Summary Judgment

Friends of Thayer Lake v Brown, ___ NY3d ___, 2016 NY Slip Op 03647 [2016]

We looked at this case last year, when the Appellate Division allowed the parties to chart their own procedural course to summary judgment. The Court of Appeals has now held that summary judgment is simply not available where the proof reveals factual issues, whether or not the parties ask for it.

The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.

Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.

The Court of Appeals has now “modi-versed,” that is, it has denied the motion that the Appellate Division granted, couching the determination in terms of a modification rather than an outright reversal. In so doing, it made two larger points.

First, the parties’ ability to “chart their own procedural course” has limits. Where, as here, the course they attempt to follow runs directly contrary to established procedures, they may not necessarily ask the court to come with them.

The second, related, point, is that a party moving for summary judgment must always show its entitlement to judgment as a matter of law, and that there are no material issues of fact. Where factual issues exist, summary judgment is simply the wrong vehicle, and must be denied.

Here, the parties’ submissions clearly raised conflicting factual claims in a case which is highly fact-specific. This, despite their claim that the facts were not in dispute. While a stipulated statement of facts is not required, the conflicting evidence means that neither party has shown its entitlement to judgment as a matter of law, and the dueling summary judgment motions should all have been denied. One may ask why, if the facts were not in dispute, the parties could not arrive at a stipulated set of facts.

To the extent that the parties could not agree on stipulated facts, and did not want to go to the expense of a long trial, an alternative resolution does present itself: The parties could stipulate to the admissibility of all of the conflicting evidence, and stipulate that it would constitute the trial record. The court could then entertain arguments as to the weight and effect of the evidence, and resolve factual issues accordingly. The problem with this approach, of course, is that the plaintiff still has to sustain that pesky burden of proof, and a tie still goes to the defendant. If the conflicting evidence is not resolved in plaintiff’s favor, the verdict must be against it, and to the extent that this is a declaratory judgment action, the declaration must be in defendant’s favor.

Orthopedic Surgeons May Offer Opinions On Causation In Cases Of Chiropractic Malpractice

February 29, 2016

Summary Judgment

Bongiovanni v Cavagnuolo, ___ AD 3d ___, 2016 NY Slip Op 00638

In a malpractice action an opinion as to causation may be rendered by an expert in a field related to the injury, even though the underlying claim of negligence relates to a specialist in a different field. In this malpractice action against a chiropractor, therefore, opinions as to the causation of plaintiff’s disk injuries could be received from non-chiropractors whose expertise was in orthopedics and radiology. These opinions related to causation only, which was within the experts’ fields of expertise, and not to the standard of care applicable to chiropractors.

One of the hallmarks of a professional negligence case is that the profession itself is generally allowed to set the standard of good and accepted practice. Negligent care, or malpractice, is a departure from that standard. It follows that expert testimony as to whether the care at issue departed from that standard must come from those whose expertise is established either by their being practitioners in the same field or through some other combination of training, skill or experience. The principle also extends to specialists: Expert opinion must come from specialists in the same field or those who can otherwise establish the reliability of their opinions.

In a chiropractic malpractice case such as this, therefore, whether the defendant departed from the standard of good and accepted practice would normally require expert testimony from chiropractors. Normally, an orthopedic surgeon could not testify as to whether a given chiropractic treatment deviated from the chiropractic standard.

There is, of course, a second issue: whether or not the acts of malpractice were the proximate cause of the plaintiff’s injuries. Here, expert testimony need not necessarily come from experts in the same field of treatment, but may come from anyone whose expertise as to the nature of the injuries would justify an opinion as to their origin and causation.

The plaintiff’s claim here was that the defendant chiropractor engaged in improper and unduly forceful manipulations of her thoracic spine, resulting in trauma to a cervical disk, requiring a discectomy and fusion surgery.

Defendant moved for summary judgment both as to a deviation from acceptable standards of care and as to causation. As to deviation, defendant offered his own affidavit, to the effect that there was no deviation from accepted standards. This is of course permitted.

Defendant then offered the affidavits of an orthopedic surgeon and a radiologist. Both of these were restricted to the issue of causation, saying nothing about the standard of chiropractic care. Both concluded that the injuries were degenerative, pre-existing the treatment at issue. In opposition, the plaintiff offered the affidavit of a radiologist, who also restricted his opinion to causation, finding that the injury was caused by a significant amount of force, consistent with the plaintiff’s claims.

Supreme Court held that the opinions of defendant’s experts were inadmissible, as the experts had not established a knowledge of chiropractic treatment. The court held that the defendant had accordingly not sustained his initial burden of proof on the motion, and denied it.

The Appellate Division affirmed, but on a different ground. The opinions of the experts, being limited to the causation of the plaintiff’s disk injuries, were squarely within their areas of expertise. They were therefore admissible on the motion. The disagreement between them raised a triable issue of fact, and that was the proper rationale for denial of the motion.

As to the issue of deviation from the standard of care, the Appellate Division held that the defendant’s affidavit failed to establish the applicable standard of care, rendering his opinion as to the lack of any deviation to be conclusory. He therefore failed to sustain his initial burden on this score, and the court did not consider the plaintiff’s opposition.

Hit-in-the-rear cases and summary judgment

January 26, 2016

CPLR 3212, Summary Judgment, Uncategorized

Phillip v D&D Carting Co., Inc., ___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 09084 [2d Dept., 2015]

The Second Department reminds the bench that the mere fact of a rear-end collision does not automatically result in summary judgment, not even into a stopped vehicle and not even for a passenger in the stopped vehicle. Also, that CPLR 3212 (g) allows the court, even when denying summary judgment, to ascertain from the papers before it “what facts are not in dispute or are incontrovertible”, and in this way limit the issues at trial.

The stopped vehicle here was a passenger van, discharging passengers at a Brooklyn intersection. The rear of the van protruded into the traffic lane. The plaintiff was a passenger, belted into a seat in the last row. The rear-ending vehicle was a garbage truck. The plaintiff moved for summary judgment prior to depositions, against the owner and the driver of the truck. Plaintiff’s motion offered as proof the fact that she operated neither vehicle, was a passenger in the stopped vehicle, and so could not herself be at fault. The truck driver submitted an affidavit, in which he explained that he applied his brakes, but that the truck skidded on oil on the pavement. Supreme Court granted the plaintiff summary judgment, but the Appellate Division reversed.

Certainly, it is the rule that a rear-end collision into a stopped vehicle is enough to create an inference of negligence, and places the burden on the driver of the rear-ending vehicle to rebut the inference with a non-negligent explanation. The plaintiff must also establish his freedom from contributory negligence.

The plaintiff thus established her prima facie case on her motion, but the truck driver’s affidavit showed a non-negligent explanation, which was sufficiently detailed given the pre-deposition posture of the action. There was a triable issue of fact precluding summary judgment.

No party claimed that the plaintiff was contributorily negligent, since she was seat-belted in the last row of the van. Therefore, it was appropriate under CPLR 3212 (g) for the court to order that she was free from contributory negligence in the happening of the accident.