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Cross-Examination of People’s Witness About Her Past Status as a Confidential Informant Properly Precluded—Status Ended a Year Before and Witness Had Legitimate Safety Concerns

The First Department determined the defense was properly precluded from cross-examination of one of the People’s witnesses about her past status as a confidential informant:

The witness’s service as an informant had concluded a year before the instant crime and did not involve defendant, the People demonstrated that the witness had legitimate safety concerns regarding disclosure of her status, and there was nothing in the circumstances of the case to raise a suspicion that her past informant status contributed to her becoming a prosecution witness in this case. People v Lopez, 2014 NY Slip Op 08117, 1st Dept 11-20-14

 

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Passive Website Informing Readers of a Surgical Procedure Offered In Florida Does Not Constitute “Transaction of Business” In New York—New York Courts Do Not Have Personal Jurisdiction Over the Florida Defendants

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that a passive website explaining the availability of back surgery in Florida is not enough to afford New York courts long-arm jurisdiction (pursuant to CPLR 302—doing business in New York) over Laser Spine Institute (LSI) which subsequently treated the New York plaintiff in Florida:

In May 2008, plaintiff was suffering from severe back pain. While on the homepage of a well-known internet service provider plaintiff discovered an advertisement for LSI, a surgical facility specializing in spine surgery, with its home facility and principal place of business in Tampa, Florida. Plaintiff clicked on the LSI advertisement, and viewed a 5-minute video presentation of a testimonial from a former LSI patient and professional golfer, extolling LSI’s medical services. The advertisement appeared to hold out the promise of relief for plaintiff’s back problems so he communicated with LSI by telephone and internet to inquire about possible surgical procedures to alleviate his pain. These would be the first of plaintiff’s several contacts with LSI, which led to his eventual decision to undergo surgical procedures by LSI medical professionals in Florida. Those surgeries are the underlying basis for plaintiff’s action against defendants. * * *

In order to satisfy “‘the overriding criterion’ necessary to establish a transaction of business” within the meaning of CPLR 302 (a) (1), a non-domiciliary must commit an act by which it “purposefully avails itself of the privilege of conducting activities within [New York]” … . Plaintiff here admits that he was the party who sought out and initiated contact with defendants after viewing LSI’s website. According to plaintiff, that website informed viewers about LSI medical services and its professional staff. However, he has not asserted that it permitted direct interaction for online registration, or that it allowed for online purchase of LSI services … . Passive websites, such as the LSI website, which merely impart information without permitting a business transaction, are generally insufficient to establish personal jurisdiction … . Paterno v Laser Spine Inst, 2014 NY Slip Op 08054, CtApp 11-20-14

 

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Heightened Pleading Requirements for Fraud Not Met

The First Department determined that plaintiff’s fraud cause of action was properly dismissed for failure to meet the heightened pleading requirements:

Plaintiff has not satisfied the heightened pleading standard for a fraud claim under CPLR § 3016(b) because it failed to identify any of the allegedly, false representations that [defendant] made with the then present intent to induce plaintiff’s investment in the project. Moreover, the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract … . “A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.” MMCT LLC v JTR Coll Point LLC, 2014 NY Slip Op 08103, 1st Dept 11-20-14

 

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New Notice of Claim Did Not Need to Be Filed After Plaintiff’s Decedent’s Death Due to Injuries Described in the Pre-Death Notice of Claim

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that plaintiffs, in an asbestos-exposure action against the Port Authority, did not need to file a new notice of claim after plaintiff’s decedent’s death from injuries described in the notice of claim filed when plaintiff’s decedent was alive.  After plaintiff’s decedent’s death, the original notice of claim was amended to add the administratrix and reference to the wrongful death claim:

A statute requires anyone who brings a lawsuit against the Port Authority of New York and New Jersey first to serve a notice stating the nature of the claim. We hold that under this statute a notice of a claim for personal injuries is a sufficient notice of a claim for wrongful death, where the person injured dies of his injuries between the service of the notice of claim and the beginning of the lawsuit.

The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states’ legislatures in 1950. The New York version of the legislation is found in sections 7101 through 7112 of the Unconsolidated Laws.

The contents of a notice of claim are specified in section 7108:

“The notice of claim required by section [7107] shall be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth (1) the name and post office address of each claimant and of his attorney, if any, (2) the nature of the claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.”

Here, the relevant statutory requirements are that a notice must specify the claimant, the time and place where the claim arose, the nature of the claim, and “so far as then practicable” the items of damage or injuries sustained (see Unconsolidated Laws § 7108 …). Those requirements were sufficiently met by the explanation in [plaintiff’s] notice of claim that he had contracted malignant mesothelioma as a result of his exposure to asbestos on the World Trade Center site in the early 1970s, and suffered physical and emotional injuries and incurred medical expenses as a result. This information was definite enough to fulfill the purpose of the notice of claim requirement: to allow the State to investigate the claim and to estimate its potential liability. It is hard to see how a later notice adding the information that the claimant had died of his disease could have been necessary to an investigation. Matter of New York City Asbestos Litig, 2014 NY Slip Op 08053, CtApp 11-20-14

 

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In a Lead-Paint-Injury Case, Non-party Medical Records Not Discoverable (Re: Plaintiff’s Mother and Siblings)–Non-party Academic Records Should Be Submitted for In Camera Review–Mother Cannot Be Compelled to Submit to an IQ Test

The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury case.  The defense sought medical and academic records of plaintiff’s mother and siblings, all non-parties, and sought to compel the mother to undergo an IQ test.  The Third Department held that the non-party medical records were not discoverable (except for the mother’s records during pregnancy), the non-party academic records should be submitted to the court for in camera review, and the mother should not be compelled to undergo an IQ test:

A subdivision of the main disclosure statute provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable” (CPLR 3101 [b]). Medical records are protected by a doctor-patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]…). A plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at issue, but nonparties are not subject to having their medical histories made public merely because a relative commences an action … . As plaintiff’s mother and siblings did not consent and have not waived that privilege, Supreme Court should not have ordered disclosure of their medical records … . An exception exists for the mother’s medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already provided an authorization for those records … .

Regarding the mother’s and siblings’ academic records, defendants have submitted an expert affidavit, as noted above, indicating that those records are relevant and necessary to determine whether other factors caused plaintiff’s injuries … . Considering that these records are private but not privileged, Supreme Court reasonably balanced defendants’ need for them and their possible relevance against the burden to these nonparties from disclosure, requiring that the siblings’ records be produced to the court for an in camera review … . The mother’s academic records should similarly be submitted to the court for review and redaction of any privileged material. …

Defendants’ need for her IQ test results, however, are not outweighed by the burden on her to undergo such a test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff’s condition, such as all of the factors contributing to the mother’s IQ … . Considering the private and personal nature of the information sought and the potential delay due to myriad collateral issues, defendants should not be able to compel plaintiff’s mother, a nonparty, to undergo an IQ test … . Perez v Fleischer, 2014 NY Slip Op 008101, 3rd Dept 11-20-14

 

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Plaintiff Failed to Raise a Question of Fact Concerning Whether the Driver of a Police Vehicle Exhibited “Reckless Disregard” for the Safety of Others In Responding to an Urgent Call—Defendant Police Officer Was Driving Against Traffic on a One-Way Street When the Collision Occurred

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that plaintiff did not raise a question of fact concerning whether defendant police officer exhibited reckless disregard for the safety of others when the officer responded to an urgent call by driving against traffic on a one-way street.  While on the one-way street the officer collided with another police vehicle driven by the plaintiff (another police officer) who was responding to the same call.  The court noted that the defendant had activated his emergency lights and was travelling at 15 to 20 miles an hour when the collision occurred:

Vehicle and Traffic Law § 1104 grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law § 1104 [a], [b]). But drivers of emergency vehicles are not relieved of their duty to drive “with due regard for the safety of all persons” and section 1104 does not “protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]).

This “reckless disregard” standard demands “more than a showing of a lack of ‘due care under the circumstances’—–the showing typically associated with ordinary negligence claims” … . Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that “‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id., quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]). This heightened standard is grounded in the Legislature’s recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel “should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities” … . This approach avoids “judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions” and mitigates the risk that possible liability could “deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants” … . Frezzell v City of New York, 2014 NY slip Op 08055, CtApp 11-20-14

 

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Questions of Fact Raised About Whether a Single Riser Was a Dangerous Condition, Despite the Obviousness of the Condition, the Fact that Plaintiff Had Negotiated the Riser Many Times Before, and the Absence of Any Code Violation

The Third Department reversed Supreme Court finding that there were questions of fact about whether a riser constituted a dangerous condition, despite the absence of a code violation, the submission of an affidavit from an expert, the fact that the plaintiff had negotiated the riser many times before, and the obvious nature of the condition:

To prevail on its motion for summary judgment, defendant was required to show that it maintained the premises in a reasonably safe condition and that it did not create or have notice of any allegedly dangerous condition … . While the existence of a dangerous or defective condition is generally a question for the factfinder …, “summary judgment is appropriate where a plaintiff fails to demonstrate the existence of any dangerous condition” … .

Here, defendant failed to establish as a matter of law that it maintained the premises in a reasonably safe condition … . In support of its argument that the riser did not constitute a dangerous condition, defendant presented an affidavit of Ronald Bova, a professional engineer who inspected the premises. Bova observed that the single-step riser was immediately apparent, as it was located in a doorway and the flooring on either side of the riser was of a contrasting color and material. Although Bova further opined that the riser did not violate the 2002 or 1964 state building codes because the building was constructed prior to their enactment, whether the building code applies to the riser is not dispositive of plaintiff’s claim, which is premised on common-law negligence principles … . Based on his inspection and measurements, Bova asserted that neither the height of the step nor the lack of a handrail made the riser dangerous; however, he failed to definitively state the height of the riser and establish that it comported with generally accepted standards at the time the building was constructed or thereafter … .

Additionally, plaintiff testified that it was difficult for her and her coworkers to traverse the step because it was “very high.” While defendant places great emphasis on plaintiff’s admission that she stepped over the riser many times, as it was the only way to access the women’s restroom, and that she was aware of the drop at the time that she fell, “[t]he germane issue in this case is not a failure to warn, but whether these premises were reasonably safe” … . The fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition … , and plaintiff’s familiarity with the allegedly defective condition may be considered with respect to her comparative negligence … . Viewing the evidence in the light most favorable to plaintiff, as the nonmoving party, we find that defendant failed to demonstrate as a matter of law that the height of the riser was not a dangerous or defective condition. Barley v Robert J Wilkins Inc, 2014 NY Slip Op 08086, 3rd Dept 11-20-14

 

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Complaint Based Upon Injury Caused by a Horse Which Had Gotten Loose After Defendant Rode the Horse to a Tavern Could Be Amended to Plead Negligence of the Horse’s Owner as Well as Strict Liability/Vicious Propensities in the Alternative

The Third Department determined plaintiff should be allowed to amend the complaint to include a negligence cause of action against the owner of a horse (Whiskey) which injured plaintiff.  The two theories, negligence and strict liability, can be pled in the alternative. The defendant rode the horse to a tavern.  While the defendant was in the tavern, the horse broke loose.  Plaintiff helped get control of the horse and was injured when he was holding the reigns.  The Third Department noted the 2013 Court of Appeals decision (Hastings) which held that a lawsuit based upon injury caused by a cow which had escaped the farm could be based upon the negligence of the owner in allowing the cow to escape, and not upon strict liability for the vicious propensities of the cow.  Here, both the negligence of the owner and vicious propensity/strict liability issues are raised by the facts:

Defendant apparently disputes plaintiff’s claim that Whiskey’s conduct constituted a vicious propensity–as opposed to normal equine behavior–upon which strict liability can be based. If defendant were successful in establishing the absence of a vicious propensity, this would lead to the very outcome of which the Court of Appeals disapproved in Hastings — defendant would be immunized for Whiskey’s behavior despite having been allegedly negligent in allowing the horse to roam from where it was being kept [FN3]. Inasmuch as we cannot predict how a jury will decide the question of whether Whiskey’s actions constituted a vicious propensity, we discern no reason why the two theories could not be pleaded in the alternative. Thus, if Whiskey’s actions were determined to constitute a vicious propensity, plaintiff would be limited to pursuing a claim based on strict liability … . If, however, a jury determined that Whiskey’s conduct did not constitute a vicious propensity, the jury could then decide whether defendant is liable based upon his alleged negligence in allowing the horse to stray from where it was kept… . Carey v Burton P Schwab, 2014 NY Slip Op 08096, 3rd Dept 11-20-14

 

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Slip and Fall Suit Against Out-Of-Possession Landlord Properly Dismissed

The Third Department affirmed the dismissal of the complaint against the out-of-possession landlord (SJM).  The plaintiff slipped and fell because of a loose stairway-tread block.  The stairway was constructed by defendant-company, Stanley, with which SJM had contracted.  However SJM did not supervise or control Stanley’s work. There was evidence the stairway (used only by employees of the tenant, not the general public) did not conform to the tread-width requirements of the building code:

As a general rule, “‘an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'” … . There are exceptions. For example, a landlord has a “‘nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'” … . Liability may attach where the out-of-possession landlord has contracted to repair or maintain the premises, has affirmatively created the condition … or has retained a right to reenter the premises for inspection or repairs and the injury arises from a structural defect or specific statutory violation … . …

SJM’s nondelegable duty to the public is not relevant because plaintiff’s injury did not occur in an area open to the public * * * Although SJM retained a right under the lease to re-enter the premises, this “‘is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord'” … .

….[T]he condition of the stairway was not sufficient to impose liability upon SJM. Assuming, without deciding, that the stairway did not conform to the New York State Building Code provision with regard to the width of stair treads (see 9 NYCRR former 713.1), the condition does not constitute a significant structural defect or statutory violation as would be necessary to find that SJM had constructive notice of the loose concrete block … . Accepting plaintiff’s descriptions of the accident, the stairway and the condition of the step, his fall was not attributable to the width of the tread, but rather its instability. …Supreme Court properly determined that SJM did not create the allegedly dangerous condition. Plaintiff’s expert does not assert that the stairs were negligently designed, but rather that they were not constructed in accordance with the specifications. Although SJM retained Stanley to construct the stairway in accordance with the architectural plans, as a general rule, SJM is not liable for the independent contractor’s alleged negligent construction … . Wayman v Roy Stanley Inc, 2014 NY Slip Op 08087, 3rd Dept 11-20-14

 

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New “Medical Treatment Guidelines” Do Not Exceed Statutory Authority of the Workers’ Compensation Board

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the Workers’ Compensation Board did not exceed its statutory authority when in promulgated its “Medical Treatment Guidelines” ( 12 NYCRR 324.2 [a]-[f]).  The Board had rejected payment for claimant’s acupuncture treatments which exceeded the duration of such treatments allowed by the guidelines:

The Guidelines include the list of pre-authorized medical procedures and set forth limitations on the scope and duration of each procedure. They also set forth a variance procedure, under which medical treatment providers can, on behalf of a claimant, request authorization for medical care not included in the Guidelines or in excess of the scope and/or duration that is pre-authorized (see 12 NYCRR § 324.3 [a] [1]). The medical treatment provider requesting a variance must demonstrate that the requested treatment is appropriate for the claimant and medically necessary … . * * *

The Board is authorized to “adopt reasonable rules consistent with and supplemental to the [Workers’ Compensation Law]” (Workers’ Compensation Law § 117 [1]). Courts will uphold regulations that have “a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated” … . * * *

Under the regulations, the burden of proof to establish that a variance is appropriate and medically necessary rests on the treating medical provider (12 NYCRR 324.3 [a] [2]). Whether a treating medical provider has met this burden is a threshold determination that must be made whenever a carrier properly and timely articulates an objection to a variance request. Matter of Kigin v State of NY Workers’ Compensation Bd, 2014 NY Slip OP 08052, CtApp 11-20-14

 

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