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Case Summaries

Injury & Tort Law

[11/20] Paterno v. Laser Spine Institute
In this medical malpractice action, dismissal for lack of personal jurisdiction against non-domiciliary defendants is affirmed, where: 1) defendants' contacts with New York are insufficient to confer long-arm jurisdiction under CPLR 302(a)(1); and 2) because plaintiff's suffered his injuries and underwent surgery outside of New York, section 302(a)(3) cannot serve as an alternative basis for personal jurisdiction over defendants.

[11/20] Frezzell v. City of New York
In this case, plaintiff police officer was responding to a radio call for assistance when he got into a motor vehicle collision with another police officer, Tompos, responding to the same call. Plaintiff brought suit against Tompos and the City of New York. Summary judgment in favor of defendants is affirmed, where: 1) Tompos' operation of his patrol vehicle did not rise to the level of reckless disregard necessary for liability under Vehicle and Traffic Law section 1104; and 2) plaintiff failed to raise a triable issue of fact.

[11/19] Scott v. C.R. Bard
In this personal injury case, defendant's product was surgically implanted in plaintiff Scott and caused serious complications. Judgment finding defendant negligent, finding plaintiff's surgeon, a nonparty, 40 percent at fault, and awarding Scott accordingly, is affirmed, where: 1) the negligence theories were properly submitted to the jury and the negligence finding is supported by substantial evidence; 2) defendant was not denied a fair trial; and 3) because plaintiffs acquiesced in the giving of incomplete jury instructions on the surgeon's fault when it was in their best interest for the jury to be properly instructed on the issue, they are estopped from asserting the relevant instructional error on appeal.

[11/19] Elliott v. Geico
In this case, plaintiff brought a lawsuit against defendant insurance company for payment of underinsured motorist benefits following a motor vehicle accident in which plaintiff's husband was killed by a drunk truck driver returning home from her job at a restaurant. Dismissal is affirmed, where: 1) defendant's policy unambiguously allows them to deduct from the underinsured motorist coverage limits "the amount paid to the insured by or for any person or organization that may be held legally liable for the injury"; and 2) because $265,000 was paid to plaintiff in settlement of her claims that both the drunk driver and the restaurant owners may be held legally liable for the injury, defendant properly deducted this amount from the underinsured motorist coverage limits.

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Workers' Comp

[11/20] In the Matter of Maureen Kigin v. State of New York Workers' Compensation Board
In this case, claimant was injured on the job and entitled to worker's compensation, but upon receipt of acupuncture treatment, a Workers' Compensation Law Judge determined that claimant's medical provider failed to show that the additional acupuncture treatments were medically necessary. The Workers' Compensation Board affirmed the Judge's determination, arguing that the treatments were not medically necessary within the "Medical Treatment Guidelines." Order of the Appellate Division affirming the Board's decision is affirmed, where: 1) the establishment of the variance procedure was within the Board's broad regulatory powers; 2) it was reasonable for the Board to promulgate uniform guidelines for defining the nature and scope of treatment considered medically necessary; 3) nothing in the Workers' Compensation law precludes the Board from requiring proof of medical necessity from claimant's health care provider; 4) the carrier bears the burden of proffering "substantial evidence"; and 5) the Guidelines provide claimants with a meaningful opportunity to be heard on the denial of any variance request.

[08/06] LeFiell Manufacturing Co. v. Superior Court (Watrous)
In an action brought by plaintiff-employee under Labor Code section 4558, which provides an exception to the exclusivity of the workers' compensation system for employees injured as a result of the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, the trial court erred in denying defendant-employer's motion for summary judgment, where: 1) the door that was removed from the Fenn 5F swaging machine operated by plaintiff-employee is not a point of operation guard as a matter of law; and thus, 2) defendant -employer is entitled to summary judgment.

[07/18] Benavides v. WCAB
The decision of the Workers' Compensation Appeals Board rescinding petitioner's disability rating is annulled, where there was good cause for the Workers' Compensation Judge (WCJ) to reopen the case and therefore the appeals board is directed to reinstate the WCJ's award of a 72 percent disability rating. (Opinion after rehearing)

[06/27] Old Republic Construction Program Group v. Boccardo Law Firm
The trial court's order denying defendants' motion under the anti-SLAPP law, to strike three causes of action asserted against them by plaintiff, alleging that defendants law firm and attorney wrongfully withdrew settlement funds derived from a now-defunct lawsuit, which they had deposited in their trust account pursuant to a stipulation requiring plaintiff's consent to any withdrawal, is affirmed, where: 1) in determining whether a cause of action arises from conduct protected by the statute, the focus is on the wrongful, injurious conduct identified in the complaint, and whether that conduct comes within the statute's description of protected conduct; 2) unless the wrongful conduct is communicative in character, it is protected by the statute only if it was undertaken in connection with an issue of public importance; and here, 3) because the withdrawal of funds underlying the causes of action at issue was neither communicative nor related to an issue of public interest, the trial court properly denied a motion to dismiss those causes of action.

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