Pellechia v Partner Aviation Enters., Inc., 2011 NY Slip Op 00496 (App. Div., 2nd 2011)
To the extent the plaintiff's claims against the defendant are not preempted by federal law, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see Scoppettone v ADJ Holding Corp., 41 AD3d 693, 694; Hagan v P.C. Richards & Sons, Inc., 28 AD3d 422; Earle v Channel Home Ctr., 158 AD2d 507). The plaintiff's expert affidavit was properly rejected by the Supreme Court because the plaintiff never complied with any of the disclosure requirements of CPLR 3101(d)(1)(i), and only [*2]first identified his expert witness in opposition to the defendant's summary judgment motion, after the plaintiff filed the note of issue and certificate of readiness (see King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853). Further, the expert failed to demonstrate that he was qualified to render an opinion (Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). Moreover, the expert's opinion which was speculative and conclusory, and was not based on accepted industry standards, was insufficient to raise a triable issue of fact (see Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1009; Pappas v Cherry Cr., Inc., 66 AD3d 658; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556).
When experts disagree:
Wexelbaum v Jean, 2011 NY Slip Op 00508 (App. Div., 2nd 2011)
"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d 517, 519 [citations omitted]; see Darwick v Paternoster, 56 AD3d 714, 715; Bjorke v Rubenstein, 53 AD3d 519, 520; Roca v Perel, 51 AD3d at 759). Accordingly, the appellants' motion for summary judgment was properly denied.
One day I'll remember to look at the cases the First Department cited to:
Bustos v Lenox Hill Hosp., 2011 NY Slip Op 00432 (App. Div., 1st 2011)
Under the particular circumstances presented, the affidavit of plaintiff's expert was properly considered by the court on renewal (see Mejia v Nanni, 307 AD2d 870, 871 [2003]; Garner v Latimer, 306 AD2d 209 [2003]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]). The affidavit was sufficient to raise triable issues of fact as to whether defendants' treatment of plaintiff before and during delivery departed from good and accepted standards of obstetric care (see Roques v Noble, 73 AD3d 204 [2010]; Frye v Montefiore Med. Ctr., 70 AD3d 15 [2009]).
Last one:
Alvarez v 1407 Broadway Real Estate LLC, 2011 NY Slip Op 00407 (App. Div., 1st 2011)
Plaintiff Luis Alvarez testified that a scaffold tipped over as he was climbing onto it. In opposition to this prima facie showing that a violation of Labor Law § 240(1) occurred and that it was a proximate cause of plaintiff's injuries (see Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592 [2010]), defendants failed to raise an inference in support of their contention that the injured plaintiff's conduct was the sole proximate cause of the accident (see Torres v Monroe Coll., 12 AD3d 261 [2004]; Garcia v 1122 E. 180st St. Corp., 250 AD2d 550 [1998]). Their expert witness conceded that plaintiff's failure to lock the scaffold wheels before climbing onto the scaffold did not cause the scaffold to tip over. In any event, contributory negligence is not a defense to liability under Labor Law § 240(1) (see Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]). While defendants' expert opined that plaintiff should have used a nearby A-frame ladder, rather than the ladder rungs of the scaffold, to gain access to the scaffold platform, defendants failed to submit any evidence that plaintiff knew or should have known that he was expected to use a ladder to climb onto the scaffold and "chose for no good reason not to do so" (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).
The bold is mine.
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