Wednesday, March 28, 2012

Affordable Care Act: Day Three Oral Arguments

The transcript and audio from both of today's arguments is now available here (morning session) and here (afternoon session).   

Two Foot Fall Held to Be Labor Law § 240(1)

In Soltero v. City of New York, the First Department held that a plaintiff can recover under Labor Law § 240(1) for a fall from a two-foot ledge in a subway tunnel. The plaintiff was a member of a team engaged in replacing old train tracks when she fell from the hosed-down and slippery ledge. Defendants did not dispute the fall or that the task required the plaintiff to be at an elevation, but did argue unsuccessfully that there was a question of fact about whether the wall was less than two feet tall.

Labor Law § 240(1) Applied to Fall From Material Located On Flatbed Truck

In Phillip v. 525 E. 80th Street Condominium, the First Department held that a plaintiff was entitled to summary judgment under Labor Law § 240(1) where he fell while unloading scaffolding material from a flatbed truck. Plaintiff was standing on top of the scaffolding material and handing it to his coworkers approximately nine feet above a platform. As for safety devices, the plaintiff was provided a harness, but no place to secure it. The court also noted that the evidence supported that the way in which plaintiff worked was the only way to unload the materials.

Tuesday, March 27, 2012

Affordable Care Act Oral Argument Day 2

For the transcript and audio of today's argument click here

Monday, March 26, 2012

Landowner's Duty to Illuminate Known Conditions

In Taylor v. Lands End Realty Corp., the plaintiff was injured in a nightime fall from an unlit, third-floor landing. The plaintiff, after smoking a cigarette on the landing, tried to walk down the stairway in the dark. Unfortunately, an independent contractor had recently removed the stairs for repairs, and the plaintiff fell three stories to the ground.

The defendant’s motion for summary judgment was denied on the claim that it had a duty to light the exterior landing and stairs. The Third Department affirmed, observing that the Court of Appeals has held that a property owner may have a duty to illuminate property at night when it is aware of a condition that may be alleviated by illumination (see Peralta v Henriquez, 100 NY2d 139, 144 [2003]). As such, the Courts must "examine the particular circumstances of each case to determine whether such a duty exists, considering, among other things, '[t]he use to which [the] property is put, and the frequency of that use by others' (id. at 144)."

Here, summary judgment was properly denied due to scant evidence of the purpose of the landing and the frequency of use by others.

Oral Argument For Day One Is Now Available

Oral argument from today's session on the Affordable Care Act is now available.  To access click here

Sunday, March 25, 2012

Supreme Court Arguments On The Affordable Care Act Start Monday

Beginning Monday, March 26th, the United States Supreme Court will hold six hours of oral argument, spread over three days — until March 28th — on the Affordable Care Act.  The Court has decided to release audio and written transcripts of the arguments.  According to the Court, “[t]he audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m.”  We will try to provide links to them here when they become available.

Thursday, March 22, 2012

First Department Holds That For No-Fault Law To Apply Vehicle Must Cause Injury

In Cividanes v. City of New York, the plaintiff alleged that she was injured when she exited a city bus that failed to pull parallel to a curb.  As a consequence, she claimed that she stepped into a hole in the street and suffered minor injuries. The defendants moved for summary judgment arguing that the plaintiff did not suffer a serious injury under the No-Fault Law. While the First Department agreed that the plaintiff did not suffer a serious injury, it held that the No-Fault Law did not apply. According to the Court, the No-Fault Law only applies where a vehicle proximately causes the plaintiff’s injury.  Here, the First Department concluded that it was not the city bus that caused the injury, but a hole in the street that produced the injury. As a result, the No-Fault Law did not apply and the defendants were not entitled to summary judgment.  The Court further held that to the extent the Second Department's recent decision in Manuel v. New York City Tr. Auth. reached a different conclusion, they declined to follow it. 

Wednesday, March 21, 2012

Second Department Holds That Commencement Of Prior Action Did Not Bar Insanity Toll

In Montepiedra v. Hon, the plaintiff, Filomena Montepiedra, commenced a medical malpractice action, as guardian for Maria Montepiedra, for injuries Maria allegedly sustained as a result of the rupture of a brain aneurysm.  The action, however, was commenced outside of the two and half year statute of limitations for medical malpractice actions, prompting a motion for summary judgment from the defendants. 

While acknowledging that there was sufficient evidence to support the insanity toll to the statute of limitations (CPLR 208), the defendants argued that the toll was inapplicable because a prior action had been commenced in Maria's name. According to the defendants, the prior action demonstrated that Maria was not incapable of protecting her rights.  The trial court granted the defendants' motions, but the Second Department reversed. 

According to the Court "the toll provided in CPLR 208 was not terminated or unavailable due to the commencement of the prior action."  Since the defendants "conceded" that there was sufficient evidence to support the insanity toll, the Court concluded that the defendants failed to meet their burden and the motion should have been denied. 

Monday, March 5, 2012

Punitive Damages Claim Reinstated in Medical Malpractice Action

In Marsh v. Arnot Ogden Med. Ctr., the Third Department recently reinstated claims for punitive damages against a hospital, its nurse and an attending physician.  The plaintiff alleged that the physician failed to properly monitor the plaintiff's decedent after a medication error by the nurse.  More specifically, the plaintiff alleged that the nurse mistakenly injected the decedent with an insulin-reducing medication that had not been prescribed.  In doing so, the nurse allegedly ignored a relative's warning that the decedent was not diabetic and failed to confirm the identity of the patient.  After learning of the error, the physician ordered that the decedent's glucose be monitored every two hours and to call him at home.  After the second test, the physician allegedly said the staff could discontinue the monitoring until morning.  In the morning, however, the decedent's glucose dropped to 15 and he died shortly thereafter from an insulin overdose. 

The trial court granted the defendants' motions to dismiss and for partial summary judgment on the punitive damages claims, but the Third Department reversed and reinstated the claims.  The Court held that the nurse's motion should not have been granted because the nurse allegedly ignored the warning that the decedent was not diabetic.  According to the Court, this dispute of fact raises questions as to whether the nurse's conduct transcends mere carelessness as to be reckless indifference.  

As to the physician, the Court found that if the plaintiff could prove the defendant, despite the known risks, did not come to the hospital and ordered the staff to stop monitoring, it is possible that such conduct could be found grossly inappropriate.

Finally, with respect to the hospital, the Court held that at this stage the punitive damages claim could proceed because the hospital's medical records failed to note the medical error until four months after the decedent's death and they provided no explanation for the delay.  There was also evidence that the nurse had made a prior medication error with a different patient, which according to the Court may raise questions as to whether the hospital had appropriate safety precautions and training in place to identify medication errors.