Carmona v. Mathisson

CourtNew York Supreme Court Appellate Division
Writing for the CourtANDRIAS
Citation938 N.Y.S.2d 300,2012 N.Y. Slip Op. 01105,92 A.D.3d 492
Decision Date14 February 2012
PartiesJuanita CARMONA, Plaintiff–Appellant,George Carmona, Plaintiff, v. Kevin Ross MATHISSON, M.D., et al., Defendants–Respondents,Maple Eye Associates LLP, et al., Defendants.

2012 N.Y. Slip Op. 01105
92 A.D.3d 492
938 N.Y.S.2d 300

Juanita CARMONA, Plaintiff–Appellant,George Carmona, Plaintiff,
v.
Kevin Ross MATHISSON, M.D., et al., Defendants–Respondents,Maple Eye Associates LLP, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Feb. 14, 2012.


[938 N.Y.S.2d 301]

The Jacob D. Fuchsberg Law Firm, LLP, New York (James M. Lane of counsel), for appellant.

Bartlett, McDonough & Monahan, White Plains (Edward J. Guardaro, Jr. of counsel), for respondents.

ANDRIAS, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ROMÁN, JJ.

[92 A.D.3d 492] Order, Supreme Court, Bronx County (Dominic Massaro, J.), entered September 4, 2009, which denied plaintiff's motion for a judgment notwithstanding the verdict on liability and a trial on damages, or, in the alternative, to set aside the verdict as against the weight of the evidence, unanimously reversed, on the law, without costs, the verdict set aside, and the matter remanded for a new trial consistent with this decision.

Plaintiff seeks to recover damages for injuries she sustained during cataract surgery performed by defendant Mathisson at defendant Montefiore Medical Center, using an Alcon Series 20000 Legacy phacoemulsification machine. We previously granted summary judgment to Alcon, the manufacturer of the machine, dismissing plaintiff's claims for strict liability and negligent design and manufacture (54 A.D.3d 633, 865 N.Y.S.2d 35 [2008] ) ( Carmona I ). In so ruling, we found that Alcon sustained its prima facie burden on the motion by submitting an affidavit from its expert, an engineer familiar with the design and manufacture

[938 N.Y.S.2d 302]

of the machine, who “opined that the product was not defectively designed or manufactured, and that a product defect did not cause [plaintiff's] injuries, positing other possible causes related to human error” ( id. at 634, 865 N.Y.S.2d 35). We further found that in opposing the motion, plaintiff “failed to exclude all alternative causes for the injury in response” ( id.).

The action proceeded to trial against the medical defendants and the trial court permitted defendants to elicit testimony that the Alcon machine malfunctioned or contained a design defect. In addition, the court included Alcon on the verdict sheet for the purpose of apportioning liability. We find that this was error.

“ ‘An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court ... [and] [92 A.D.3d 493] operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law’ ” (Kenney v. City of New York, 74 A.D.3d 630, 630–631, 903 N.Y.S.2d 53 [2010],...

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36 practice notes
  • Mayfield v. Evans
    • United States
    • New York Supreme Court Appellate Division
    • February 14, 2012
    ...David W., 95 N.Y.2d at 130, 711 N.Y.S.2d 134, 733 N.E.2d 206; For the People Theatres of N.Y. Inc., 84 A.D.3d at 63, 923 N.Y.S.2d 11). [938 N.Y.S.2d 300] In short, petitioner was entitled to a time assessment hearing that was similar in nature to the one that other individuals received unde......
  • Delgado v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • September 27, 2016
    ...trial court, as well as the parties, are bound by it "absent a showing of subsequent evidence or change of law" (Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept.2012]). Applying this rule to the case at hand, we specifically found in Delgado v. City of New York , 86......
  • Ardaya v. Park & 76TH St. Inc., Index No. 158295/2013
    • United States
    • United States State Supreme Court (New York)
    • November 26, 2018
    ...v. Zabel, 146 A.D.3d 624, 631 (1st Dep't 2017); Delgado v. City of New York, 144 A.D.3d 46, 53 (1st Dep't 2016); Carmona v. Mathisson, 92 A.D.3d 492, 493 (1st Dep't 2012). Plaintiffs' failure to establish that Park and 76th St. and Gumley-Haft, among other defendants, exercised authority to......
  • Brown v. Evans
    • United States
    • United States State Supreme Court (New York)
    • March 9, 2012
    ...than homicide, kidnapping, or sex crimes, to which he was entitled. N.Y. Exec. Law § 259–i(3)(f)(x); Mayfield v. Evans, 93 A.D.3d 98, 938 N.Y.S.2d at 300. Again, petitioner nowhere contends that the hearing he received before the ALJ in any way denied petitioner his constitutional rights to......
  • Request a trial to view additional results
36 cases
  • Mayfield v. Evans
    • United States
    • New York Supreme Court Appellate Division
    • February 14, 2012
    ...David W., 95 N.Y.2d at 130, 711 N.Y.S.2d 134, 733 N.E.2d 206; For the People Theatres of N.Y. Inc., 84 A.D.3d at 63, 923 N.Y.S.2d 11). [938 N.Y.S.2d 300] In short, petitioner was entitled to a time assessment hearing that was similar in nature to the one that other individuals received unde......
  • Delgado v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • September 27, 2016
    ...trial court, as well as the parties, are bound by it "absent a showing of subsequent evidence or change of law" (Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept.2012]). Applying this rule to the case at hand, we specifically found in Delgado v. City of New York , 86......
  • Ardaya v. Park & 76TH St. Inc., Index No. 158295/2013
    • United States
    • United States State Supreme Court (New York)
    • November 26, 2018
    ...v. Zabel, 146 A.D.3d 624, 631 (1st Dep't 2017); Delgado v. City of New York, 144 A.D.3d 46, 53 (1st Dep't 2016); Carmona v. Mathisson, 92 A.D.3d 492, 493 (1st Dep't 2012). Plaintiffs' failure to establish that Park and 76th St. and Gumley-Haft, among other defendants, exercised authority to......
  • Brown v. Evans
    • United States
    • United States State Supreme Court (New York)
    • March 9, 2012
    ...than homicide, kidnapping, or sex crimes, to which he was entitled. N.Y. Exec. Law § 259–i(3)(f)(x); Mayfield v. Evans, 93 A.D.3d 98, 938 N.Y.S.2d at 300. Again, petitioner nowhere contends that the hearing he received before the ALJ in any way denied petitioner his constitutional rights to......
  • Request a trial to view additional results

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