Tort, Insurance and Compensation Law Decisions

Tort, Insurance and Compensation Law Decisions

3.1.2024

By Cynthia Feathers    

This compilation of recent court decisions is a member benefit of the Torts, Insurance and Compensation Law (TICL) Section. To get more content like this, join TICL.  If  you are interested, please email Gina Bartosiewicz at [email protected]. 

CHILD VICTIMS ACT: Anonymity granted

Plaintiff commenced a personal injury action pursuant to the Child Victims Act (CPLR 214-g), alleging that, while he was a student at defendant school, another student sexually assaulted him. Over opposition, Kings County Supreme Court granted his motion to proceed anonymously. The Second Department affirmed. Plaintiff had established a reasonable likelihood that, were his identity publicly revealed, he would suffer adverse consequences to his job, education, and marital prospects. The school defendants’ claim of prejudice was speculative. Doe v Mesivtha

CHILD VICTIMS ACT: School safety policy violated

Defendant school district appealed from an order of Orange County Supreme Court, which denied its motion to dismiss a negligence action, initiated pursuant to the Child Victims Act, in connection with a school physician’s alleged sexual abuse of plaintiff. Defendants’ submissions failed to eliminate triable issues as to whether the school was negligent in allowing plaintiff to be alone behind closed doors with a physician during medical exams, in contravention of school policy. The intervening, intentional act of the physician was itself the foreseeable harm that shaped the duty imposed. J.B. v Monroe-Woodbury Cent. Sch. Dist.

CHILD VICTIMS ACT: Protective order granted

Based on his alleged sexual assault by a priest, plaintiff commenced an action for negligence and other claims, pursuant to the Child Victims Act. Defendant appealed from an order of Orange County Supreme Court denying a protective order. The Second Department reversed. Since plaintiff’s discovery demand was palpably improper, the trial court should have struck it, rather than directing defendant to produce documents for in camera inspection to determine relevancy and privilege. Roe v Roman Cath. Archdiocese of NY

DENTAL MALPRACTICE: Battle of experts

Plaintiffs appealed from an order of Monroe Court Supreme Court, which granted defendants’ motion for summary judgment dismissing the dental malpractice complaint. The Fourth Department modified and reinstated claims against some defendants. Where, as here, a nonmovant’s expert affidavit squarely opposes the movants’ affidavits, there is a classic battle of the experts, which should be resolved by the trier of fact. Grammatico v Lamar

EMERGENCY DOCTRINE: Triable issues

Plaintiff appealed from an order of Niagara County Supreme Court, which granted defendant #1’s summary judgment motion. The Fourth Department reversed and reinstated the complaint against such defendant. Plaintiff was a passenger on a motorcycle, operated by defendant #1, which was struck by an oncoming vehicle whose driver had taken drugs and fallen asleep at the wheel. Defendant #1 sought summary judgment under the emergency doctrine. The motion court should have considered plaintiff’s supplemental expert proof, which raised a triable issue as to the reasonableness of that defendant’s conduct. Stefanski v Huntress

FORUM SELECTION: Agreement controls

In a personal injury action, defendant appealed from an order of Nassau County Supreme Court, which denied its motion to change the venue from Kings County to Nassau County. The Second Department reversed. In attempting to counter defendant’s proof of an agreement containing a forum selection clause, plaintiff failed to make the requisite showing—that enforcement would be unreasonable or unjust or would contravene public policy or that the clause was the result of fraud or overreaching. Johnson v Seagate Rehab. & Nursing Ctr. 

GENERAL LIABILITY INSURANCE: Exclusion ambiguous

New York Supreme Court denied motions by various parties in this personal injury action. The First Department affirmed. Supreme Court correctly found that defendants failed to demonstrate, as a matter of law, that an exclusion in their commercial general liability policy was “stated in clear and unmistakable language” and applied in this case. The schedule in the exclusion, which defined “ongoing operations” that would not be covered, was rendered ambiguous by the logically inconsistent use of the term “subcontractor.” Further, plaintiffs submitted evidence that the subject defendants provided coverage for 12 prior similar claims and contended that defendants were bound by their own “practical construction” of the policy, thereby creating a triable issue. Bay Plaza Mall v Argonaut Ins. Co. 

GOL § 9-103: Triable issues

Plaintiff appealed from an order of Onondaga County Supreme Court, which granted defendant’s motion to dismiss. The Fourth Department reversed. Plaintiff fell from his motorized bicycle while riding on a defective sidewalk on defendant’s campus. In moving to dismiss, defendant invoked General Obligations Law § 9-103—the recreational use statute—and asserted that plaintiff had failed to address the applicable standard. However, the sidewalk was not suitable for bike riding by the public, and thus the statute did not apply. Delaney v Syracuse Univ.

INSURANCE LAW § 5102 (D): Possible serious injury

Plaintiff appealed from an order of Rockland County Supreme Court, which granted summary judgment dismissing the complaint on the ground that she did not sustain a serious injury as defined in Insurance Law § 5102 (d). The Second Department modified, finding that plaintiff had raised a triable issue as to the categories of permanent consequential or significant limitation of use. Plaintiff’s expert opined that she suffered from severe and disabling headaches limiting daily activities. Defendant failed to demonstrate that the accident did not exacerbate preexisting brain injuries. Ghosio v Weiser

INSURANCE LAW § 5102 (D): No serious injury

Defendant appealed from an order of Richmond County Supreme Court denying its summary judgment motion, which alleged that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Second Department reversed. Defendant submitted competent medical evidence indicating that injuries to plaintiff’s hip and spine did not constitute serious injuries under the categories of permanent consequential or significant limitation of use. Plaintiff’s expert did not identify the method used to measure range of motion or state normal ranges of motion.  Gonzalez v Cohn

INSURANCE LAW § 5102 (d): No serious injury

Plaintiff appealed from an order of New  York County Supreme Court, which granted defendant’s motion for summary judgment, finding that plaintiff did not sustain a serious injury under Insurance Law § 5102 (d). The First Department affirmed. Defendant demonstrated that there was no nexus between the injuries and the accident. Evidence submitted in opposition, consisting mostly of unaffirmed medical records, failed to raise a triable issue. The opinion of plaintiff’s doctor as to permanency was speculative, given the 3½-year gap in treatment between the examinations. Further, plaintiff’s prompt return to his job as a door attendant and minimal treatment for six months demonstrated that any injuries were minor. Perez v Ahadzi

LABOR LAW § 240 (1): Repair or maintenance?

Plaintiff appealed from an order of New York County Supreme Court, which granted defendants’ motion for summary judgment dismissing the complaint. The First Department held that plaintiff raised triable issues as to whether day-long work by multiple workers to replace a 700-lb. water heater constituted a repair. Defendants offered no proof that the subject failure was due to normal wear and tear. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, strapped to a hand truck, created a hazardous gravitational force against which devices enumerated in the statute were meant to protect. Rodriguez v Fawn E. Fourth St.

LABOR LAW § 240 (1): Opening in floor

The First Department modified an order of New York County Supreme Court that denied plaintiffs’ motion for summary judgment as to their Labor Law § 240 (1) claim against two defendants. The injured plaintiff’s fall through an opening in the worksite floor—when the unsecured plywood covering shifted as he walked over it—warranted summary judgment in his favor. If a statutory violation was a proximate cause of the injury, plaintiff could not be solely to blame for it. Proof that plaintiff should not have been working in the accident area would at most constitute comparative negligence, which was not a defense. Devlin v AEOCOM

LABOR LAW § 240 (1): Drop from barge to water elevation-related

Plaintiff appealed from an order of New York County Supreme Court, denying his motion for summary judgment as to liability on his Labor Law § 240 (1) claim. The First Department modified and granted summary judgment. Although plaintiff’s injuries resulted from his slip-and-fall on an alleged icy condition on barges at the same level, the accident occurred while he was struggling to avoid the elevation-related risk of plunging into the water. Furthermore, the site safety plan required a gangway to be in place, and its absence was a proximate cause of the accident. York v Tappan Zee Constructors

LABOR LAW § 240 (1): Stairway as elevated platform

Plaintiff appealed from an order of New York County Supreme Court, which denied his motion for summary judgment. The First Department modified to the extent of granting him summary relief as to Labor Law § 240 (1) liability. Plaintiff was told to bring a 200-lb. staircase mold up one flight, and his request to use a hoist was denied. Plaintiff fell down the stairs. Because plaintiff had to perform work on an elevated work platform—the stairway—defendants were required to provide an adequate safety device. DaSilva v Toll GC

LABOR LAW § 240 (1): Van bed not elevated work surface

Plaintiff appealed from an order of Ontario County Supreme Court, which granted defendant’s motion for summary judgment. The Fourth Department modified. Plaintiff was allegedly injured at his employer’s premises while unloading an alignment jack from the back of a van owned by defendant. The Labor Law § 240 (1) claim was properly dismissed because the bed of a truck or similar vehicle was not deemed an elevated work surface. However, on the negligence claims, defendant’s own submissions raised questions of fact regarding whether its principal directed or controlled the work that resulted in plaintiff’s injuries. Triest v Nixon Equip. Servs.

LABOR LAW § 241 (6): Plastic covering not integral

The Court of Appeals held, in an opinion authored by Judge Rivera, that plaintiffs were entitled to summary judgment as to liability on their Labor Law §  241 (6) claim for injuries resulting from a fall on a plastic covering over an escalator as part of a paint job for a renovation project. The covering was a slipping hazard that violated the Industrial Code, and the First Department had erred in concluding that such covering was integral to the work. Drop cloths or wood panels would have protected the worker and the escalator. Judge Garcia concurred in the result in an opinion in which Judges Singas and Cannataro joined. They opined that the sheeting was a “foreign substance” within the meaning of 12 NYCRR 23-1.7 (d).Bazdaric v Almah

LATE NOTICE OF CLAIM : Too vague

Claimant appealed from an order of the Court of Claims, which denied his motion for leave to file a late claim and granted defendant’s cross-motion to dismiss. The Second Department affirmed. The claim did not adequately set forth when or where the acts constituting the negligence occurred. It did not matter if defendant could easily ascertain such information. Claimant also failed to particularize the nature of the claim with respect to the State’s alleged negligence in hiring and supervising its medical personnel and the alleged acts of medical malpractice, including the injuries sustained.  Williams v SONY

LATE NOTICE OF CLAIM: Delay forgiven

The Transit Authority defendants appealed from an order of New York County Supreme Court, which granted petitioner’s motion to serve a late notice of claim. The First Department affirmed. The application was made within 14 months of the incident and during the pandemic; and a police officer was present when petitioner was taken to the hospital—giving defendants an opportunity to timely investigate essential facts. Matter of Mejia v NYC Tr. Auth.

MED MAL: No drops, loss of eye, summary judgment

Defendants appealed from an order of Erie County Supreme Court which granted plaintiff’s motion for summary judgment on liability as to two causes of action. The Fourth Department affirmed. Plaintiff’s decedent sustained injuries at a residential health care facility. There was proof that nursing staff failed to administer the prescribed anti-inflammatory steroid eye drops following cataract surgery, and as a result, decedent developed a severe infection that required surgical removal of the eye. Defendants failed to raise triable issues of fact. Further, the motion court properly found a violation of Public Health Law  § 2801-d, which governs the treatment of patients at residential health care facilities. Stanton v Waterfront Ctr.

MED MAL: Nose exam OK

Plaintiffs appealed from an order of Queens County Supreme Court, which granted defendants’ motion for summary judgment dismissing the complaint alleging that defendant doctor performed an “aggressive, forceful, and negligent examination” of the injured plaintiff’s nose. The Second Department affirmed. Defendants presented expert proof that the exam complied with the accepted standard of medical care. Plaintiffs, who did not submit an expert affirmation, failed to raise a trial issue of fact. Further, affirmations of defendants’ experts indicated that the exam did not involve an affirmative violation of plaintiff’s physical integrity—a necessary element for lack of informed consent. Kelly v Ahn

MED MAL: No res ipsa loquitur

In a medical malpractice action, plaintiffs appealed from adverse judgments of Westchester County Supreme Court. The Second Department affirmed. The trial court properly denied the injured plaintiff’s request to instruct the jury as to res ipsa loquitur. Plaintiffs’ expert witnesses conceded that the colonic perforation could have developed gradually due to a preexisting disease, an obstruction, or decreased blood supply. Thus, plaintiffs failed to show that the injuries would not have occurred absent negligence. Tejada v St. Luke’s Roosevelt Hosp.

MED MAL: Plaintiff’s expert did not raise triable issues

The Second Department upheld the dismissal by Kings County Supreme Court of a medical malpractice action. The action was commenced in connection with treatment for a compound fracture of plaintiff’s left wrist. In support of summary judgment, defendants’ expert opined that the physician defendant did not depart from accepted medical practice and did not cause the injuries. Plaintiff’s experts failed to specify that they had any specific training or expertise in emergency medicine; and they did not address the specific assertions of defendants’ expert.Corujo v Caputo

MED MAL: Plaintiff’s expert raised triable issues

Plaintiffs appealed from an order of Onedia County Supreme Court granting summary judgment to defendant. The Fourth Department reversed. Plaintiffs alleged that defendant committed medical malpractice as to hip replacement surgery. An adequate foundation was presented as to the qualifications of plaintiff’s orthopedic expert, who need not have practiced in the same specialty as defendant. The expert opined that defendant’s actions fell below reasonable standards of care when he failed to order necessary imaging, performed the wrong surgery, and thereby exacerbated plaintiff’s condition. McMahon-DeCarlo v Wickline

MED MAL: Default judgment entered

In a medical malpractice action, plaintiff appealed from an order of Kings County Supreme Court, which denied his motion for leave to enter a default judgment against one of the defendants. The Second Department reversed. Generally, a corporation’s failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file did not constitute a reasonable excuse for its delay in answering the complaint. Further, as to the subject defendant’s CPLR 317 motion to vacate the default in answering, defendant failed to show that it did not receive actual notice of the instant action, where its principal was timely served with the summons and complaint. Bachvarov v Khaimov

PERSONAL INJURY: Surveillance discoverable

Defendants appealed from an order of Queens County Supreme Court regarding discovery. The Second Department affirmed. After plaintiff initiated this personal injury action, defendants retained investigators to conduct surveillance of him. Supreme Court properly granted his motion to compel defendants to comply with discovery demands regarding their surveillance activities and denied their cross-motion for a protective order. Mendez v Joseph

PERSONAL INJURY: No res ipsa loquitur

Plaintiffs appealed from an order of Bronx County Supreme Court, which denied their motion for summary judgment on liability. The First Department affirmed. The negligence action arose from decedent’s fall out of a Hoyer lift while being transferred from her bed to a wheelchair. Plaintiffs failed to establish negligence via the doctrine of res ipsa loquitur. Defendants’ expert opined that a patient could slip out of the lift for reasons unrelated to negligence. As to the element of exclusive control, there was proof that decedent’s daughter had previously adjusted the chains on the lift. Estate of Osorio v J. & P. Watson

PREMISES LIABILITY: Landlord duties

Defendant landlord appealed from an order of Nassau County Supreme Court, which denied summary judgment. The Second Department affirmed. Plaintiff allegedly slipped on grease on the floor of the store where she worked and fell when her foot became caught. Defendant failed to show that it: (1) was not obligated to maintain the floor or repair the defect, given that a complete lease was not submitted; (2) relinquished control so as to extinguish any duty to maintain the premises; (3) lacked constructive notice, in that defendant’s managing partner testified that he periodically inspected the premises, and he did not say when he had last did an inspection.  Cicio v Kingswood Prop.

PRIOR WRITTEN NOTICE: Complaint dismissed

Defendants appealed from an order of Onondaga County Supreme Court, which denied summary judgment. The Fourth Department modified. The injured plaintiff asserted that she tripped and fell on an uneven roadway surface. The city defendant did not receive prior written notice of the condition, and no exception applied. Even if the city created a dangerous condition, the instant condition developed over more than a year and did not immediately result from the city’s work. The contractor defendants did not owe a duty of care to plaintiff, a third party to the contract. No Espinal v Melville Snow Contrs. exceptions applied.  Graham v City of Syracuse

VEHICLE ACCIDENT: Double rear-ender

Defendant appealed from an order of Kings County Supreme Court, which denied his cross-motion for summary judgment dismissing the complaint. The Second Department affirmed. Defendant asserted that his vehicle was moving when an unidentified third vehicle struck it in the rear, but he failed to address whether he had maintained a safe distance from plaintiff’s vehicle before rear-ending it. Williams v Isaac

WORKERS’ COMP: Heart disease death

The carrier appealed from a decision of the Workers’ Compensation Board, which ruled that decedent’s death was causally related to his employment and granted death benefits. The Third Department affirmed. A plumber, decedent collapsed shortly after arriving for work at a construction site. His death certificate stated that he died from heart disease with a complication of morbid obesity. A heart injury precipitated by work-related physical strain was compensable, even if a preexisting pathology may have been a contributing factor and the physical exertion was no more severe than that regularly encountered. Here at issue was the physical stress of walking a long distance in high heat and humidity and the anxiety of starting a new job with greater responsibility.  Hickey v Skanska-Walsh JV/Pace Car Plumbing 

WORKERS’ COMP: Feigned symptoms

Claimant appealed from a decision of the Workers’ Compensation Board, ruling that he had no further causally related disability from his injuries in the established claim and thus had no permanent disability and was not entitled to further reduced earnings awards. The Third Department affirmed. A driver for the self-insured employer, claimant was in a motor vehicle accident. Though not raised by the employer in its administrative appeal, permanency was properly addressed sua sponte by the Board, which credited an orthopedic surgeon’s opinion that claimant was feigning his symptoms. While testimony of claimant’s doctors could validate a contrary conclusion, substantial evidence supported the Board’s determination.  Ghaffour v NY Black Car Operators

 WORKER’S COMP: Voluntary withdrawal

Claimant appealed from a decision of the Workers’ Compensation Board, which ruled that he voluntarily withdrew from the labor market. The Third Department affirmed. For a claimant to be relieved from the burden of demonstrating ongoing attachment to the labor market, the claimant must have been classified initially as permanently partially disabled and found to be entitled to loss of wage earnings compensation award. When this claimant was classified as permanently partially disabled, he was found to be unattached and not entitled to benefits. Generally, a claimant who voluntarily withdraws from the labor market is not entitled to benefits unless the disability caused or contributed to the withdrawal. Medical proof did not support this claimant’s claim that he left his job due in part to his disability. Digbasanis v Pelham Bay Donuts

WORKER’S COMP: Covid not causally related

Claimant appealed from a decision of the Workers’ Compensation Board, ruling that her husband’s death was not causally related to his employment. The Third Department affirmed. Contracting Covid in the workplace qualified as an unusual hazard—not the natural and unavoidable result of employment. But claimant did not provide any names, dates, or other details from which it could reasonably be inferred that Covid was prevalent in the workplace and that decedent contracted Covid from a coworker. Further, the record was devoid of evidence that decedent’s job as a subway track inspector required him to work in a contained environment that brought him into regular contact with the public at large. Fernandez v NYC Tr. Auth.

 WORKER’S COMP: Covid was causally related

The carrier appealed from a decision of the Workers’ Compensation Board, ruling that claimant sustained an accidental injury arising out of and in the course of her employment. The Third Department affirmed. Claimant dress maker alleged that she contracted Covid from a coworker and had been hospitalized due to the illness. The employer’s Covid protocols were often ignored, and claimant’s physician testified to a strong probability that she became infected with Covid in the workplace. The carrier did not submit testimony negating a causal relationship. Leonard v David’s Bridal