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ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER’S WIFE’S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employers’ motion to dismiss the NYC and NYS Human Rights Law (NYCHRL, NYSHRL) gender discrimination causes of action should not have been granted. The employers were husband (Nicolai) and wife (Adams). The complaint alleged plaintiff-employee had nothing but a professional relationship with Nicolai. Adams allegedly sent an email to plaintiff telling her to stay away from her husband and family. Nicolai then allegedly sent an email to plaintiff telling her she was fired. The complaint further alleged defendants filed a complaint with the police falsely stating plaintiff had threatened them. Supreme Court allowed the defamation cause of action to stand, but dismissed the gender discrimination causes of action:

It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination … . Here, while plaintiff does not allege that she was ever subjected to sexual harassment at [the workplace]. she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant’s motivation to terminate plaintiff’s employment was sexual in nature.

Defendants’ reliance on certain cases in the “spousal jealousy” context is misplaced. … [A]ssuming the truth of the allegations of the amended complaint, as we are required to do upon a motion to dismiss, plaintiff had always behaved appropriately in interacting with Nicolai, and was fired for no reason other than Adams’s belief that Nicolai was sexually attracted to plaintiff. This states a cause of action for gender discrimination under the NYSHRL and the NYCHRL … . Edwards v Nicolai, 2017 NY Slip Op 06235, First Dept 8-22-17

 

EMPLOYMENT LAW (HUMAN RIGHTS LAW, ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER’S WIFE’S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT))/HUMAN RIGHTS LAW (GENDER DISCRIMINATION,  ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER’S WIFE’S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT))/GENDER DISCRIMINATION ( ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER’S WIFE’S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT))/SEX DISCRIMINATION  (HUMAN RIGHTS LAW, ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER’S WIFE’S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT)

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TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department noted that testimony at a Municipal Law 50-h hearing cannot be relied upon to assert a cause of action not included in the notice of claim. Here the notice of claim alleged the city failed to provide timely medical care to plaintiff’s decedent, who died of a heart attack after he was arrested. Although plaintiff testified at the 50-h hearing that plaintiff’s decedent told a doctor he had been beaten by the police, the notice of claim made no mention of any causes of action based on that allegation:

“In making a determination on the sufficiency of a notice of claim, a court’s inquiry is not limited to the four corners of the notice of claim”… . A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim… . However, in determining the sufficiency of a notice of claim, testimony during an examination conducted pursuant to General Municipal Law § 50-h cannot be used to substantively change the nature of the claim or the theory of liability set forth in the notice of claim … .

Here, the notice of claim was limited to allegations that the police officers involved in the decedent’s arrest failed to obtain timely medical assistance for the decedent while he was in their custody, and that the hospital staff negligently treated the decedent. There were no allegations, either express or implied, that the police had assaulted the decedent, or that the defendants negligently hired, supervised, or retained the police officers who were involved in the decedent’s arrest. The plaintiff’s testimony at the General Municipal Law § 50-h examination cannot be used to amend the theories of liability set forth in the notice of claim … . Davis v City of New York, 2017 NY Slip Op 06155, Second Dept 8-16-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/50-H HEARING (NEGLIGENCE, MUNICIPAL LAW, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))

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QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT).

The Second Department determined defendants’ (Herman’s and Capuano’s) motions for summary judgment in this dental malpractice action were properly denied. With respect to the lack-of-informed consent cause of action, despite plaintiff’s signing of a consent form, the deposition testimony raised a question of fact whether plaintiff was properly informed before signing it:

“To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the actual procedure performed for which there was no informed consent was the proximate cause of the injury” … . “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, both Herman and Capuano failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. Although Herman and Capuano each submitted a consent form signed by the plaintiff for the respective procedures, they also submitted, in support of their respective motions, the plaintiff’s deposition testimony, which revealed factual disputes as to whether the plaintiff was properly advised before signing each of the forms … . Mathias v Capuano, 2017 NY Slip Op 06174, Second Dept 8-16-17

 

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/DENTAL MALPRACTICE (INFORMED CONSENT, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))

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NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant architect’s motion to set aside the verdict in this professional malpractice case should have been granted. Expert testimony was required and was not presented:

… [T]he plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” … .

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice … , the jury lacked any rational basis for its finding that the defendants committed professional malpractice … . Michael v He Gin Lee Architect Planner, PLLC, 2017 NY Slip Op 06177, Second Dept 8-16-17

 

NEGLIGENCE (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (ARCHITECT MALPRACTICE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PROFESSIONAL MALPRACTICE (ARCHITECTS, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION  (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARCHITECTS (PROFESSIONAL MALPRACTICE,  NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (CML’s) motion for summary judgment in this slip and fall case should have been granted because the cause of plaintiff’s fall could not be established without resort to speculation. Plaintiff alleged the her foot went under a mat which had been lifted up by a leaf blower. However she did not see anyone operating a leaf blower and did not see the mat lift up off the ground:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall…  A plaintiff’s inability to identify the cause of his or her fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation … .

Here, CML established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the injured plaintiff’s deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation … . The injured plaintiff testified at her deposition that when she exited the convenience store, her left foot went underneath the floor mat, causing her to trip and fall. While the injured plaintiff assumed that a leaf blower operated by an employee of CML caused the mat to lift up immediately prior to her fall, she did not see anyone in the area using a leaf blower prior to her fall and she never observed the mat lift up from the ground … . Razza v LP Petroleum Corp., 2017 NY Slip Op 06202, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL,  CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined documents sought from a nursing home were not shielded from discovery by the Public Health Law. The documents concerned plaintiff’s decedent’s falls:

Public Health Law § 2805-j requires nursing homes, among other healthcare-related entities, to maintain a program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee which, among other things, is required to insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures. A New York State Department of Health regulation also requires nursing homes to establish and maintain a quality assessment and assurance program (see 10 NYCRR 415.27). Public Health Law § 2805-m and Education Law § 6527(3) both protect from disclosure documents created “by or at the behest of a quality assurance committee for quality assurance purposes” … . “It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes” … . The party asserting the privilege ” is required at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure”‘… . Records that are duplicated or used by a quality assurance committee are not necessarily privileged … .

Here, in support of its cross motion for a protective order shielding the reports from disclosure, the Nursing Home submitted, among other things, the affidavit of its administrator, a privilege log, and, in camera, the three reports it was able to locate. Contrary to the determination of the Supreme Court, the Nursing Home’s showing was insufficient to demonstrate that the reports were generated by or at the behest of the Nursing Home’s Quality Assurance Committee. Robertson v Brookdale Hosp. Med. Ctr., 2017 NY Slip Op 06204, Second Dept 8-16-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/MEDICAL MALPRACTICE (PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/PRIVILEGE (PUBLIC HEALTH LAW,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, PRIVILEGE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/NURSING HOMES (PUBLIC HEALTH LAW, PRIVILEGE,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/QUALITY ASSURANCE (PUBLIC HEALTH LAW, MEDICAL MALPRACTICE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))

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QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant school’s motion for summary judgment in this student on student assault case was properly denied:

… [C]ontrary to the defendant’s assertions, it failed to demonstrate, prima facie, that the classmate’s grabbing of the infant plaintiff’s head and pushing it down into the table was not foreseeable or that the defendant’s alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . The defendant’s motion papers demonstrated the existence of triable issues of fact as to whether the defendant had knowledge of the offending classmate’s dangerous propensities due to his involvement in other altercations with classmates in the recent past … . Thus, the defendant failed to establish, prima facie, that it lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the infant plaintiff. As to proximate cause, the defendant did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . Rt v Three Vil. Cent. Sch. Dist., 2017 NY Slip Op 06207, Second Dept 8-16-17

NEGLIGENCE (EDUCATION-SCHOOL LAW, QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSAULT, QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/ASSAULT (STUDENT ON STUDENT, NEGLIGENCE, QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a one-inch gap between sidewalk slabs was a non-actionable trivial defect:

Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury… . However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … .

In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, the evidence submitted by the defendants in support of their motion for summary judgment, including the deposition testimony of the plaintiff and photographs of the accident site, was sufficient to establish, prima facie, that, given the characteristics of the defect and the surrounding circumstances, the gap at issue was trivial, and therefore, not actionable … .  Melia v 50 Ct. St. Assoc., 2017 NY Slip Op 06176, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))

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PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff demonstrated freedom from comparative fault. Defendant had run a red light:

To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault… . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability. The evidence submitted on her motion, which included her deposition testimony and a certified copy of the police accident report, demonstrated, prima facie, that she was not at fault in the happening of the accident, and that the sole proximate cause of the accident was the conduct of the defendant driver in entering the intersection without stopping at a red traffic signal, in violation of Vehicle and Traffic Law §§ 1110(a) and 1111(d)(1) … . Lanicci v Hansen, 2017 NY Slip Op 06168, Second Dept 8-16-17

NEGLIGENCE (PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS  (PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ADEQUATELY ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT).

The Second Department determined the 42 USC 1983 cause of action was properly dismissed. The action stemmed from an arrest. Plaintiff did not adequately allege the police officers acted pursuant to an unconstitutional policy or custom:

To hold a municipality liable under section 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendant[ ] engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . Martin v City of New York, 2017 NY Slip Op 06172, Second Dept 8-16-17

MUNICIPAL LAW (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))/42 USC 1983  (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))/POLICE OFFICERS (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))

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