Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

In Singh v. United Cerebral Palsy, et al., 2010 N.Y. Slip Op. 01602 (1st Dept. Feb. 25 2010), plaintiff brought a personal injury action against the building owner, alleging that the owner had actual and constructive notice of the alleged defect in an automatic door that injured plaintiff and was otherwise negligent in failing to conduct regular inspections of the doors.  A third-party action was brought against Reliable Doors Corp. (“Reliable�), the company contracted to perform maintenance work on the automatic doors.  United Cerebral Palsy (“UCP�) moved for summary judgment dismissing the complaint.  In denying UCP’s motion, the Court held that factual issues existed as to the applicability of the doctrine of res ipsa loquitur.

In order to submit a case to a trier of fact based on the theory of res ipsa loquitur, a plaintiff must establish that the event (1) was a kind that ordinarily does not occur in the absence of someone’s negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary actions or contributions on the part of the plaintiff.  The focus of UCP’s motion was on the second factor, arguing that the sensor mechanism controlling the automatic door was not within its exclusive control because Reliable was responsible for performing repair work on the doors.  However, the Court determined, res ipsa loquitur does not require sold physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control.  In denying the motion, the Court found that the fact that reliable may have occasionally performed repair services on the sensor mechanism did not, as a matter of law, remove the sensor from UCP’s exclusive control. 

           

Facing growing political pressure, on March 11, 2010, Attorney General Andrew M. Cuomo appointed former Chief Judge Judith S. Kaye as independent counsel to take over his office’s investigation of Governor David A. Paterson.  The investigation centers on the allegations that Paterson misused State Police personnel to intervene in an aide’s domestic violence case and improperly accepted World Series tickets.  Mr. Cuomo said it was best to bring in a figure like Ms. Kaye so there would be no taint of conflict of interest surrounding his office’s probe of either case at a time when the attorney general is widely thought to be preparing a run for governor. 

In Caulkins v. Vicinanzo et al., 2010 N.Y. Slip. Op. 10727 (3d Dept. March 4, 2010), plaintiff brought a malpractice action against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants moved for summary judgment dismissing the complaint. In response, plaintiff put forth a sworn affidavit from a chiropractor, who had relied on unsworn MRI reports.  The Third Department acknowledged that “[u]ncertified medical records and unsworn letter or reports are of no probative valueâ€� in opposing a summary judgment motion.  However, in holding that the affidavit could rely on unsworn documents, the Court relied on the Court of Appeals decision in Pommells v. Perez, 4 N.Y..3d 566, 577 n. 5 (1995), which stated: “Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence.”