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THE COURT OF CLAIMS, NOT SUPREME COURT, IS THE PROPER FORUM FOR THIS DECLARATORY JUDGMENT ACTION AGAINST THE STATE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the proper forum for the declaratory judgment cause of action against the state was the Court of Claims. The plaintiffs had filed a breach of contract action in the Court of Claims and this declaratory judgment action is incidental to the alleged breach of contract. Therefore the Court of Claims should handle it:

The Court of Claims has subject matter jurisdiction over claims for breach of contract against the State … . As long as the primary claim is for money damages, the Court of Claims “may [also] apply equitable considerations” and grant incidental equitable relief … . Here, because the relief sought in the complaint arises out of an alleged breach of contract, the proper forum for this action is the Court of Claims … . Rice v New York State Workers’ Compensation Bd., 2021 NY Slip Op 01669, Fourth Dept 3-19-21

 

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THE COURT OF CLAIMS PROPERLY DISMISSED THE CLAIM FINDING THAT CLAIMANT’S DECEDENT WOULD HAVE BEEN KILLED IN THE CAR ACCIDENT EVEN IF THE PROPER W BEAM AS OPPOSED TO THE IMPROPER BOX BEAM HAD BEEN ERECTED AS A BARRIER ACROSS THE CLOSED BRIDGE; TWO JUSTICE DISSENT ARGUED THE MAJORITY IMPROPERLY APPLIED A “BUT FOR” STANDARD OF CAUSATION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the Court of Claims properly dismissed the claim on the ground that claimant’s decedent would have been killed in the car crash even if the barrier the car struck was a proper W beam as opposed to an improper steel box beam. The beams were erected across a closed bridge and claimant’s decedent was a passenger in the convertible which struck and passed under the box beams at both ends of the bridge. The dissenters argued that, upon remittal after a reversal in the first appeal, the Court of Claims was called upon to determine if the box beam was a dangerous condition which was a proximate cause in aggravating the injuries and did not do so. The dissenters noted that claimant’s decedent’s head injuries occurred when the car passed under the second box beam and he survived for 18 hours after the accident:

… [W]e remitted the matter to the Court of Claims to determine “whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death” … . …

… [W]e conclude that a fair interpretation of the evidence supports the court’s determination that the steel box beam was not a substantial factor in aggravating decedent’s injuries and causing his death. Claimant’s witnesses testified with respect to the type of barrier that defendants were required to use to block access to the bridge, i.e., a W-beam. Claimant also presented evidence that decedent’s impact with a W-beam would have led to the same result, i.e., a fatality.

FROM THE DISSENT:

… [T]he majority improperly elected to apply a “but for” standard of causation, rather than considering whether the negligence was a proximate cause of injury. In our view, applying a “but for” causation standard “would relieve from liability a negligent actor if the same harm might have been sustained had the actor not been negligent; yet the law is clear that that fact may be considered in fixing damages but does not relieve from liability” …  . Reames v State of New York, 2021 NY Slip Op 00712, Fourth Dept 2-5-21

 

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CLAIMANT’S DECEDENT WAS KILLED IN A MULTIVEHICLE ACCIDENT IN WHITE OUT CONDITIONS ON A STATE HIGHWAY; QUESTIONS OF FACT ABOUT NOTICE OF THE RECURRING CONDITION AND PROXIMATE CAUSE (NO SNOW FENCE) WERE RAISED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this “white out” traffic accident case should not have been granted. Claimants argued the state had notice of a recurring white=out condition caused by blowing snow on a portion of a state highway. Claimant’s decedent died in a multivehicle accident in white out conditions:

… [T]he claimants raised a triable issue of fact with respect to whether defendant had actual knowledge of “an ongoing and recurring dangerous condition in the area of the accident” … . Notably, claimants submitted a Highway Safety Investigation Report that was prepared by an employee of defendant in December 2008. The report states that it was written in response to the subject accident with the purpose of “evaluat[ing] the frequency and potential for similar accidents and evaluate potential countermeasures.” The report compared the number and severity of the accidents on that portion of highway to those occurring elsewhere on I-390, and noted that, “[a]lthough the number of accidents in the study area was lower, the severity of the accidents was [greater].” The report also noted that “[s]everal factors exist which increase the degree of risk of poor visibility and drifting due to blowing snow in this section.” Such factors included the large, flat airport property next to the highway, the “abrupt, topographic change due to the proximity of the airport runway and former Pennsylvania railroad embankment,” and the section’s slight reverse curve. The data thus suggested that “snow on the road [was] an issue to be addressed in this area” and that, although the number of accidents was not extraordinarily high, “their occurrence was sufficiently sensational, disquieting to the public, and disruptive to the traveling public and [defendant] to justify making more than ordinary efforts to prevent them.” Furthermore, the deposition testimony of employees of defendant established that, for years prior to the accident, blowing and drifting snow had been an issue on that section of I-390.

We also agree with claimants that the court erred in determining that defendant established that the lack of a snow fence was not a proximate cause of the accident. Klepanchuk v State of N.Y. Dept. of Transp., 2020 NY Slip Op 07766, Fourth Dept 12-23-20

 

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CLAIMANT FELL OFF AN I-BEAM AND HIS LANYARD DID NOT PREVENT HIM FROM STRIKING THE DECK EIGHT TO TEN FEET BELOW; CLAIMANT’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing the Court of Claims, determined claimant’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. Claimant alleged he fell off an I-beam and his lanyard didn’t stop him from striking the deck eight to ten feet below:

The record establishes that the safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity” … . Specifically, the record shows that the safety cable was set up too low, resulting in claimant’s striking the deck before the lanyard could deploy … . Stigall v State of New York, 2020 NY Slip Op 07306, First Dept 12-3-20

 

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50% FAULT SHOULD NOT HAVE BEEN APPORTIONED TO PLAINTIFF IN THIS WET-FLOOR SLIP AND FALL CASE; THE WATER ON THE FLOOR WAS NOT OPEN AND OBVIOUS AND THE WARNING SIGN WAS NOT VISIBLE (FOURTH DEPT).

The Fourth Department, modifying the Court of Claims, determined there was no basis for apportioning 50% liability to the plaintiff in this wet-floor slip and fail case. The water on the floor was not open and obvious and the warning sign was not visible. Therefore plaintiff was not at fault for walking briskly, looking forward and not using the mats on the floor:

… [P]eople are “bound to see what by the proper use of [their] senses [they] might have seen” and act accordingly … . Here, however, the evidence at trial established that the wet condition of the floor was not open and obvious … and that the sign warning of a wet floor was not readily observable to claimant as he exited the elevator and proceeded, in a group, toward the front door … . As a result, there was nothing that would have alerted claimant to any danger in walking briskly, looking forward, and walking on the bare floor instead of the available mats.

… [W]e remit the matter to the Court of Claims to direct the entry of judgment in favor of claimant in accordance with the apportionment of 100% liability to defendant. Smiley v State of New York, 2020 NY Slip Op 06635, Fourth Dept 11-13-20

 

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THE STATE, AS AN OUT-OF-POSSESSION LANDLORD, FAILED TO DEMONSTRATE THE INDEPENDENT CONTRACTOR HIRED TO DO RENOVATIONS DID NOT CREATE THE DANGEROUS CONDITION WHICH INJURED CLAIMANT; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the defendant (New York State) was an out-of-possession landlord with respect to a public restroom at a state park. Plaintiff alleged a heavy trash receptacle fell from the wall. The Court of Claims had granted the state’s motion for summary judgment. But the Second Department held there was a question of fact whether the independent contractor hired by the state to renovate the restroom created the dangerous condition:

“While an out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct, liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect” … . Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the claim as alleged negligence because it failed to submit evidence showing that the independent contractor that the defendant hired to renovate the subject restroom did not cause the alleged dangerous condition  … . Cintron v State of New York, 2020 NY Slip Op 06486, Second Dept 11-12-20

 

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THE NOTICE OF INTENTION TO FILE A CLAIM DID NOT SUFFICIENTLY IDENTIFY THE LOCATION OF THE SLIP AND FALL, RENDERING THE FILING OF THE CLAIM UNTIMELY (SECOND DEPT).

The Second Department determined the Court of Claims properly dismissed the claim in this slip and fall case. The notice of intention to file a claim did not sufficiently identify the location of the slip and fall:

A claim to recover damages for personal injuries shall be filed and served upon the Attorney General within 90 days after the claim accrued, unless within 90 days, the claimant serves upon the Attorney General a written notice of intention to file a claim, in which event the claim shall be filed and served upon the Attorney General within two years after the accrual of such claim (see Court of Claims Act § 10[3] … ). The Court of Claims Act requires a claim to specify, among other things, “the time when and place where” the claim arose (Court of Claims Act § 11[b] … ). A notice of intention to file a claim must also include a statement as to when and where the claim arose … . …

… [T]he notice of intention to file a claim failed to describe the location of the alleged accident with sufficient specificity to satisfy the requirements of Court of Claims Act § 11(b) as the generalized description did not give notice as to where on the path the accident occurred … . Moreover, “‘[t]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11′” … . Further, lack of prejudice to the State is immaterial … .

As the notice of intention was deficient, it did not serve to extend the claimant’s time to file and serve a claim beyond the 90-day statutory period (see Court of Clams Act § 10[3] … ). Therefore, the claimant’s claim, which was filed approximately one year after accrual of the claim, was untimely … . Criscuola v State of New York, 2020 NY Slip Op 06241, Second Dept 11-4-20

 

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NEW YORK DOES NOT RECOGNIZE A COMMON LAW CAUSE OF ACTION FOR SEXUAL HARASSMENT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined New York does not recognize a cause of action for sexual harassment:

… New York does not recognize an independent, common-law cause of action to recover damages for sexual harassment … . Rather, allegations of sexual harassment—which typically arise in the context of an asserted violation of Title VII of the Civil Rights Law of 1964 (42 USC, ch 21, § 2000e et seq.), the New York State Human Rights Law (Executive Law § 296), and/or the New York City Human Rights Law (Administrative Code of City of NY § 8-107)—may form the basis of cognizable common-law tort theories such as, inter alia, assault and battery, negligent training and supervision, and intentional infliction of emotional distress … .

Accordingly, the Court of Claims should have granted that branch of the State’s cross motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the claim as was predicated upon a purported common-law cause of action to recover damages for sexual harassment. Budha T. v State of New York, 2020 NY Slip Op 05966, Second Dept 10-21-20

 

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THE DRIVER OF THE STATE DUMP TRUCK WHO SIDESWIPED PLAINTIFF’S MOPED IN THE BICYCLE LANE WHILE LOOKING FOR DEAD DEER DID NOT ACT RECKLESSLY WITHIN THE MEANING OF THE VEHICLE AND TRAFFIC LAW (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the driver of a Department of Transportation (DOT) dump truck did not act recklessly within the meaning of Vehicle and Traffic law 1103 [b]. The driver was traveling partially in the bicycle lane looking for dead deer and didn’t see the plaintiff on a moped in the bicycle lane:

A State vehicle “actually engaged in work on a highway” is exempt from the rules of the road and may be held liable only for damages caused by an act done in “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1103[b] … ). “Reckless disregard . . . requires more than a momentary lapse in judgment” … . In order to meet the standard required by Vehicle and Traffic Law § 1103(b), a claimant must show that “the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome”… .

… [T]he evidence was insufficient to establish that the DOT workers exhibited a “reckless disregard for the safety of others” (Vehicle & Traffic Law § 1103[b]). The claimant failed to establish that the DOT workers acted in conscious disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow … . Rascelles v State of New York, 2020 NY Slip Op 05788, Second Dept 10-14-20

 

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CLAIMANTS’ MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED PRIMARILY BECAUSE THE MEDICAL RECORDS PROVIDED THE STATE WITH TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ motion for leave to file a late notice of claim pursuant to Court of Claims Act 10(6) in this medical malpractice action should have been granted, primarily because the state had timely knowledge of the nature of the claim and was not prejudiced by the 14 week delay:

… [T]he claimants demonstrated that the State had timely notice of the essential facts constituting the claim, inter alia, to recover damages for personal injuries arising from the alleged malpractice, by virtue of the medical records from Southampton Hospital as well as the medical records from Stony Brook University Hospital (hereinafter University Hospital), also owned by the State, to which the claimants’ infant son was transferred and where he later died … . The medical records evidence the medical care received by the claimant and the infant. The records show that during the claimant’s labor, no sonogram of the fetus was taken to determine the fetus’ head size. The records also show that, after approximately nine hours of unsuccessful labor at Southampton Hospital, which included the administration of pitocin, a birth-facilitating drug, and an epidural, the claimant was counseled about using forceps to deliver the fetus. After the claimant agreed to try a forceps-assisted delivery and declined to consent to an episiotomy, the infant was delivered via forceps-assistance and was diagnosed immediately with a hemorrhage below his scalp as a result of “birth trauma.” Thereafter, the infant was transferred to University Hospital, where he died a week later. The autopsy report in University Hospital’s medical records indicates that the infant suffered, inter alia, an injury during the forceps-assisted delivery which separated the infant’s brain stem from his upper cervical spinal cord region, and the infant’s overly large head was noted to be a factor in this injury. Although the treating physician noted in his report—which was created after the delivery—that the claimant did not want a cesarean section, the claimant’s medical record contains a form signed by the claimant on admission consenting to a cesarean section. There is no documentation in the record to show that the claimant was advised that a cesarean section should be performed. In addition, the claimant’s medical records, postdelivery, demonstrate that she experienced perineal lacerations and vaginal tears, which were deep and penetrated the perirectal tissue, as a result of the delivery. Stirnweiss v State of New York, 2020 NY Slip Op 04986, Second Dept 9-16-20

 

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