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TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT).

The Second Department determined petitioners’ Article 78 proceeding seeking to compel the town to issue a formal determination of their complaint about an alleged zoning violation, and further seeking to compel the zoning board of appeals (ZBA) rule on the building inspector’s failure to formally address petitioners’ complaint, was properly dismissed:

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… [T]he first cause of action alleged that the Town Code required the Town and the Building Inspector to issue a formal determination of the allegations contained in the letter they sent to the Building Inspector. Contrary to the allegations in the petition, there is nothing in the plain language of the Town Code which imposes a duty on the Building Inspector or the Town to issue a formal determination in response to every allegation or complaint received by his office … . Even assuming the Town Code imposes a non-discretionary duty on the Building Inspector to “review and investigate complaints” … , the petitioners have failed to cite any provision of law that would require the Building Inspector to issue a formal determination of the merits of every allegation that he received. Rather, the decision of how to respond to alleged violations of the Town’s building code is effectively left to the discretion of the Building Inspector … . * * *

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The portion of the second cause of action which is at issue on this appeal sought to compel the ZBA to “hear and determine” the petitioners’ application for review of the Building Inspector’s failure to issue a formal determination of their allegations. In this regard, the petitioners have failed to adequately allege that the ZBA had a non-discretionary duty to determine the merits of their application to review the failure of the Building Inspector to issue a formal determination in response to their allegations. To the contrary, the ZBA’s appellate jurisdiction is limited to reviewing an “order, requirement, decision, interpretation, or determination” … . Matter of Willows Condominium Assn. v Town of Greenburgh, 2017 NY Slip Op 05961, Second Dept 8-2-17

 

ZONING (TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT))

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PROOF THAT CLAIMANT’S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department, over a dissent, determined the evidence linking claimant’s prostate cancer to exposure to toxins as a firefighter was properly rejected as speculative:

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Lawrence Garbo, an oncologist appointed as the impartial specialist by the full Board, reported, based upon his review of the relevant record evidence, that claimant did not present with any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in claimant’s “age group is well under 0.5%.” Garbo stated that although claimant had been exposed to inhalant toxins, polycyclic aromatic hydrocarbons and diesel exhaust, he could not accurately quantify, or describe the extent of, that exposure. Nevertheless, Garbo concluded that it was “reasonable to assume that [claimant’s] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer.” In his testimony, however, Garbo conceded that he was unaware of claimant’s other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship … . In view of the foregoing conflicting evidence, including the prevalence of prostate cancer and the other possible explanations for claimant contracting the condition … , we find that the full Board acted within its discretion in characterizing as speculative and ultimately rejecting the reports … with regard to the existence of a causal relationship … . Matter of Tucker v City of Plattsburgh Fire Dept., 2017 NY Slip Op 06013, Third Dept 8-2-17

WORKERS’ COMPENSATION LAW (PROOF THAT CLAIMANT’S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT))/CANCER (WORKERS’ COMPENSATION LAW, PROOF THAT CLAIMANT’S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT))

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LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed as there was a question of fact whether defendant (Plaza) had the authority to control the means and methods of plaintiff’s work at the site. The scaffold on which plaintiff was standing tipped when a wheel went into a space in the floor created by the removal of a tile by an electrical contractor who was installing wiring beneath the floor:

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Where, as here, a claim arises out of the means and methods of the work, a defendant may be held liable for common-law negligence or a violation of Labor Law § 200 “only if he or she had the authority to supervise or control the performance of the work'” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, the defendants failed to establish, prima facie, that Plaza did not have the authority to exercise supervision and control over the subject work. The defendants’ submissions demonstrated that Plaza, as the construction manager, had a project superintendent at the work site on a daily basis who was responsible for job coordination and safety supervision. Plaza had the authority to stop work if a particular activity or condition was unsafe, and to regulate which workers and equipment were allowed in particular areas of the work site. Moreover, Plaza’s project superintendent held weekly meetings with every subcontractor. Although the superintendent testified at his deposition that he gave directions to the subcontractors’ supervisors, rather than to the workers themselves, he could tell a supervisor to immediately relay a safety-related instruction to a worker at any given time. Under these circumstances, the defendants’ submissions failed to eliminate all triable issues of fact as to whether Plaza was acting as the general contractor and had the authority to supervise and control the manner in which the plaintiff performed his work … . Caban v Plaza Constr. Corp., 2017 NY Slip Op 05931, Second Dept 8-2-17

 

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT))/MEANS AND METHODS OF WORK (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT))

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PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county did not demonstrate it did not create the obstruction of the sidewalk with snow and further did not demonstrate the obstruction was not the proximate cause of plaintiff’s injury. Plaintiff alleged the snow in the sidewalk forced her to walk in the street, where she was struck by a car:

” Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies'” … . As relevant here, an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence … . ” The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars'” … . Here, the plaintiffs alleged that the County affirmatively caused or contributed to the dangerous condition through its snow plowing operations on Old Country Road that caused snow to be deposited onto the sidewalk. Therefore, to demonstrate its entitlement to judgment as a matter of law, the County was required to establish, prima facie, that it did not receive prior written notice of the dangerous condition and that it did not create the alleged dangerous condition … . Although the County demonstrated, prima facie, that it did not receive prior written notice, the County’s submissions failed to establish, prima facie, that its snow removal operations did not create or exacerbate a dangerous condition … .

The County also failed to make a prima facie showing that its alleged negligence was not a proximate cause of the accident. “Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed” … . “An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct'” … . Where, however, “the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist” … . The issue of whether an act is foreseeable is generally for the trier of fact … . Here, the County’s alleged negligent snow plowing operations contributed to the obstruction of the sidewalk, which prevented Piazza [plaintiff] from continuing to walk on the sidewalk, and caused her to walk in the roadway where she was hit by a vehicle driven by Volpe. Under these circumstances, there is a triable issue of fact as to whether Volpe’s act in hitting Piazza with her vehicle was a natural and foreseeable consequence of the County’s alleged negligence. Piazza v Volpe, 2017 NY Slip Op 05986, Second Dept 8-2-17

NEGLIGENCE (MUNICIPAL LAW, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/PEDESTRIANS (MUNICIPAL LAW, TRAFFIC ACCIDENTS,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))

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INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT).

The Second Department determined the medical malpractice (2 1/2 year) rather than the negligence (3 year) statute of limitations applied to this action stemming from the alleged failure to restrain a patient (plaintiff’s decedent) with dementia. The patient was injured when she fell. The court held the action was governed by the medical malpractice limitations period and was therefore untimely:

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“The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” … . Generally, a claim will be deemed to sound in medical malpractice “when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … . Thus, when the complaint challenges a medical facility’s performance of functions that are “an integral part of the process of rendering medical treatment” and diagnosis to a patient, such as taking a medical history and determining the need for restraints, the action sounds in medical malpractice… .

… The defendants’ evidence showed that on April 12, 2009, the plaintiff’s decedent, Ruby Bell (hereinafter the decedent), was admitted to New Island Hospital with a history of dementia, and placed on “Fall Prevention Protocol.” After the decedent was found standing at her bedside trying to remove her foley catheter, a physician ordered that she be restrained with a vest and wrist restraints. On the morning of April 18, 2009, the decedent was discovered sitting on the floor next to her bed. The bed’s side rails were up and the decedent was not aware of how she came to be on the floor. She had apparently fallen while trying to climb out of her bed. Thereafter, the decedent was diagnosed with a distal radius fracture of the right forearm. The plaintiff alleged that this incident arose out of the failure of the defendants’ staff to follow the physician’s order to restrain her … .

In opposition to the defendants’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contentions, the allegations at issue essentially challenged the defendants’ assessment of the decedent’s supervisory and treatment needs … . Bell v WSNCHS N., Inc., 2017 NY Slip Op 05937, 2nd Dept 8-2-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT))

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PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed, fact-based decision, determined plaintiff had raised a question of fact in this medical malpractice action alleging the failure to timely diagnose the presence of cancer. The court noted that the proximate cause element can be satisfied by evidence early detection could have extended plaintiff’s decedent’s life, even if a total cure was not possible:

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“In a medical malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant” … . “As to causation, the plaintiff’s evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased his injury”   * * * To raise a triable issue of fact, a plaintiff need not establish that, but for a defendant doctor’s failure to diagnose, the patient would have been cured. “Curing cancer, while an ultimate and worthy aspiration, is not the only positive treatment outcome. Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury” … . Neyman v Doshi Diagnostic Imaging Servs., P.C., 2017 NY Slip Op 05962, Second Dept 8-2-17

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/MEDICAL MALPRACTICE (CAUSATION, CANCER, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/CANCER (MEDICAL MALPRACTICE, CAUSATION, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))

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EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined that plaintiff motorcyclist was not entitled to summary judgment in this rear-end collision case. Although defendant did move into the plaintiff’s lane ahead of plaintiff in violation of the Vehicle and Traffic Law, conflicting deposition testimony about whether plaintiff was comparatively negligent (i.e., whether plaintiff had time to react) raised a question of fact. Defendant’s employer was entitled to summary judgment because defendant was driving to work in his own vehicle, and was not acting within the scope of his employment at the time of the accident:

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A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield … . However, a driver with the right-of-way also has a duty to use reasonable care to avoid a collision … , and “[t]here can be more than one proximate cause of an accident” … . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, a plaintiff moving for summary judgment has the burden of establishing freedom from comparative fault … . …

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The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment'” … . ” An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment'”… . Generally, “[a]n employee driving to and from work is not acting within the scope of his employment because the element of control is lacking” … .

[Defendant’s] deposition testimony demonstrated that, at the time of the accident, he was commuting to work from his home in his personal vehicle, he was not required to drive to work as part of his job, and he was not acting in furtherance of his employer’s business at the time …. . Beres v Terranera, 2017 NY Slip Op 05929, Second Dept 8-2-17

 

NEGLIGENCE (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/REAR-END COLLISIONS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, VICARIOUS LIABILITY, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

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SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the assumption of the risk doctrine supported summary judgment in favor of the school. Plaintiff, a volunteer assisting the baseball coaching staff of his son’s team, slipped and fell on a tile covering a grate on the field while attempting to retrieve a ball. The baseball field is on school grounds:

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According to the doctrine of primary assumption of the risk, “when an individual voluntarily participates in a sport or recreational activity, he or she consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein” … . “This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it”… . “If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be”… .. ” It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results'” … . Moreover, “[t]he participant’s awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … .

Here, the school defendants … established their prima facie entitlement to judgment as a matter of law. The plaintiff’s deposition testimony established that, on the date of his accident, he volunteered to assist the coaching staff at his son’s baseball practice. Not only had he visited this particular baseball field at least three prior times, he had also sat along the third-base foul line, which was close to the area where his accident occurred. The plaintiff had also served as an assistant baseball coach for his son’s baseball teams for five or six years. Although the plaintiff testified at his deposition that he had never observed the tile before slipping on it, the photographs that he took the day following his accident, which he contended accurately depicted the tile and the field the way they had looked on the day at issue, demonstrate that the approximately 12-inch by 12-inch white or creamish color tile, which contrasted starkly with the color of the grass, was an open and obvious condition. There was no evidence that the tile was defective … . Siegel v Albertus Magnus High Sch., 2017 NY Slip Op 05991, Second Depty 8-2-17

 

NEGLIGENCE (ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/ASSUMPTION OF RISK (BASEBALL, EDUCATION-SCHOOL LAW, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/BASEBALL (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))

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QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the school’s motion for summary judgment in this parking lot slip and fall case was properly denied. Although the school alleged the parking lot had been sanded and salted, plaintiff testified the area near her car was a sheet of ice and she saw no evidence the area had been sanded or salted:

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Contrary to the School District’s contention, it failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that the plaintiff could not identify the cause of her fall…. A fair reading of the transcripts of the plaintiff’s testimony at a hearing pursuant to General Municipal Law § 50-h and at her deposition, both of which were submitted in support of the School District’s motion, showed that she slipped on a sheet of ice just outside her vehicle in the subject parking lot.

The plaintiff testified at the § 50-h hearing and at her deposition that there was no evidence of any salt or sand in the parking lot when she fell, while a representative for the School District averred in his affidavit in support of the motion that the School District salted and sanded the subject parking lot around 6:00 a.m. on the morning of the accident. Since the plaintiff testified that there was no evidence of any salt or sand in the parking lot when she fell, the School District failed to eliminate triable issues of fact as to whether it created or exacerbated a hazardous condition in the parking lot or whether it lacked constructive notice of the condition. Scott v North Bellmore Pub. Sch. Dist., 2017 NY Slip Op 05989, Second Dept 8-2-17

 

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT)

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MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s action for negligent maintenance of a drainage system, causing flooding, properly survived summary judgment. The court noted that no cause of action lies against a municipality for negligent design of a drainage system. The court further noted that a nuisance cause of action should have been dismissed as duplicative of the negligent maintenance cause of action:

To the extent the plaintiff contends that the Village was negligent in failing to improve or renovate the drainage system, dismissal of that cause of action was properly directed. Evidence as to the Village’s alleged failure to undertake improvements or renovations to the facilities related only to the design of the system, for which the Village may not be held liable … .

However, the Village failed to satisfy its prima facie burden of eliminating all triable issues of fact as to whether it negligently maintained the culvert and drainage system. * * *

A defendant is subject to liability for a private nuisance if the defendant’s conduct is a legal cause of the invasion of an interest in the private use and enjoyment of land, and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities … . … A nuisance based on negligence is but a single wrong, whether characterized as negligence or nuisance … , and the plaintiff may recover only once for harm suffered, regardless of how the causes of action are denominated … . Since the complaint alleges a cause of action for negligent maintenance, the Supreme Court should have granted that branch of the Village’s motion which was for summary judgment dismissing the cause of action alleging nuisance as duplicative of the cause of action alleging negligent maintenance … . Trulio v Village of Ossining, 2017 NY Slip Op 05993, Second Dept 8-2-17

MUNICIPAL LAW (DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NEGLIGENCE (MUNICIPALITY, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NUISANCE (MUNICIPAL LAW, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))

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