Second Department Denies Appeal for Same Plaintiff in Two Separate Actions

In two decisions dated October 9, the Supreme Court Appellate Division, Second Department, denied the plaintiff’s appeal of the lower court’s summary judgment finding. In upholding the Supreme Court’s two rulings of summary judgment, the Second Department effectively dismissed both the plaintiff’s medical malpractice claim and his claim for personal injury.

nail.jpgBoth claims arose out of the same incident. The plaintiff, and subsequently his estate after he passed away, sued after he stepped on a screw while entering an elevator. The screw became embedded in his foot, requiring medical treatment. The plaintiff sued the NY Housing Authority for the initial injury. He also sued the hospital and the treating doctor for medical malpractice when one of his toes needed to be amputated after developing a bone infection.

In its ruling on the personal injury issue, the Court noted that the defendant established that it had not created the condition that led to the injury. The defendant also was given no notice of the condition. Because the defendant was able to meet this initial burden, in order for the case to proceed the plaintiff would have to raise a triable issue of fact. The Second Department ruled that the plaintiff had failed to do this, therefore as a matter of law the Supreme Court’s finding of summary judgment for the defendant had to stand.

Likewise, the Court upheld summary judgment for the defendants in the medical malpractice action, laying out the standard for a finding of medical malpractice. The plaintiff must prove a deviation from an accepted standard of care, and this deviation must cause the claimed injury. Again, as above, this initial showing by the defendant can be rebutted by the plaintiff’s raising of a triable issue of fact. Unfortunately for the plaintiff, as was the case in his claim for personal injury, the Court found that he failed to accomplish this. Because the defendants had met their initial burden, and the plaintiff failed to rebut that showing, the Second Department again ruled that the Supreme Court properly granted summary judgment to the defendants.

Both decisions can be found on the New York State Law Reporting Bureau website:

Arocho v New York City Hous. Auth., 2013 NY Slip Op 06536

Arocho v D. Kruger, P.A., 2013 NY Slip Op 06535

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