In this personal injury action, plaintiff Gladys Yan sued defendants who owned and managed a property after she allegedly tripped and fell in a tree well, fracturing her wrist; she claimed the fall resulted from poorly maintained pavers and exposed roots, but a medical record from treating physician assistant Alejandro F. Molina noted she had reported tripping while attempting to enter her car. The defendants sought to compel an Arons authorization allowing an informal ex parte interview of Molina specifically about the plaintiff's statement on the cause of the accident. The Appellate Division, Second Department, affirmed the Supreme Court's denial of that request, holding that Arons v. Jutkowitz permits such authorizations only for information related to diagnosis and treatment of the injury, not for statements about the accident's cause. The court reasoned that granting the request would constitute an unwarranted extension of Arons, especially since the injury did not arise from medical treatment, and noted that other CPLR article 31 discovery tools remain available to obtain the information.

proceduretorts & liability

In this personal injury case, plaintiff Frank Morejon was injured when a piece of concrete fell from the sidewalk area above a subway platform in Brooklyn, and he sued the New York City Transit Authority, the MTA, and the City of New York alleging negligence in maintaining the station and sidewalk, including that the City created a dangerous condition. The City moved for summary judgment dismissing the claims against it, relying on the prior written notice requirement under the Administrative Code, but the Supreme Court denied the motion. On appeal, the Appellate Division affirmed the denial, holding that the City failed to make a prima facie showing that it did not cause or create the alleged defect, as its motion papers included street opening permits for tree pits in the area during the relevant period and it did not submit evidence ruling out that the work created the hazard. The court noted that this case fell outside the burden-shifting framework of Smith v City of New York because the City did not argue lack of prior written notice on appeal, leaving the create-or-cause exception as the relevant issue. The decision turned on the standards for summary judgment motions and the exceptions to prior written notice laws in municipal tort cases.

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This case involved a plaintiff who slipped and fell at LaGuardia Airport in May 2019 and sued the Port Authority of New York and New Jersey in November 2020 for personal injuries, after serving a notice of claim in August 2020. The lower court dismissed the complaint against the Port Authority for failure to comply with the conditions in McKinney's Unconsolidated Laws § 7107, which requires both commencing an action within one year of accrual and serving notice of claim at least 60 days before suit. The Appellate Division reversed, holding that executive orders issued during the COVID-19 pandemic tolled the one-year commencement deadline, making the November 2020 filing timely. The court further reasoned that the notice-of-claim deadline under § 7107 is measured from the date of commencement rather than the date of accrual, so serving the notice 82 days before the timely commencement satisfied the statute's conditions precedent.

proceduretorts & liability

In Mercado v. Schwartz, a patient sued her physician and medical practice for damages arising from a hysterectomy performed to remove an Essure contraceptive device. The defendants sought to enforce a clause in a pre-surgery "Agreement as to Resolution of Concerns" that would have allowed each side to depose the opposing party's expert witnesses at least 120 days before trial. The Appellate Division held the clause void and unenforceable because it conflicted with New York public policy governing discovery and expert testimony in malpractice actions, the defendants had waived enforcement by entering a later preliminary conference order, and the agreement as a whole was unenforceable since other restrictive provisions were not severable. The court therefore affirmed the trial court's declaration that the deposition provision was invalid.

torts & liabilityprocedurehealthcare