Litigation

Who’s to Say Who’s an Expert? …Expert witness cannot usurp the role of the judge…

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Man with exaggerated round glasses and messy hair, dressed in white coat, with hands holding a range of microphones towards his mouth. Illustrating article about expert witnesses for Richard Klass, attorney, New York

The nursing home resident needed to be transported by ambulette to her medical appointment.  Being that the resident was wheelchair-bound, she was to be accompanied to the appointment by her nurse’s aide.  The ambulette driver met them inside the nursing facility, wheeled the resident to the ambulette, raised the wheelchair onto the lift and wheeled the resident into the ambulette.  The driver then strapped the seatbelt on the resident; however, it was alleged the driver failed to secure the wheelchair to the ambulette.

As the driver started driving to the medical appointment, the ambulette stopped short.  Since the wheelchair had not been secured to the ambulette, this caused the resident to slide out from her wheelchair.  Unfortunately, the resident’s foot bent underneath her and she fractured her tibia.

Safety measures that should have been taken

The resident died six months after the ambulette incident.  Her daughter retained Richard A. Klass, Esq., Your Court Street Lawyer, to sue the nursing home and ambulette service for personal injuries sustained by her mother which had caused her severe pain.

The president of the ambulette transportation service testified that the driver should have secured the wheelchair by strapping the wheels to the floor of the vehicle so that the wheelchair would not move.  He also testified that a shoulder belt was needed, as a seatbelt couldn’t hold the person well enough as a wheelchair tends to roll.  The ambulette transportation service president stated it was the responsibility of the driver to make sure that the person being transported was properly secured in the ambulette.

Summary judgment motion by the nursing home

Based on the above testimony, the nursing home moved for summary judgment, seeking the dismissal of the lawsuit against the nursing home.  The nursing home claimed that it was not the responsibility of the nurse’s aide accompanying the resident to make sure that the resident was properly secured in the ambulette when being transported to medical appointments.  In support of its motion, the nursing home put forth an affidavit from an engineer designated as an expert witness who stated that it was “clearly the responsibility of the driver to ensure that the patient is securely fastened as it is the driver’s responsibility to ensure the safety of the patient during transportation.” He further opined that, “it is not the responsibility of the attendant to ensure that the patient is securely fashioned [sic].”

Expert witness cannot usurp the role of the judge.

In opposition to the motion, it was urged that the nursing home didn’t really offer any evidence to support its fundamental obligation to its residents – to ensure that its residents are safe.  The daughter cited to the decision in D’Elia v. Menorah Home and Hospital for Aged and Infirm, 51 AD3d 848 [2 Dept. 2008], where the court held that “a medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety.”  It was argued that there were issues of fact as to whether the nursing home failed to implement available precautions to protect the resident from the foreseeable risk of not being properly secured in the ambulette.

As to the expert witness’ affidavit, it was alleged to only contain opinions from the engineer as to what was “clear” to him as to the duties of the parties, without relying on anything more.  Substantial New York case holds for the proposition that an expert cannot offer mere opinions as to legal obligations.  See, Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [1 Dept. 2002].[1]

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Endnote

[1] “expert witnesses should not * * * offer opinion as to the legal obligations of parties * * *; that is an issue to be determined by the trial court.  Expert opinion as to a legal conclusion is impermissible” (Colon v Rent-A-Center, Inc., 276 AD2d 58, 61).  An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party’s conduct.”

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #ambulette #expert #nursinghome #litigation

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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Extension of time to respond to discovery demands

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C Castle Group Corp. v Herzfeld & Rubin, P.C., 211 AD3d 1006, 1007 [2d Dept 2022] serves as a good reminder to ask for an extension of time to respond to discovery demands, such as a notice to admit in that case, when appropriate. The court held:

CPLR 2004 provides: “Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” “In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” (Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963, 77 N.Y.S.3d 439 [internal quotation marks omitted]; see Tewari v. Tsoutsouras, 75 N.Y.2d 1, 11–12, 550 N.Y.S.2d 572, 549 N.E.2d 1143).

Similarly, to be relieved of the adverse impact of the conditional order, a party must demonstrate “(1) a reasonable excuse for the failure to produce the requested [discovery] and (2) the existence of a meritorious claim or defense” (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277; see Fortino v. Wheels, Inc., 204 A.D.3d 756, 757–758, 166 N.Y.S.3d 660). “The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” (Burro v. Kang, 167 A.D.3d 694, 698, 90 N.Y.S.3d 298 [internal quotation marks omitted]). “The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” (Scholem v. Acadia Realty L.P., 144 A.D.3d 1012, 1013, 42 N.Y.S.3d 214).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #extension

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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Harm caused by professional negligence

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In Betz v Blatt, 211 AD3d 1004 [2d Dept 2022], the court held:

Although an attorney representing the executor of an estate, generally, is not liable to the beneficiaries of the estate (see Kramer v. Belfi, 106 A.D.2d 615, 616, 482 N.Y.S.2d 898), as the attorney does not represent the estate itself (see Betz v. Blatt, 116 A.D.3d at 816, 984 N.Y.S.2d 378; Matter of Hof, 102 A.D.2d 591, 593, 478 N.Y.S.2d 39), when fraud, collusion, malicious acts, or other special circumstances exist, an attorney may be liable to those third parties, even though not in privity with them, for harm caused by professional negligence (see Davis v. Farrell Fritz, P.C., 201 A.D.3d 869, 871, 163 N.Y.S.3d 82; Betz v. Blatt, 160 A.D.3d at 698, 74 N.Y.S.3d 75).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #estate #harm

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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No single statute of limitations for causes of action alleging breach of fiduciary duty

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In Jadidian v Goldstein, 210 AD3d 969, 969-70 [2d Dept 2022], the court affirmed the dismissal of a claim against an attorney based on the statute of limitations, holding:

Contrary to the plaintiffs’ contention, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the cause of action alleging breach of fiduciary duty. There is no single statute of limitations for causes of action alleging breach of fiduciary duty (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139, 879 N.Y.S.2d 355, 907 N.E.2d 268; Matter of Hersh, 198 A.D.3d 766, 769, 156 N.Y.S.3d 243). “Where the relief sought is equitable in nature, the statute of limitations is six years, and where the relief sought is purely monetary, the statute of limitations is generally three years” (Matter of Hersh, 198 A.D.3d at 769, 156 N.Y.S.3d 243). However, “regardless of the relief sought, ‘where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8)’ ” (id., quoting IDT Corp. v Morgan Stanley Dean Witter & Co., 12 N.Y.3d at 139, 879 N.Y.S.2d 355, 907 N.E.2d 268; see McDonnell v. Bradley, 109 A.D.3d 592, 594, 970 N.Y.S.2d 612). A cause of action alleging breach of fiduciary duty “accrues at the time of the [alleged] breach, even though the injured party may not know of the existence of the wrong or injury” (Matter of Hersh, 198 A.D.3d at 769, 156 N.Y.S.3d 243 [internal quotation marks omitted]; see Sternberg v Continuum Health Partners, Inc., 186 A.D.3d 1554, 1557, 131 N.Y.S.3d 356).

Here, the cause of action alleging breach of fiduciary duty was subject to a three-year statute of limitations since the relief sought was monetary in nature and the complaint failed to allege all the requisite elements of fraud, including justifiable reliance (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 562, 883 N.Y.S.2d 147, 910 N.E.2d 976; IDT Corp. v Morgan Stanley Dean Witter & Co., 12 N.Y.3d at 140, 879 N.Y.S.2d 355, 907 N.E.2d 268; Oppedisano v. D’Agostino, 196 A.D.3d 497, 499, 151 N.Y.S.3d 150). As the plaintiffs maintain, the cause of action alleging breach of fiduciary duty began to run, at the latest, on January 11, 2016, when the defendants allegedly commenced the prior legal malpractice action “to cover up their … negligence.” Thus, since the plaintiffs did not commence the instant action until March 24, 2021, more than three years later, the cause of action alleging breach of fiduciary duty was time-barred.

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #statuteoflimitations #breach

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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Dismissal of action on statute of limitations grounds

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In Kreutzberg v Law Offices of John Riconda, P.C., 210 AD3d 884, 884-85 [2d Dept 2022], the court upheld the dismissal of the client’s action on statute of limitations grounds, holding:

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Van Der Velde v New York Prop. Underwriting Assn., 205 AD3d 970, 971 [2022]; Joseph v Fensterman, 204 AD3d 766, 769 [2022]; Tulino v Hiller, P.C., 202 AD3d 1132, 1134-1135 [2022]; Deutsche Bank Natl. Trust Co. v Blank, 189 AD3d 1678, 1679 [2020]). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Deutsche Bank Natl. Trust Co. v Blank, 189 AD3d at 1679 [internal quotation marks omitted]).

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214 [6]; Tulino v Hiller, P.C., 202 AD3d at 1135), which accrues at the time the malpractice is committed, not when the client discovers it (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]; Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 661 [2021]; Sclafani v Kahn, 169 AD3d 846, 848 [2019]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #statuteoflimitations

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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