Page 23 - WCBA Appellate Practice Committee CLE May 2024-Handout

VIP Pet Grooming Studio, Inc. v Sproul, 224 AD3d 78 (2024) (opinion by (Dillon, J.).

The opinion examined the retroactivity of the 2020 amendments to Civil Rights Law 70-a and 76-a, the
anti-SLAPP statute. The defendants’ dog died as a result of alleged improper bathing by the plaintiff dog
groomer, and the defendants posted material about the pet groomer on a social media site which the
plaintiff considered defamatory. The plaintiff sued for defamation. Eight days from the action’s
commencement, the state’s SLAPP statute was amended in a manner that rendered the statute more
broadly applicable, including to matters of defamation. The defendant’s moved to dismiss the action
under CPLR 3211(a)(7) and 3211(g), on the ground that the defamation action was a SLAPP action.
Determination of the issue depended upon whether the 2020 amendments to SLAPP were retroactive.
The Appellate Division held that the SLAPP amendments are presumed to be prospective only, and that
contrary to some federal case law on the issue, the presumption was not overcome. Absent
retroactivity, the plaintiff’s defamation action was outside the protections of SLAPP and the defendants’
dismissal motion.

Angieri v Musso, 225 AD3d 43 (2024) (opinion by Warhit, J.).

The plaintiff suffered from post-surgical respiratory arrest, and an action was commenced for medical
malpractice against various physicians and North Shore Hospital. The surgeon and anesthesiologist
received summary judgment in their favor and the trial proceeded against the remaining defendants.
The plaintiff’s claim against defendant Dr. Musso was that she failed to list certain medications that the
patient had been taking for a respiratory conditions on a pre-surgical clearance form, which caused that
medication not to be administered when needed. Dr. Musso admitted the mistake, but proffered
evidence that the other physicians and the hospital were nevertheless actually aware of the patient’s
medications from a medication list contained in the hospital chart. The hospital’s expert testified that
the patient’s had heart failure which then led to respiratory arrest, unrelated to the medications. The
plaintiff made a CPLR 4402 motion for a new trial on the ground that Dr. Musso improperly sought to
shift liability to the surgeon and anesthesiologist despite those parties having been granted summary
judgment, in violation of the Ranieri rule, and ultimately appealed the trial judgment. The Appellate
Division held that Ranieri was not violated, as Dr. Musso did not seek by its evidence to establish that
the dismissed physicians were negligent, but instead merely sought to establish that Musso’s failure was
not a factor in the decision-making of others as to break proximate cause.

MoreJon v New York Transit Authority, 216 AD3d 134 (opinion by Maltese, J.).

A municipality that has enacted a prior written notification law may avoid liability for a defect or
hazardous condition that falls within the scope of the law if it can establish that it has not been notified
in writing of the existence of the defect or hazard at a specific location. Once it establishes prima facie
that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate either that a
question of fact exists in that regard or that one of the exceptions applies. This framework did not apply
in this instance, where defendant did not argue that it lacked prior written notice of the alleged defect.
Although the NYCTA annexed to its motion papers street opening permits for “tree pits” near the
accident location, defendant did not submit evidence that the construction company's preparation of

20