Page 1027 – New York Appellate Digest

/ Negligence, Products Liability

PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, determined plaintiffs were entitled to summary judgment on their defective design cause of action in this products liability case. The product is a “fire pot” which burns a gel poured into a cup. Apparently the gel exploded. There was expert testimony that it is difficult to see whether the gel is burning and reloading the gel while it is burning will cause it to explode:

… [P]laintiffs have established, as a matter of law, that the product at issue, consisting of the fire pot and the fuel gel, was defectively designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs’ injuries. Plaintiffs have submitted evidence, including expert affidavits, demonstrating that the product has minimal utility, serving a purely decorative purpose, that it poses an extraordinary safety risk in that it can explode and propel flaming fuel gel onto persons in its vicinity and cause them to catch fire when a person attempts to light the fire pot with the fuel gel while the fire pot is already lit or hot, that when the fuel gel in the fire pot is lit but burns down, it has a nearly invisible flame, which can mislead users into perceiving the flame as extinguished and the fuel gel exhausted, that the viscosity of the fuel gel makes it easily adherent to skin and clothing which makes it very difficult to extinguish and that alternative and safer designs are available in that instead of designing the fire pot with a deep-seated stainless steel cup into which the fuel gel is poured, the product could have been designed using fuel gel in nonrefillable metal cans or cartridges that get inserted directly into the fire pot, which would eliminate the design defect that causes an explosion upon refueling the fire pot with the fuel gel as well as the related dangers flowing from the fuel gel flame being difficult to visually discern when the fuel gel burns down and the viscosity of the fuel gel. Finally, the experts opined that the defective design of the product was a substantial factor in causing plaintiffs’ injuries.

In opposition, defendant has failed to raise an issue of fact as to whether the product was designed in a reasonably safe manner or whether the defective design was a substantial factor in causing plaintiffs’ injuries. M.H. v Bed Bath & Beyond Inc., 2017 NY Slip Op 07790, First Dept 11-9-17

PRODUCTS LIABILITY (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))/DESIGN, DEFECTIVE (PRODUCTS LIABILITY, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))

November 09, 2017

/ Municipal Law, Negligence

TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))

The Fourth Department, reversing Supreme Court, determined the traffic control measures taken by the defendants doing work on or near a road furnished the condition for the accident but was not the proximate cause of the accident. Defendant driver swerved to avoid a rear-end collision with a car that made a sudden left turn. The driver struck plaintiff, who was standing in the parking lane getting ready to cross the street:

Even assuming, arguendo, that the accident occurred within a “work zone” ,,, and defendants-appellants were negligent in the design and placement of temporary traffic control … , … we conclude that such negligence was not a proximate cause of the accident … . “A showing of negligence is not enough; there must also be proof that the negligence was a proximate cause of the event that produced the harm” … . We reject plaintiffs’ contention that the temporary traffic control at the site was a proximate cause of the accident. Any negligence with respect to the construction work merely furnished the condition or occasion for plaintiff being struck by a vehicle while crossing the street and was not a proximate cause of the accident … . Gregory v Cavarello, 2017 NY Slip Op 07791, Fourth Dept 11-9-17

NEGLIGENCE (TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, (TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, ROAD WORK, TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))/TRAFFIC CONTROL (MUNICIPAL LAW, TRAFFIC ACCIDENTS, TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))/PROXIMATE CAUSE (TRAFFIC ACCIDENTS, TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))/HIGHWAYS (TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))

November 09, 2017

/ Municipal Law, Negligence

QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the village’s motion for summary judgment in this front-end loader/pedestrian accident case should not have been granted. Plaintiff was injured when the front-end loader backed up over her in a municipal parking lot at night. The parking lot was deemed a “highway” for purposes of the applicability of the “reckless disregard for safety” standard for machinery used in highway work. But the Third Department held there were questions of fact about whether the reckless disregard standard was met. The court noted that the usual safety precautions used during the day were not used at night, when the accident occurred:

Vehicle and Traffic Law § 1103 (b) provides that the safety rules and regulations governing the operation of vehicles upon highways (i.e., the “rules of the road”) will “not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway . . . [or] to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” . … [T]he Legislature has provided vehicles engaged in such road work the benefit of a lesser standard of care … — rather than having to establish ordinary negligence, an injured plaintiff seeking damages must instead demonstrate that “any person . . . [or] operator of a motor vehicle or other equipment while actually engaged in work on a highway” acted with a “reckless disregard for the safety of others” … . * * *

While we agree with Supreme Court that the [parking] lot constituted a highway so as to invoke the provisions of Vehicle and Traffic Law § 1103 (b), that determination, standing alone, did not serve to insulate defendants from all potential liability for their actions that evening and entitle them to summary judgment. … Given [the] acknowledgment that the Village had a safety zone policy in place that called for the establishment of work zones when heavy machinery was being operated in parking lots during the daytime and chose not to implement it during nighttime operations, [the] candid testimony that a flagperson would have been helpful and may have been able to stop plaintiff before she crossed behind the loader and the lack of any admissible expert opinion dispositive of defendants’ claim that it did not act with recklessness, defendants failed to establish their entitlement to summary judgment as a matter of law … . Freitag v Village of Potsdam, 2017 NY Slip Op 07919, Third Dept 11-9-17

NEGLIGENCE (MUNICIPAL LAW, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/MUNICIPAL LAW (NEGLIGENCE, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/RECKLESS DISREGARD (MUNICIPAL LAW, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/HIGHWAYS (MUNICIPAL LAW, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/PARKING LOTS (MUNICIPAL LAW, HIGHWAYS, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, NEGLIGENCE, RECKLESS DISREGARD, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

November 09, 2017

/ Municipal Law, Negligence

POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT).

The First Department determined the city’s motion for summary judgment was properly dismissed in this traffic accident case involving a police car. The court held that the officer was engaged in an emergency operation when he went through a red light at an intersection and struck plaintiff’s car. Even if the siren and emergency lights were not on, the officer was authorized to proceed through the intersection:

Defendants’ motion for summary judgment was properly granted since the record shows that defendant Kohler, a police officer, was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened … . The fact that Koehler was mistaken in believing that plaintiff was stopping her vehicle when he proceeded to pass through the red light did not render his conduct reckless. Koehler testified that as he approached the intersection, he reduced his speed and looked left and right. He was traveling approximately 10 miles above the speed limit when the accident occurred. Koehler attempted to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff’s vehicle had entered the intersection … . The fact that there is a question as to whether the police vehicle’s lights and siren were activated is not material because Koehler was not required to activate either of these devices in order to be entitled to the statutory privilege of passing through a red light … . Lewis v City of New York, 2017 NY Slip Op 07785, First Dept 11-9-17

NEGLIGENCE (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (EMERGENCY OPERATION, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/TRAFFIC ACCIDENTS (EMERGENCY OPERATION, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/POLICE OFFICERS (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/EMERGENCY OPERATION (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/RECKLESS DISREGARD (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/SIREN (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/EMERGENCY LIGHTS (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))

November 09, 2017

/ Labor Law-Construction Law

INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff was injured when a heavy objected being lifted from a horizontal to a vertical position shifted momentarily. The Fourth Department found that the activity during which plaintiff was injured did not involve a risk covered by Labor Law 240 (1):

“Liability may . . . be imposed under [Labor Law § 240 (1)] only where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . “Consequently, the protections of [the statute] do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” … . Rather, the statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … .

Here, the harm to plaintiff was not “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … ; rather, the submissions establish that plaintiff was injured while lifting the heavy switchgear segment when the weight thereof momentarily shifted to his side as a result of instability or a slight downward movement of half an inch on the coworker’s side … . Although plaintiff’s back injury “was tangentially related to the effects of gravity upon the [switchgear segment that] he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . We thus conclude that defendants established as a matter of law that plaintiff’s injuries resulted from a “routine workplace risk[]” of a construction site and not a “pronounced risk[] arising from construction work site elevation differentials” … . Horton v Board of Educ. of Campbell-Savona Cent. Sch. Dist., 2017 NY Slip Op 07806, Fourth Dept 11-9-17

LABOR LAW-CONSTRUCTION LAW (INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT)

November 09, 2017

/ Labor Law-Construction Law

PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this Labor law 241 (6), 200 and common law negligence action should have been granted. Plaintiff was struck by a car while working in the median of a highway. Defendant, Oakgrove, was a prime contractor with whom the injured plaintiff’s employer did not contract. And Oakgrove had no supervisory control over the plaintiff or the worksite:

“The owner or general contractor is not synonymous with the prime contractor . . . Generally speaking, the prime contractor for general construction (especially in State construction projects) has no authority over the other prime contractors . . . unless the prime contractor is delegated work in such a manner that it stands in the shoes of the owner or general contractor with the authority to supervise and control the work” … .

Here, Oakgrove and Foit-Albert were both prime contractors, and plaintiff’s employer contracted only with Foit-Albert. Oakgrove did not supervise or instruct plaintiff. Rather, plaintiff reported to a supervisor at Foit-Albert. Oakgrove established as a matter of law that it had no control over plaintiff or the work he was performing, and plaintiff failed to raise a triable issue of fact … . …

… Oakgrove … established that it did not have control over the work site at the time of plaintiff’s accident …. Thus, the court should have dismissed the Labor Law § 200 claim and common-law negligence cause of action … . Knab v Robertson, 2017 NY Slip Op 07822, Fourth Department 11-9-17

LABOR LAW-CONSTRUCTION LAW (PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/PRIME CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))

November 09, 2017

/ Attorneys, Civil Procedure, Insurance Law, Privilege

SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT).

The Fourth Department, reversing (modifying Supreme Court) determined plaintiff was not entitled to disclosure of the pre-disclaimer opinion of outside counsel for the insurer, and was not entitled to the insurer’s manual without an in camera review of the manual for relevance. Supreme Court properly ordered disclosure of the pre-disclaimer claim notes which included statements made by the insured (father of the injured infant):

… [T]he court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” … . Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable … , documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared … .

[T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s reserve information and denying that part of defendant’s cross motion with respect thereto inasmuch as that information is not “material and necessary” to the action (CPLR 3101 [a]…).

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … . …[T]he court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action … . Celani v Allstate Indem. Co., 2017 NY Slip Op 07799, Fourth Dept 11-9-17

INSURANCE LAW (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CIVIL PROCEDURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/ATTORNEYS (INSURANCE LAW, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/PRIVILEGE (ATTORNEY-CLIENT, INSURANCE LAW, DISCLOSURE, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/DISCLOSURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CPLR 3101 (a) (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))

November 09, 2017

/ Family Law

THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT).

The Second Department determined Family Court properly found that a child (Nasir) was not derivatively abused based upon proof father had injured the two other children, but should have found the child derivatively neglected:

“[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” … . Contrary to the contention of ACS [Administration for Children’s Services), the Family Court properly found that ACS failed to establish that Nasir was derivatively abused by the father … . However, we agree with ACS that it established, by a preponderance of the evidence … , that the father derivatively neglected Nasir … . “The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood. Such flawed notions of parental responsibility are generally reliable indicators that a parent who has abused one child will place his or her other children at substantial risk of harm” … The father’s physical abuse of Nyair demonstrated a fundamental defect in his understanding of parental duties relating to the care of children, placing Nasir in imminent danger of impairment of his physical, mental, or emotional condition… . Accordingly, the court should have made a finding that the father derivatively neglected Nasir. Matter of Nyair J. (Vernon J.), 2017 NY Slip Op 07729, Second Dept 11-8-17

FAMILY LAW (NEGLECT, THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/NEGLECT (THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/DERIVATIVE NEGLECT (THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/ABUSE (FAMILY LAW, THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/DERIVATIVE ABUSE (FAMILY LAW, THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))

November 08, 2017

/ Family Law

DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT).

The Second Department determined Family Court should not have made a finding of derivative neglect based upon a prior ACD (adjournment in contemplation of dismissal) which is not a determination on the merits:

“Where a person’s conduct toward one child demonstrates a fundamental defect in the parent’s understanding of the duties of parenthood, or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his or her care, an adjudication of derivative neglect with respect to the other children is warranted” … . ” In determining whether a child born after the underlying acts of neglect should be adjudicated as a child who was derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct that formed the basis for a finding of neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists'” … . However, “[a]n ACD is emphatically not a determination on the merits. It is not akin to a finding of parental neglect, but, rather, it leaves the question unanswered” … .

Here, the Family Court did not enter a finding of neglect against the father in 2015. Instead, it entered an ACD against him based on his admission that he failed to provide a stable home for the child. Moreover, the DSS did not seek to reopen the earlier proceeding to establish the father’s neglect based on his failure to comply with the conditions set forth by the court. Under these circumstances, the court erred in entering a finding of derivative neglect against the father … . Matter of Delilah D. (Richard D.), 2017 NY Slip Op 07724, Second Dept 11-8-17

FAMILY LAW (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/NEGLECT (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/DERIVATIVE NEGLECT (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/ACD (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))

November 08, 2017

/ Environmental Law, Municipal Law, Zoning

PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT).

The Second Department, reversing (in part) Supreme Court, determined the town planning board did not take the requisite “hard look” at the combined effect of the proposed development and the proximity of the development to a gas line. Therefore a Supplemental Environmental Impact Statement (SEIS) was required. Petitioners arguments that the proposed development conflicted with the town’s comprehensive plan and constituted prohibited spot zoning were rejected:

… [W]e agree with the petitioner’s contention that the Town Board failed to take a “hard look” at the environmental impact of placing the proposed development in close proximity to the existing Columbia Gas pipeline, and the combined environmental impact of the pipeline and the development together. The Draft Environmental Impact Statement (hereinafter DEIS) contains only a brief mention of the pipeline which bisects the property, and Columbia Gas was omitted from the list of “interested agencies.” In addition, there is nothing in the Town Board’s determinations that suggests that it considered these issues outside the context of the DEIS and the final environmental impact statement (hereinafter FEIS), and they are not discussed in the Town’s SEQRA findings statement. Thus, the record supports the petitioner’s contention that the Town Board did not take a “hard look” at these issues or make a “reasoned elaboration” of the basis for its determination regarding them … , and the Supreme Court should have annulled the Town Board’s determination resolving to approve the findings statement pursuant to SEQRA for the proposed zone change. Matter of Youngewirth v Town of Ramapo Town Bd., 2017 NY Slip Op 07744, Second Dept 11-8-17

ENVIRONMENTAL LAW (PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))/ZONING (ENVIRONMENTAL LAW, PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, ZONING, PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT)/ENVIRONMENTAL IMPACT STATEMENT (PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))

November 08, 2017

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PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT).

TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))

QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT).

INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT).

PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT).

THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT).

DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT).

PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT).

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