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Plaintiff Injured Falling Off Operating Table—Record Insufficient to Determine Whether Action Sounded in Medical Malpractice (Rendering It Untimely) or Negligence (Rendering It Timely)

The Third Department determined there was insufficient information in the record to determine whether plaintiff’s action sounded in negligence or medical malpractice.  Plaintiff was injured when she fell off the operating table.  The case hinged on whether the 2 1/2 year medical malpractice of the 3 year negligence statute of limitations applied. Supreme Court determined the medical malpractice statute applied and dismissed the complaint. The Third Department sent the matter back for the service of an amended complaint:

The sole issue here is whether the complaint sounds in medical malpractice such that it is subject to a 2½-year statute of limitations, which would make it untimely, or whether it alleges personal injury claims based on ordinary negligence that are subject to a three-year statute of limitations (compare CPLR 214-a, with CPLR 214 [5]). “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … .

The record here does not contain enough factual information to make such a determination. The complaint contains some language that generally refers to malpractice, such as that the “action arose from a surgery,” that plaintiff was “owed a duty by [d]efendants to use the due care of medical specialists in performing” the surgery, and that plaintiff fell after she “was extubated by the [a]nesthesiologist” or “while extubated by” him. While some of the medical records also indicate that plaintiff’s fall from the operating table may have been substantially related to the rendition of medical treatment, one medical note indicates that plaintiff rolled off the table due to the failure to remove an obstruction that prevented a stretcher from being placed next to the operating table. Plaintiff’s causes of action would sound in medical malpractice if she fell off the table due to improper pressure or movement in the removal of the breathing tube, or the failure to properly evaluate her safety and restraint needs while she was under anesthesia … .

On the other hand, her causes of action would sound in ordinary negligence if she never received any safety assessment, if the hospital staff failed to remove an obstruction between the operating table and stretcher and allowed her to fall between them, or if she was simply dropped by the staff members when they were transferring her from the operating table to the stretcher … . Newell v Ellis Hosp, 2014 NY Slip Op 02992, 3rd Dept 5-1-14

 

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General Municipal Law 205-a and Strict Products Liability Causes of Action Brought by Firefighter Injured During a Fire Survive Defendants’ Summary Judgment Motions

The Third Department determined motions for summary judgment by the owners of a building and the manufacturer of a device used to locate firefighters in an emergency were properly denied.  Plaintiff (Dryer) was a firefighter severely injured when a ceiling collapsed on him while he was searching for a fire within the building.  It was alleged the fire was related to violations of the Uniform Fire Prevention and Building Code and the “PASS” device which was supposed to facilitate the locating of a firefighter malfunctioned.  Questions of fact were raised re: the General Municipal Law 205-a and strict products liability causes of action:

General Municipal Law § 205-a creates a statutory cause of action for firefighters who are injured in the line of duty “directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any [federal, state or local] . . . statutes, ordinances, rules, orders and requirements” (General Municipal Law § 205-a [1]…). “To fall within the protective scope of the statute and defeat a motion to dismiss, a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter” … . * * *

…[W]e [are not] persuaded that Supreme Court erred in denying the owners’ motions for summary judgment dismissing the General Municipal Law § 205-a cause of action. In this regard, the owners bore the initial burden of establishing either that they did not violate any relevant governmental provision or, if they did, that such violation did not directly or indirectly cause Dryer’s injuries … . The “directly or indirectly” language employed in General Municipal Law § 205-a “has been accorded broad application by the courts, ‘in light of the clear legislative intent to offer firefighters greater protections'” … . * * *

“In order to recover in a strict products liability action, the plaintiff must prove that the defendant manufactured for sale, or sold, distributed, leased, or otherwise marketed a product, that the product was defective, that the plaintiff was injured and that the defect was a substantial factor in causing the [plaintiff’s] injury” … . The requisite defect, in turn, may stem from “a manufacturing flaw, improper design or failure to warn” … . Dryer v Musacchio, 2014 NY Slip Op 02986, 3rd Dept 5-1-14

 

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Untimely ​Strict Products Liability Cause of Action Related Back to Timely Negligent Design Cause of Action—Motion to Amend Pleadings to Add Strict Products Liability Cause of Action Against Lessor of Heavy Equipment Should Have Been Granted

The Third Department determined plaintiff should have been allowed to amend the complaint to assert a strict products liability cause of action against the lessor of heavy equipment.  Plaintiff claimed to have slipped and fallen from a slippery surface on the heavy equipment.  The court noted the untimely strict products liability claim was nearly identical to the negligent design cause of action which had been timely alleged:

A commercial lessor may be held liable, even in the absence of fault, for injuries caused by a defective product that the lessor is in the business of leasing … . Leave to amend is to be freely granted “at any time,” so long as there is no prejudice or surprise to the other party (CPLR 3025 [b]…), “and the amendment is not plainly lacking in merit” … .

Although plaintiffs did not seek to amend the complaint until four years after the commencement of the action, [defendant] has not identified any actual prejudice or valid claim of surprise. The proposed amendment is not based on new facts and there is “almost no difference” between negligence and strict products liability claims based on defective design … . Given the functionally synonymous nature of the claims, we conclude that the complaint provided adequate notice of the necessary elements and the proposed amendment relates back to the timely interposition of the negligence claim (see CPLR 203 [f]…). Furthermore, the strict products liability claim cannot be said to be plainly lacking in merit as plaintiffs submitted an affidavit from a certified safety professional who opined that the slippery surface of the excavator was unreasonably dangerous, described why and explained how it could have been made safer … . Stokes v Komatsu Am Corp, 2014 NY Slip Op 02997, 3rd Dept 5-1-14

 

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No Question of Fact Raised About Whether Buyer Was a Bona Fide Purchaser

The Third Department determined summary judgment was properly granted in favor of a bona fide purchaser(Doyle) of property that had been the subject of plaintiff’s prior sales contract:

…[W]e reject plaintiff’s assertion that Supreme Court erred in finding that Doyle was a bona fide purchaser as a matter of law. “A bona fide purchaser — one who purchases real property in good faith, for valuable consideration, without actual or record notice of another party’s adverse interests in the property and is the first to record the deed or conveyance — takes title free and clear of such adverse interests” … . In support of his motion, Doyle averred that he purchased the property for $455,000, recorded the deed on April 20, 2012 and “was unaware of any contract to purchase [the property] between [NKT] and anyone” prior to doing so. He also denied having ever heard of either plaintiff or its principal prior to filing the deed. [Counsel] confirms that he did not inform Doyle of the negotiations with plaintiff — or even of plaintiff’s existence — prior to the sale of the property. Further, the recording page accompanying the deed — which indicates a purchase price of $455,000 and reflects payment of a transfer tax commensurate with that amount — corroborates Doyle’s allegation regarding the consideration paid for the property (see Tax Law § 1402 [a]). Given this evidence, the burden shifted to plaintiff to raise a question of fact as to whether Doyle “ha[d] knowledge of any fact, sufficient to put him on inquiry [notice] as to the existence of some right or title in conflict with that he [was] about to purchase”… . 10 Cardinal Lane LLC v NKT Land Acquisitions Inc, 2014 NY Slip Op 02990, 3rd Dept 5-1-14

 

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Antenuptial Agreement Was a Valid Contract Which Controlled Interpretation of Trust Documents

The Third Department applied general principles of contract-interpretation to an antenuptial agreement and trust documents to determine objections to property distribution raised by the surviving wife:

Although the [trust document] makes no explicit mention of the antenuptial agreement, the [trust document] fulfilled decedent’s obligation under that agreement by explicitly creating a trust to benefit [the wife] during her lifetime in an amount in excess of that required by the antenuptial agreement. Further, the [trust document] provides that the trust to benefit [the wife] be funded with assets that “qualify for the marital deduction,” which is consistent with the intentions of the parties as explicitly set forth in the antenuptial agreement. The structure of the [trust document] creates an estate plan that is inconsistent with [the wife’s] claim. The plain language provides for a trust to benefit [the wife] that meets the specific minimum requirements set out in the antenuptial agreement, and the [trust document] conforms to the parties’ intentions regarding tax deductibility expressed in the agreement. Considering this evidence, Surrogate’s Court properly determined that there is no issue of material fact on [the wife’s] claim, because decedent intended to fulfill his obligation under the antenuptial agreement through the [trust] …, and that trust was funded in an amount greater than required by the antenuptial agreement … . Matter of Rich, 2014 NY Slip Op 02982, 3rd Dept 5-1-14

 

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Slip and Fall On Sidewalk Near Place of Employment Was Not a Work-Related Accident

The Third Department determined a slip and fall on a sidewalk near claimant’s place of employment did not, under the facts, constitute a work-related accident:

Inasmuch as the accident here occurred near claimant’s place of employment, his claim falls within “a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation” … . In order for an incident to be compensable under those circumstances, “there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned” … .While the public sidewalk here was near the government center, it was open to the public and there was no showing that it was “otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to the” workplace … . The ice on the sidewalk, moreover, constituted “a danger that existed to any passerby traveling along the [sidewalk] in that location” and bore no relation to claimant’s employment… . Matter of Trotman v New York State Cts, 2014 NY Slip Op 03002, 3rd Dept 5-1-14

 

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Company Exercised Sufficient Control Over “Agents” to Justify Finding They Were Employees

The Third Department determined that Unemployment Insurance Appeal Board properly found that claimants were employees of Just Energy New York Corporation and were thus entitled to unemployment insurance payments from the employer:

The record establishes that some indicia of control by Just Energy was mandated by law, such as requiring the agent to carry a photo identification badge bearing Just Energy’s name and logo, which, alone, is not sufficient to establish an employer-employee relationship. Nevertheless, “it can still be considered as part of the overall determination of control exercised over” the agents  … . Here, the Board was not convinced that all the indicia of control that Just Energy exercised over the agents was required by applicable state law. Specifically, Just Energy advertised for and interviewed the agents before hiring them. Just Energy provided the agent agreement and set the commission rate, both of which could be changed only by Just Energy. Just Energy provided the agent with the customer contracts. Contracts were required to be submitted on a weekly basis, approval by Just Energy was required before the contracts became effective, and Just Energy reviewed the contracts and returned them to the agent if any corrections needed to be made. Significantly, the agreement precluded the agents from working for any competitor during the term of the contract, as well as for three weeks following the termination of the agreement. Agents were required to attend two half-day orientation sessions, and received a training manual and code of conduct, which, if not adhered to, could result in termination of the contract. Just Energy would field questions from agents. Furthermore, any complaints were handled by Just Energy, which could investigate and maintain a file on an agent. Although there is evidence to support a contrary conclusion, we find substantial evidence to support the Board’s decision that the extent of the control exercised by Just Energy over the agents evinces an employer-employee relationship … . Matter of Cohen (Just Energy Mktg Corp—Commissioner of Labor), 2014 NY Slip Op 02984, 3rd Dept 5-1-14

 

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Application to File Late Notice of Claim (One Month Late) on Behalf of Infant Claimant Injured at School Should Not Have Been Granted

The Second Department determined Supreme Court should not have granted claimants’ application to file a late notice of claim against a school district.  Claimant alleged infant claimant (Zachary) was injured playing touch football and the school did not provide adequate supervision.  In finding the criteria for allowing the filing of a late notice were not met, the court wrote:

The key factors to be considered in determining whether to grant leave to serve a late notice of claim are (1) whether the claimant or claimants demonstrated a reasonable excuse for the failure to timely serve a notice of claim, (2) whether one or more of the claimants was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the delay in service of a notice of claim, (3) whether the school district acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, and (4) whether the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits

Here, Zachary and his mother did not proffer sufficient proof to establish a reasonable excuse for their failure to serve a timely notice of claim upon the appellant … . Furthermore, Zachary’s infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . In addition, while a school official prepared an accident claim form the day of the incident and a school medical claim form was filled out the day following the incident, those reports, which merely indicated that Zachary hurt his right knee playing two-hand touch football during physical education class, did not establish that the appellant had actual knowledge within 90 days of the incident or a reasonable time thereafter, of the essential facts underlying the claims of negligent supervision and that the school field constituted a defective and dangerous condition … . Accordingly, the appellant had no reason to conduct a prompt investigation into the purported negligent supervision and the alleged dangerous condition of the field … . Finally, Zachary and his mother failed to establish that the approximately one-month delay after the expiration of the 90-day statutory period would not substantially prejudice the appellant in maintaining a defense on the merits … . Matter of Manuel v Riverhead Cent Sch Dist, 2014 NY Slip Op 02939, 2nd Dept 4-30-14

Same result in claim against a fire district alleging medical malpractice and negligence in response to an accident.  Matter of Snyder v County of Suffolk, 2014 NY Slip Op 02942, 2nd Dept 4-30-14

 

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Criteria for Prohbition and Mandamus Actions Explained

The Second Department, in finding Supreme Court properly denied the petition against a judge, explained the criteria for prohibition and mandamus actions:

“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court —in cases where judicial authority is challenged —acts or threatens to act either without jurisdiction or in excess of its authorized powers” … . “Prohibition will not lie, however, simply to correct trial errors” … and may not be employed as a means of seeking collateral review of mere trial errors of substantive law or procedure, no matter how egregious the error might be … .

“The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought” … . Mandamus will not lie if the action sought to be compelled involves an exercise of discretion or reasoned judgment … . Matter of Jordan v Levine, 2014 NY Slip Op 02934, 2nd Dept 4-30-14

 

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Criteria for Review of Rulings on Variances Explained

The Second Department explained the general critieria for reviewing a variance-ruling by a town zoning board of appeals (ZBA):

In reaching its determination, the ZBA engaged in the balancing test prescribed by Town Law § 267-b(3)(b), and properly found, inter alia, that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood * * * Since the determination under review was not illegal, arbitrary and capricious, or an abuse of discretion, and was supported by a rational basis …, it must be sustained. Matter of Harbor Park Realty, LLC v Modelewski, 2014 NY Slip Op 02931, 2nd Dept 4-30-14

 

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