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COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county had not met its burden and its motion for summary judgment was properly denied. Plaintiff, an inmate at the county jail, alleged he was injured in a fight involving other inmates. The complaint alleged the failure to keep the inmate safe and the failure to provide adequate medical care. The proof offered by the county did not demonstrate the altercation was not foreseeable, the protective measures were adequate, or the medical care was adequate. The failure to offer sufficient proof addressing these issues required the denial of summary judgment:

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“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the [municipality owes] a duty of care to safeguard inmates, even from attacks by fellow inmates” … . “Like other duties in tort, the scope of the . . . duty to protect inmates is limited to risks of harm that are reasonably foreseeable” … . On its motion for summary judgment, the County had the burden of establishing that the assault of the plaintiff was not foreseeable … . The County did not meet that burden, as it failed to eliminate triable issues of fact as to whether it knew or should have known of the dangerous propensity of certain inmates involved in the assault, or of prior similar incidents occurring while meals were being distributed by inmates. Evidence submitted by the County indicated that such altercations involving inmates distributing meals occurred monthly. Moreover, the County also failed to eliminate triable issues of fact as to the adequacy of the measures taken to prevent reasonably foreseeable harm … .

With respect to the second cause of action, which alleged a failure to provide the plaintiff with timely, adequate medical attention, a municipality owes a duty to its incarcerated citizens to provide them with adequate medical care … . The County did not submit the affidavit of an expert attesting to the adequacy of the medical care provided to the plaintiff. Its attorney’s conclusory assertion that the plaintiff received timely, adequate medical care, together with its submission of the plaintiff’s medical records, failed to establish the County’s prima facie entitlement to judgment as a matter law dismissing the second cause of action … . Adeleke v County of Suffolk, 2017 NY Slip Op 08803, Second Dept 12-20-17

 

NEGLIGENCE (INMATES, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (INMATES, NEGLIGENCE,  COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT).
PLAINTIFF WAS NOT ENTITLED TO THE PRESUMPTION DEFENDANT RECEIVED A LETTER ALLEGEDLY REQUESTING THAT SURVEILLANCE VIDEO BEFORE AND AFTER PLAINTIFF’S SLIP AND FALL BE PRESERVED AS THERE WAS NO PROOF OF MAILING, DEFENDANT SHOULD NOT HAVE BEEN SANCTIONED FOR SPOLIATION PURSUANT TO CPLR 3126 (SECOND DEPT).
FAILURE TO FILE PROOF OF SERVICE WITHIN TWENTY DAYS OF DELIVERY OR MAILING OF THE SUMMONS IS NOT A JURISDICTIONAL DEFECT WHICH DEPRIVES THE COURT OF JURISDICTION OVER THE SERVED PARTY (SECOND DEPT). ​
MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED.
AN EYEWITNESS TO PLAINTIFF’S SLIP AND FALL TESTIFIED PLAINTIFF TOLD HER SHE TRIPPED OVER A MUDSILL BECAUSE OF DIM LIGHTING; PLAINTIFF’S STATEMENT WAS ADMISSIBLE AS AN EXCITED UTTERANCE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA (SECOND DEPT).
THE COMPLAINT IN THIS SLIP AND FALL CASE WAS BASED UPON A THEORY NOT DESCRIBED IN THE NOTICE OF CLAIM; THE COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT).
UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

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