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COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff had stated a cause of action for battery alleging a medical procedure was performed without her consent:

“It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, in moving under CPLR 3211 (a) (7), defendants attached all of the pleadings, which alleged, inter alia, that defendants “performed a procedure upon the Plaintiff while she was under general anesthesia without informing her or obtaining any consent, which conduct constituted a battery upon her.” Defendants also referenced and provided to the court the informed consent form executed by plaintiff that explicitly authorized the performance of a flexible sigmoidoscopy, but not a colonoscopy. The form further noted in relevant part that, “[i]f any unforeseen condition arises during the procedure calling for, in the physician’s judgment, additional procedures, treatments, or operations, [defendant is] authorize[d] . . . to do whatever he . . . deems advisable.” We conclude that plaintiff has sufficiently asserted a cause of action sounding in battery by alleging that she provided no consent to the performance of a colonoscopy … , and that the evidentiary submissions considered by the court, including the consent form, do not “establish conclusively that plaintiff has no cause of action” sounding in battery … . McCarthy v Shah, 2018 NY Slip Op 04887, Fourth Dept 6-29-18

​MEDICAL MALPRACTICE (BATTERY, COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, BATTERY, COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))/BATTERY (MEDICAL MALPRACTICE,  COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))

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SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT).

The First Department determined the seizure of credit cards from under the hood of defendant’s car was not the result of an illegal search. The police had validly impounded the car and were following a procedure which required that the car be disabled to thwart theft:

Police entry into the car and under its hood was reasonable because it was done in compliance with the Police Department Patrol Guide’s safeguarding procedure, requiring police to disable all vehicles being safeguarded, in order to prevent theft. The limited entry into the car was done to protect the owner’s property, and was not an attempt to search for incriminating evidence, as shown by the fact that, upon discovering the credit cards in the hood, the police did not search any other part of the vehicle … . The officers’ failure to perform this safeguarding procedure within the 48-hour period allowed by the Patrol Guide, after which a vehicle is to be moved from the precinct to the Property Clerk’s storage facility, was a minor deviation from procedure, and did not undermine the reasonableness of the limited search, where the remainder of the procedure was followed and, as noted, there was no indication that the police were using the procedure as a pretext to search for incriminating evidence … . People v Keita, 2018 NY Slip Op 04847, First Dept 6-28-18

​CRIMINAL LAW (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SEARCH AND SEIZURE (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SUPPRESSION (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT)

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FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT).

The First Department noted that contract provisions cannot be the bases for a fraudulent inducement cause of action. Only matters collateral to the contract will support fraudulent inducement:

Plaintiffs alleged six different bases for the fraudulent inducement claim. The alleged misrepresentations regarding assistance operating the preschool, the working fire alarm, and use of the stroller area, area near the kitchen, and upstairs gym, are all ” directly related to a specific provision of the contract,'” not collateral to the lease, and cannot be used to sustain a fraudulent inducement claim … . Plaintiffs properly pled a fraudulent inducement claim with respect to defendants materially misrepresenting that a 2004 letter of no objection was all plaintiffs would need, failing to disclose to plaintiffs that defendant intended to remove oversight over homeless individuals on the property, and fraudulently misrepresenting that homeless individuals were living on the property legally, when they were doing so illegally … . Plaintiffs properly pled that, as a result of these statements, which plaintiffs allege were made with the intention to deceive them, they signed the lease and developed the property … . Iken v Bohemian Brethren Presbyt. Church, 2018 NY Slip Op 04830, First Dept 6-28-18

FRAUD (FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT))/CONTRACT LAW (FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT))/LANDLORD-TENANT (LEASE, CONTRACT LAW, FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT))

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CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT).

The First Department determined plaintiff attorney’s contingency fee retainer violated 22 USC 1623 (f) (which prohibits contingency fees in excess of 10% in actions governed by the federal statute) and was therefore unlawful and void under federal law. The unjust enrichment theory was not available to the plaintiff on equitable and evidentiary grounds:

Plaintiff is not entitled to any compensation for services rendered under the subject contingency fee retainer. It is undisputed that the terms of the retainer violated 22 USC § 1623(f), and, thus, the retainer was “unlawful and void” under federal law. Under these circumstances, plaintiff’s argument that the void retainer allowed him to pursue a quasi-contract theory of recovery is unavailing. In light of the illegality of the retainer, the court properly found that plaintiff had “unclean hands” to foreclose any claim of unjust enrichment … . Furthermore, plaintiff failed to plead a relationship with defendant that could have caused reliance or inducement on plaintiff’s part sufficient to sustain an unjust enrichment claim … . Sorenson v Winston & Strawn, LLP, 2018 NY Slip Op 04828, First Dept 6-28-18

​ATTORNEYS (FEES, CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT))/ATTORNEY’S FEES (CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT))/CONTINGENCY FEES (ATTORNEYS, CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT))/UNJUST ENRICHMENT (ATTORNEY’S FEES, CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT))/UNCLEAN HANDS (UNJUST ENRICHMENT, CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT))/RETAINER (ATTORNEY’S FEES, CONTINGENCY FEE RETAINER VIOLATED FEDERAL LAW AND WAS VOID, UNJUST ENRICHMENT THEORY NOT AVAILABLE ON EQUITABLE AND EVIDENTIARY GROUNDS (FIRST DEPT))

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TIER 3 POLICE OFFICERS NOT ENTITLED TO SERVICE CREDIT FOR PERIODS OF UNPAID CHILD CARE LEAVE (FIRST DEPT).

The First Department, reversing Supreme Court, determined tier 3 police officers were not entitled to service credit for periods of unpaid child care leave:

In recognizing that Administrative Code § 13-107(k) did not apply to tier 3 correction officers and that RSSL [Retirement and Social Security Law] § 513 had to be amended to define a service credit for unpaid child care leave, the legislature also evinced its understanding that extending the benefit to tier 3 police officers would require another amendment to RSSL § 513. However, it declined to extend the benefit to tier 3 police officers.

In 2012, the legislature amended Administrative Code § 13-218(h), not to make the unpaid child care leave service credit benefit available to tier 3 police officers but “to make new NYC Tier 3 uniformed correction members ineligible to obtain service credit for child care leave in order to equate their benefits with Tier 3 police/fire benefits” … . This legislation is consistent with the legislative intent in the creation of tier 3, “a comprehensive retirement program designed to provid[e] uniform benefits for all public employees and eliminat[e] the costly special treatment of selected groups . . . inherent in the previous program” … . Lynch v City of New York, 2018 NY Slip Op 04826, First Dept 6-28-18

​RETIREMENT AND SOCIAL SECURITY LAW (TIER 3 POLICE OFFICERS NOT ENTITLED TO SERVICE CREDIT FOR PERIODS OF UNPAID CHILD CARE LEAVE (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, RETIREMENT AND SOCIAL SECURITY LAW, TIER 3 POLICE OFFICERS NOT ENTITLED TO SERVICE CREDIT FOR PERIODS OF UNPAID CHILD CARE LEAVE (FIRST DEPT))/[POLICE OFFICERS (RETIREMENT AND SOCIAL SECURITY LAW, TIER 3 POLICE OFFICERS NOT ENTITLED TO SERVICE CREDIT FOR PERIODS OF UNPAID CHILD CARE LEAVE (FIRST DEPT))/CHILD CARE LEAVE (POLICE OFFICERS, TIER 3 POLICE OFFICERS NOT ENTITLED TO SERVICE CREDIT FOR PERIODS OF UNPAID CHILD CARE LEAVE (FIRST DEPT))

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NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that a new provision of the Workers’ Compensation Law, which directly related to claimant police officer’s disability claim (anxiety and phobias related to the sight of blood), was intended to take effect immediately and should have been applied by the Board. The Board had denied the claim finding that the sight of blood is a usual occurrence in police work:

In September 2016, claimant applied for reconsideration and/or full Board review, which the carrier opposed. On April 10, 2017, while that application was pending, Workers’ Compensation Law § 10 (3) (b) was materially amended, effective immediately. The amendment provided that, as relevant here, “[w]here a police officer . . . files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency, the [B]oard may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” … . …

In our view, by directing that the apparent substantive change in the law was to take effect immediately, “the Legislature clearly indicated that th[is] amendment[ is] to be viewed as remedial, designed to correct imperfections in prior law, by giving relief to [an] aggrieved party”… . Moreover, as a general rule, “the law as it exists at the time a decision is rendered on appeal is controlling”… . Consequently, we find that, under these circumstances, the Board was bound to apply the law as it existed at the time it was considering and determining the reconsideration and/or review application, notwithstanding the parties’ apparent failure to make supplemental arguments in submissions to the Board addressing this change in the law. Matter of McMillan v Town of New Castle, 2018 NY Slip Op 04801, Third Dept 6-28-18

WORKERS’S COMPENSATION LAW (NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/POLICE OFFICERS (WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/BLOOD (ANXIETY RELATED TO THE SIGHT OF BLOOD, POLICE OFFICERS, WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/ANXIETY (WORKERS’ COMPENSATION LAW, ANXIETY RELATED TO THE SIGHT OF BLOOD, POLICE OFFICERS, WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))

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DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new SORA hearing, determined defendant did not have notice of or an opportunity to object to a 20 point assessment made by the judge sua sponte:

“A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . To that end, SORA requires the People to provide defendant with written notice, at least 10 days prior to the hearing, if they intend to seek a presumptive risk level classification that differs from the Board’s recommendation along with their reasons for doing so… . Similarly, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to be respond” … . People v Maus, 2018 NY Slip Op 04796, Third Dept 6-28-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))

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CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city’s motion for summary judgment in this crosswalk pedestrian accident case should have been granted. The city had assigned a school crossing guard for the crosswalk where infant plaintiff was struck by a school bus, but the guard had called in sick that day. The First Department held the plaintiffs did not demonstrate a special relationship with the city:

In order to establish that the City voluntarily assumed a duty, plaintiffs have the burden of showing: (1) an assumption by the City’s agents, through promises or action, of an affirmative duty to act on behalf of plaintiffs; (2) knowledge on the part of the City’s agents that inaction could lead to harm; (3) some form of direct contact between the City’s agents and plaintiffs; and (4) justifiable reliance by plaintiffs… . Here, the record shows that no special duty existed between the City and plaintiffs before the accident. There was no direct contact between the City’s agents and plaintiffs, and the facts that the school crossing guard greeted infant plaintiffs and the children relied upon the crossing guard’s instructions when the guard was at the intersection before the accident is insufficient to create a special duty. Ivan D. v Little Richie Bus Serv. Inc., 2018 NY Slip Op 04823, First Dept 6-28-18

​MUNICIPAL LAW (NEGLIGENCE, SPECIAL RELATIONSHIP, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/NEGLIGENCE (MUNICIPAL LAW, SPECIAL RELATIONSHIP, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PEDESTRIANS (TRAFFIC ACCIDENT, MUNICIPAL LAW, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CROSSWALKS  (TRAFFIC ACCIDENT, MUNICIPAL LAW, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, over a partial dissent, determined the injury to petitioner police officer’s hand was not caused by an “accident” within the meaning of the Retirement and Social Security Law. The injury occurred when officer was helping to lift a heavy deceased person:

With regard to accidental disability retirement benefits, “[p]etitioner bears the burden of demonstrating that his disability arose out of an accident as defined by the Retirement and Social Security Law, and respondent’s determination in that regard will be upheld if supported by substantial evidence”… . To qualify as an accident, the underlying incident “must be a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties”… . “[A]n injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury”… .

Here, petitioner responded to a call and sustained an injury to his fingers while assisting the medical examiner in carrying a large, deceased male to a transport vehicle. Petitioner acknowledged that this work was within the scope of his job duties, regardless of the heft of the body to be carried. Matter of Iovino v DiNapoli, 2018 NY Slip Op 04814, Third Dept 6-28-18

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))

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DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT).

The Third Department determined the road defect which allegedly caused plaintiff to fall off her bicycle over the handlebars was properly found to be trivial and summary judgment was properly awarded to the defendant:

Although a landowner has a duty to maintain its property in a reasonably safe condition…, trivial defects are not actionable… . “[T]here is no predetermined height differential that renders a defect trivial”… . Instead, courts must consider “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury”… . Thus, “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian” …

The record includes photographs that confirm the size and location of the defect, relative to the roadway and crosswalk, and evinces that plaintiff previously traversed this area on bicycle several times prior to the accident, without incident. The photographs also reveal that the crosswalk against which the defect is located, made of bricks and demarcated from the asphalt with a granite boarder, would be visible to a bicyclist well before his or her tires made contact with the defect… . Gami v Cornell Univ.,2018 NY Slip Op 04812, Third Dept 6-28-18

NEGLIGENCE (BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/BICYCLES (NEGLIGENCE, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/TRIVIAL DEFECT (NEGLIGENCE, BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, BICYCLE ACCIDENTS, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))

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