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Question of Fact Whether Snow Removal Contractor Created Hazardous Condition by Inadequate Salting

In a slip and fall case, the First Department determined there was a question of fact whether defendant, who contracted to provide snow and ice removal, had created or exacerbated a hazardous ice condition by not adequately salting the ice:

…[T]he record presents a triable issue of fact as to whether Waldorf owed plaintiff a duty of care by having “launched a force or instrument of harm” in failing to exercise reasonable care in the performance of its snow and ice removal duties … . The evidence, including photographs and videos taken at the scene of the accident showing the icy condition and deposition testimony that there was no sand or salt in the area where plaintiff fell, raises questions as to whether Waldorf had adequately salted the … pathway, and therefore, whether it created or exacerbated the hazardous ice condition… . Jenkins v Related Cos LP, 2014 NY Slip Op 00727, 1st Dept 2-6-14

 

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In the Absence of a Defect, Inherently Smooth Floors Do Not Give Rise to Liability

In a slip and fall case, the First Department noted that inherently smooth floors do not give rise to liability in the absence of a defect.  The plaintiff slipped and fell on a cotton bath mat on a smooth bathroom floor:

In cases involving inherently smooth, and thus potentially slippery tiled or stone floors, absent competent evidence of a defect in the surface or some deviation from an applicable industry standard, no liability is imposed … . The same standard applies to allegedly defective bath mats … .

The motion court properly found that defendants made a prima facie showing that the accident was not attributable to a defect in the floor or the bath mat, and that they were therefore entitled to summary judgment. Kalish v HEI Hospitality LLC, 2014 NY Slip Op 00729, 1st Dept 2-6-14

 

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Accident Occurred Within 15-Day Grace Period Allowed for Repair of Road Defects/City Could Not Be Held Liable

The First Department reversed Supreme Court and held that the 15-day grace period allowed for the repair of an identified roadway defect precluded plaintiff’s lawsuit:

Eight days before plaintiff’s accident, a City highway inspector employed by the Department of Transportation prepared a Highway Inspection and Quality Assurance Report identifying a two-inch-deep defect in the street at the location of the accident, and issued a Corrective Action Request for repairs. These documents constitute a “written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition,” i.e., one of the three alternative prerequisites to bringing an action against the City for personal injuries caused by a defect in the public street (see Administrative Code of City of NY § 7-201[c][2]…). However, the same provision of the Administrative Code also provides the City with a 15-day grace period within which to repair or otherwise render safe the defective condition (§ 7-201[c][2]). Since the “written acknowledgement” was received by the City only eight days before the accident, this action may not be maintained against the City. Berrios v City of New York, 2014 NY Slip Op 00733, 1st Dept 2-6-14

 

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Malpractice by Chiropractor Governed by Three-Year Statute of Limitations

In a full-fledged opinion by Justice Sweeney, the First Department determined that a malpractice action against a chiropractor (Dr. Fitzgerald) is governed by the three-year statute of limitations (CPLR 214(6)), not the 2 ½ year statute of limitations (CPLR 214-a) governing actions against physicians and those providing medical services at the direction of a physician:

Here, plaintiff was not referred to Dr. Fitzgerald by a licensed physician and Dr. Fitzgerald’s chiropractic treatment was not an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician. Indeed, plaintiff did not even inform her physicians, including her primary care physician, that she was receiving chiropractic treatment for her neck and back. Further, the record establishes that the treatment provided by Fitzgerald, consisting of adjusting or applying force to different parts of the spine, massages, heat compression, and manipulation of plaintiff’s neck, constituted chiropractic treatment (see Education Law § 6551). The fact that defendant provided treatment to the human body to address a physical condition or pain, which may be within the broad statutory definition of practicing medicine (Education Law § 6521), does not, by itself, render the treatment “medical” within the meaning of CPLR 214-a, since the use of such a broad definition would result in the inclusion of many “alternative and nontraditional approaches to diagnosing [and] treating . . . human disease'” which are clearly nonmedical in nature … .

…Here, there is no doubt that Dr. Fitzgerald’s treatment was separate and apart from any other treatment provided by a licensed physician and was not performed at a physician’s request. Accordingly, as with the psychologist in Karasek [92 NY2d 171], and the optometrist in Boothe [107 AD2d 730], defendant is not entitled to invoke the benefit of the shortened limitations period applicable to medical, dental and podiatric malpractice, and is subject to the three-year statute of limitations of CPLR 214(6). Perez v Fitzgerald, 2014 NY Slip Op 00744, 1st Dept 2-6-14

 

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Natural Mother Appointed Guardian of Her Children to Facilitate Undocumented Children’s Pursuit of Special Immigrant Juvenile Status

In a full-fledged opinion by Justice Chambers, the Second Department reversed Family Court and awarded mother guardianship of her children so the undocumented children could pursue special immigrant juvenile status (SIJS) to become lawful residents of the United States.  In El Salvador the children had been threatened with death if they did not join a local gang, and the children’s grandmother had been killed by the gang:

The Immigration and Nationality Act, which established SIJS (see 8 USC § 1101[a][27][J]; Pub L 101-649, § 153, 104 US Stat 4978 [101st Cong, 2d Sess, Nov 29, 1990]), employs “a unique hybrid procedure that directs the collaboration of state and federal systems” … . The child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Further, a state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child’s best interests to be returned to his or her home country … . Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services (hereinafter USCIS) for SIJS … . In addition, to be eligible for SIJS, the child must be unmarried and under 21 years of age (see 8 CFR 204.11[c][1], [2]). Ultimately, the Secretary of the Department of Homeland Security must consent to the grant of SIJS… . The Secretary’s consent ensures that the child is seeking SIJS for the purpose of obtaining relief from abuse, neglect, or abandonment, and not primarily for the purpose of obtaining lawful permanent residency status … . Since ultimately the Secretary must give consent, the Family Court “is not rendering an immigration determination” … .

In the case before us, there are sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests … . * * * Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador … . In sum, assuming the truth of the allegations, we disagree with the Family Court’s conclusion that there is “no reason” to appoint the mother as guardian of the children. Matter of Marisol NH 2014 NY Slip Op 00664, 2nd Dept 2-5-14

The Second Department reached the same conclusion in another case decided the same day: Matter of Maura AR-R (Santos FR), 2014 NY Slip Op 00669, 2nd Dept 2-5-14

 

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Subcontractor Which Does Not Supervise or Control Injured Worker May Be Liable Under Common Law Negligence Where It Creates an Unreasonable Risk of Harm

In the course of a decision which discussed several Labor Law issues, the Second Department noted when a subcontractor (here MCN) may be held liable under common law negligence, even where the subcontractor has no authority to supervise or control the injured party’s work:

A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff’s injury, even if it did not possess any authority to supervise or control the plaintiff’s work or work area … . In response to MCN’s prima facie showing with respect to this cause of action, the plaintiff raised a triable issue of fact as to whether MCN’s employee created an unreasonable risk of harm that was a proximate cause of the plaintiff’s injuries… . Van Nostrand v Race & Rally Constr Co Inc, 2014 NY Slip Op 00651, 2nd Dept 2-5-14

 

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Vehicle Owner’s Uncontradicted Deposition Testimony Not Enough to Overcome Presumption Vehicle Driven with Owner’s Consent

The Second Department determined that the defendant vehicle owner (Witsell) did not overcome the presumption her vehicle was being driven with her consent:

Vehicle and Traffic Law § 388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner’”… .. Under this statute, there is a presumption that the operator of a vehicle operates it with the owner’s permission … . The presumption may be rebutted by substantial evidence that the owner did not give the operator consent …

Here, Witsell failed to establish her entitlement to judgment as a matter of law. … “The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use” … . Since Witsell failed to meet her initial burden as the movant, the burden never shifted to the party opposing the motion to raise a triable issue of fact… . Ellis v Witsell, 2014 NY Slip Op 00630, 2nd Dept 2-5-14

 

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Medical Malpractice Stemming from “Lack of Informed Consent” Explained/Signing a Generic Consent Form Does Not Preclude Suit

The Second Department determined that a question of fact had been raised about medical malpractice stemming from a lack of informed consent.  The plaintiff’s signing of a generic consent form did not entitle the doctor to summary judgment:

…”[L]ack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence” … . A cause of action premised on a lack of informed consent “is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'” … . Thus, “[t]o establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Walker v Saint Vincent Catholic Med Ctrs, 2014 NY Slip Op 00653, 2nd Dept 2-5-14

 

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Under City Administrative Code, Accident Occurred Before Time Had Expired for Property Owner to Address Ice on Abutting Sidewalk/Lessee Did Not Exacerbate the Dangerous Condition/No Liability for Slip and Fall

The Second Department determined that neither the owner nor the lessee of commercial property could be held liable for a slip and fall on ice covering the abutting sidewalk.  Under the Administrative Code of the City of New York the owner had until 11:00 am to address the ice that formed the night before (the accident occurred prior to 11:00 am). And the lessee was not liable because it did not undertake any ice removal efforts which made the condition more hazardous:

“The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so” … . Section 7-210 of the Administrative Code of the City of New York (hereinafter section 7-210) places such a duty on commercial property owners, and imposes tort liability for injuries arising from noncompliance (see Administrative Code § 7-210[a], [b]…). “[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123” … . Pursuant to Administrative Code section 16-123(a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m., to clear ice and snow from the sidewalk (see Administrative Code § 16-123[a]…). Here, the owners had until 11:00 a.m. on the day of the accident to comply with the ordinance. Since that period had not yet expired at the time of the injured plaintiff’s fall, the owners demonstrated, prima facie, that they could not be liable for any failure to clear the sidewalk at the time of the accident … .

The tort liability imposed by section 7-210 extends to “the owner of real property abutting [the subject] sidewalk” (Administrative Code § 7-210[b]). In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous … . Schron v Jean’s Fine Wine & Spirits Inc, 2014 NY Slip Op 00648, 2nd Dept 2-5-14

 

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Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal

The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:

A criminal defendant’s right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. “[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so” … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied “simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant’s interests are probably better served through a lawyer’s representation” … .

Defendant’s requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14

 

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