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PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this psychiatric malpractice case should not have been granted. Plaintiffs’ expert found fault in, inter alia, defendants’ failure to document suicide assessments. Plaintiffs’ decedent committed suicide shortly after the defendant psychiatrists, Roberts and Decker, saw her:

Plaintiffs submitted the factually specific affidavit of a psychiatrist who, relying upon the foregoing, opined that Roberts deviated from the minimum standard of care in failing to document a proper suicide risk assessment and then discharging decedent without ensuring that she obtain psychotherapy and medication management within two days … . * * *

Plaintiffs’ expert psychiatrist opined that Decker fell short of the minimum standard of care by failing to properly conduct and document a suicide risk assessment of decedent, who was experiencing triggering anxiety and untreated depression. The psychiatrist further opined that Decker departed from the minimum standard of care in placing medication adjustment and psychotherapy on hold in the expectation that a “severely compromised” person would provide more information on an inpatient treatment facility that she was curious about. Tkacheff v Roberts, 2017 NY Slip Op 01429, 3rd Dept 2-23-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/MEDICAL MALPRACTICE (PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/PSYCHIATRISTS (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/SUICIDE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)

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JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB.

The First Department, reversing Supreme Court, determined plaintiff janitor could not sue for a slip and fall because the fall was caused by the condition he attempting to remedy as part of his job:

Dismissal of the complaint as against defendants is warranted in this action where plaintiff janitor alleges that he was injured when he slipped on pebbles on the bathroom floor of the building he was hired to clean. It is well established that a maintenance or cleaning worker has no claim at law for injury suffered from a dangerous condition that he was hired to remedy … , and here, plaintiff stated that as part of his job cleaning the bathroom, he frequently removed the pebbles from the floor. Black v Wallace Church Assoc., 2017 NY Slip Op 01480, 1st Dept 2-23-17

NEGLIGENCE (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/SLIP AND FALL (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/EMPLOYMENT LAW (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/JANITORS (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)

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THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the owner of the lead car struck from behind was entitled to summary judgment. The allegation the lead car stopped suddenly was not sufficient to raise a question of fact:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of that driver to “come forward with an adequate nonnegligent explanation for the accident” … . A claim by the rear driver that “the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Bajrami v Twinkle Cab Corp., 2017 NY Slip Op 01458, 1st Dept 2-23-17

NEGLIGENCE (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/REAR-END COLLISIONS  (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)

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PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR; ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Third Department, reversing Supreme Court, determined questions of fact precluded summary judgment in favor of defendant restaurant. Plaintiff’s decedent fell down a flight of stairs leading from an unmarked door to the basement of the restaurant. Although no one witnessed the accident, circumstantial evidence supported the view that the stairway and unmarked door presented a dangerous condition which caused plaintiff’s fall:

The evidence established numerous questions of fact as to whether the staircase presented a dangerous condition to those using it, the most obvious being that the door opened over descending stairs … . [The owner’s] regular use of the stairs and his personal installation of the handrail established a question of fact as to notice or creation of the dangerous condition … . Finally, although the fall was unwitnessed, a jury could logically infer from the evidence regarding the risks that the staircase posed, the evidence of previous falls on the staircase and the evidence that decedent was healthy, agile and not visibly intoxicated at the time of the accident that the dangerous condition of the staircase caused her fall … . Acton v 1906 Rest. Corp., 2017 NY Slip Op 01431, 3rd Dept 2-23-17

NEGLIGENCE (PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR, ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/STAIRWAYS (PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR, ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)

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TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD.

The Third Department determined the town had the right, pursuant to the Highway Law, to a pubic road easement three rods wide, even though the easement extended past the paved portion and included a plaintiffs’ fence:

After a roadway is established as a highway by use, Highway Law § 189 plainly permits a town to maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Stated differently, so long as the use at issue relates directly or indirectly to the public’s right of travel, the use of the highway may be extended past the paved portion of the road to a width of at least three rods. In our view, this interpretation of the statute is consistent with case law holding that the extent of the easement is defined by its actual use … . Inasmuch as the Town’s plowing and widening of Fox Hollow Road are uses that are “necessary to preserve the public’s right of passage,” they define the Town’s easement pursuant to Highway Law § 189 … . Further, it is undisputed that plaintiffs’ fence and the widening of the roadway were well within the three-rod width that defendants are statutorily authorized to open. Hoffman v Town of Shandaken, 2017 NY Slip Op 01430, 3rd Dept 2-23-17

MUNICIPAL LAW (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/HIGHWAYS AN ROADS (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/EASEMENTS (MUNICIPAL LAW, PUBLIC ROADS, TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. He fell from scaffolding materials stacked on a flatbed truck:

Plaintiff’s testimony that he fell from scaffolding materials stacked atop the surface of a flatbed truck, about 10 feet above the ground, and that he was not provided with a safety device that would have prevented his fall, was sufficient to establish his entitlement to partial summary judgment on his Labor Law § 240(1) claim … . Although plaintiff was wearing a safety harness at the time of the accident, there was no place on the truck where the harness could be secured. Idona v Manhattan Plaza, Inc., 2017 NY Slip Op 01444m 1st Dept 2-23-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK)

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EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000).

The Third Department noted that even where (as in this case) “serious injury” within the meaning of the No-Fault law has not been demonstrated, an injured plaintiff may still be entitled economic loss above “basic economic loss:”

Under New York’s No-Fault Law, an injured party’s right to bring a personal injury action for noneconomic losses, i.e., “pain and suffering” (Insurance Law § 5102 [c]), arising out of an automobile accident is limited to those instances where such individual has incurred a serious injury … . However, basic economic loss coverage (up to $50,000) is available to a covered person regardless of fault (see Insurance Law § 5102 [a]) and “includes payments . . . for items such as lost earnings of up to $2,000 per month for three years after the date of the accident” … . Where, as here, an injured party asserts a claim for economic loss in excess of basic economic loss, he or she need not demonstrate that a serious injury was sustained … . Rather, all that is required is that such party demonstrate that his or her total economic loss actually exceeded basic economic loss … . To our analysis, “plaintiff[s] made a sufficient showing that [Jones] sustained economic loss in excess of basic economic loss to warrant submission of the issue to [a] jury” … and, therefore, Supreme Court should not have dismissed plaintiffs’ claim in this regard. Jones v Marshall, 2017 NY Slip Op 01432, 3rd Dept 2-23-17

INSURANCE LAW (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))/SERIOUS INJURY (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))/BASIC ECONOMIC LOSS (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))/ECONOMIC LOSS (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))

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FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED.

The First Department determined plaintiffs’ fraud-based causes of action and the unjust enrichment cause of action were properly dismissed. Plaintiffs alleged defendant fraudulently induced them to sell their business (for $190 million) at a deflated price by concealing that the buyer was a competing business:

Damages for fraud are calculated according to the “out-of-pocket” rule and must reflect “the actual pecuniary loss sustained as the direct result of the wrong” … . Damages may only properly compensate plaintiffs for “what they lost because of the fraud, not . . . for what they might have gained,” and “there can be no recovery of profits which would have been realized in the absence of fraud” … . Here, plaintiffs seek to recover the profits they might have gained had the true identity of the buyer been revealed. But there is no way of knowing what purchase price would have been agreed upon had the buyer’s identity been known. Nor is there any suggestion that the agreed price was unfair … .

Plaintiffs’ fraud-based claims also fail because their reliance on the alleged misrepresentations was not reasonable. Plaintiffs did not press defendant for a contractual warranty regarding the purchaser’s identity, or even for direct answers to their questions on this subject, despite their awareness of defendant’s close relationship with their competitor and suspicions regarding its involvement. ” …

Plaintiffs’ unjust enrichment claim was also properly dismissed. To successfully plead unjust enrichment, “[a] plaintiff must allege that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered'” … . Here, the second element is not satisfied. Plaintiffs claim that defendant was unjustly enriched by a $25 million fee received from the competitor for its assistance in facilitating the purchase. Although there is no black-and-white rule that the payment complained of must have been made by the plaintiff itself … , plaintiffs’ claimed entitlement to the fee is too speculative to support their allegation that defendant was enriched “at [their] expense” … . Norcast S.ar.l. v Castle Harlan, Inc., 2017 NY Slip Op 01479, 1st Dept 2-23-17

 

FRAUD (FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED)/UNJUST ENRICHMENT (FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED)/DAMAGES (FRAUD, DAMAGES ALLEGED CANNOT BE SPECULATIVE, FRAUD-BASED CAUSES OF ACTION DISMISSED)

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REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED.

The Third Department, in a full-fledged opinion by Justice Garry, determined petitioner-mother’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged should have been granted. The finding of inadequate guardianship was based on two incidents where the petitioner was abused by her paramour in the presence of a child. Three days after the latest incident petitioner reported the abuse to the police and the paramour was taken into custody. The Third Department held that, under the circumstances of the abuse targeting petitioner, petitioner acted reasonably to protect her children:

… [A]ddressing petitioner’s brief delay in reporting the abuse, it is well recognized that the most dangerous time in an abusive relationship occurs when the victim attempts to separate from the abuser … . * * * A finding that petitioner failed to exercise a minimum degree of care cannot be supported where the record reveals that she acted reasonably under the circumstances and thoughtfully planned a strategy to report her paramour’s abuse in such a way as to protect her own safety and that of her children … . * * *

…[W]e find no basis in the record to support respondent’s finding that petitioner’s actions resulted in impairment or immediate danger to the children. A finding of impairment “requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child” … . An immediate danger must be “near or impending” and more than “merely possible” … . Although the record supports a finding that the youngest child was placed in immediate danger during both incidents and that the eldest child suffered emotional impairment after witnessing the second incident, neither the danger nor the impairment were the consequence of petitioner’s actions. As a result of petitioner’s actions shortly thereafter, the paramour was incarcerated and an order of protection was issued; these circumstances continued through the time of the hearing. Matter of Elizabeth B. v New York State Off. of Children & Family Servs., 2017 NY Slip Op 01424, 3rd Dept 2-23-17

 

FAMILY LAW (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)/CHILD ABUSE (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)/CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)

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FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT.

The Third Department determined a sentence of incarceration for father’s willful failure to pay child support was proper. However, because the support was paid by father prior to sentencing, Family Court abused its discretion by issuing the order of commitment:

Upon a willful violation, Family Court is authorized to impose a sentence of incarceration of up to six months … . Such a sentence is in the nature of a civil contempt, which “may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Since respondent cured the default prior to sentencing, we conclude that Family Court abused its discretion by issuing the order of commitment. Matter of Provost v Provost, 2017 NY Slip Op 01422, 3rd Dept 2-23-17

FAMILY LAW (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)/CHILD SUPPORT (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)

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