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ALTHOUGH NO ESPINAL FACTORS WERE ALLEGED BY PLAINTIFF IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER DEFENDANT’S ORAL CONTRACT WITH THE PROPERTY OWNER TO REMOVE ICE AND SNOW ENTIRELY REPLACED THE PROPERTY OWNER’S DUTY, AND WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF A RECURRENT ICY CONDITION, PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The plaintiff leased the ground floor apartment and defendant, the plaintiff’s mother, leased the second floor apartment. Plaintiff slipped and fell on ice on the exterior front steps of the two-family house. Defendant demonstrated she had a contractual arrangement with the property owner to remove ice and snow and, because plaintiff was not a party to the agreement, no duty of care was owed plaintiff (no Espinal factors were alleged by the plaintiff). But defendant raised questions of fact in opposition:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, the Court of Appeals has recognized three exceptions to the general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Here, the defendant established … entitlement to judgment as a matter of law by demonstrating that she did not owe a duty of care to the plaintiff, since the plaintiff was not a party to the oral agreement between the defendant and the property owner … . Since the plaintiff did not allege facts in her pleadings that would establish the possible applicability of any of the Espinal exceptions, the defendant … was not required to affirmatively establish that these exceptions did not apply

However, in opposition … , the plaintiff raised a triable issue of fact as to whether … .  defendant’s oral agreement with the property owner regarding maintenance was comprehensive and exclusive so as to entirely displace the property owner’s duty to maintain … the exterior front steps and the gutter … . Additionally, the plaintiff raised a triable issue of fact as to whether the defendant had actual notice of an alleged recurrent dangerous condition regarding ice formation on the steps due to the leaky gutter, and was thus chargeable with constructive notice of each specific occurrence of the condition … .  Sampaiolopes v Lopes, 2019 NY Slip Op 03835, Second Dept 6-15-19

 

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SUMMARY JUDGMENT IS NOT APPROPRIATE IN A MEDICAL MALPRACTICE ACTION WHERE THERE ARE CONFLICTING MEDICAL EXPERT OPINIONS ABOUT A DEPARTURE FROM ACCEPTED STANDARDS OF CARE, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined plaintiff’s expert affidavit raised questions of fact about whether defendant’s treatment of plaintiff’s decedent departed from accepted standards of practice. Granting summary judgment to defendants is not appropriate where there are conflicting medical expert opinions:

… [V]ascular surgeon Jon Kirwin from Kings County Hospital surgically created an arteriovenous fistula (hereinafter AVF) in the decedent’s upper left arm as an access site for dialysis treatments. … [D]uring one of the decedent’s scheduled dialysis visits … , a nurse examined the decedent and, believing that the AVF was infected, conferred with … [the] attending nephrologist, who directed that the decedent be transferred to Kings County Hospital’s emergency room for evaluation. The decedent presented to Kings County Hospital where he was evaluated by Kirwin, who cleared him for dialysis. The decedent underwent dialysis at Kings County Hospital without incident that day, and two days later reported to Utica for his scheduled dialysis treatment. The decedent underwent dialysis at Utica on August 27, 2010, and August 30, 2010, without incident. On August 31, 2010, the decedent was found unconscious at home and died on the way to the hospital. The cause of death was a rupture of the AVF. * * *

… [I]n support of their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them, the moving defendants submitted expert affirmations that established, prima facie, that none of them departed from good and accepted standards of medical practice in their treatment of the decedent and that no alleged departure was the proximate cause of the plaintiff’s injuries … . However, in opposition, the plaintiff raised triable issues of fact through her expert affirmations as to whether the defendants departed from accepted standards of practice by continuing with dialysis on an AVF that presented with infection and aneurysmal dilatation and whether the continued dialysis caused the AVF to rupture. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury” … . Hutchinson v New York City Health & Hosps. Corp., 2019 NY Slip Op 03775, Second Dept 5-15-19

 

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GRANDMOTHER WAS IN THE ZONE OF DANGER WHEN PIECES OF THE FACADE OF A BUILDING FELL AND KILLED HER TWO-YEAR-OLD GRANDCHILD, BECAUSE GRANDMOTHER IS NOT ‘IMMEDIATE FAMILY’ SHE CANNOT RECOVER UNDER A NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS THEORY, THE MOTION TO AMEND THE COMPLAINT TO ADD THAT THEORY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined the grandmother of a two-year-old child who witnessed the child’s death was not a member of the child’s “immediate family” and therefore could not recover for negligent infliction of emotional distress, despite the grandmother’s being in the zone of danger when the child was struck by falling pieces of a building-facade. The motion to amend the complaint to add the negligent infliction of emotional distress cause of action should not have been granted:

… [I]n Trombetta v Conkling (82 NY2d 549, 551), the Court of Appeals held that a niece could not recover damages for negligent infliction of emotional distress for witnessing the death of her aunt, despite the fact that the niece’s mother had died when the niece was 11 years old, and the aunt had allegedly been the maternal figure in the niece’s life. At the time of the accident, the plaintiff was 37 years old and her aunt was 59 years old (see id. at 551). In rendering its determination, the Court of Appeals stated: “On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond” (id. at 553).

In Jun Chi Guan v Tuscan Dairy Farms (24 AD3d 725), this Court held that the relationship of grandparent and grandchild does not constitute “immediate family” so as to permit recovery for negligent infliction of emotional distress. In Jun Chi Guan, the plaintiff grandmother was pushing her infant grandson in a stroller, when a truck owned and operated by the defendants struck the stroller, killing the infant (see id. at 725). This Court rejected the grandmother’s argument that she should be considered immediate family because she was the family member who spent the most time with the infant during his waking hours (see id. at 726). Further, this Court held that “it is not appropriate for this Court to expand the class [of persons constituting immediate family] absent further direction from the Court of Appeals or the New York State Legislature” (id.). Greene v Esplanade Venture Partnership, 2019 NY Slip Op 03771, Second Dept 5-15-19

 

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OHIO FIREARMS DEALER DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK SUFFICIENT FOR THE EXERCISE OF LONG-ARM JURISDICTION OVER HIM, A GUN PURCHASED IN OHIO BY AN OHIO RESIDENT WAS SOLD ON THE BLACK MARKET IN NEW YORK AND WAS USED IN NEW YORK TO SHOOT PLAINTIFF (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a three-judge dissenting opinion, determined that an Ohio firearms dealer (Brown) did not have “minimum contacts” with New York sufficient for the exercise of long-arm jurisdiction (CPLR 302) over him. A gun sold by Brown to Bostic, an Ohio resident, in Ohio, was sold on the black market to a member of a gang in Buffalo, New York, who shot plaintiff:

Defendant Charles Brown, a federal firearm licensee, was authorized to sell handguns only in Ohio and only to Ohio residents, which he primarily accomplished through retail sales at gun shows held in various locations in Ohio. Brown did not maintain a website, had no retail store or business telephone listing, and did no advertising of any kind, except by posting a sign at his booth when participating in a gun show. In a series of transactions in 2000, Brown sold handguns to James Nigel Bostic and his associates. Prior to the transaction involving the gun at issue here, Brown consulted with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to ensure its legality. For each transaction, the necessary forms required by the ATF were properly completed and submitted, the purchaser passed the required Federal Bureau of Investigation (FBI) background check before the firearms were transferred, Brown verified that the purchaser had government-issued identification demonstrating Ohio residency, and notification of the purchases was timely sent to local law enforcement and the ATF as required by the federal Gun Control Act (see 18 USC § 922). During the transactions, Bostic indicated he was in the process of becoming a federal firearms licensee and was acquiring inventory for the eventual opening of a gun shop. * * *

… “[A] non-domiciliary tortfeasor has minimum contacts with the forum State . . . if it purposefully avails itself of the privilege of conducting activities within the forum State” …,”thus invoking the benefits and protections of [the forum state’s] laws”… . This test envisions something more than the “fortuitous circumstance” that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of defendant … . Put another way, “the mere likelihood that a product will find its way into the forum” cannot establish the requisite connection between defendant and the forum “such that [defendant] should reasonably anticipate being haled into court there” … .

The constitutional inquiry “focuses on the relationship among the defendant, the forum, and the litigation'” … . Significantly, “it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction” … . Williams v Beemiller, Inc., 2019 NY Slip Op 03656, CtApp 5-9-19

 

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NEW TRIAL ORDERED BECAUSE THE INCONSISTENCY IN THE VERDICT SHEET COULD NOT BE REMEDIED AFTER THE JURY WAS DISCHARGED, THE JURY HAD AWARDED PLAINTIFF-STUDENT $1 MILLION IN A SUIT AGAINST A SCHOOL DISTRICT STEMMING FROM BULLYING BY OTHER STUDENTS (THIRD DEPT).

The Third Department determined a new trial was necessary because of an inconsistency in the jury’s answers on the verdict sheet. The trial court attempted to cure the inconsistency after the jury was discharged by speaking with the jury foreman, who was still in the courthouse when the problem was noticed. The jury had awarded plaintiff-student $1 million in a negligent supervision suit against a school district stemming from bullying by other students:

The taking of this verdict was fatally flawed. Pursuant to CPLR 4111 (c), when the answers on a verdict sheet “are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial” … . The jury’s consideration of question No. 5 was inconsistent with its answer to question No. 4 and should have been brought to the jury’s attention with a curative charge, followed by a return to deliberations to resolve the inconsistency … . However, because the jury had already been discharged, this was not possible and Supreme Court’s consultation with the jury foreperson alone, although done in open court, could not take the place of full jury reconsideration … . In essence, the window of opportunity for Supreme Court to fix the problem closed when the other jurors left the courthouse. Supreme Court’s subsequent efforts, while well intentioned, were futile and, given this timeline, our only course of action is to order a new trial … . Motta v Eldred Cent. Sch. Dist., 2019 NY Slip Op 03714, Third Dept 5-9-19

 

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SUPREME COURT DID NOT HAVE THE AUTHORITY TO DISMISS THIS FORECLOSURE ACTION PURSUANT TO CPLR 3216 OR CPLR 3215 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the foreclosure action should not have been dismissed pursuant to CPLR 3216 or 3215 because the statutory criteria were not met. Issue had not been joined so dismissal pursuant to CPLR 3216 was not permitted. And plaintiff had not abandoned the action pursuant to CPLR 3215:

We agree with the plaintiff’s contention that the Supreme Court was without authority to direct dismissal of this action pursuant to CPLR 3216. CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. Indeed, “[a] court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined.

We also agree with the plaintiff’s contention that the Supreme Court had no authority to direct dismissal of this action under CPLR 3215(c). “An action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter” (…see CPLR 3215[c]). It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) … . Nor is a plaintiff required to specifically seek the entry of a judgment within a year … . As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c) … .

Here, the plaintiff commenced the action on April 16, 2009. The Supreme Court granted the plaintiff’s motion for an order of reference only five months later, on September 14, 2009—well within one year of the commencement of the action. Although the plaintiff later withdrew its motion for a judgment of foreclosure and sale, in doing so, it stated that it “will not be discontinuing [this] action.” Thus, the plaintiff explicitly informed the court that it was not abandoning the action … . National City Mtge. Co. v Sclavos, 2019 NY Slip Op 03605, Second Dept 5-8-19

 

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SURVIVING PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION DID NOT TIMELY MOVE TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEDENT PURSUANT TO CPLR 1021, ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined the medical malpractice action brought on behalf of a deceased plaintiff by the surviving plaintiff was properly dismissed for failure to timely substitute a representative for the decedent pursuant to CPLR 1021:

“A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction” over a deceased party’s successors in interest, and such motion “is not a mere technicality” … . CPLR 1021 provides, in pertinent part, “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” “The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit” … .

Here, the record does not support a finding that the surviving plaintiff diligently sought to substitute a representative for the decedent. The proffered explanation for the surviving plaintiff’s delay in obtaining letters of administration was unsubstantiated and insufficient to constitute a reasonable excuse. Moreover, the surviving plaintiff failed to submit an affidavit of merit by a medical expert and did not rebut the defendants’ allegations that they had been prejudiced by the delay in substitution. Contrary to the surviving plaintiff’s contention, the underlying pleadings and verified bill of particulars, standing alone, do not establish the potential merit of the medical malpractice action. Green v Maimonides Med. Ctr., 2019 NY Slip Op 03573, Second Dept 5-8-19

 

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WAIVER OF DECLARATORY JUDGMENT ACTIONS TO RESOLVE DISPUTES ARISING FROM A LEASE WAS NOT AGAINST PUBLIC POLICY AND WAS ENFORCEABLE, THE COMMERCIAL LEASE WAS NEGOTIATED BY SOPHISTICATED, COUNSELED PARTIES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissenting opinion, determined that the clause in a commercial lease which waived any action for a declaratory judgment concerning lease provisions, and required all disputes to be adjudicated in summary proceedings, was not against public policy and was therefore enforceable:

… [T]he declaratory judgment waiver is clear and unambiguous, was adopted by sophisticated parties negotiating at arm’s length, and does not violate the type of public policy interest that would outweigh the strong public policy in favor of freedom of contract. … [t]here is simply nothing in our contemporary statutory, constitutional, or decisional law indicating that the interest in access to declaratory judgment actions or, more generally, to a full suite of litigation options without limitation, is so weighty and fundamental that it cannot be waived by sophisticated, counseled parties in a commercial lease. CPLR 3001 enables Supreme Court to grant declaratory judgments in the context of justiciable controversies but in no way indicates that sophisticated parties may not voluntarily waive the right to seek such relief. A declaratory judgment is a useful tool for providing clarity as to parties’ obligations and may, in some circumstances, enable parties to perform under a contract they might otherwise have breached. Access to declaratory relief benefits the parties as well as society in quieting disputes. However, a declaratory judgment is merely one form of relief available to litigants in enforcing a contract. In codifying the right to seek declaratory relief, the Legislature neither expressly nor impliedly made access to such a claim nonwaivable with respect to any party, much less sophisticated commercial tenants.  159 MP Corp. v Redbridge Bedford, LLC2019 NY Slip Op 03526, CtApp 5-7-19

 

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THE HOSPITAL DEFENDANT WAS PROPERLY PRECLUDED FROM PRESENTING THE CPLR ARTICLE 16 DEFENSE AFTER THE OTHER POTENTIALLY LIABLE DEFENDANTS HAD BEEN SEVERED FROM THE ACTION AT THE HOSPITAL DEFENDANT’S REQUEST, AND AFTER THE HOSPITAL DEFENDANT HAD REPRESENTED TO THE COURT THE OTHER POTENTIALLY LIABLE DEFENDANTS WOULD NOT BE PART OF THE TRIAL, TWO JUSTICE DISSENT, THE HOSPITAL DEFENDANT’S REQUEST FOR THE ERROR IN JUDGMENT JURY INSTRUCTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant hospital was properly precluded from presenting a CPLR article 16 defense (pursuant to the defense, a party deemed 50% liable or less pays only that portion of the damages) in this medical malpractice action. Plaintiff’s decedent was first treated at defendant hospital and then at defendant rehabilitation facilities (the Elderwoods). When plaintiff’s decedent was treated at the hospital she was given a high dosage of medication, Simvastatin, and that high dosage was continued at the Elderwoods. The dosage was four times higher than plaintiff’s decedent’s usual dosage. The high dosage caused plaintiff’s decedent’s extreme suffering and death. Earlier in the litigation, the Elderwoods moved for severance, the defendant opposed and the motion was denied. As the trial approached defendant moved to sever the Elderwoods, and represented to the court that the Elderwoods involvment would not be “a topic in the main action.” Then, at the trial, after plaintiff rested, defendant gave notice that it would present evidence of the Elderwoods’ negligence and asked to have them included on the verdict sheet pursuant to CPLR article 16. Noting that the plaintiff was not able to address the article 16 defense during the jury selection and trial, the Fourth Department held that the defendant was properly precluded from presenting the defense. The court also held that defendant’s request for an error in judgment jury instruction was properly denied:

We agree with defendant that the fact that the third-party action was severed does not extinguish a defendant’s article 16 defense. But, in this case, defendant represented before the trial started that the topic of care at the Elderwoods would not be discussed. If defendant had not made this representation, then plaintiff could have preempted or otherwise addressed this anticipated defense through opening statements and plaintiff’s own lay and expert witnesses in plaintiff’s case in chief, and thus could have suggested that the Elderwoods were not negligent before resting. As plaintiff’s counsel asserts, he could have examined his witnesses at trial differently had he known that the topic of the Elderwoods’ care, and thus the CPLR article 16 defense, was still on the table. …

It is well settled that “a doctor may be liable only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” . An “error in judgment” charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … .

This case does not fall within that narrow category … . There was simply no evidence that there was any judgment made by hospital personnel to administer 80 mg/daily of Simvastatin to decedent. Mancuso v Health, 2019 NY Slip Op 03520, Fourth Dept 5-3-19

 

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BY JOINING IN A PRE-ANSWER MOTION TO DISMISS DEFENDANT EXTENDED ITS TIME TO ANSWER UNTIL TEN DAYS AFTER NOTICE OF ENTRY OF THE ORDER DECIDING THE MOTION TO DISMISS, SINCE DEFENDANT WAS NOT IN DEFAULT, IT COULD APPEAL THE ORDER FINDING IT IN DEFAULT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not default. Defendant (Advisors) had joined in a pre-answer motion to dismiss, which extended the time for serving an answer until ten days after notice of entry of the order deciding the motion to dismiss. Because defendant was not in default, it could appeal:

Defendant’s time to answer the complaint was extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants, pursuant to CPLR 3211(f) (see also CPLR 320[a]; 3012[a], [c]). Generally, a CPLR 3211(a) motion to dismiss made against any part of a pleading extends the time to serve a responsive pleading to all of it … . Here, Advisors did not default, but appeared by joining in defendants’ motion to dismiss the causes of action asserted against the individual named defendants, thereby extending its time to answer the complaint … . Thus, Advisors had ten days from service upon it of notice of entry of the order deciding the partial motion to dismiss, to answer the causes of action against it, pursuant to CPLR 3211(f).

Defendant’s appeal from the order granting the default motion was proper, as it appeared and contested the application for entry of a default order below … . Accordingly, CPLR 5511, which generally prohibits an appeal from an order or judgment entered upon default, is inapplicable … . Levine v Singal, 2019 NY Slip Op 03438, First Dept 5-2-19

 

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