The Appellate Division, Second Department in Colon v. Martin, 2019 NY Slip 02312 (March 27, 2019), considered whether plaintiffs failed to comply with General Municipal Law Section 50-h when each of two claimants insisted they would not proceed with a 50-h hearing unless each was permitted to be present while the other testified. The majority ruled that the plaintiffs' failure to proceed was in noncompliance with the G.M.L. statute warranting dismissal of the Complaint because the statute did not give a claimant the right to sit in on another claimant's hearing. The Court found it significant that defendants made it clear that they were not waiving the hearing by plaintiffs' refusal to proceed separately for hearings.

The Appellate Division, First Department recent considered whether the notes of an IME observer retained by the plaintiff's attorney's office for a defendant's IME are discoverable in Markel v. Pure Power Boot Camp, Inc., 2019 NY Slip Op 020249 (March 19, 2019). The Court noted that a plaintiff is entitled to have a representative of their choice present for the IME. Where a watchdog is sent by plaintiff's counsel, the Court found that the watchdog is an agent of the plaintiff's attorney and therefore the notes are considered within the conditional or qualified privilege protections of CPLR 3101(d)(2) as materials prepared in anticipation of litigation. However, the Court found that it was significant to its ruling that the watchdog would not be testifying at trial on plaintiff's affirmative case.

The Appellate Division, Fourth Department, in White v. Bajwa, MD., et al, (4th Dept. May 2018), heard arguments involving a medical malpractice suit seeking damages for an injury sustained to plaintiff's left eye during hip replacement surgery. Plaintiff asserted he would rely on the doctrine of res ipsa loquitor in support of his negligence cause of action. The Appellate Court modified the lower court's decision dismissing the plaintiff's negligence cause of action concerning surgical care to the extent the plaintiff relied on the doctrine of res ipsa loquitor. The Court found that while ordinarily a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from accepted medical practice, and that such deviation was a proximate cause of the plaintiff's injury, where the actual or specific cause of…

In Kanaly v. DeMartino, (3d June 2018), the Appellate Division, Third Department, took the opportunity to modify its rule concerning expert disclosure in medical malpractice cases. Initially, the Court confirmed that each defendant is entitled to expert disclosure from plaintiff directed specifically at each defendant. Notably, the Court also held that parties in medical malpractice cases are ordinarily entitled to full disclosure of the qualifications of an opponent's expert [except for the expert's name] including the names of any institutions where the expert studied or worked, areas of practice and dates of graduation, licensure, training, education and experience. The Court also took the opportunity to rule that the defendants in the case were entitled to unrestricted authorizations to obtain decedent's medical records for 10 years preceding her death where the…

In Carlton v. City of New York (2d Dept. May 2018), the Appellate Division held that falling object liability under Labor Law 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured but also where the plaintiff must demonstrate that, at the time the object fell, it required securing for the purposes of the undertaking. Importantly, Labor Law 240(1) does not automatically apply simply because an object fell and injured a worker. A plaintiff must show that the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute.

Certain policy language continues to be a pitfall for Owners and Contractors seeking additional insured status. Following in the footsteps of the recent 2018 Court of Appeals decision in Gilbane v. St. Paul Fire & Ins. Co., the Appellate Division in Turner Constr. Comp. v. Endurance American Specialty Ins. Comp, (1st Dept. May 2018) held that to obtain Additional Insured status, plaintiffs were required to have a direct contract with the defendant's named insured. Because neither plaintiff had such a contract, they did not qualify for coverage under the language of the AI endorsement and defendant insurance company was not obligated to defend or indemnify them in the underlying action. This continues to be a cautionary tale requiring appropriate due diligence in procuring and reviewing policies of the subcontractors involved…

On February 15, 2018, in Lohnas v. Luzi, M.D., the Court of Appeals affirmed an appellate division holding that plaintiff had raised issues of fact as to whether plaintiff and defendant reasonably intended plaintiff’s uninterrupted reliance upon defendant’s observation, directions, concern, and responsibility for overseeing plaintiff’s progress. The Court noted that the accrual date for the purposes of the statute of limitation was the end date of treatment when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint. The Court specifically rejected that a gap in treatment longer than the statute of limitation period itself is dispositive per se on whether the statute of limitation has run. Rather, the controlling issue is whether there is…

On February 13, 2018, the Court of Appeals in Forman v. Henkin, reversed the appellate court’s decision and reinstated the trial court’s decision finding that the appellate division erroneously applied a heighten threshold for the production of social media records. In doing so, the Court of Appeal emphasized the standard for any materials sought in a personal injury action - there would be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof. The Court noted that standard embodied by statute provides for liberal discovery that encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise. The Court also noted that while the right to disclosure is broad it is…

On March 27, 2018, the Court of Appeals, New York State’s highest court, in Gilbane Bldg Co. v. St. Paul Fire and Marine Comp., affirmed an appellate division decision that declared that an additional insurance endorsement in a commercial general liability (CGL) policy issued by insurer to prime contractor which expressly provided that an additional insured was “any person or organization with whom you [the policy holder] have agreed to add as an additional insured by written contract” covered only those that had written contracts “directly with named insured”. The Court of Appeal’s decision hinged on the inclusion of the word “with” as a term that defined an additional insured. The Court found that the term must be given its ordinary meaning. Thus, the Court found that the term “with”…

The anticipation is over - Governor Cuomo finally signed the bill commonly referred to as Lavern’s Law into law. CPLR § 214-a now provides an express exception to the two years and six months statute of limitations in medical malpractice actions where the action is based upon the alleged negligent failure to diagnose cancer. Cases that involve this claim may now be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the…