Court Applies Relation Back Doctrine Where Plaintiffs Were Negligent In Failing To Add Doctor Sooner

In Kirk v. University OB-GYN Associates, Inc., the plaintiffs commenced a medical malpractice action for injuries to their infant during delivery, but did not correctly name the doctor that delivered their infant. After the statute of limitations expired, the plaintiffs moved to add the doctor that delivered the infant, claiming that they learned who delivered the infant after filing the complaint.  At issue was whether the amendment was timely under the relation back doctrine. The Fourth Department concluded that plaintiffs were entitled to relation back because "even if [plaintiffs] were negligent, there was still a mistake by plaintiffs" in failing to identify the right doctor.   

 

 

DOMA Oral Argument

The audio recordings and transcripts of today's oral argument in United States v. Windsor are available here. 

Expert Affidavit Needed to Make Prima Facie Case of Lack of Causation in Medical Malpractice Cases

On February 13th, we previewed Orsi v. Haralabatos, a medical malpractice case where the Second Department held that the plaintiff failed to raise a question of fact regarding causation. The Court of Appeals has now reversed, holding that because the issue of proximate cause was not addressed in the defendants’ experts’ affidavits, the burden never shifted to the plaintiff.  The decision is here.     

Supreme Court Arguments on Prop 8 and DOMA

Today, the United States Supreme Court held its first of two days of oral arguments on the Constitutionality of California's Proposition 8, banning same-sex marriage, and the Defense of Marriage Act.  The audio recordings and transcripts of today's oral argument in Hollingsworth v. Perry are available here.  The Court will release the audio and transcripts for tomorrow's oral argument in United States v. Windsor no later than 2 p.m. 

 

Second Department Affirms Finding of Questions of Fact As to Whether Plaintiff Was A Worker Entitled to Labor Law Protection

In Vega v. Renaissance 632 Broadway, LLC, the plaintiff was injured while standing on a ladder cutting brackets to free a pipe during demolition work.  The pipe broke free and struck the ladder, allegedly causing the ladder and plaintiff to fall to the floor.  Although plaintiff testified that his boss had instructed him to perform this work, plaintiff's boss testified that he had instructed plaintiff to perform only clean-up work.  On these facts, the trial court and the Second Department found that a question of fact existed as to whether the plaintiff had been "suffered or permitted to work on a building" within the meaning of the Labor Law, or whether he was acting outside the scope of his employment. 

First Department Uses "Unpreserved" Argument to Support Finding of Labor Law 241(6) Liability

In Velasquez v. 795 Columbus LLC, the plaintiff was injured in a slip and fall on a muddy condition that had formed on a concrete floor at a construction site due to rain and a nearby water main break.  He was granted summary judgment against defendants on his Labor Law 241(6) claim.  On appeal, the First Department found that Industrial Code 23-1.7(e), which protects against "tripping" hazards, did not apply.  However, the Court found that 23-1.7(d), which applies to "slipping" hazards and was asserted in plaintiff's complaint and bill of particulars, but not his summary judgment motion, supported plaintiff's claim.  The Court observed that it reached the unpreserved argument "because it is a legal issue that is apparent on the record."  Since the muddy condition was not a part of the work, it constituted a "foreign substance" that caused a slipping condition.

Third Department Applies Labor Law "Residential Use" Exemption to Home For Disabled Individuals

In Sanchez v. Marticorena, the plaintiff's decedent was tragically killed in a fall from the defendants' roof.  The defendants owned a residential home that was certified by the Office for People with Developmental Disabilities as a "family care home."  Four disabled individuals resided at the home, along with the defendants, for which defendants received a stipend.  Plaintiff argued, therefore, that the "home" also served a "commercial purpose" and as such the roof repair work was subject to the Labor Law. 

The work, however, was for the benefit of an attic bedroom where one of the defendants slept and the repairs were paid for from the defendants' personal funds.  

The Third Department held that the receipt of a stipend did not transform the residence into a purely commercial enterprise to render the "residential use" exemption under the Labor Law inapplicable (Bartoo v. Buell, 87 N.Y.2d 362 [1996]).  The Court also held that plaintiff had failed to rebut the fact that the subject repair benefited the defendants' residence, and not an area of the home that allegedly served a commercial purpose.  Finally, the Court observed that the homeowner's exemption "'was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by' the Labor Law (Lombardi v. Stout, 80 N.Y.2d 290, 296 [1992)."  Here, becoming licensed family care providers did not transform the defendants into sophisticated business persons.  

Possible "Theft" of Scaffold Planks Not An Intervening Cause of Plaintiff's Subsequent Fall

In Susko v. 337 Greenwich LLC, the plaintiff fell from a scaffold on which plywood sheeting had been placed over the scaffold planks.  The plaintiff alleged that in one area there were two planks missing beneath the plywood.  The owner argued that the planks were possibly stolen and that he was aware that other subcontractors on the site were moving and removing construction tools and materials.  The First Department found, therefore, that the possible theft of scaffold planks was not "an extraordinary or unanticipated intervening act that constituted a superseding cause for plaintiff's injuries," thus entitling plaintiff to partial summary judgment on liability pursuant to Labor Law 240(1).