Appellate Division Dismisses Complaint as Barred by the One-Year Statute of Limitations
In Kessel v. Adams (4th Dept. 2020), the plaintiff, a school teacher, sought damages as a result of injuries she sustained when two of her students began fighting and the plaintiff was propelled into a locker. The plaintiff asserted a negligence cause of action against the defendants. Defendant April Adams moved for summary judgment on the ground the action was time-barred. The trial court denied the motion.
On appeal, the Fourth Department held that the defendant met her burden by establishing the plaintiff was injured because of intentional conduct constituting a battery and not due to negligent conduct. “The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive’; ‘there is no requirement that the contact be intended to cause harm.’”
Based upon the deposition testimony, the appellate court reasoned that the testimony demonstrated the defendants “intentionally caused offensive bodily contact with each other by engaging in a physical fight.” Although the defendants did not intend to make physical contact with the plaintiff, the Fourth Department held that the contact that resulted in plaintiff’s injuries was intentional under the doctrine of “transferred intent.”
Therefore, the Fourth Department held that the action was barred by the one-year statute of limitations applicable to intentional torts and dismissed the complaint against defendant April Adams. Importantly, the Fourth Department opined that the plaintiff “could not avoid the running of the limitations period merely by attempting to couch the [complaint] as sounding in negligence.”
A Vacated Order Cannot be the Basis to Grant Partial Summary Judgment When Relying on Res Judicata or Collateral Estoppel
In Phillips v. Burgio & Campofelice, (4th Dept. 2020), the plaintiff was allegedly injured while working for a subcontractor on a demolition and abatement project at a property owned by New York State. The defendant in the Supreme Court action was the general contractor. In both the Supreme Court action and the lawsuit commenced in the Court of Claims, the plaintiff asserted causes of action alleging violations of Labor Law §200, §240(1), and §241(6) as well as common law negligence.
The Court of Claims denied plaintiff’s application to file a late Notice of Claim. In doing so, the Court of Claims held that the plaintiff “failed to demonstrate the merit” of the Labor Law §240(1) cause of action, the Labor Law §241(6) cause of action as predicated on a violation of 12 NYCRR 23-3.3(b)(3) as well as the claims based upon an allegation that a dangerous condition was on the premises.
Subsequently, the defendant filed a motion in Supreme Court for leave to amend its answer to assert the affirmative defenses of a res judicata and collateral estoppel as well as for partial summary judgment. The trial court granted defendant’s motion.
After entry of the Supreme Court’s order, the Fourth Department modified the order of the Court of Claims by granting plaintiff’s application insofar as it sought leave to file a late notice of claim relative his Labor Law §240(1), as the appellate court determined it to have merit.
The Fourth Department reasoned that “a vacated judgment has no preclusive force either as a matter of collateral estoppel or direct estoppel or as a matter of the law of the case.” Therefore, since the Supreme Court relied upon the order of the Court of Claims, which was modified by the Appellate Division, as a basis to grant the motion dismissing the Labor Law §240(1) cause of action the Fourth Department determined it must be reversed.
With respect to the dismissal of the Labor Law §241(6) and the claim that a defective condition existed on the premises, the Fourth Department opined that “[t]he preclusive effect of a judgment is determined by two related but distinct concepts-issue preclusion and claim preclusion-which collectively comprise the doctrine of ‘res judicata.’”
The Fourth Department rejected plaintiff’s contention that the decision in Phillips I did not preclude him from litigating issues that were “‘actually litigated and resolved’” by the Court of Claims because he allegedly lacked a full and fair opportunity to litigate those issues. The Fourth Department opined that the plaintiff understood the importance of his claims in Phillips I as evidenced by the fact he had the incentive and initiative to argue the merits of those claims within the context of his application for leave to file a late notice of claim and he was represented by counsel.
Therefore, the Fourth Department determined that the lower court was correct in dismissing plaintiff’s Labor Law §241(6) cause of action to the extent it was predicated on a violation of 12 NYCRR 23-3.3(b)(3) as well as precluding plaintiff from contending the existence of a dangerous or defective condition on the premises.
However, the Fourth Department agreed with the plaintiff in that the lower court erred in applying the doctrine of claim preclusion to bar the plaintiff from litigating claims or issues not raised in Phillips I.
Defendant Entitled to Summary Judgment as Medical Expert’s Affidavit was Detailed, Specific and Factual in Nature
In Dziwulski v. Tollini-Reichert, (4th Dept. 2020), plaintiff commenced a medical malpractice action alleging that Dr. Tollini-Reichert was negligent in treating the plaintiff which resulted in cardiopulmonary failure, congestive heart failure and viral myocarditis. The defendant moved for summary judgment which was denied the by the trial court.
On appeal, the Fourth Department reversed the lower court and dismissed the complaint against the defendant doctor. The Fourth Department opined that the medical expert’s affidavit that was submitted in support of the defendant’s motion was “detailed, specific and factual in nature.”
The Fourth Department disagreed with the trial court’s conclusion that defendant’s expert did not address plaintiff’s allegation that defendant failed to admit plaintiff to the hospital for her condition. The Fourth Department held that defendant’s medical expert opined that, “[g]iven [plaintiff’s] history and presentation, there were no further tests, consultations, or treatment that [defendant] should have, but failed to, recommend.” Therefore, in the Fourth Department’s view this would have included hospitalization.
In opposition, the Fourth Department concluded that plaintiff’s medical expert failed to raise a triable issue of fact as the affidavit lacked a proper foundation for consideration by failing to state whether he or she reviewed the bill of particulars, the deposition testimony or the affidavit of defendant’s medical expert.
Therefore, the Fourth Department reversed the trial court and dismissed the complaint against the defendant.
Prepared by Nicholas M. Hriczko