Brooklyn Heights

Latest decisions from the Appellate Division, Second Department

May 21, 2024 Robert Abruzzese, Courthouse Editor
The Appellate Division, Second Department, recently upheld several lower court decisions, including the dismissal of a medical malpractice lawsuit, the denial of disability retirement benefits, the dismissal of a legal malpractice suit, the dismissal of a personal injury lawsuit against the City of New York, and the denial of summary judgment in a slip-and-fall case. Brooklyn Eagle photo by Rob Abruzzese
Share this:

Dismissal of medical malpractice claim affirmed following cosmetic surgery

The Appellate Division, Second Judicial Department, upheld the dismissal of a medical malpractice lawsuit filed by Yana Krivulya against Bay Parkway Physicians, P.C., and Dr. Michael Patin. This decision affirms the prior ruling of the Kings County Supreme Court.

Krivulya sued for damages after developing cellulitis and subsequent scarring on her chin following a cosmetic procedure performed by Inna Gordon, a registered nurse, at Gordon’s private home in October 2018. Krivulya alleged that Bay Parkway Physicians and Dr. Patin were vicariously liable for Gordon’s negligence.

The Kings County Supreme Court granted summary judgment in favor of the defendants, ruling that Gordon was an independent contractor and that Krivulya had chosen her without knowing any connection to the defendants. The Appellate Division agreed, stating the defendants provided sufficient evidence that they were not responsible for Gordon’s actions.

– Krivulya v. Bay Parkway Physicians, P.C. – 

 

Appellate Court upholds denial of disability benefits to correction officer

The Appellate Division, Second Judicial Department, has upheld the denial of disability retirement benefits to Emilena Rosa, a former correction officer. This decision affirms the ruling of the Kings County Supreme Court.

Rosa sought disability retirement benefits under Retirement and Social Security Law § 507-c, claiming injuries sustained during a 2016 altercation with an inmate left her unable to work. Her initial application was denied by the Board of Trustees of the New York City Employees’ Retirement System (NYCERS) in April 2018, which found that her shoulder injury did not prevent her from performing her duties. A second application, filed in 2019, was also denied after the Medical Board determined her knee condition was due to a degenerative disease, not the 2016 incident.

The Kings County Supreme Court upheld these denials, and the Appellate Division has now affirmed that decision. The court found that the Medical Board’s conclusions were supported by credible evidence and were not arbitrary or capricious. The court explained that the ruling that NYCERS relied on thorough evaluations and medical records, including multiple MRIs, to determine the lack of causal connection between Rosa’s claimed disabilities and the 2016 incident and concluded that the Board of Trustees’ adoption of the Medical Board’s recommendations was justified.

– Matter of Rosa v. New York City Employees’ Retirement System – 

 

Dismissal of legal malpractice suit upheld after proximate cause not proven

The Appellate Division, Second Judicial Department, upheld the dismissal of a legal malpractice and breach of contract lawsuit filed by Luqman Dabiri against attorneys Albert Van-Lare and Bartlett, McDonough, Bastone & Monaghan, LLP. This ruling affirms the prior decision of the Kings County Supreme Court.

Dabiri initially retained Van-Lare in 2006 to assist with his medical license application in Florida. The Florida Board of Medicine granted Dabiri a conditional license in 2009, which required him to practice under supervision. Later, Dabiri hired Bartlett in 2011 to help remove these conditions, but his application was denied, leading to further complications and eventual disciplinary action by the Board.

In 2015, Dabiri sued Van-Lare and Bartlett for legal malpractice and breach of contract, claiming their failures led to financial damages. However, the Supreme Court granted summary judgment in favor of the defendants in 2019, finding no evidence that the attorneys’ actions were the proximate cause of Dabiri’s damages. The court also held that Dabiri’s breach of contract claim was duplicative of his legal malpractice claim.

– Dabiri v. Porter – 

 

Appellate Court upholds dismissal of injury lawsuit against NYC

The Appellate Division, Second Judicial Department, upheld the dismissal of a personal injury lawsuit filed by T.N. against the City of New York and the New York City Department of Education. This ruling affirms the prior decision of the Kings County Supreme Court.

The case originates from a 2016 incident where T.N., then 13 years old, allegedly fell down stairs at Stephen Decatur Middle School No. 35 in Brooklyn. The plaintiff served a notice of claim alleging the accident occurred on a specific staircase but later identified a different staircase during a site inspection.

The plaintiff sought to amend the notice of claim and complaint to reflect the new location of the fall. However, the Kings County Supreme Court denied this request and granted summary judgment in favor of the defendants, dismissing the complaint. The Appellate Division affirmed this decision.

The court held that the plaintiff failed to demonstrate the defendants would not be prejudiced by the delay in amending the notice of claim and that the error in the original notice prevented proper investigation.

– T.N. v. City of New York – 

 

Denial of summary judgment affirmed in slip-and-fall case

The Appellate Division, Second Judicial Department, upheld the denial of a summary judgment motion filed by Neurology Continuum, P.C., and Kuzlena Trust in a slip-and-fall case brought by Rahman Hussain. This ruling affirms the decision of the Kings County Supreme Court.

The incident occurred in February 2019, when Hussain slipped and fell on a wet floor in a building owned by Kuzlena Trust and leased to Neurology Continuum. Hussain sued for personal injuries, claiming the defendants had constructive notice of the dangerous condition.

The defendants argued they did not have constructive notice of the wet floor. However, the Supreme Court denied their motion for summary judgment. The Appellate Division affirmed this decision, stating the defendants failed to demonstrate that the area had been properly maintained or inspected before the accident.

The court referenced that a defendant may be liable for injuries caused by water or snow tracked into a building if they had constructive notice of the hazardous condition and did not take timely remedial action. The court concluded the defendants did not provide sufficient evidence to show they lacked constructive notice.

– Hussain v. Neurology Continuum, P.C. – 


Leave a Comment


Leave a Comment