New York City

Published on: July 18, 2012

Plaintiff fails to rebut defendant’s prima facie showing that it did not cause or know about the hazard that led to plaintiff’s injury – Reece v. City of N.Y., 2010 NY Slip Op 31655 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

In Reece v. City of N.Y., the court considered the question of what the plaintiff must show to prove that a defendant had sufficient notice of a hazard to be liable for injuries caused by the presence of that hazard.

As Reece, the plaintiff, stepped on the curb at the corner of Water and Wall Streets in Manhattan, she slipped and fell on a blob of grease and suffered an injury. Alliance, a not-for-profit business improvement district organization, was responsible for cleaning the sidewalk at the location of the accident. Alliance contracted the cleaning to Onesource. Reece filed a personal injury claim against Alliance, Onesource, and the City of New York.

The defendants filed a motion for summary judgment asking that the complaint against all of them be dismissed. Under New York law, the burden is on the defendant to prove that they are entitled to summary judgement. This means that the defendant must make a prima facie showing that it did not cause the dangerous condition that led to the plaintiff’s injuries, and that it did not have actual or constructive knowledge of the dangerous condition. If the defendant does not make a prima facie showing then the court will deny its motion for summary judgement dismal of the case.

Published on: July 14, 2012

Defendants request summary judgement in a grocery store slip and fall case- Richards v. Great Atl. & Pac. Tea Co., 2010 NY Slip Op 33392 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

In a slip and fall case, the defendant grocery store moves for summary dismissal, arguing that the plaintiff does not have evidence that its negligent created the hazard that led to the plaintiff’s fall, or had real or constructive notice of it.

Plaintiff Richardson was shopping at Waldbaum’s grocery store. Defendant Great Atlantic & Pacific Tea Company is the parent company. As she walked through the produce section, plaintiff slipped and fell due to a bunched up floor mat and area that was wet due to the vegetable misting machine which sprayed water into the aisle- beyond the area where there were mats and carpets placed to prevent customers from slipping. Based on the injuries suffered when she slipped and fell, the plaintiff filed a personal injury lawsuit against the defendant. Defendant filed a motion for summary judgement dismissing the case.

Under New York law, the defendant will be entitled to summary judgement if it can make a prima facie showing that it is entitled to it. This means that the defendant must produce sufficient evidence that there are no material issues of fact. In other words, the defendant must show that the plaintiff does not have a case. If the defendant makes a prima facie showing, then the burden shifts to the plaintiff. The plaintiff must show that there is an issue of material fact that would preclude summary judgement.

Published on: July 11, 2012

Defendant Awarded Partial Summary Judgement in Medical Malpractice Action

by Stephen Bilkis

This case is being heard in the Bronx County Supreme Court in the state of New York. The case involves the deceased infant, Kayla Kesse Madison Charles. The plaintiffs are the administrix of the estate of the deceased infant, Dionne Charles and Dionne Charles on her own. The defendants in the case are Doctor Chaisurat Suvannavejh, Doctor, Fergal D. Malone, Doctor Michael J. Orfino, Elizabeth Riley, R.N., Susan Zucchero, R.N., and the Lawrence Hospital Center.

Case Background

The plaintiff on behalf of herself and her deceased daughter is suing the defendants for medical malpractice that resulted in the wrongful death of her daughter. A New York Injury Lawyer said the defendants of the case, Suvannavejh, Zucchero, and the Lawrence Hospital Center all separately move for a summary judgment that dismissed the claims made by the mother in regard to emotional distress, and loss of comfort and affection. Additionally, the defendant Suvannavejh seeks for the claim made by the mother in regard to lost support, services, and protection be dismissed.

Published on: July 9, 2012

Respondents Claim Petitioner in Violation of Public Health Laws

by Stephen Bilkis

The petitioner for this case is Lena Bagels, Inc. The respondent of the case is The City of New York and the New York City Department of Consumer Affairs. The case is being heard in the New York Supreme Court. The judge overseeing the case is Philip G. Minardo.

Case

Lena Bagels operates a corporation and the main place where business occurs is located on Richmond Avenue in Staten Island, New York. The company is authorized by the state to transact business. Lena Bagels was incorporated in 2001. A New York Injury Lawyer said the petitioner, Lena Bagels has been found guilty of selling tobacco products to a minor. The petitioner states that the fine of $3500 is void and requests the renewal of their application for their tobacco license. The petitioner is seeking to annul the recommendation made by Judge Mitchell B. Nisonoff.

Published on: July 8, 2012

Court Maintains Complaint if Friviolous and Lacks Standing

by Stephen Bilkis

This is an interesting case being heard in the Kings County Supreme Court that involves the plaintiff, Christopher-Earl Strunk and a number of defendants. Among the defendants for the case are President Barack Obama, along with Vice President Joe Biden, and Senator John McCain. Additional defendants include the Speaker of the House John Boehner, Representative Nancy Pelosi, and Governor Andrew Cuomo, Comptroller Thomas Di Napoli, Attorney General Eric Schneiderman, and billionaires Penny Pritzker, Peter Petersen, and George Soros, as well as six political parties from the state of New York.

Complaint

The plaintiff, Strunk, offers a 45 page document that delivers a number of variations on “birther” cases. The central allegation being made by the plaintiff is that the defendants Senator John McCain and President Barack Obama are not citizens naturally born in the United States of America according to his interpretation of clause 5 of the United States Constitution. A New York Injury Lawyer said the plaintiff declares that the two are involved with the other defendants in a conspiracy to defraud the people of the United States on behalf of the Roman Catholic Church. He offers a lengthy diatribe against all of the defendants as well as the Roman Catholic Church, the Vatican, and the Jesuit Order or Society of Jesus.

Published on: July 7, 2012

Plaintiff in medical malpractice actions seeks to amend complaint based on new law – Stuart v. Health & Hosps Corp., 7 Misc.3d 225 (N.Y. Sup. Ct., 2005)

by Stephen Bilkis

The issues before the court in Stuart v. Health & Hosps Corp. are whether a plaintiff is permitted to amend her complaint based on a change in the law that occurred after she initially filed her claim and whether the new law should be applied retroactively.

In 2000, plaintiff Ashmeade filed a medical malpractice claim on behalf of her deceased son who was born with brain damage and cerebral palsy. Plaintiff claims that the injuries suffered by her son, who was born in 1996, were due to the negligent care by the defendant. In the complaint there were two causes of action. First, on behalf of her son, the plaintiff sought recovery for pain and suffering. The second cause of action was based upon a lack of informed consent.

At the time that the plaintiff file her claim, the law did not give a mother a cause of action for emotional distress in cases where her baby was stillborn or was severely impaired at birth. However, in 2004 the New York Court of Appeals changed the law when it decided Broadnax v. Gonzalez, 777 N.Y.S.2d 416 (2004). The court held that if medical negligence resulted in a miscarriage or stillbirth, then there was also a violation of duty of care to the mother. As a result, she would be entitled to damages for emotional distress. The same year, the court decided Sheppard-Mobley v King (10 AD3d 70 [2004]). This case focused on a child who was born severely impaired. The court held that even if the mother did not suffer a physical injury, if the child is born severely impaired, the mom would be entitled to damages for emotional harm because there would have been a violation of duty of care owed to the mother. Because of these two rulings, the plaintiff sought to amend the complaint filed on behalf of her son to include a claim for her own emotional distress. The defendant opposes the plaintiff’s motion.

Published on: July 5, 2012

New York Appellate Court Rules in Favor of Physician, Holding Access to Medical Records is Authorized

by Stephen Bilkis

This is a case of appeal. The appellant of the case is Miguel M. The respondent in the case is Charles Barron. The case is being heard in the Second Department of the New York Supreme Court, Appellate Division.

Court Opinion

A New York Injury Lawyer said this is an appeal case where the court is asked to determine if a physician can obtain medical records for a patient without the authorization of the individual or a court order in regard to the Health Insurance Portability and Accountability Act or HIPAA in specific situations.

Published on: July 4, 2012

Claimant moves to serve a late notice of claim – Clark v. Roswell Park Cancer Inst. Corp., 2010 N.Y. Slip Op. 20551 (N.Y. Ct. Cl., 2010)

by Stephen Bilkis

The issue in this medical malpractice case is whether the plaintiff/claimant has met the burden of showing why the court should permit him to serve a notice of claim even though the 90-day timeframe has expired. Under New York law, before a plaintiff has the legal right to file a lawsuit against a municipal or governmental entity, it must first serve a notice of claim on the entity. The law requires that the notice of claim is served within 90-days of the incident that forms the basis for the claim.

The claimant seeks to recover damages from defendant Roswell Park Cancer Institute for negligent care that resulted in the claimant having to undergo multiple additional surgeries and an extended recovery period. Roswell is a public corporation, operated by the State of New York. The claimant went to Roswell to have a cancerous mass surgically removed from his lower colon. A few days after the surgery, the claimant was diagnosed with an anastomotic leak to his surgical site. As a result, he had to undergo surgery to repair the leak. Because of the anastomotic leak and complications that resulted from the leak, the claimant had to undergo a colostomy and multiple other surgeries and had to remain at Roswell for over a month. He continued to receive treatment at Roswell and another facility for several additional months.

The claimant failed to timely serve notice of claim, and now seeks leave to serve a late notice of claim. The defendant opposes the claimant’s motion on a variety of grounds. 1). The claimant has not demonstrated a reasonable excuse for not timely serving the noticed; 2). The defendant’s lack of actual or constructive knowledge of the facts on which the claim is based; and 3). The defendant’s case was prejudiced because of the lack of notice.

Published on: July 3, 2012

Statute of limitations for serving notice of claim not tolled under the continuous treatment doctrine- Grellet v. City of New York, 504 N.Y.S.2d 671, (N.Y. App. Div., 1986)

by Stephen Bilkis

In this case the court determines the issue as to whether the statute of limitations for filing a medical malpractice claim was tolled based on the continuous treatment doctrine. Under New York law, there are special procedural rules that must be followed in order to sue a public entity. Because the defendant Elmhurst General Hospital was owned by the City of New York and operated by New York City Health and Hospital Corporation at the time of the incident at the basis of this lawsuit, the plaintiff was required to follow the special procedures.

Before an injured victim can file a lawsuit against a public entity, the plaintiff must first file a notice of clam with the appropriate public office within 90 days of the date of the negligent act that resulted in the plaintiff’s injury. In this case, the malpractice occurred at the time of plaintiff’s baby’s birth, July 3, 1970. According to the plaintiff, the defendant’s negligent care during labor and delivery of the baby resulted in neurological damage. As a result, the baby has mental retardation and cerebral palsy.

The plaintiff served notice on February 8, 1980—over 10 years after the negligence and over 10 years after the deadline for serving a notice of claim. Thus, the court had no choice but to dismiss the plaintiff’s claim, unless the time for serving notice was tolled. “Tolling” the statute of limitations means pausing or delaying the running of the statute of limitations. In other words, the plaintiff in a personal injury lawsuit would have extra time to file his or her claim. In New York, two possible reasons for tolling the statute of limitations in a medical malpractice case are due to infancy or due to continuous treatment. After determining that the time for serving notice could not be tolled based on infancy, the plaintiff argues that her filing was not late under the “continuous treatment” rule. The doctrine provides that in a medical malpractice case, the 90-day filing period for serving a claim is tolled if there is a continuous course of treatment for the condition caused by the alleged medical malpractice.

Published on: July 2, 2012

Medical malpractice claim dismissed because plaintiffs failed to provide a reasonable excuse for serving the notice of claim late – Velazquez v. City of New York Health and Hospitals Corporation (Jacobi Medical Center), 2010 NY Slip Op 195 (N.Y. App. Div., 2010)

by Stephen Bilkis

In a medical malpractice claim, the issue before the court is whether the plaintiff had a reasonable excuse for filing a late notice of claim. Under New York law, before a plaintiff can bring a lawsuit against a public or government entity, the plaintiff must first file a notice of claim. The purpose of a notice of claim is to give the government entity advance warning that a lawsuit is pending that involves a claim for damages. It allows the government the opportunity to investigate the incident and the merits of the claim. In the Velazquez case, the defendants are the City of New York Health and Hospitals Corporation, the public entity that operates Jacobi Medical Center. The plaintiff was required to serve the notice within 90 days of the incident that led to the medical malpractice claim.

The infant plaintiff was born at Jacobi Medical Center in March 1998. At birth he weighed one pound, nine ounces, and remained in the neonatal intensive care unit until July 6, 1998. At age 4 he was diagnosed with spastic cerebral palsy and asthma. However, his parents did not file a notice of claim on his behalf until October 11, 2006– 8 years later. The plaintiff claimed that due to the defendant’s medical malpractice and failure to obtain informed consent, he was injured.

Clearly the plaintiff did not serve the notice of claim within 90 days of his birth in 1998. The court must now determine if, despite filing the notice of claim 8 years after the incident, the plaintiff filed the notice timely. The plaintiff filed a motion requesting the court to issue an order deeming the notice of claim served to be timely or, in the alternative, granting leave to serve a late notice of claim. New York law does allow exceptions to the 90-day rule statutory timeframe. In making its decision, the court must look at 3 factors: 1). whether the plaintiff provided a reasonable excuse for the late serving of the notice of claim; 2). whether the municipality had actual notice of the essential facts of the claim within 90-days after the claim arose; and 3) whether the delay would substantially prejudice the municipality in its defense.