Monthly Archives: June 2017

G&S Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction

Plaintiff brought wrongful death action alleging medical malpractice of our client, an internist, based on his alleged failure to detect and treat the plaintiff’s brain and lung cancer.

We moved based on our defense our client was never properly served with process at her actual residence or place of business.  Initial service was made at a hospital where she had formerly worked and later served at a condominium she owned, but had always leased to a tenant.   Plaintiff never effectively refuted our claim of lack of service, and, in fact, cross-moved for our client’s proper address for re-service.  The issue of service was of critical importance because the statute of limitations had expired. Continue reading

Second Department Affirms Dismissal of Ice Skating Rink Case – Water Does not Make Ice More Slippery

The plaintiff, an adult male, tried ice skating for the first time on a Spring day at our client’s ice rink.  He stepped out on the ice and while still holding on to the boards took a second step and fell backwards onto his posterior breaking his ankle which required surgery.    He alleged that his skate slipped because he had stepped onto a wet spot on the ice and also that he was given the wrong size skates.

The claim that wet ice caused someone to fall is a claim we have seen over the years.  This time we decided to hire an expert to test the claim.  Our expert did coefficient testing on wet ice and dry ice before and after cleaning with a Zamboni and scientifically determined there was no significant difference between the slipperiness of wet and dry ice. Continue reading

Post Trial Motion to Dismiss Granted Against Dental Group – No Vicarious Liability

In this case for dental malpractice, it was alleged that our client (dental group) was vicariously liable for  improper bridge work performed by a treating dentist.  Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

After a trial, the jury rendered a verdict for which our client was found to be 50% liable.

We made a post-trial motion, which the judge granted vacating the verdict, on the basis that plaintiff had failed to establish that dental group was vicariously responsible for the acts or omissions of the treating dentist, either as an employee or under an agency theory.  Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group.  Therefore, the judge wholly dismissed the action against our client.