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  • Writer's pictureBrett Leitner

New York Personal Injury Attorneys Review Recent Legal Decisions: A Case Law Breakdown

Updated: May 5

New York Personal Injury Attorneys

New York Personal Injury Attorneys

Review recent cases in New York with our local New York Personal Injury Attorneys at Leitner Varughese Warywoda.

NY Child Victims Act Case: Court Requires Detailed Affidavit in Sexual Abuse Lawsuit

What is a Jackson Affidavit? Key Ruling in Child Sexual Abuse Case

2024 NY Slip Op 31217(U) April 8, 2024

Supreme Court, Kings County

Docket Number: Index No. 520511/2021

Case Summary

  • Background: The plaintiff filed a lawsuit under the New York Child Victims Act, alleging they were sexually abused by a priest, Patrick Sexton, while they were a parishioner at St. Cecilia's church between 1982 and 1985.

  • Discovery Dispute: Plaintiff requested documents related to the allegations. St. Cecilia's claimed not to have any responsive documents apart from 11 pages already produced. The court became involved, ordering St. Cecilia's to produce a Jackson affidavit if they maintained this position.

  • Motion to Vacate: St. Cecilia's tried to vacate the court's order, arguing its lack of further documents meant it fulfilled its discovery obligations. The court denied this motion.

  • Court's Ruling: The court held that the requested documents were crucial to the case. St. Cecilia's could not simply claim to not possess further documents without meeting the specific requirements of a Jackson affidavit.

What is a Jackson Affidavit?

A Jackson affidavit is a sworn statement used in New York legal proceedings when a party claims to not have any documents relevant to a discovery request. It gets its name from the case Jackson v. City of New York.

Requirements of a Jackson Affidavit (as outlined by the court):

  • Detailed Information: The affidavit must include specific details about the documents in question.

  • Knowledge: The person signing the affidavit must have direct knowledge of the documents' past and present status.

  • Document History: It must include information about where the documents were kept and any efforts made to preserve them.

  • Loss/Destruction: If documents were lost or destroyed, the circumstances must be thoroughly explained.

  • Search Efforts: The affidavit must describe the means and methods used in the search for the documents, demonstrating a thorough and good-faith effort.

Why the Court Required a Jackson Affidavit

The court wants to ensure the following:

  • Fairness: That St. Cecilia's isn't withholding documents crucial to the plaintiff's case.

  • Diligence: That St. Cecilia's conducted a thorough, good faith search for relevant records.


NY Construction Accident Law: Liability for Buried Lumber Injury

Labor Law Sections 200, 240(1), 241(6) in Construction Injury Case

2024 NY Slip Op 31251(U), March 27, 2024

Supreme Court, Queens County

Docket Number: Index No. 714433/2018

Judge: Carmen R. Velasquez

Relevant Areas of Law:  Construction Site Negligence, New York Labor Law (Sections 200, 240(1), 241(6))

Factual Background

  • Plaintiff Salgado, employed as a carpenter by subcontractor Manhattan Concrete, was injured on a construction site owned by defendant LGA Hospitality. Defendant Atria Builders was the general contractor.

  • Plaintiff alleges he was struck by wood planks dislodged after being hit by the bucket and/or arm of an excavator.

  • Plaintiff brought suit against the owner and general contractor alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

  • Defendants initiated a third-party action against Manhattan Concrete for contractual indemnification.

Key Holdings

  • Labor Law §200 and Common-Law Negligence: The Court dismissed claims under §200 and common-law negligence against the owner and contractor. Defendants established they did not create or have actual/constructive notice of the specific dangerous condition (buried lumber under sand). However, issues of constructive notice remain for trial.

  • Labor Law §240(1): The Court upheld the §240(1) claim. Defendants failed to eliminate issues of fact, including the exact incident mechanics and whether the injuries were elevation-related as required by the statute.

  • Labor Law §241(6): The Court partially upheld the §241(6) claim, dismissing some cited Industrial Code provisions but sustaining those under 23-4.2(k) and 23-9.5(c). Key considerations were worker proximity to excavation equipment and whether the bucket was at rest when the accident occurred.

  • Contractual Indemnification: The Court denied summary judgment on the contractual indemnification claim against the subcontractor. Conflicting clauses in the subcontract and open questions about whether Manhattan's negligence contributed to the accident prevent a clear ruling at this stage.

Points of Interest for Attorneys

  • Specificity of Labor Law §241(6) Claims: The case underscores the importance of accurately identifying the specific Industrial Code provisions that support a §241(6) cause of action.

  • Nuances of Constructive Notice: Defendants may not escape liability if they should have reasonably known about a dangerous condition, even if they didn't directly cause it.

  • Interplay of Liability Theories: Construction accident cases often involve both common-law negligence and Labor Law claims. The Court's ruling highlights the need to address the differing standards of proof applicable to each type of claim.

  • Subcontractor Liability and Indemnification: Careful review of subcontract language is crucial, as apparently clear indemnification clauses may be qualified by subsequent provisions that limit an owner's or general contractor's right to indemnification.


COVID-19 Immunity for Doctors: NY Court Protects Physician in Medical Malpractice Case

Emergency or Disaster Treatment Protection Act (EDTPA) and Medical Malpractice Lawsuits

Sup. Ct, NY County, March 26, 2024

Central Issue: The scope of civil immunity afforded to healthcare providers under New York's former Emergency or Disaster Treatment Protection Act (EDTPA) and its potential to shield against COVID-19 related medical malpractice claims.

Factual Background

  • Plaintiff, seeking treatment for severe back pain, visited Dr. Henoch in March 2020 amidst the escalating COVID-19 crisis in New York.

  • Diagnostic imaging (MRI) was ordered by Dr. Henoch but repeatedly unsuccessful due to:

  • Pandemic-related scheduling difficulties.

  • Plaintiff's inability to tolerate the procedure.

  • Insurance denial for an open MRI.

  • Despite a referral for an emergency room MRI, plaintiff was eventually diagnosed with cancer in May 2020 following an MRI under sedation.

  • Plaintiff initiated a medical malpractice action against Dr. Henoch, alleging that delays in diagnosis and treatment exacerbated his injuries.

The Court's Decision

  • The Court granted summary judgment to Dr. Henoch, dismissing the case based on the former EDTPA (NY Public Health Law §§ 3080-3082).

  • Key Reasoning:

  • The Court determined that the COVID-19 pandemic impacted Dr. Henoch's ability to provide care, thereby invoking EDTPA immunity.

  • No evidence of gross negligence or intentional harm was established, a prerequisite for overcoming EDTPA protection.

Detailed Analysis

  • EDTPA Provisions:

  • The original EDTPA granted immunity to healthcare providers if:

  • Treatment was provided pursuant to COVID-19 emergency protocols or relevant laws.

  • Treatment decisions were impacted by the provider's response to the pandemic.

  • The provider acted in good faith.

  • Gross negligence, intentional misconduct, or resource shortages (which were pervasive during the pandemic) did not automatically negate immunity.

  • Plaintiff's Arguments:

  • Challenged the application of EDTPA, asserting that the defendant needed to conclusively demonstrate how COVID-19 specifically impacted each alleged failure to diagnose.

  • Argued against the dismissal, suggesting potential departures from standard of care at various junctures in the plaintiff's treatment journey.

  • The Court's Counterpoint:

  • Ruled that the EDTPA's language focused on whether the provider's actions were impacted by the pandemic and not on the degree of that impact.

  • Essentially, the mere presence of pandemic-related obstacles to standard procedures was enough to trigger EDTPA immunity.

Implications for Attorneys

  • EDTPA as a Defense: Medical malpractice cases with a nexus to the early COVID-19 pandemic may be vulnerable to dismissal due to the broad immunity provided by the EDTPA.

  • Plaintiff's Challenges:

  • Overcoming EDTPA-based dismissals requires establishing a strong case for gross negligence or intentional misconduct.

  • Carefully reviewing the specific facts and the chain of treatment decisions is needed to identify potential deviations from accepted medical practice that fall outside EDTPA protection.

  • Retroactivity of EDTPA: Despite the EDTPA's repeal, its application to pandemic-era cases remains in force.


Liability for Construction Worker Injury: Labor Law vs. Negligence

NY Labor Law Sections 200, 240(1), 241(6) and Owner Liability in Construction Accidents

Sup. Ct, Kings County, March 11, 2024

Key Issue: Determining the extent of an owner's liability for a worker's injuries on a construction site, particularly the interplay between NY Labor Law sections and common-law negligence.

Factual Background

  • Plaintiff Khalil, a self-described handyman, was injured during demolition work at a property owned by defendant Abbas.

  • Disputed facts:

  • Who hired the plaintiff (Abbas denies doing so).

  • Whether Abbas directed the plaintiff's work.

  • Whether Abbas was asked to provide, but failed to supply, safety gloves.

Court's Decisions

  • Labor Law § 240(1): Dismissed

  • Plaintiff's injury didn't involve falling or being struck by a falling object, which are essential conditions for a § 240(1) claim.

  • Plaintiff didn't oppose this dismissal.

  • Labor Law § 241(6): Dismissed

  • Plaintiff only cited OSHA and Fire Code provisions, which don't support a § 241(6) claim. To succeed, specific violations of the NY Industrial Code must be identified.

  • Labor Law § 200 & Common-Law Negligence: Motion Denied

  • Core Issue: Whether the owner exercised sufficient supervision or control over the work to be held liable under § 200, which mirrors common-law negligence standards.

  • Conflicting Testimony: Plaintiff claims Abbas gave work instructions, Abbas denies this. This creates a genuine issue of material fact precluding summary judgment.

Analysis of Labor Law § 200

  • Liability Prerequisite: Owner/general contractor must have authority to supervise or control the work methods, not just general oversight over the project's progress.

  • Determining Sufficient Control: This is a fact-specific inquiry. The Court's focus in this case is on the disputed testimony about who directed the plaintiff's work.

Indemnification and Contribution

  • The Court denied the defendant's motion for summary judgment on third-party claims for common-law indemnification and contribution.

  • Rationale: The outstanding factual dispute about the defendant's potential negligence prevents a clear ruling on whether he is entitled to seek indemnification or contribution from third parties.

Key Takeaways for Attorneys

  • Specificity in § 241(6) Claims: Success under this provision hinges on citing the correct sections of the NY Industrial Code, not general safety regulations.

  • The Nuance of "Control" in § 200: Liability isn't automatic for owners. The level of control they exercise over the specific work methods is the crux of a § 200 claim.

  • Interconnectedness of Liability: The Court's unresolved determination of negligence under § 200 has cascading effects, impacting the viability of the defendant's indemnification and contribution claims.


Bicycle Accident Lawsuit: Can Memory Loss Impact Trial Structure?

Admissibility of Past Drug Use in NY Personal Injury Cases

2024 NY Slip Op 30847(U) March 15, 2024

Supreme Court, Kings County Docket Number: Index No. 520088/2016

Judge: Richard J. Montelione

Key Issues

  • Bifurcation of Trial: Whether the plaintiff's partial memory loss as a result of the bicycle accident is relevant to the liability phase.

  • Admissibility of Prior Substance Abuse: If the defendant can cross-examine the plaintiff about prior drug use and convictions.

  • Motion to Strike Pleadings: Whether the defendant's denial of FDNY involvement in the accident for 8 years warrants striking their answer to the complaint.

  • Other Preclusion Motions: The Court's rulings on various motions to exclude evidence related to FDNY witness disciplinary records, FDNY manuals, and allegations of a conspiracy.

Court's Decisions

  • Bifurcation Upheld: The Court denied a unified trial. It found the plaintiff's claimed memory loss insufficiently linked to the events of the accident and thus irrelevant to liability.

  • Prior Substance Abuse Inadmissible: The Court barred cross-examination about prior drug use, as there was no evidence of it affecting the plaintiff at the time of the incident. The defendant was also barred from using a disorderly conduct violation (not a crime) for impeachment.

  • Motion to Strike Denied: The Court allowed the defendant to correct their answer. Since the correction was made promptly and without prejudice, striking the answer was unnecessary.

  • Other Preclusions:

  • The Court granted the defendant's motion barring evidence about other lawsuits/accidents involving FDNY witnesses, to avoid irrelevant and prejudicial inquiries.

  • Disciplinary records were not outright excluded, but their use will require a showing of relevance.

  • Evidence related to the FDNY manual will be excluded, as it could confuse the jury regarding the applicable standard of care.

  • The plaintiff won't be allowed to argue a "conspiracy" without first making an offer of proof outside the jury's presence.


  • Specificity in Bifurcation Arguments: Plaintiffs seeking a unified trial must demonstrate a clear link between their alleged injuries and how those injuries impact their ability to testify about the liability-determining aspects of the incident.

  • Limits of Impeachment: Prior drug use, particularly when there's no evidence of its relevance at the time of the incident, is generally not admissible for impeachment purposes.

  • Judicial Discretion on Preclusion Motions: The Court exhibited nuanced decision-making on excluding various types of evidence, balancing probative value against potential prejudice and confusion.

Takeaways for Attorneys

  • Build Strong Bifurcation Arguments: Carefully analyze and establish the nexus between alleged injuries and their impact on the plaintiff's ability to testify about the liability aspects of the case.

  • Impeachment Limitations: Be aware that past substance abuse or minor convictions may not be admissible for impeachment unless a direct connection to the time of the incident can be shown.

  • Strategic Preclusion Motions: Craft motions to exclude with precision. Courts will consider factors like relevance, prejudice, and potential to confuse the jury.


NY "Dog Bite" Law: Does Owner Knowledge of Vicious Propensities Still Matter?

Hewitt v. Palmer Veterinary Clinic Impact on NY Premises Liability Law

2023 NY Slip Op 05708

Decided on November 15, 2023

Appellate Division, Second Department

Key Issue:  Does Hewitt v. Palmer Veterinary Clinic alter the standard of care for premises owners in animal injury cases, eliminating the "vicious propensities" notice requirement?


  • Plaintiff's infant was bitten by a dog owned by other patrons at a "dog-friendly" restaurant.

  • Restaurant owners moved for summary judgment, arguing they had no knowledge of the dog's vicious propensities.

  • Trial court denied the motion, citing Hewitt in support of a pure negligence analysis.

Appellate Court Holding:

  • Hewitt does NOT eliminate the vicious propensities notice requirement for ordinary premises owners.

  • Hewitt's holding was specific to defendants with specialized knowledge of animal behavior (e.g., veterinarians).

  • Restaurant owners established a lack of such knowledge and took reasonable precautions (signage).

  • Plaintiff failed to raise a triable issue of fact or demonstrate how further discovery would change the outcome.

Annotations for Attorneys

  • Hewitt's Limited Reach: The decision clarifies that Hewitt was fact-specific and should not be broadly applied to overturn the vicious propensities standard in general negligence actions against premises owners.

  • Importance of Specialized Knowledge: Hewitt's relaxed standard hinges on whether the defendant possesses specific expertise relating to animal behavior. This is unlikely to apply to most businesses.

  • Plaintiff's Burden: Plaintiffs must do more than allege general risk factors (e.g., crowds). They must provide evidence (e.g., expert opinion) linking those factors to a foreseeable increased risk of animal aggression.

  • Discovery Considerations: The Court notes that mere speculation about potential evidence discovered through further discovery is not enough to defeat summary judgment.

Key Takeaways

  • Premises owners are generally not held to the same standard as veterinarians when it comes to animal-related injuries.

  • Plaintiffs in animal injury cases against premises owners must still establish the owner's knowledge of vicious propensities or demonstrate that the risk was foreseeable due to factors within the owner's control.


NY Sidewalk Injury Case: What Makes a Defect "Dangerous"?

Proving Negligence in Sidewalk Slip and Fall Accidents in NY

024 NY Slip Op 50426(U)

Decided on February 24, 2024

Court Of Claims Mejias-Glover, J.

Key Issues:

  • Duty of Care: Did the State fulfill its legal obligation to maintain a reasonably safe sidewalk?

  • Height Differential as Defect: Was the 1.5-inch sidewalk unevenness merely a minor imperfection (and thus legally irrelevant), or did it constitute a non-trivial defect potentially leading to liability?

  • Proximate Cause: Was the alleged defect the primary cause of the plaintiff's injury, or did the plaintiff's actions play a significant enough role to shift liability?

Procedural Posture: The State (defendant) sought summary judgment, arguing no factual dispute existed to justify a trial. The Court rejected this, finding the case hinges on unresolved questions.


The Court denied the State's summary judgment motion, concluding that genuine questions of fact remain, specifically:

  • Significance of the Defect: Whether the condition of the sidewalk constitutes a breach of the State's duty, making them accountable for injuries it might cause.

  • Causation: Whether the defect directly led to the plaintiff's injuries, overcoming any potential arguments by the State about the plaintiff's contributory negligence.

Expanded Analysis for Attorneys

  • Standard of Care in Premises Liability: Property owners have a general duty of care to maintain safe conditions. This case highlights how the definition of "safe" can be contested, especially regarding the "triviality" of defects.

  • Expert Testimony's Impact: The plaintiff's use of an expert likely played a key role in the ruling. The expert's opinion helped establish that the defect might not be trivial and could have foreseeably caused injury, thus meeting the legal burden to oppose summary judgment.

  • Contributory vs. Comparative Negligence: New York follows comparative negligence rules. It's thus vital for a plaintiff's attorney to anticipate defenses claiming the plaintiff was partially at fault. This defense can diminish damages but usually won't entirely eliminate liability unless the plaintiff's actions were truly the sole cause.

Key Takeaways

  • Defendants in premises liability cases cannot rely solely on minor defect measurements. Courts may examine broader circumstances and expert assessments of risk to determine if a property owner breached their duty.

  • Expert witnesses can be instrumental in establishing when supposedly minor defects have a sufficient causal link to injuries, thereby defeating summary judgment.

  • Understanding the nuances of a jurisdiction's approach to contributory negligence is crucial for both plaintiffs and defendants in assessing a case's potential outcome.

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