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Causes of Action Against County Personnel Based Upon Negligent Hiring, Training and Supervision Should Not Have Been Dismissed–Plaintiff’s Decedent Was Killed at the Hands of Her Mother and Half-Brother—Complaint Alleged County’s Negligence in Failing to Protect Plaintiff’s Decedent

In a lawsuit alleging county personnel, including deputy sheriffs, were negligent resulting in the death of plaintiff’s decedent at the hands of her mother and half-brother, the Fourth Department determined: (1) governmental immunity could not be determined at the pleading stage because whether the government’s actions were discretionary (and therefore immune) was a question of fact; (2) absent a local law to the contrary, a sheriff can not be held vicariously responsible for the actions of deputy sheriffs under the doctrine of respondeat superior; (3) the causes of action for negligent hiring, training and supervision of county personnel should not have been dismissed; (4) the notices of claim were sufficient to notify the county of the negligent hiring, training and supervision causes of action; and (5) the notice of claim was not defective for failing to name the sheriff in his official capacity.  Mosey v County of Erie, 2014 NY Slip Op 03041, 4th Dept 5-2-14

 

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Corporate Integrity Documents Privileged Under Education Law 6527 (3)

The Fourth Department determined corporate integrity documents sought by plaintiffs in a fraud and dental malpractice action were privileged under the Education Law and did not have to be disclosed:

We conclude that the court erred in determining that the requested corporate integrity documents were not privileged under Education Law § 6527 (3). [Defendant] met its burden of establishing that the corporate integrity documents sought by plaintiffs were related to the “performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program” … . Specifically, [defendant] established that the corporate integrity documents were prepared pursuant to state and federal corporate integrity agreements, which set forth procedures for the review and monitoring of the quality of care of the dental clinics. Thus, [defendant] established” that it has a review procedure and that the [corporate integrity documents] for which the [privilege] is claimed [were] obtained or maintained in accordance with that review procedure’ ” … . Contrary to plaintiffs’ contention, there is nothing in the language of section 6527 (3) limiting applicability of the privilege to agencies located in New York or records prepared in the state… . Matter of Small Smiles Litig, 2014 NY Slip Op 03080, 4th Dept 5-2-14

 

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Homeowners’ Association Had Power to Direct Property Owners to Remove Chickens

The Fourth Department, over a two-justice dissent, determined the plaintiff homeowners’ association acted properly when it directed defendants to remove two chickens from their property.  The “Declaration of Covenants, Conditions and Restrictions…” gave the board “the absolute power to prohibit a pet from being kept on the Properties…”:

“It is well settled that, [s]o long as the [B]oard [of directors of a homeowners’ association] acts for the purposes of the [homeowners’ association], within the scope of its authority and in good faith, courts will not substitute their judgment for [that of] the [B]oard[ ]’ ” … . The Declaration provides that plaintiff’s Board “shall have the absolute power to prohibit a pet from being kept on the Properties, including inside residences constructed thereon.” Here, plaintiff established that its Board was acting for the purposes of the homeowners’ association and within the scope of its authority when it directed defendants to remove the chickens from the property. In addition, there is no evidence that defendants were ” deliberately single[d] out . . . for harmful treatment’ ” inasmuch as no other residents of the subdivision had chickens or were in violation of the applicable restrictive covenant …, and defendants otherwise ” failed to present evidence of bad faith . . . or other misconduct’ ” … . Preserve Homeowners’ Assn Inc v Zahn, 2014 NY Slip Op 03047, 4th Dept 5-2-14

 

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Low-Income Families’ Challenges to Child Care Copayment Regulation Rejected

The Fourth Department rejected challenges to a copayment regulation by low-income families who are eligible for child care assistance but who are required to pay more than 10% of their gross incomes for the care.  The families alleged that the co-payment regulation, 18 NYCRR 415.3 (e), violated Social Services Law 410-x because it did not provide for a single sliding fee scale, the existing sliding fee scales are not based upon the family’s ability to pay, and the regulation failed to provide equitable access to child care as required by statute.  The families further alleged the copayment regulation violated the families’ right to travel within the state and their right to equal protection of the law.  With respect to the sliding scale aspect of the argument, the court wrote:

Plaintiffs …contend that the copayment regulation violates Social Services Law § 410-x (6) because it does not provide for a single sliding fee scale, as required by statute, and instead allows each of the 58 social services districts to set its own sliding fee scale. We reject that contention as well. “It is well settled that the Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation’ ” … . “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes” … . An agency’s interpretation of a governing statute will not be disturbed unless it is unreasonable or irrational … .

Here, section 410-x (6) delegates regulatory authority to the Office of Children and Family Services, of which defendant is Commissioner, by providing that, “[p]ursuant to department regulations, child care assistance shall be provided on a sliding fee basis based on the family’s ability to pay.” The statute does not expressly require defendant to adopt a single state-wide sliding fee scale, and we do not consider it unreasonable or irrational for defendant to adopt a regulation that gives flexibility to social services districts to choose a multiplier between 10% and 35% to use in calculating an eligible family’s share of child care costs. Williams v Carrion, 2014 NY Slip Op 03044, 4th Dept 5-2-14

 

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Surrogate’s Court Should Have Held a Hearing to Determine the Validity of a Handwritten Will Supported by the Affidavits of Two Attesting Witnesses—If Valid, the 2012 Handwritten Will Would Have Revoked the 2002 Will

The Fourth Department reversed Surrogate’s Court and ordered that a hearing be held to determine whether a 2012 will revoked a 2002 will.  The 2012 will was handwritten and included some confusing language, but it was supported by the affidavits of two attesting witnesses.  There was sufficient evidence of the validity of the 2012 will to warrant a hearing:

We conclude that petitioner demonstrated a substantial basis for contesting the 2002 will. Execution of a subsequent will revokes a former will if the subsequent will is “so inconsistent with the former will that the two cannot stand together,” even in the absence of an express revocation clause in the subsequent will … . Here, the 2002 will named respondent as the sole beneficiary, but the 2012 will named petitioner as the sole beneficiary and purported to dispose of all of decedent’s property. We therefore conclude that the provisions of the 2002 will are so inconsistent with those of the 2012 will that, if the Surrogate were “satisfied with the genuineness of the [2012] will and the validity of its execution” (SCPA 1408 [1]), the 2012 will would revoke the 2002 will. Thus, in this case, whether petitioner had a reasonable probability of successfully vacating probate of the 2002 will was dependent upon whether he could prove, through competent evidence, that the 2012 will was genuine and duly executed and attested …. Matter of Gehr, 2014 NY Slip Op 03049, 4th Dept 5-2-14

 

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Defect Not Trivial as a Matter of Law

The Fourth Department determined defendant failed to establish a defect in pavement was trivial as a matter of law:

Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law … . The photographs submitted in support of defendant’s motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space … . Defendant also submitted plaintiff’s deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space … . Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual …, where the trivial defect involved ” a small area’ ” of a ” cracked and crumbly’ ” curb that “had no measurable depth,’ ” plaintiff’s deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff’s vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Lupa v City of Oswego, 2014 NY Slip Op 03055, 4th Dept 5-2-14

 

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Plaintiff Deemed to Be In the Foreseeable Zone of Danger Re: a Fireworks Display

The Third Department determined questions of fact precluded summary judgment in a case stemming from a malfunction of a fireworks display.  The malfunction caused a projectile to fly horizontally toward plaintiff who injured her arm in attempting to protect her daughter from the projectile. Supreme Court had dismissed the action as unforeseeable because the projectile travelled beyond the usual zone of danger.

To establish a prima facie case of negligence, the plaintiff is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained … . “The existence and scope of [the] alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court” — giving due consideration to “whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm and whether the accident was within the reasonably foreseeable risks” … . Once it is determined that a particular duty exists, whether — and the extent to which — that duty was breached and whether any such breach was a proximate cause of the plaintiff’s injuries generally are factual issues for the trier of fact to resolve … .

Here, defendants possessed, furnished, set up and ignited “a large supply of dangerous fireworks” … and, as such, were bound to exercise “a high degree of care” in order to prevent injury to others … . As to the foreseeability of a malfunction, one of defendants’ representatives testified at his examination before trial that, although he had not experienced a “blow by” prior to the Ticonderoga show, such an event was “an occurrence in the industry,” that “the chance for a malfunction [was] obviously there” and that malfunctions can be dangerous. As to whether plaintiff was in the zone of foreseeable harm, plaintiff estimated that she was sitting approximately 700 feet from where the shells were being launched (well outside the purported safety radius) and, as noted previously, acknowledged that the debris from the first malfunctioning shell did not reach her location. Plaintiff also testified, however, that the second shell exploded “[v]ery close” to where she was sitting, causing sparks to land around her group, and one of defendants’ representatives conceded that “hot flaming debris” from this second shell was propelled into the crowd of spectators. Further, when plaintiff returned to the ball field the following day, she observed scorch marks on the grass — presumably caused by flaming debris from the detonated shell — approximately 20 feet away from where she had been sitting. Moreover, the police report prepared in this matter makes reference to a witness who claimed that the second shell exploded “15-20 feet away from the civilians sitting by Burgoyne [R]oad.” Under these circumstances, we are satisfied that plaintiff was within the zone of foreseeable harm … . Accordingly, Supreme Court erred in finding that defendants owed no duty to plaintiff.  Evarts v Pyro Eng’g Inc, 2014 NY Slip Op 02996, 3rd Dept 5-1-14

 

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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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