Experts

3101

2106

Rojas v Palese, 2012 NY Slip Op 02790 (1st Dept., 2012)

The jury's finding that defendant Palese deviated from the standard of care in causing plaintiff's aorta to tear during a laparoscopic donor nephrectomy was based on legally sufficient evidence and was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). Defendants' objections to the qualifications of plaintiff's vascular surgery expert go to the weight and not the admissibility of the expert's testimony (Williams v Halpern, 25 AD3d 467, 468 [2006]); the weight to be accorded to conflicting expert testimony is a matter for the jury (see Torricelli v Pisacano, 9 AD3d 291 [2004], lv denied 3 NY3d 612 [2004]).

Plaintiff's expert was properly allowed to testify as to future damages since there was no showing of a willful failure to disclose this testimony or of resulting prejudice to defendants (see CPLR 3101[d][1][i]; Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). The videotape and photographs proffered by defendants were properly excluded; the limited probative value of a demonstration of Palese's performance of the same procedure on another patient was outweighed by the prejudicial effect of showing the jury the complexity of the surgery and the level of skill exhibited by Palese (see Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203, 205-206 [1989]).

Cruz v Rivera, 2012 NY Slip Op 02811 (1st Dept., 2012)

The unaffirmed MRI reports, which were referred to and not disputed by defendant's medical expert, and were relied upon by plaintiff's physician, were properly considered in opposition to the motion since they were not the sole basis for the findings of plaintiff's physician (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]).

Underbruckner Realty Corp. v Tax Commn. of the City of N.Y., 2012 NY Slip Op 02767 (1st Dept., 2012)

Petitioners rebutted the presumption of validity as to the existing tax assessments by presenting "substantial evidence" demonstrating "the existence of a valid and credible dispute regarding valuation" (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187-188 [1998]). The trial court's determination that petitioners' property has been overvalued is supported by a preponderance of the evidence (see id. at 188). Looking to the Medicaid reimbursement rate as a means to assess the value of a nursing home has been judicially recognized (see e.g. Tarrytown Hall Care Ctr. v Board of Assessors, Sup Ct, Westchester County, Mar. 4, 2004, Rosato, J., Index No. 14267/98).

Respondents' expert's assertion that the methodology he employed is the only way to assess the value of a nursing home's real estate runs afoul of the principle that "there is no fixed method for determining that value" (see Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]). Courts are "under no compunction to . . . confine[] assessors to any one course" (see Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 541 [1978]). Furthermore, both the experts used the income capitalization approach, which calls for "the exercise of judgment by the appraiser," because the approach yields, "at best, no more than an estimate of the present worth of the benefits to be reaped from the property at issue" (id., 45 NY2d at 542). In addition, whether the apartment buildings relied upon by petitioners were valid "comparables" was a question of fact to be resolved by the trial court (see Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 80 AD3d 118, 144 [2010]).

It is true that respondents presented evidence upon which the court could reasonably have [*2]found that the Medicaid reimbursement rate (even as amended upward by non-Medicaid patient data) was not an accurate measure of market rent. However, in reducing the existing assessments in half, the court implicitly found that the market value numbers proffered by petitioners were below market and partially credited respondents' methodology, finding, however, that it produced above-market values for the respective tax years. Contrary to respondents' contention, the court did not improperly "split the difference." The court's valuations were "within the range of the trial evidence" (see Matter of Kips Bays Towers Condominium v Commissioner of Fin., 66 AD3d 506, 506-507 [2009], lv denied 14 NY3d 708 [2010]).

We also reject respondents' contention that the court failed to set forth "the essential facts found upon which the ultimate finding of facts [was] made" (RPTL 720[2]). While the court might have addressed the respective methodologies and calculations of the parties more specifically, it did state the essential fact: that both sides presented cogent arguments and that "the true valuation of the property is greater than that proposed by the Petitioner[s] and less than that proposed by the Respondents" (cf. Matter of Trinity Place Co. v Finance Adm'r of City of N.Y., 72 AD2d 274, 275 [1980], affd 51 NY2d 890 [1980]).

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept., 2012) (note the dissent)

Defendants made a prima facie showing of entitlement to judgment as a matter of law. The differences in the defense experts' range-of-motion findings are minor and both doctors concluded that plaintiff's range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).

In opposing defendants' motions, plaintiff failed to offer a reasonable explanation for a significant gap in his medical treatment that was raised by the Bissessar defendants when they cross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566 [2005]), "a plaintiff who terminates therapeutic measures following the accident, [*2]while claiming serious injury,' must offer some reasonable explanation for having done so" (id. at 574).

Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff's orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was "cut off" five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants' motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent's theory that "[i]njuries are not always treatable by physical therapy" is speculative and finds no support in the record.

Barry v Arias, 2012 NY Slip Op 02606 (1st Dept., 2012)

Plaintiffs Danielle Barry and Cherlynn Reeves allege that they sustained serious injuries as a result of their car being rear-ended by defendants' livery cab in July 2008. Defendants made a prima facie showing that neither plaintiff sustained a permanent or significant injury by submitting the affirmed reports of a neurologist and orthopedist who, based upon examinations of plaintiffs in November 2009 and February 2010, found no neurological deficits and full ranges of motion in both plaintiffs' cervical and lumbar spines, and in Barry's right knee, and concluded that any alleged injuries had resolved. Further, the affirmed MRI reports of defendants' radiologist noted an absence of evidence of recent trauma or acute injuries to the spines (see Porter v Bajana, 82 AD3d 488 [2011]; Amamedi v Archibala, 70 AD3d 449, 449 [2010], lv denied 15 NY3d 713 [2010]). The physicians' failure to review plaintiffs' medical records does not require denial of defendants' motion, as the doctors detailed the objective tests they employed during the examinations to find full ranges of motion, and the radiologist's finding of absence of recent trauma was based on an independent review of the MRI films (see Canelo v Genolg Tr. Inc., 82 AD3d 584 [2011]; Clemmer v Drah Cab Corp., 74 AD3d 660, 660-661 [2010]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

Neither plaintiff raised a triable issue of fact to defeat summary judgment, as none of their medical evidence was submitted in admissible form. Their radiologists' and physiatrist's reports were unaffirmed (see CPLR 2106; Lazu v Harlem Group, Inc., 89 AD3d 435 [2011]; Pinkhasov v Weaver, 57 AD3d 334 [2008]). Although their chiropractor affirmed his reports, reports of chiropractors must be subscribed before a notary or other authorized official (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]; see also CPLR 2106).

Jean-Louis v Gueye, 2012 NY Slip Op 02612 (1st Dept., 2012)

Defendants met their prima facie burden with respect to the permanent consequential and significant limitation categories by offering the affirmation of an orthopedic surgeon who found normal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and left and right knees (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Plaintiff raised an issue of fact in opposition by submitting the MRI reports of her lumbar spine showing bulges at L4-5 and L5-S1, of her cervical spine showing disc bulges at C5-C6, and a grade II tear of the MCL of plaintiff's right knee, along with the affirmation of her orthopedic surgeon stating that such injuries were caused by the accident or had been exacerbated thereby, and that each of those body parts suffered losses in their range of motion as a result of the accident.

We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon is rendered speculative because of his failure to reconcile the notation made on plaintiff's emergency room records indicating a full range of motion of her cervical spine. Those records are unaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, and fail to compare normal values (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [2010]; DeJesus v Paulino, 61 AD3d 605 [2009]). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth an adequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation [*2]thereof (see Perl v Meher, 18 NY3d 208 [2011]). We also reject defendants' arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained by her orthopedic surgeon's finding that her improvement plateaued (see Pommells v Perez, 4 NY3d at 574; Mercado-Arif v Garcia, 74 AD3d 446 [2010]).

Martin v Kone, Inc., 2012 NY Slip Op 02564 (1st Dept., 2012)

In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual or constructive notice. There was no evidence that the prior incidents identified in the work tickets "were of a similar nature to the accident giving rise to this lawsuit" or "were caused by the same or similar contributing factors" (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; see Levine v City of New York, 67 AD3d 510, 510-511 [2009]).

Plaintiff also failed to raise an issue of fact as to defendant's negligent maintenance since her expert's affidavit contained mere speculation, unsupported by any evidentiary foundation (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). The expert failed to provide the results of his "examination" of the elevator and elevator room, or identify the basis for his conclusion that plaintiff's accident was caused by defendant's failure to maintain the elevator in accordance with industry standards.

However, defendant's witness testified that he did not know what type of detector edge was on the elevator or whether the detector edge had multiple beams in it. Thus, there was no [*2]evidence in the record that plaintiff had access to the mechanism that would cause the door to retract (see Gutierrez v Broad Fin. Ctr. LLC, 84 AD3d 648 [2011]; Ianotta v Tishman Speyer Props., Inc., (46 AD3d 297, 298 [2007]), Therefore, defendant is not entitled to summary judgment.

Callistro v Bebbington, 2012 NY Slip Op 02423 (1st Dept., 2012)

Contrary to the dissent's contention, neither Dr. Halbridge's nor Dr. Roseman's opinion raises a triable issue as to causation, since each fails to address how the claimed departures could have caused the claimed cognitive delays. Dr. Halbridge failed to rebut Dr. D'Alton's key assertion that the normal values for plaintiff's umbilical cord gas were "entirely inconsistent" with hypoxic injury. Dr. Halbridge did not dispute Dr. D'Alton's opinion that the gas test results completely ruled out hypoxia or the fact that the hospital record attributes the first (low) Apgar score to the nuchal cord. Rather, he ambiguously stated that "loss of beat to beat variability coupled with late decelerations . . . enhance[] the likelihood that the fetus is undergoing significant hypoxia" (emphasis supplied) and that "[t]his occurred in the present case, notwithstanding the normal umbilical cord blood gas values that were obtained." Dr. Halbridge's statement amounted to bare conjecture, which lacks the "reasonable degree of medical certainty" required in an expert affidavit in a medical malpractice case (see Burgos v Rateb, 64 AD3d 530, 530 [2009]). Moreover, Dr. Halbridge ignored Dr. D'Alton's further point that plaintiff's [*3]discharge three days after his birth disproved his claimed injury. Finally, Dr. Halbridge did not explain how the December 11 neurosonogram, which indicated "possible" hemorrhages, could show that the plaintiff suffered permanent brain damage, as Dr. Roseman concluded, since a follow-up neurosonogram performed one month later showed no evidence of hemorrhaging.

Dr. Roseman opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent brain damage, primarily to the neocortex, which in turn caused plaintiff's speech and language disorder. However, Dr. Roseman failed to support this opinion with a radiological study of plaintiff's brain or any other medical record demonstrating brain damage other than language delay. Dr. Roseman's assertions that "[t]here is nothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language" and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer from similar language deficits.

Duran v Kabir, 2012 NY Slip Op 02173 (1st Dept., 2012)

In opposition, plaintiff submitted the affirmed reports of her physicians, who found limitations in the range of motion of plaintiff's cervical and lumbar spine shortly after the accident and approximately two years later. Plaintiff also submitted the MRI reports of a radiologist, who noted disc bulges in both the cervical and lumbar spine. This evidence raises triable issues of fact as to whether plaintiff sustained a "significant limitation of use" and "permanent consequential limitation of use" of the cervical and lumbar spine (Insurance Law § 5102[d]; see Fuentes v Sanchez, 91 AD3d 418 [2012]). While the MRI reports are unsworn, they are admissible, as the reports and MRI films were reviewed by one of plaintiff's physicians and were incorporated into the findings of plaintiff's doctors (see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]). Plaintiff adequately explained the gap in treatment by submitting the affirmed report of a doctor, who opined that plaintiff had "reached an endpoint" in her physical therapy, and that there was no evidence that she was actively improving therefrom (see Mitchell v Calle, 90 AD3d 584, 585 [2011]).

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