Tesher v. Sol Goldman Investments LLC
| Decision Date | 31 May 2011 |
| Docket Number | Index No.: 115878/06 |
| Parties | LYNN TESHER and MARTIN TESTIER. Plaintiffs, v. SOL GOLDMAN INVESTMENTS, LLC, SOL GOLDMAN REAL ESTATE, SOLIL MANAGEMENT CORPORATION, 219 EAST 69TH STREET, LLC, ALLAN GOLDMAN, JANE GOLDMAN, HANDS ON PHYSICAL THERAPY and RONA TALENTO, Defendants. |
| Court | New York Supreme Court |
Appearances:
For Plaintiff:
Henry Schwartz, Esq.
For Goldman Defendants:
Margaret G. Klein & Associates
For Defendants Hands On and Talento:
Law Offices of Edward Garfinkel
Motion sequence numbers 003 and 004 are hereby consolidated for disposition.
In these consolidated actions, plaintiffs, Lynn Tesher ("plaintiff") and Martin Tcshcr ("Tcshcr'1), seek to recover damages for personal injuries sustained by plaintiff on July 13, 2005, when she tripped on a defect in a public sidewalk abutting the property located at 219 Last 69th Street, Manhattan. New York (the building). The consolidatedactions involve-two separate torts; the first sounding in general negligence of a property owner, and the second involving the professional malpractice of a physical therapist.
In motion sequence number 003, defendants Hands On Physical Therapy (Hands On) and Rona Talcnto ("Talento") (collectively "defendants") move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint and all cross claims as against them.
In motion sequence number 004, defendants Sol Goldman Investments, LLC (SGI), Lstate of Sol Goldman s/h/a Sol Goldman Real Estate (Estate), Solil Management Corporation (Solil), Allan Goldman, Jane Goldman (together, Allan and Jane Goldman) and 219 East 69lh Street, LLC (219 East) (collectively "the Goldman defendants"), move, pursuant to CPLR 3212, (1) for an Order granting summary judgment dismissing plaintiff's' complaint and all cross claims as against all of the Goldman defendants, with the exception of 219 East, on the basis that they do not own the building abutting the public sidewalk where plaintiff allegedly fell; (2) for an Order granting summary judgment dismissing the complaint as against the Goldman defendants based on the trivial nature of the defect; (3) for an Order granting summary judgment dismissing the complaint as against the Goldman defendants based on the open and obvious and not inherently dangerous nature of the alleged defect; (4) for an Order declaring the Supplemental Summons and Amended Complaint filed on August 26, 2008 under Index Number 107475/2008 a nullity and not in compliance with CPLR 1003; (5) for an Ordergranting summary judgment dismissing all claims as against defendants 219 East and Allan and Jane Goldman as time-barred by the statute of limitations.
Plaintiff's cross-move, pursuant to CPLR 203 ©, permitting the continued joinder of 219 Last as set forth in the plaintiffs' supplemental summons and amended complaint.
Plaintiff testified that she has resided at the building since 1969. In the early afternoon on the date of the accident, plaintiff exited the building and began walking westerly along 69th Street with the intention of catching a cab on Third Avenue. As she walked, she did not look at the sidewalk. Instead, she looked straight ahead so as not to run into any other pedestrians. Plaintiff had proceeded approximately 15 to 20 feet along the sidewalk on 69"' Street when one of her feet hit "an impediment, a raised piece of cement in the sidewalk" (hereinafter "the defect"), causing her to fall to the ground. (Goldman Defendants' Notice of Motion, Exhibit G, Plaintiff's Deposition, at 13).
Plaintiff explained that the subject sidewalk defect spanned the entire width of the sidewalk from the building to the street. As also reflected in color photographs of the sidewalk, plaintiff testified that the height differential between the two sidewalk flags to be "about an inch." (Id. at 21). Plaintiff also stated that, even though she walked in the area of the accident five or six times a day, she had never before noticed the subject defect. She explained that she typically looked forward, as opposed to downward whenwalking, as the block where the "building was located was typically heavy in pedestrian traffic. She also maintained that the defect was difficult to observe from the vantage point of a pedestrian walking down the street.
John Morgan ("Morgan"), the building's doorman, testified that the height differential between the two subject sidewalk flags existed for at least a year prior to plaintiff's accident. Morgan also noted that the defect was the cause of two other tripping accidents involving non-tenant pedestrians in the year prior to plaintiff's accident. Morgan notified the property manager of the building, Diego Vincenty ("Vincenty") of the defect in November of 2004, physically pointing out the condition.
Plaintiff, who suffers from rheumatoid arthritis, sustained a right shoulder rotator cuff injury (hereinafter "the shoulder injury") on July 13, 2005, when she tripped over the alleged defect in the sidewalk. Plaintiff was then treated by non-party Dr. Robert Zeits ("Dr. Zeits"), an orthopaedic physician, who performed surgery to repair her shoulder injury. Thereafter, Dr. Zeits ordered post-surgical physical therapy with defendant Hands On.
During October and November of 2005, plaintiff's treatment with Hands On was without incident. At plaintiff's appointment with Dr. Zeits on November 10, 2005, Dr. Zeits prescribed therapist-assisted physical therapy with the restriction, "No external rotation | greater than] 30 [degrees]." (Defendants' Notice of Motion, Exhibit E, Dr. Zeits'November 10, 2005 Physiotherapy Prescription). In addition, said prescription called for plaintiff to wear a sling "full-time except when bathing [and] [physical therapy]." (Id.).
On December 2, 2005, while at her physical therapy session at Hands On, plaintiff was assigned defendant Talento as her physical therapist. Talento, who treated plaintiff only on this one occasion, obtained plaintiff's informed consent before beginning treatment.
Regarding the sequence of events that took place at this December 2, 2005 physical therapy session, plaintiff testified, in pertinent part:
The first thing [Talento] did was to move my arm, fairly forcibly, in the one direction I was told not to move it. I said, Because it hurt and I knew I was not supposed to rotate it quickly. She said, "No. 1 know what I am doing." I said, "Maybe, but I am finished." That was the extent of the session
Plaintiff also testified that, as Talento moved her arm "about 90 degrees," she said, Plaintiff also maintained that she experienced (Id. at 17). Plaintiff noted that she and Talento were alone in the room at the time of the subject session, which took about 10 minutes from beginning to end. Thereafter, plaintiff, who was now in pain, went home, put ice on her shoulder and called her husband, Tesher. When Tesher arrived home, plaintiff told him what had happened at that day's physical therapy session. Tesher, adoctor, then examined plaintiff's shoulder, which was allegedly swollen, and told her to keep putting ice on it.
When later asked if she complained to anyone about Talento's treatment, plaintiff stated, ' Plaintiff also noted that she believed that her husband may have spoken to one of the owners of Hands On about the incident.
Plaintiff now alleges that the negligent manner in which Talento administered her physical therapy resulted in the re-tear of her recent rotator cuff repair, eventually requiring two additional surgeries and causing permanent damage to her right shoulder.
motions for summary judgment.
Hands oil's and Talento's Summary Judgment [Motion (Motion Sequence Number 003)
Although plaintiff's amended complaint sounds in negligence, in fact, the causes of action against Hands On and Talento sound in medical malpractice. "Conduct may he deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.'" See Scott v Uljanov. 74 N.Y.2d 673, 674-675 (1989), quoting Bleiler v Bodnar, 65 N.Y.2d 65, 72 (1985)); see also Ryan v Korn, 57 A.D.3d 507, 508 (2nd Dep't 2008); Morales v Carcione, 48 A.D.3d 648, 649 (2nd Dep't 2008). "The critical factor is the nature of the duly owed to the plaintiff that the defendant is alleged to have breached'" Ryan v Korn, 57 AD3d...
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