability against the owner or contractor for the negligence of the plaintiff's employer or others. This case has set a new standard by requiring plaintiffs to plead and prove the violation of a non-general, Ross specific safety regulation violation as promulgated by the Commissioner of Labor. Plaintiffs may no longer rely upon vague, over-broad safety regulations in their claims for vicarious liability.

Spencer v. Holodock, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (N.Y., Dec 20, 1974)
Seminal Court of Appeals decision holding that a parent may not be held liable to his infant child for failure to provide adequate supervision, because of policy considerations of preservation of family resources for entire family, prevention of fraud and collusion, family discord, reluctance of parents to pursue claims because of vulnerability to contribution suit, imputation of parent's negligence to child contrary to section 3-111 of General Obligations Law, possibility of retaliatory suits and difficulties of applying standard of conduct to parent's discretion.

Schultz v. Pataki and Friends of Pataki, 708 N.Y.S.2d 177 (N.Y.A.D. 3 Dept.,2000)
The Third Department upheld the decision of the Supreme Court holding that picnics held by the Governor for volunteers who assisted in the ice storm of 1998, the distribution of tickets to the State Fair and White Face Mountain as well as free tee shirts, did not violate either the State or Federal Constitutions.

Ramani v. Hover, 706 N.Y.S.2d 81 (N.Y. 2000)
A nurse who was an employee of a hospital bought suit against a private physician because he ordered the patient out of bed and the plaintiff hurt her back while trying to follow the doctor's order. The Third Dep't held that the doctor owes a duty to his patient. He does not owe a duty to the nurse based on their professional relationship.