Gundlach v Kim

Annotate this Case
[*1] Gundlach v Kim 2021 NY Slip Op 51139(U) Decided on December 1, 2021 Supreme Court, New York County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2021
Supreme Court, New York County

Daniel Gundlach, Plaintiff,

against

Jaehon Kim, MANHATTAN SURGERY CENTER, WALLACK MANAGEMENT CO., INC., KATHERINE WITHERELL, Defendant.



KATHERINE WITHERELL, Plaintiff,

against

THE KALAHARI CONDOMINIUM, BOARD OF MANAGERS OF THE KALAHARI CONDOMINIUM, RAUL FUNES, Defendant.



Index No. 805225/2018



Counsel for Plaintiff Daniel Gundlach

Caitlin Anne Robin

CAITLIN ROBIN AND ASSOCIATES PLLC

30 Broad St Ste 702, New York, NY 10004

(646) 524-6026

caitlin@robinandassociates.com Counsel for Defendant Jaehon Kim, MD

Brittany M. Miller

Heidell, Pittoni, Murphy & Bach, LLP

99 Park Avenue, New York, NY 10016

(212) 286-8585

bcrowley@hpmb.com

Counsel for Defendant Manhattan Surgery Center

Patrick Andrew Dolan

Kaufman Borgeest & Ryan, LLP

200 Summit Lake Drive, Valhalla, NY 10595

9144491015

pdolan@kbrlaw.com

Counsel for Defendant Wallack Management Co., Inc. and Third-Party Defendants The Kalahari Condominium and Board of Managers of the Kalahari Condominium

Jeffrey D Fippinger

MARGARET G KLEIN & ASSOC.

200 Madison Avenue 2nd Floor, New York, NY 10016

646-392-9349

jfippinger@gny.com

Counsel for Defendant/Third-Party Plaintiff Katherine C. Witherell

Henry Ling Ping Liao

Penino & Moynihan LLP

1025 Westchester Ave Suite 403, White Plains, NY 10604

914-949-6996

hliao@peninomoynihanlaw.com
Judith Reeves McMahon, J.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 150, 151, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 195, 197 were read on this motion to/for JUDGMENT - SUMMARY.



The following e-filed documents, listed by NYSCEF document number (Motion 004) 108, 109, 110, 111, 112, 113, 114, 149, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 196, 223, 224, 225, 226 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 126, 127, [*2]128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 198 were read on this motion to/for DISCONTINUE.

Defendant Wallack Management, Co., Inc. ("Wallack") and third-party defendants, The Kalahari Condominium ("Kalahari Condominium") and Board of Managers of the Kalahari Condominium ("Board of Managers") (collectively "Kalahari Defendants") move this Court for an Order pursuant to CPLR §3212 for summary judgment, dismissing the Complaint of Plaintiff Daniel Gundlach ("Mr. Gundlach") and all cross-claims, as well as the Third-Party Complaint filed by Third-Party Plaintiff Katherine C. Witherell ("Ms. Witherell"). (Motion No. 003). Ms. Witherell moves this Court for summary judgment dismissal of all claims and cross-claims filed against her. (Motion No. 004). Mr. Gundlach also cross-moves for an Order granting him summary judgment. (Cross-Motion). Defendant Jaehon Kim, M.D. ("Dr. Kim") moves this Court for an Order granting him summary judgment dismissal pursuant to CPLR §3212. (Motion No. 005). Defendant Roosevelt Surgery Center d/b/a Manhattan Surgery Center ("Manhattan Surgery Center") moves this Court for an Order so-Ordering the Stipulation of Discontinuance as to itself, for an Order dismissing the Complaint as against it and removing it from the case caption. (Motion No. 006).

The Court hereby denies Motions 003, 004, and 005. However, the Court grants Motion No. 006 in its entirety.

FACTS

Mr. Gundlach commenced his Action against Dr. Kim, Manhattan Surgery Center and Ms. Witherell by filing a Summons and Complaint on July 9, 2018 (the "Action"). Mr. Gundlach brought this Action as against Dr. Kim for medical malpractice and lack of informed consent. Dr. Kim and Manhattan Surgery Center joined issue by service of Answer and Ms. Witherell served an Answer with cross-claims for contribution and indemnification as against Dr. Kim. Dr. Kim then filed Answers to such cross-claims and asserted cross-claims as against Wallack and Ms. Witherell. On January 29, 2021, Ms. Witherell served a Third-Party Summons and Complaint naming Kalahari, Board of Managers and Raul A. Funes ("Mr. Funes") as third-party defendants in this Action.

On September 15, 2016, Mr. Gundlach was visiting New York and staying with Ms. Witherell, who was a close friend of Gundlach's friend Dr. David Savran. Ms. Witherell lives in an apartment within Kalahari Condominium, which is located at 40 West 116th Street, New York, NY (the "Premises" or "Property"). Upon entering the apartment, Mr. Gundlach turned on the living room ceiling fan to cool the apartment down. Mr. Gundlach testified that the ceiling fan was attached to the angled living room ceiling via a long pole and was located directly above the sofa where he planned to sleep. Mr. Gundlach, who is 6'1, testified that he did not have to duck underneath the ceiling fan, but was able to reach up and touch it. When Dr. Savran came to the apartment to visit him, Mr. Gundlach turned the fan off since it was "super fast" and he was "nervous" to have it "a foot or a foot and a half above [his] head." When Ms. Witherell turned [*3]the fan back on after returning home, Mr. Gundlach did not ask her to turn it off since he was only a guest in her home. Mr. Gundlach testified that he forgot about the fan and raised his arms "slightly above his head" while "tossing a sheet to bring it to its full openness" when his left ring finger struck the ceiling fan.

Mr. Gunlach presented to the Emergency Department ("ED") at Mt. Sinai Hospital on September 15, 2016 for treatment of his left ring finger and was diagnosed with a proximal phalanx fracture to the left ring finger. Dr. Kim conducted an initial examination of Mr. Gundlach, which revealed that the left ring finger was malrotated with apex volar angulation. The x-ray of the finger showed a comminuted fracture of the proximal phalanx in the left ring finger. Dr. Kim recommended Mr. Gundlach undergo a closed reduction surgery with the use of percutaneous pin-placement or K-wires. On September 19, 2016, Dr. Kim performed a left ring finger irrigation and debridement and closed reduction of the left ring finger with percutaneous pinning. Mr. Gundlach underwent occupational therapy at St. Luke's Hospital Department of Rehabilitation Medicine from September 29, 2016 until October 24, 2016. Dr. Kim examined Mr. Gundlach's finger on October 6, 2016 and noted that the ulbar pin site appeared to be slightly erythematous.

On October 13, 2016, Dr. Kim removed the surgical pins from Mr. Gundlach's finger and documented that Mr. Gundlach's hand revealed rotation of the left ring finger towards the small finger while attempting to make a fist. The x-ray taken on this date showed that no pins migrated. On October 20, 2016, Mr. Gundlach saw Dr. Kim, who examined him and ordered an x-ray. Mr. Gundlach returned to his home in Germany on October 26, 2016 and continued to undergo physical therapy. On January 10, 2017, Mr. Gundlach was evaluated in Germany by hand surgeon Dr. Eisenschenk, who noted that Mr. Gundlach's left ring finger and left small finger were in each other's way when he made a fist. Mr. Gundlach underwent a derotation osteotomy of the left ring finger and stabilization with K-wires on April 20, 2017. On September 12, 2017, Mr. Gundlach underwent surgical removal of the K-wires placed during his April 2017 surgery and wire cerclage of his left ring finger's proximal phalanx and extensor tendon tenolysis.



Ms. Witherell's Testimony

Mr. Gundlach testified that Ms. Witherell told him that she bought the ceiling fan and that someone "who worked on the premises" installed the fan in her apartment. According to her deposition testimony, Ms. Witherell did not use the Kalahari Condominium online portal to request a repair since she found it hard to use and instead asked the superintendent Mr. Funes to install it for her. Ms. Witherell went to Mr. Funes' office to ask her about the installation and did not seek approval from the Kalahari Defendants. According to Ms. Witherell, Mr. Funes agreed to install the fan for $350.00 and instructed her to make the check made payable to him individually. Ms. Witherell testified that she did not provide Mr. Funes with the owner's manual since she lost it and that she never informed Kalahari Condominium about the incident with Mr. Gundlach.



Action and Third-Party Complaint

Mr. Gundlach alleges that Dr. Kim did not obtain informed consent prior to the closed reduction surgery and improperly performed the procedure, which caused infection and deformity that resulted in the malpositioning of his left ring finger and small finger. Mr. Gundlach, who maintains that Dr. Kim should have performed an open reduction surgery, also alleges that Dr. Kim failed to appreciate and correct the malpositioning of his fingers post-[*4]operatively. With respect to his claims as against Wallack, Mr. Gundlach alleges that Wallack was negligent in its "ownership, management, supervision, maintenance and control" of the Premises and failed to "correct and replace the dangerous fixture." Mr. Gundlach further maintains that Ms. Witherell was negligent and reckless in creating and maintaining a dangerous condition at her apartment, in failing to correct and replace the dangerous fixture and for failing to give warning of the dangers of the fixture.

In her third-party Action, Ms. Witherell alleges that Kalahari Condominium and the Board of Managers are "vicariously liable for the negligent actions of employee, Raul Funes, in improperly and incorrectly, incompletely and/or unsafely assembled and installed a ceiling fan at an improper and/or unsafe height in the living room." Furthermore, Ms. Witherell claims that "Raul Funes was not supervised, directed, instructed, inspected or overseen in the assembly and installation of the subject ceiling fan" in her apartment.



DISCUSSION

Pursuant to CPLR §3212(b), a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing Judgment in favor of any party." CPLR §3212(b). A party seeking summary judgment must show that there are not material issues of fact that are in dispute and that it is entitled to judgment as a matter of law. See Dallas-Stephenson v. Waisman, 39 AD3d 303, 306 [1st Dept., 2007]. Once a movant makes such a showing, "the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial. Id.



Wallack and the Kalahari Defendants' Motion for Summary Judgment (Motion No. 003)

Defendant Wallack and Third-Party Defendants Kalahari Condominium and the Board move for summary judgment, arguing that Wallack owed no duty to Mr. Gundlach. Wallack argues in part that Mr. Gundlach cannot recover as a third-party beneficiary to the agreement between itself and Kalahari Condominium and that Mr. Funes was an employee of Kalahari Condominium. As held by the Court of Apepals in Espinal v. Melville Snow Contrs., "because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party". Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002] (citing Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001]; Pulka v Edelman, 40 NY2d 781, 782 [1976]). Furthermore,"a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." Id. The Court held that where a contractor has entered into a contract to provide services, it may be held to have assumed a duty of care to nonparties to the contract in three instances: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launches a force or instrument of harm", (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. See id. at 140-141; Medinas v MILT Holdings LLC, 131 AD3d 121, 126 [1st Dept 2015]. The Appellate Division, First Department has held that the second Espinal exception of detrimental reliance "requires that the noncontracting party has actual knowledge of the contract between the contracting parties." Aiello v Burns Intern. Sec. Services Corp., 110 AD3d 234, 246 [1st Dept [*5]2013]. The Court has also held that the third Espinal exception "exists only where the defendant has, by contract, 'entirely absorbed' the other party's duty to maintain safe conditions on the subject premises." Rahim v Sottile Sec. Co., 32 AD3d 77, 82 [1st Dept 2006].

In this case, Kalahari Condominium, as Owner, entered into a Management Agreement with Wallack as Managing Agent for the condominium located at 40 West 116th Street, New York, NY on December 31, 2010. Pursuant to the Management Agreement, Wallack (deemed the "Agent" under the Management Agreement) was required to "(a) Cause to be hired and supervised all persons necessary to be employed in order to properly maintain and operate the Property who, in each instance, shall be the Condominium's and not the Agent's employees, and cause to be discharged all persons unnecessary or undesirable. . ." Wallack was also responsible to

Use its best efforts to cause the Building to be maintained through supervision of Owner's employees in such condition as may be deemed advisable by the Owner, including interior and exterior cleaning, and use its best efforts to cause repairs and alterations of the Building to be made, including, but not limited to, electrical, plumbing, steam-fitting, carpentry, masonry, elevator, decoration and such other incident alterations or changes therein as may be proper, subject only to the limitations contained in this Agreement or in any proprietary lease or other agreement with any Unit Owner or other tenant.

The Management Agreement further states that Ordinary repairs or alterations involving an expenditure of over $2,5000.00 for any one item shall be made only with the prior approval of the Owner, but emergency repairs, i.e. those immediately necessary in Agent's judgment of the presentation or safety of the Building or for the safety of Unit Owners, or other persons, or required to avoid the suspension of any necessary service in the Building, may be made by the Agent regardless of the cost thereof, without the prior approval of the Owner. Prior to making such repairs, Agent shall attempt to confer with an officer of Owner or Owner's attorney, and in any case, shall promptly advise Owner of any such action taken or expense incurred.

Pursuant to the Management Agreement, Wallack was responsible for entering into contracts on behalf of the Owner in the amount of $2,500.00 or less, purchase supplies that were necessary to properly maintain the Building that cost $2,5000.00 or less and list and offer for sale any space owned by the Owner upon the Owner's request. Wallack was also required to supervise through the Building's employees the moving in and out of Unit Owners, collect maintenance charges from Unit Owners and use its best efforts to attend to the complaints of Unit Owners. While the duties of Wallack as the Manager were extensive, the Court finds that Wallack did not entirely displace Kalahari Condominium's duty to maintain safe conditions on the Premises. For example, Wallack was required to obtain the consent of the Kalahari Condominium for any repairs, supplies and alterations that cost over $2,500.00. Wallack was also required to consult with Kalahari Condominium when attending to the complaints of Unit Owners and advise Kalahari Condominium if the complaint was unreasonable. If a Unit Owner applied for permission from the Kalahari Condominium to alter their apartment, Wallack was [*6]required to forward the application to Kalahari Condominium and follow its instructions. This Court finds that based upon the Management Agreement between Wallack and Kalahari Condominium, the second Espinal exception does not apply.

The Court also finds that the first Espinal exception does not apply here, as the record shows that Wallack did not launch a force or instrument of harm that led to Mr. Gundlach's injuries. The testimony of Ms. Witherell demonstrates that she went to Mr. Funes directly to arrange for the installation of the ceiling fan and did not obtain approval from Kalahari Condominium. Ms. Witherell and Mr. Funes agreed upon the price of the installation and Ms. Witherell wrote the check out to him individually. Wallack has also demonstrated prima facie that it did not launch a force of instrument of harm since it was unaware of Mr. Funes' installation of the fan and was not responsible for directing how Mr. Funes performed repairs. Mr Schenk, who appeared for a deposition in his capacity as Wallack Property Manager, testified that he set Mr. Funes' schedule and hours and oversaw him to the extent of managing the payroll, staff and responses to complaints of unit owners. Though Mr. Funes would inform him about leaks or things of such nature that occurred in the building, Mr. Schenk did not instruct the maintenance staff how to perform any repairs.[FN1] Mr. Schenk maintained that he was unaware that Mr. Funes installed a ceiling fan inside a private unit and that such work would be outside the scope of Mr. Funes' employment, as a unit owner would need to "hire their own person to do that work." Based upon the record, the Court finds that Wallack has made a prima facie showing that the first Espinql exception does not apply here.

In opposition to Wallack's motion for summary judgment, the Court notes that Mr. Gundlach has failed to proffer any evidence rebutting such testimony or showing that Wallack had knowledge of the fan installation, directed Mr. Funes to perform such repair or had any involvement in the installation. Since Mr. Gundlach has failed to overcome Wallack's prima facie showing, the Court hereby finds that the first Espinal exception does not apply and Wallack does not owe a duty of care to Mr. Gundlach as a third-party beneficiary.

The Court also finds that Wallack cannot be held vicariously liable for the actions of Mr. Funes in installing the fan. In his opposition to Wallack's summary judgment motion, Mr. Gundlach repeatedly argues that Mr. Funes was a "special employee" of Wallack based upon Mr. Schenk's testimony in which he stated he supervised building staff members and he would give direction to Mr. Funes regarding his job responsibilities. The Appellate Division, First Department has held that

[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer." Bautista v David Frankel Realty, Inc., 54 AD3d 549, 550 [1st Dept 2008] (quoting Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]).

To deem someone a special employee, there must be a "sufficient transfer of control" and "it is not sufficient for the proponent of special employment to show a mere cession by the general employer of some measure of control." Bellamy v. Columbia Univ., 50 AD3d 160, 163 [1st Dept 2008]. Rather, "the cession must be shown to have been complete, and concomitant with the proponent's complementary assumption of control." Id. For example, the Court in Thompson v. Grumman Aerospace Corp. found that special employment existed where "combined with other indicia of special employment, the uncontroverted record document[ed] [the special] employer's comprehensive and exclusive daily control over and direction of the special employee's work duties." Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 557 [1991].

Here, the record clearly shows that Mr. Funes was an employee of Kalahari Condominium and was not a "special employee" of Wallack. The Management Agreement between Kalahari Condominium and Wallack specifically states that all building workers were employees of Kalahari Condominium and were not employees of Wallack. More significantly, the record shows that Kalahari Condominium retained control over Mr. Funes. In the April 2, 2014 Memorandum issued by Kalahari Condominium to all Unit Owners ("Memorandum,"), Kalahari Condominium announced a new policy that Unit Owners would have to pay a set fee for building staff employees to perform repairs that were the responsibility of the Unit Owners.

The Memorandum specifically states the list of repairs included "may not be comprehensive, and that it may be adjusted as circumstances require" and that "staff will perform this work during normal work hours, and they are insured to do so."[FN2] Kalahari Condominium requested that Unit Owners use the BuildingLink's maintenance request form, which provided an automatic tracking and updating mechanism, but allowed Unit Owners to get a work ticket from the Concierge if they were unable to use the system. The cost of any repair work would be added to the Unit Owner's monthly common charge bill.

As shown by this Memorandum, Kalahari Condominium retained significant control over the building staff employees, including Mr. Funes. Since Mr. Funes was not permitted to perform such repairs without Kalahari Condominium's knowledge and permission, it is clear that Kalahari Condominium was in control of Mr. Funes' work. Kalahari Condominium even states in the Memorandum that building staff would be insured to perform the permitted repairs and were required to do so during their working hours. As the record shows that Kalahari Condominium did not surrender or transfer control of Mr. Funes to Wallack and thereby make him a special employee of Wallack, the Court finds that Wallack cannot be held vicariously liable for the actions of Mr. Funes. The Court further finds the remainder of Mr. Gundlach's claims as against Wallack to be unavailing and therefore grants Wallack's motion for summary judgment dismissal of the Complaint as against it.

Kalahari Condominium and The Board's Motion for Summary Judgment

In their Motion, the Kalahari Defendants argue that the Third-Party Complaint should dismissed since the ceiling fan did not pose a reasonably foreseeable hazard. The Kalahari Defendants also argue that they should not be held vicariously liable since Mr. Funes was acting outside the scope of his employment when he installed the fan. Based upon the record, the [*7]Court finds that an issue of fact exists as to whether Mr. Funes was acting within the scope of his employment when he installed the fan. "The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of his/her employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." Schilt v New York City Tr. Auth., 304 AD2d 189, 193 [1st Dept 2003] (internal citations omitted). "Regardless of the manner in which the rule is phrased, however, an employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business." Id. (internal citations omitted).

Here, the Court finds an issue of fact exists as to whether Mr. Funes' conduct was generally foreseeable and a natural incident of the employment. The Memorandum demonstrates that Kalahari Condominium was previously aware that its employees were performing "side jobs" for Unit Owners and changed its policy to charge Unit Owners for such repairs and require them to make any requests through the BuildingLink Platform. Kalahari Condominium even stated that "staff will perform this work during normal work hours, and they are insured to do so." The Memorandum also clearly indicates that the list of permitted repairs "may not be comprehensive, and that it may be adjusted "as circumstances require." As Kalahari Condominium required its maintenance employees to perform certain repairs for individual Unit Owners for a charge, an issue of fact remains as to whether Mr. Funes was acting within his scope of his employment when he installed the fan. Based on the issues of fact that exist surrounding the installation of the fan, the Court hereby denies Kalahari Condominium and the Board's summary judgment motion.

Ms. Witherell's Motion (Motion No. 004)



The Court also denies Ms. Witherell's summary judgment motion in which she argues that she was not obligated to warn Mr. Gundlach about the fan since it was an open and obvious danger. The Court of Appeals has held that a "landowner has no duty to warn of an open and obvious danger" and that "by contrast, a latent hazard may give rise to a duty to protect entrants from that danger." Tagle v. Jakob, 97 NY2d 165, 169 [2001]. In Tagle v. Jakob, the Court of Appeals noted that "while the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence." Tagle v. Jakob, 97 NY2d 165, 169 [2001]. "There is no duty to warn of an open and obvious danger that can be seen by an "observer reasonably using his or her senses." Stadler v Lord & Taylor LLC, 165 AD3d 500, 500 [1st Dept 2018]. (quoting (Tagle v. Jakob, 97 NY2d 165, 170 [2001] ). The "mere fact that a defect or hazard is capable of being discerned by a careful observer" is not "the end of the analysis", as "the nature or location of some hazards, while they are technically visible, make them likely to be overlooked." Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69, 72 [1st Dept 2004].

Here, the Court finds that Ms. Witherell has failed to proffer "clear and undisputed evidence" that the fan was an "open and obvious danger." Rather, there are many outstanding issues of fact, including the height of Ms. Witherell's ceiling and the placement of the fan. As Mr. Gundlach has noted, Ms. Witherell has refused to allow a site inspection of her Unit due to COVID concerns and therefore the estimated height of the ceiling is based solely on Ms. Witherell's representation. While Mr. Gundlach testified that he was aware of the fan and was [*8]"nervous" to have it within a foot and a half above his head, he also testified that he did not have to duck underneath it. Furthermore, Ms. Witherell has failed to eliminate all issues of fact as to whether the fan is "inherently dangerous", as the record is devoid of clear and undisputed evidence regarding the placement of the fan in the living room. The Court also finds that Ms. Witherell has failed to show prima facie that the sole legal cause of Mr. Gundlach's injuries "is his own reckless conduct, which showed a disregard for an obvious hazard." Brown v. Metro. Tr. Auth., 281 AD2d 159, 160 [1st Dept 2001]. Therefore, the Court denies Ms. Witherell's motion in its entirety.

Mr. Gundlach's Cross-Motion

Recognizing the several outstanding issues of fact, the Court also denies Mr. Gundlach's cross-motion for summary judgment. In his cross-motion, Mr. Gundlach maintains that she breached her duty of care by installing a ceiling fan two feet lower than the minimum clearance required by the Owner's Manual. Noting that Ms. Witherell has refused to allow a site inspection for measurement of the living room, Mr. Gundlach maintains that Ms. Witherell's motion for summary judgment should be denied since she created the dangerous condition and any alleged negligence on his part is not a bar to recovery.

"To subject a property owner to liability for a hazardous condition on the premises, a plaintiff must demonstrate that the owner either created the alleged hazardous condition or had actual or constructive notice of the condition." Mandel v 370 Lexington Ave., LLC, 32 AD3d 302, 303 [1st Dept 2006]. In order to constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the owner's] employees to discover and remedy it." Id. In support of his cross-motion, Mr. Gundlach submits an Owner's manual which purports to show that the ceiling fan was installed two feet lower than the manufacturer recommended. However, as counsel for Mr. Gundlach conceded during oral argument, there is no evidence demonstrating that this manual applies to the specific fan at issue. The Court finds that such documentation is an insufficient basis for the granting of summary judgment. As Mr. Gundlach has failed to proffer any other evidence that definitively shows that the fan was a hazardous condition and eliminate all material issues of fact, the Court denies Mr. Gundlach's motion in its entirety.

Dr. Kim's Motion for Summary Judgment (Motion No. 005)

"A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff's alleged injuries." Anyie B. v. Bronx Lebanon Hosp., 128 AD3d 1, 3 [1st Dept 2015]. (See Costa v. Columbia Presbyt. Med. Ctr., 105 AD3d 525, 525 [1st Dept 2013]). "Once a defendant has established prima facie entitlement to summary judgment, the burden shifts to plaintiff to 'rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged.'" Ducasse v. New York City Health and Hosps. Corp., 148 AD3d 434, 435 [1st Dept 2017] (internal citations omitted). "The opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants." Diaz v. New York Downtown Hosp., 99 NY2d 542, 544 [2002].

"To defeat summary judgment, the expert's opinion "must demonstrate 'the requisite nexus between the malpractice allegedly committed' and the harm suffered." Anyie B. v. Bronx [*9]Lebanon Hosp., 128 AD3d 1, 3 [1st Dept 2015] (internal citations omitted). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion." Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]. (See Otero v. Faierman, 128 AD3d 499, 500 [1st Dept 2015]. See generally Cruz v. New York City Health and Hosps. Corp., 188 AD3d 592, 593 [1st Dept 2020]; Henry v. Duncan, 169 AD3d 421 [1st Dept 2019]). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on 'specifically cited evidence in the record.'" Lowe v. Japal, 170 AD3d 701, 703 [2d Dept 2019]. See Frye v. Montefiore Med. Ctr., 70 AD3d 15, 24 [1st Dept 2009].

In support of his summary judgment motion, Dr. Kim submitted the affidavits of physician Robert J. Strauch, M.D. ("Dr. Strauch") and Stephen Machnicki, M.D. ("Dr. Machnicki"). The Court finds that based upon such affidavits, Dr. Kim has sufficiently shown prima facie that he did not depart from the standard of care and that any alleged departure did not proximately cause Mr. Gundlach's alleged injuries. In his affidavit, Dr. Strauch gives a detailed analysis of the risks associated with open reduction surgery and his position that Dr. Kim correctly recommended the closed reduction procedure. Dr. Strauch also sufficiently explains how Dr. Kim adequately performed the procedure and how the post-operative films demonstrate Mr. Gundlach's finger healing correctly. In his affidavit, Dr. Strauch opines that Dr. Kim appropriately monitored and treated Mr. Gundlach post-operatively and that the "slight rotation" in Mr. Gundlach's finger was within the margin of error for the surgery and such rotation existed pre-operatively. Finally, the Court finds that Dr. Strauch sufficiently explains his opinion that Mr. Gundlach "developed adhesions as a result of the detrotation osteotomy surgery" that required the second surgery of September 2017 and was not caused by Dr. Kim's treatment. The Court notes that Dr. Strauch also sufficiently opines that Dr. Kim received proper informed consent from Mr. Gundlach prior to the procedure. The Court further finds that Dr. Machnicki sufficiently explains his opinion that Dr. Kim appropriately performed the closed reduction surgery and that the malrotation Mr. Gundlach experienced was the result of the detrotation osteotomy surgery.

As the burden shifts to Mr. Gundlach, the Court finds that he has sufficiently rebutted Dr. Kim's prima facie showing based on the affidavit of Burt M. Greenberg, M.D. ("M.D."). Dr. Greenberg sufficiently explains his position that Dr. Kim did not obtain informed consent prior to performing the closed reduction surgery since he failed to advise Mr. Gundlach of the available alternatives, including open reduction. Dr. Greenberg also adequately proffers his opinion that Dr. Kim should have performed the open reduction surgery and that he deviated from the standard of care in failing to achieve appropriate alignment of Mr. Gundlach's left finger and by failing to remove the bone fragments from Mr. Gundlach's hand. The Court finds that Mr. Gundlach has also shown the existence of a material issue of fact based upon Dr. Greenberg's opinion that Dr. Kim departed from the standard of care when he did not perform additional surgery "as was indicated" during the outpatient visits, during which radiological images showed that the pins were misplaced and caused the finger to heal mis-aligned. Dr. Greenberg states that "contrary to Defendants expert opinion, a properly performed reduction surgery, whether open or closed, should not result in a finger with rotational deformity such as the one suffered by Mr. Gundlach. Based upon the affirmation of Dr. Greenberg, the Court finds [*10]that Mr. Gundlach has rebutted the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged. Therefore, the Court denies Dr. Kim's motion in its entirety.



Manhattan Surgery Center's Motion (Motion No. 006)

Manhattan Surgery Center moved this Court for an Order pursuant to CPLR §3217(b) so-Ordering the Stipulation of Discontinuance as to the defendant Manhattan Surgery Center, for an Order dismissing the Complaint as against it and removing it from the caption. On or about July 28, 2021, counsel for Mr. Gundlach executed a Stipulation of Discontinuance as to Manhattan Surgery Center. While co-Defendants Ms. Witherell and Wallack agreed to discontinue their cross-claims as against Manhattan Surgery Center, Dr. Kim refused to sign the Stipulation of Discontinuance. After hearing oral arguments on the motion, the Court so-Ordered the Stipulation of Discontinuance as to Manhattan Surgery Center.

Accordingly, it is hereby

ORDERED that Wallack's motion for summary judgment is hereby granted in its entirety; it is further

ORDERED that the Complaint and any cross-claims as against Wallack are hereby dismissed; it is further

ORDERED that Kalahari Condominium and the Board of Manager's Motion for summary judgment is hereby denied in its entirety; it is further

ORDERED that Ms. Witherell's motion is hereby denied in its entirety; it is further

ORDERED that Mr. Gundlach's cross-motion is hereby denied in its entirety; it is further

ORDERED that Dr. Kim's Motion is hereby denied in its entirety; it is further

ORDERED that Manhattan Surgery Center's Motion is hereby granted in its entirety; it is further

ORDERED that Wallack and Manhattan Surgery Center be removed from the caption; it is further

ORDERED that the Clerk shall enter the judgment accordingly; it is further

ORDRERD that the next conference in this case is scheduled for January 10, 2022 at 10 AM; and it is

ORDERED that any and all requests for relief are hereby denied.



DATE 12/1/2021

JUDITH REEVES MCMAHON, JSC Footnotes

Footnote 1:According to Mr. Schenk, unit owners would submit any work requests through BuildingLink, an online building management platform, or would otherwise request work verbally.

Footnote 2:Among the mentioned repairs was changing light bulbs, installing second locks, and snaking drains.