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Question of Fact Whether Three-Family Residence Was Owner-Occupied–Administrative Code’s Exemption from Liability for Failure to Remove Ice and Snow May Not Apply

The Second Department determined Supreme Court should not have granted the property owner’s motion for summary judgment in a slip and fall case.  Although the NYC Administrative Code exempts owner-occupied one- two- and three-family residential properties from liability for the failure to remove snow and ice from an abutting sidewalk, the property owner failed to demonstrate the property was owner-occupied:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . However, this liability shifting provision does not apply to the failure to remove snow and ice from the sidewalk of “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The purpose of the exception is to recognize ” the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair'” … .

Here, the defendant property owner … failed to make a prima facie showing that he is entitled to judgment as a matter of law on the theory that he is exempt from liability pursuant to Administrative Code of City of NY § 7-210(b). Although there was evidence that the subject property was a three-family residence, [the owner’s] deposition testimony raises issues of fact as to whether the premises were “owner occupied” within the meaning of Administrative Code § 7-210(b)… . Medina v City of New York, 2014 NY Slip Op 06302, 2nd Dept 9-24-14

 

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Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips

The Second Department determined Supreme Court should not have granted defendant’s motion for summary judgment in a slip and fall case.  Although the assumption of risk doctrine could apply to a slip and fall on a diving board, here the plaintiff alleged the traction strips on the board were unreasonably worn:

Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . One “obvious” risk inherent in the recreational activity of diving is the risk of being injured from slipping on the diving board’s surface and falling off the diving board … . In moving for summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of primary assumption of risk, the defendant failed to establish, prima facie, that the allegedly dangerous condition, consisting of the depleted traction strips, did not unreasonably increase the abovementioned risk … . The defendant’s submissions, which included the transcripts of a General Municipal Law § 50-h hearing and the plaintiff’s deposition, demonstrated the existence of a triable issue of fact as to whether the allegedly dangerous condition unreasonably increased that risk … . Freeman v Village of Hempstead, 2014 NY Slip Op 06298, 2nd Dept 9-24-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

To establish that the continuous treatment doctrine applies, a plaintiff is ” required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Dismissal of Complaint Pursuant to CPLR 3211 Appropriate Where Documentary Evidence Flatly Contradicts Allegations in the Complaint

In finding that the defendants were entitled to a dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211, the Second Department explained the effect of documentary evidence which refutes allegations in the complaint:

“A motion pursuant to CPLR 3211 (a) (1) . . . may appropriately be granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law'” … . On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must “afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “However, factual allegations which are flatly contradicted by the record are not presumed to be true and, [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action'” … .  Coastal Purch Group LLC v JPMCC 2005-CIBC Collins Lodging LLC, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

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Fiduciary’s Conflict of Interest Renders Transactions Voidable

The First Department noted the effect of a fiduciary’s conflict of interest upon transactions entered into by the fiduciary:

When a fiduciary has a conflict of interest in entering a transaction and does not disclose that conflict to his/her principal, the transaction is “voidable at the option of” the principal … . Moreover, “an agent cannot bind his principal . . . where he is known to be acting for himself, or to have an adverse interest” … .  Genger v Genger, 2014 NY Slip Op 06248, 1st Dept 9-23-14

 

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Motion to Renew Was Not Based Upon a Change in the Applicable Law—Motion Court Had Simply Ignored the Controlling Precedent—Therefore the Motion Was Actually a Motion to Reargue, the Denial of Which Is Not Appealable

The First Department, in a full-fledged opinion by Justice Tom, determined that defendants’ motion, which was labeled a motion to renew, was actually a motion to reargue, the denial of which is not appealable.  A motion to renew can be based upon a change in the law since the first motion was determined.  However, in this case, the trial judge who denied the original underlying motion, specifically refused to follow the appellate precedent in her department (re: the availability of nonpecuniary damages in a legal malpractice action). Because the underlying law did not change, but rather the law was simply ignored by the trial judge, there was no change in the law which could serve as a basis of a motion to renew. The legal malpractice action stemmed from defense counsel’s failure to raise the speedy trial defense in a criminal matter.  The plaintiff was freed after14 years of imprisonment on the basis of defense counsel’s failure.  D’Alessandro v Carro, 2014 NY Slip Op 06246, 1st Dept 9-18-14

 

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Appellate Court Can Exercise Its Own Discretion Re: Scope of Discovery, Even in the Absence of Abuse

The First Department determined, over a dissent, that Supreme Court had improperly restricted the discovery of software code.  The court explained its power to overrule the trial court in this regard and the underlying principle allowing broad discovery:

New York strongly encourages open and full disclosure as a matter of policy … . To that end, CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.”

A trial court is vested with broad discretion in its supervision of disclosure … . Indeed, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” … . However, “[t]his Court is vested with the power to substitute its own discretion for that of the motion court, even in the absence of abuse” … . We have observed that we “rarely and reluctantly invoke” our power to substitute our own discretion for that of the motion court … . We find that this case presents one of those rare instances in which we are compelled to substitute our discretion for that of the motion court. MSCI Inc v Jacob, 2014 NY Slip Op 06239, 1st Dept 8-18-14

 

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Motion for Leave to File Late Notice of Claim Properly Denied—Injuries to Infant Plaintiff Consistent with Premature Birth

The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks’ gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff’s motion (General Municipal Law § 50-e[5]). The infant plaintiff’s mother’s excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son’s injuries were caused by defendant Health and Hospital Corporation’s (HHC) malpractice, are not reasonable. Nor is her attorney’s assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC … .

Further, the medical records demonstrate that the infant plaintiff’s condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff’s malpractice … . Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders … . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14

 

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Claimant Was an Employee Notwithstanding a Written Agreement Describing Her as an Independent Contractor

The Third Department determined claimant was an employee of Prometric Inc.  Claimant was hired as a nurse aide evaluator (NAE) to evaluate nursing assistant candidates.  The fact that the written agreement labeled claimant as an independent contractor was not determinative:

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence …. Significantly, where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed … .

Here, Prometric developed an assessment tool to be used to evaluate the skills that a test candidate needed to perform and conducted annual training sessions with claimant and other NAEs to ensure consistency in testing. Prometric interviewed individuals that it wished to retain as NAEs and reimbursed them for mileage and travel expenses. It established an hourly rate of pay for specific work activities, but other rates were sometimes negotiated depending upon the circumstances. The work of the NAEs was performed off site either at nursing homes or training facilities and the NAEs chose their work assignments from a computer-generated list. Although the NAEs had flexibility in scheduling their assignments and did not have set hours, if an NAE was unable to show, Prometric was responsible for finding a replacement or canceling the test. Notably, Prometric provided claimant with all testing materials and other equipment needed to evaluate the candidates, had him wear an identification badge and required him to maintain strict confidentiality. Furthermore, Prometric had a senior nurse evaluator conduct an annual review of claimant’s work who assisted him in correcting any deficiencies. The foregoing indicates that Prometric retained sufficient overall control over the work of claimant and other similarly situated NAEs to be considered their employer … . Accordingly, notwithstanding the written agreement labeling claimant an independent contractor …, substantial evidence supports the Board’s decisions. Matter of Makey, 2014 NY Slip Op 06226, 2nd Dept 9-18-14

 

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Criteria for Negligent Misrepresentation Cause of Action Explained

The First Department determined the complaint sufficiently alleged a cause of action for negligent misrepresentation and laid out the criteria, including a “special relationship” close to privity:

To properly assert a claim on a theory of negligent misrepresentation, a plaintiff must plead: “(1) that the existence of a special or privity-like relationship imposed a duty on the defendant to impart correct information to the plaintiff; (2) that the imparted information was actually incorrect; and (3) that the plaintiff reasonably relied on the information” … .

As to the first element, a court will find a special relationship if the record supports “a relationship so close as to approach that of privity” … or, stated another way, the “functional equivalent of contractual privity” … . Under this standard, before liability for negligent misrepresentation may attach in favor of a third party, there must be: (1) an awareness by the maker of the statement that the statement is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance… . North Star Contr Corp v MTA Capital Constr Co, 2014 NY Slip Op 06238, 1st Dept 9-18-14

 

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