Recent Posts

New York’s Wrongful Death Statute Remains Untouched – For Now

In the waning hours of January 30, 2023 – the deadline to sign New York’s Grieving Families Act1 into law – Governor Kathy Hochul instead vetoed the legislation, which had passed both houses of the legislature with significant bipartisan support…

Potential Emotional Damages for Wrongful Death in New York

Written by:  Nicole Callahan, Esq. and Daniele DeZago, Esq. I.          INTRODUCTION The New York Legislature recently passed Bill S74A, also called the Grieving Families Act, which would amend sections of the EPTL that provide for the types of damages that may be awarded in wrongful death actions.  Governor Hochul is expected

First Department Holds that SOL Tolling Under Lavern’s Law for Delayed Cancer Diagnosis Does Not Apply in Ford v Lee

Author: Jeffrey T. Wolber The First Department reversed a Bronx County Supreme Court order denying the defendants’ motion to dismiss pursuant to the statute of limitations in Ford v. Lee, 2022 NY Slip Op 01414 (1st Dept Mar. 8, 2022). The case involved allegations of delayed diagnosis of lung cancer following an abdominal/pelvic CT scan

The Brave New World of New York Insurance Disclosure

Written by: Joshua T. Reece, Esq. Edited by: Nicole A. Callahan, Esq. New York’s governor closed 2021 by signing into the law the Comprehensive Insurance Disclosure Act (CIDA), which placed onerous new insurance disclosure requirements on defendants. The most onerous provisions of CIDA were struck when the law was amended on February 24, 2022. Given

Siegel – Is the QA Privilege Eroding?

Written by: Joshua T. Reece, Esq. Edited by: Nicole A. Callahan, Esq. At the end of 2021, the Appellate Division, Second Department revisited disclosure and New York’s Quality Assurance (“QA”) privilege in Siegel v. Snyder, No. 6612/2016, 2021 WL 6057821 (2d Dept. Dec. 22, 2021). The long-standing privilege shields from disclosure certain materials and statements

Nursing Homes Challenge New York’s Profit Cap as Unconstitutional

Written by: Jeffrey T. Wolber, Esq. Edited by: Nicole A. Callahan, Esq. A group of over 200 nursing homes are challenging a New York law that sets a cap on their profits. The lawsuit was filed on December 29, 2021 in the U.S. District Court for the Northern District of New York (Case No. 1:21-cv-01384).

Yonkers City Court Confirms Emergency Vehicle Rule Scope & Burden

Author: Benjamin Youssef Editor: Nicole A. Callahan, Esq. The scope of New York Vehicle and Traffic Law (VTL) §1104 has been reaffirmed in a decision issued by the Honorable Judge Evan Inlaw of Yonkers City Court, who issued a decision in State Farm Fire & Cas. Co. v. City of Yonkers, granting the defendants’ motion

Orange County Supreme Court Dismisses Claims of Nursing Home Negligence related to Pressure Ulcers and Fungal Dermatitis without Prejudice under the EDTPA in Crampton v. Garnet Health

Written by: Jeffery T. Wolber, Esq. Judge Bartlett of Orange County Supreme Court granted a partial motion to dismiss under §3211(a)(7) (failure to state a claim) based on the civil immunity provided by New York’s Emergency or Disaster Treatment Protection Act (EDTPA). Although this is a trial court decision, its analysis will be helpful for

Attention New York Employers: What to Know About New York’s Expanded “Whistleblower” Law

Written by: Joseph A. Keane, Esq. On January 26, 2022, New York’s expanded “whistleblower” law goes into effect.  The amendments to Section 740 of the New York Labor Law will increase the categories of covered workers protected by the statute,  add protected activities that entitle an employee to whistleblower protection, enhance worker protection by broadening

Lennon: Parting the Red Sea of Collateral Estoppel Defenses

Written by: Joshua T. Reese, Esq. In an Opinion and Order handed down on September 15, 2021, the Appellate Division, Second Department examined the nuanced collateral estoppel effects of a Workers’ Compensation Board determination on a related personal injury lawsuit. The factual allegations in Lennon are, at first blush, unremarkable. The plaintiff, Sean Lennon (no

Nassau County Supreme Court Denies Hospital’s Motion for Summary Judgement in Slip and Fall Case, Finding Insufficient Support on The Issue Of Constructive Notice

Written by: Daniele DeZago, Esq Edited by: Nicole A. Callahan, Esq. Judge Voutsinas denied defendant Mercy Medical Center’s motion for summary judgment in an alleged slip and fall case.  Plaintiff alleged she slipped and fell on an unknown clear wet substance on a second floor hallway of Mercy Medical Center on Sunday April 16, 2017,

Recent Connecticut Personal Injury Settlement Demonstrates the Power of Future Damages Experts

Written by: Evan M. O’Hara, Esq. While testimony on future care and treatment (and the associated costs) is nothing new in personal injury litigation, a popular trend for some time now has been plaintiffs retaining expert witnesses specifically to provide opinions on the subject rather than relying on the testimony of the plaintiff’s treating medical

Judge Muir of Supreme Court, Queens County Issues Order Directing Plaintiff Receive an Adverse Inference Charge at Trial for Spoliation of Evidence and Finding That Defendants Failed to Establish They Did Not Have Notice of the Defective or Dangerous Condition of their Elevator

Written by: Daniele DeZago, Esq. Queens County Supreme Court Judge Maurice E. Muir issued an Order denying Defendants’ motions for summary judgment and granting Defendant Delta Elevator Inspection Corporations motion for spoliation of evidence to the extent of directing an adverse inference charge be given at trial with respect to the plaintiff’s missing high heeled

Monroe Supreme Court Denies Motion to Dismiss Holding That A Plaintiff Can Bring a Child Victims Act Cause of Action Under a Theory of Premises Liability

Written by: Eve Soldatos, Esq. Edited by: Nicole A. Callahan, Esq. Plaintiff brought an action against Churchville-Chili Central School District (“CCCSD”) claiming that an employed teacher and coach of CCCSD engaged in sexual contact with the plaintiff from 1997 to 1999, while the plaintiff was a minor. The plaintiff was not a student at CCCSD but the

Judge Rakoff of the Southern District of New York Applies State Pleading Requirements to Grant Motion for Remand in Favor of Products Liability Plaintiff in Resnik v. Rite Aid of New York, Inc., et al. – Determining that Plaintiff did not Fraudulently Join Codefendants

Written by: Evan M. O’Hara, Esq. Editor: Nicole A. Callahan, Esq. On July 12, 2021, the Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, issued a decision granting the plaintiff’s motion to remand her products liability claim against a number of corporate entities to the Supreme Court of

NY’s First Department Rules that Attorney’s Email Signature Block is Sufficient to Create Binding Settlement Agreement in Matter of Philadelphia Ins. Indem. Co. v. Kendall

Written by: Jeffrey T. Wolber, Esq. In a decision from New York’s Appellate Division, First Department, the court held that an email containing an attorney’s automatically-populated signature block was sufficient to constitute a “subscribed” writing within the meaning of CPLR 2104 for purposes of enforcing a settlement agreement. CPLR 2104 reads in pertinent part: An agreement

Young v. 1530 Rosedale Partners, LLC, et al. – Plaintiff Not Required to Show Freedom From Comparative Negligence In Addition to Establishing Defendant’s Negligence on Summary Judgment

Written by: Eve Soldatos, Esq. Edited by: Nicole A. Callahan, Esq. In this Bronx-venued Supreme Court action, plaintiff, who is blind, alleges that she lost her balance while walking down the staircase from her third-floor apartment and when she reached out to grab the staircase handrail to catch herself, it was not there and she

New York Public Health Law § 2801 Does Not Apply to Adult Homes

Written by: Daniele DeZago, Esq. Edited by: Nicole A. Callahan, Esq. The applicability of New York Public Health Law § 2801 has been limited thanks to a decision issued by Judge George Nolan of Suffolk County Supreme Court.  In Schuckman v. Atria Senior Living, N.Y. Sup. Ct. (611915/2020), Judge Nolan granted defendants’ motion to dismiss

Judge Edwards of Kings County Grants Summary Judgment in Favor of Medical Malpractice Defendants in Moore v. Volokh—Holds Plaintiff’s Experts Failed to Refute Causation Arguments

Written by: Jeffrey T. Wolber, Esq. Editor: Nicole Callahan, Esq. On June 11, 2021, Kings County Supreme Court Justice Genine Edwards issued a decision granting summary judgment in favor of a radiology center and its radiologist.  In this action, the plaintiff claimed a failure to diagnose stomach cancer following an abdominal contrast study. The radiology defendants moved

Hospital and Healthcare Associations File Amicus Brief in COVID Nursing Home Suit

Written by: Eve Soldatos, Esq. and Kyle A. Schiedo, Esq. Edited by: Nicole A. Callahan, Esq. On June 5, 2020, plaintiff Vivian Rivera-Zayas brought an action in Kings County Supreme Court against Long Island nursing home Our Lady of Consolation Nursing and Rehabilitative Care Center, claiming that the nursing home was negligent, reckless, and willful

New York State Senate Passes Adult Survivors Act For Victims of Sexual Assault

Author: Eve Soldatos, Esq. Editor: Nicole Callahan, Esq. On June 3, 2021, the New York State Senate passed Senate Bill S66, also known as the Adult Survivors Act. The Act would amend the civil practice law and rules in relation to the statute of limitations for civil actions related to certain sexual offenses committed against

Bronx County Supreme Court Rules on Applicability of New York’s EDTPA to Medical Malpractice Claim for Stroke Presentation

Written by: Jeffrey T. Wolber, Esq. On June 4, 2021 Judge Higgitt of the Bronx County Supreme Court issued a decision denying a motion to dismiss under CPLR 3211(a)(7) for failure to state a claim based on the civil immunity  provided by New York’s Emergency or Disaster Treatment Protection Act (EDTPA) and Governor Cuomo’s Executive

Bronx County Supreme Court Dismisses Medical Malpractice Claim Under the EDTPA and Executive Order 202.10 in Hampton v. City of N.Y.

Written by: Jeffrey T. Wolber, Esq.  On June 3, 2021 Judge Danziger of Bronx County Supreme Court issued a decision granting a motion to dismiss under CPLR 3211(a)(1) (documentary evidence) and (7) (failure to state a claim) based on the civil immunity  provided by New York’s Emergency or Disaster Treatment Protection Act (EDTPA) and Governor