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No-Fault Carriers Not Required to Pay “Facility Fees” for “Office-Based” Surgery

The Second Department, in a full-fledged opinion by Justice Balkin, determined that a no-fault insurer is not required to pay a “facility fee” for “office-based” surgery:

The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or “ambulatory surgery center,” both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d[1][b]). Public Health Law § 230-d, which is not contained in Public Health Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. * * *

The facility fee is a charge for the cost of providing “technicians, medical assistant[s] . . . [and] equipment,” such as X-ray and ultrasound equipment, for office-based surgery. Government Empls Ins Co v Avanguard Med Group PLLC, 2015 NY Slip Op 01413, 2nd Dept 2-18-15

 

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Owner of Restaurant Not Liable for Parking-Lot Assault on Plaintiff by Another Patron

In finding summary judgment should have been granted to the defendant bar/restaurant, the Second Department explained the analytical criteria re: liability for the assault by one patron upon another.  A verbal dispute erupted inside the restaurant and plaintiff was struck as the dispute continued in the parking lot:

“Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property” … . “However, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control” … . “Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … .

The defendant established his prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action with evidence demonstrating that he could not have reasonably prevented the unforeseeable and unexpected assault upon the injured plaintiff … . Hegerty v Tracy, 2015 Slip Op 001415, 2nd Dept 2-18-15

 

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Parking Lot Concrete Wheel Stop Not a Dangerous Condition

The Second Department noted that a concrete wheel stop in a Costco parking lot is “open and obvious” and is not a dangerous condition.  Costco leased the parking lot from the out-of-possession owner:

While Costco had a duty to maintain the premises in a reasonably safe manner … , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally ” [a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm'” … .

Here, Costco established its prima facie entitlement to judgment as a matter of law by showing that the wheel stop over which the plaintiff tripped and fell, which was cement-colored in contrast to the color of the pavement to which it was affixed, was not an inherently dangerous condition and was readily observable by those employing the reasonable use of their senses … . Miller v Costco Wholesale Corp, 2015 NY Slip Op 01429, 2nd Dept 2-18-15

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Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall–Defendant Therefore Not Entitled to Summary Judgment

The Second Department determined defendant in a slip and fall case was not entitled to summary judgment because it did not demonstrate its lack of constructive notice of the condition (glass debris):

A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant’s employees to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants did not proffer any evidence demonstrating when the area where the plaintiff fell was last cleaned or inspected prior to the plaintiff’s accident and, thus, failed to eliminate all triable issues of fact with regard to their contention that they lacked constructive notice of the glass debris … . The defendants’ failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Santiago v HMS Host Corp, 2015 NY Slip Op 01437, 2nd Dept 2-18-15

 

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Property Owner and Snow Removal Contractor Should Have Been Awarded Summary Judgment in Snow/Ice Slip and Fall Case—Analytical Criteria Explained

The Second Department determined the defendant property owner and defendant snow-removal contractor should have been awarded summary judgment in a slip and fall case.  The court outlined the criteria for both causes of action:

” A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence'” … . Thus, to establish its prima facie entitlement to judgment as a matter of law, a property owner defendant moving for summary judgment is required to establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall … . Here, … [the property owner] … established its prima facie entitlement to judgment as a matter of law by submitting the transcripts of the deposition testimony of … a maintenance supervisor, and … the snow removal contractor, which established, prima facie, that [the property owner] did not have actual or constructive notice for a sufficient length of time to discover and remedy the ice condition which allegedly caused the plaintiff to fall… . * * *

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” … . “However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, or (3) where the contracting party has entirely displaced another party’s duty to maintain the subject premises safely” … .

Here, the plaintiff alleged [the snow-removal contractor] created the dangerous condition that caused her to slip and fall and, thus, launched a force or instrument of harm. In support of its motion, [the contractor] established, prima facie, that it did not create the allegedly dangerous condition which caused the plaintiff’s fall … . In opposition …, the plaintiff and [the property owner] failed to raise a triable issue of fact as to whether [the contractor] created or exacerbated the alleged hazardous condition … . The affidavit of the plaintiff’s expert as to the origin of the hazardous condition was speculative and conclusory and, thus, insufficient to defeat a motion for summary judgment … . Scott v Avalonbay Communities Inc, 2015 NY Slip Op -1438, 2nd Dept 2-18-15

 

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Criteria for Common Law Indemnification Explained (Not Met Here)—Property Owner Could Not Seek Indemnification from Independent Contractor Re: Dangerous Condition on the Property

In the context of a personal injury action based upon a dangerous condition, the Second Department explained the criteria for common law indemnification.  Here the dangerous condition was on property built by an independent contractor, Ambrosio, and owned by Wincoma.  Wincoma did not demonstrate it met the criteria for seeking indemnification from Ambrosio:

“The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “If . . . an injury can be attributed solely to negligent performance or nonperformance of an act solely within the province of [a] contractor, then the contractor may be held liable for indemnification to an owner” … . A party that has actually participated in the wrongdoing is not entitled to indemnification … .

Here, the record demonstrates that Wincoma, the owner of the property where the subject incident occurred, had actual and constructive notice of the allegedly defective condition which caused the plaintiff’s injuries … . Moreover, the record shows that the injury cannot be attributed solely to the negligent performance or non-performance of an act solely within the province of Ambrosio, which was an independent contractor … . Ambrosio built the subject structure approximately one year prior to the accident, the structure was built pursuant to specifications provided by Wincoma, and the record shows that those specifications were not “patently defective” … . Consequently, Wincoma could not be entitled to common-law indemnification from Ambrosio for any damages that may be assessed against it in this action … . Rappel v Wincoma Homeowners Assn, 2015 NY Slip Op 01434, 2nd Dept 2-18-15

 

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Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged

The Second Department noted that the issue whether the jury’s conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff’s injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged.  The court further noted that the jury’s conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):

The plaintiffs contend that the jury verdict finding that the defendant … School District … negligently supervised certain students who assaulted the plaintiff …, but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review … . Contrary to the plaintiffs’ further contention, the jury verdict was not against the weight of the evidence. The jury’s finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff’s] injuries, was based on a fair interpretation of the evidence… . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15

 

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Questions of Fact Raised Re: Whether Property Owner Liable for Work Done by Independent Contractor

The Second Department determined questions of fact existed about the liability of the property owner (Eastern) for work done by an independent contractor (Affraim).  Infant plaintiff was injured when he fell through a glass panel near the entrance of defendant’s building. The panel had been installed by an independent contractor.  The court explained the relevant analytical criteria:

“The general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts” … . One of the exceptions to this general rule is the “nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party “is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated” … .

Here, the Eastern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by presenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable City and State building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition … . However, in opposition, the plaintiffs’ submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated City and State building codes by failing to install safety glass in the panel … , and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition … . Horowitz v 763 E Assoc Inc, 2015 NY Slip Op 01417, 2nd Dept 2-18-15

 

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Defendant-Employer’s Motion for Summary Judgment Properly Denied—Defendant Did Not Submit Proof that Defendant’s Employee Was Not Acting Within the Scope of Employment When Employee Removed and Disseminated Photos from Plaintiff’s Cell Phone and Defendant Did Not Submit Proof Demonstrating It Did Not Know of the Employee’s Propensity for Such Conduct

The Second Department determined the motion for summary judgment made by defendant-employer, R & K,  was properly denied. The plaintiff alleged that defendant’s employee, Press, removed and disseminated photographs of her from a cell phone plaintiff had left with defendant for repair.  The Second Department noted that an employer can be liable for the negligence and the intentional torts of an employee, provided that the employee was acting within the scope of employment.  The court explained the criteria for vicarious liability under the doctrine of respondeat superior as well as direct liability for negligent hiring and supervision:

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment” … . “Intentional torts as well as negligent acts may fall within the scope of employment” … . Liability will not attach for torts committed by an employee acting solely for personal motives unrelated to the furtherance of the employer’s business …, or for conduct which could not have been reasonably expected by the employer … .

Here, R & K failed to establish, prima facie, that it could not be held vicariously liable for Press’s alleged acts, as it submitted no transcripts of testimony or affidavits from any of its employees, or business records, to support its contention that Press was acting outside the scope of his employment when he accessed and disseminated photographs from the plaintiff’s cell phone. * * *

“To establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . R & K failed to submit any proof establishing that it did not know and should not have known about Press’s alleged propensity to engage in the conduct at issue here, or that it was not negligent in hiring Press … . Hoffman v Verizon Wireless Inc, 2015 NY Slip Op 01416, 2nd Dept 2-18-15

 

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Some of the Requirements for the Application of Attorney Work-Product and Trial-Preparation Privileges Explained

The Second Department explained some of the requirements for the application of attorney work-product and trial-preparation privileges:

Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy … . “[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product'” … . Contrary to the plaintiff’s contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant Nicoletta Starks prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy … .

The plaintiff argues, in the alternative, that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). However, the conclusory assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing, with specificity, that the recording was prepared “exclusively in anticipation of litigation” … . Geffner v Mercy Med Ctr, 2015 NY Slip Op 01411, 2nd Dept 2-18-15

 

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