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CONFLICTING EVIDENCE ABOUT WHETHER DEFENDANT WAS MADE AWARE OF THE DANGEROUS CONDITION PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education (DOE) did not demonstrate a lack of constructive knowledge of the condition of a cart used by plaintiff teacher to move materials out of a classroom. The cart stopped suddenly and the plaintiff’s foot was injured. There was conflicting evidence about whether plaintiff and others had made the DOE aware of the defective condition of the cart:

… [T]he defendants failed to establish, prima facie, that the DOE did not have constructive notice of the allegedly dangerous condition of the cart that caused the plaintiff’s injuries. In support of their motion, the defendants submitted, among other things, a transcript of the plaintiff’s deposition testimony. At her deposition, the plaintiff testified that in September 2015, approximately five months before she was injured, she complained about the condition of the cart to the school principal. The plaintiff further testified that in January 2016, approximately one month before the accident, her supervisor, an assistant principal at the school, observed the plaintiff “struggling” to use the cart, which “wasn’t working properly.” According to the plaintiff, her supervisor advised that she would speak with the principal about the issue. The DOE also submitted a transcript of the deposition testimony of the plaintiff’s supervisor, who testified that prior to the accident, she did not recall the plaintiff making any complaints specifically about the condition of the cart. This conflicting testimony raised triable issues of fact as to credibility and whether the DOE had constructive notice of the allegedly dangerous condition of the cart … . Rossi v City of New York, 2023 NY Slip Op 04607, Second Dept 9-13-23

Practice Point: Plaintiff, a teacher, alleged she was injured when a cart used to move materials stopped suddenly. There was conflicting evidence whether defendant had been made aware of the defective condition of the cart. Therefore defendant was not entitled to summary judgment.

 

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​DEFENDANTS IN THIS TRAFFIC ACCIDENT CASE WERE ENTITLED TO DISCOVERY OF GEOGRAPHICAL DATA (SPEED, LOCATION) RECORDED ON PLAINTIFF’S CELL PHONE DURING A THREE-HOUR PERIOD LEADING UP TO THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, modifying Supreme Court in this traffic accident case, determined the defendants’ motion to inspect and collect geographical data recorded on plaintiff’s cell phone leading up to the time of the accident was properly granted but should have been limited to a specific time (1 to 4 pm):

… [T]he defendants’ motion papers sufficiently demonstrated that the production of the plaintiff’s cell phone for the inspection and collection of geographical data recorded on the device on the date of the accident may result in the disclosure of relevant evidence and was reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claim … . The affidavit of the defendants’ forensic expert demonstrated, among other things, that the plaintiff’s cell phone would have recorded data regarding the plaintiff’s speed and location before and at the time of the accident, which, under the particular circumstances presented, was relevant to the plaintiff’s contention that the defendant driver was negligent in the operation of his vehicle … .

The Supreme Court, however, improvidently exercised its discretion in failing to limit the defendants’ inspection and collection of geographical data recorded on the plaintiff’s cell phone on the date of the accident. Under the circumstances, the defendants’ inspection and collection of geographical data from the plaintiff’s cell phone shall be limited to such data recorded between 1:00 p.m. and 4:00 p.m. on the date of the accident … .  Pulgarin v Richmond, 2023 NY Slip Op 04605, Second Dept 9-13-23

Practice Point: Apparently a cell phone in a car records speed and location data which is discoverable in a traffic accident case.

 

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THE LETTER OF INTENT WAS NOT A BINDING REAL ESTATE CONTRACT; THE MOTION TO DISMISS THE BREACH OF CONTRACT, BASED ON “DOCUMENTARY EVIDENCE,” SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letter of intent was a non-binding agreement-to-agree, not a contract for the sale of real property. The letter of intent constituted “documentary evidence” which warranted dismissal of the breach of contract action:

… [T]he defendant submitted the letter of intent which conclusively established that the parties did not enter into a binding contract, but instead had a mere agreement to agree … . The letter of intent expressly stated that the letter was not contractually binding and expressly anticipated the future preparation and execution of a contract. Accordingly, the Supreme Court should have granted dismissal of so much of the complaint as was predicated upon allegations of breach of contract pursuant to CPLR 3211(a)(1). Krasnow v Catania, 2023 NY Slip Op 04584, Second Dept 9-13-23

Practice Point: This is a rare example of a successful motion to dismiss based on documentary evidence. The letter of intent was, by its terms, not a binding contract. Therefore the breach of contract action, based upon the letter of intent, should have been dismissed.

 

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THE RULES OF THE ROAD APPLY TO BICYCLISTS; HERE THE BICYCLIST DARTED OUT INTO TRAFFIC FROM IN FRONT OF A PARKED VAN; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the rules of the road apply to bicyclists who suddenly dart out into traffic from in front of a parked car. Defendants’ motion for summary judgment should have been granted:

Vehicle and Traffic Law § 1143 provides that a driver entering or crossing a roadway “from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Vehicle and Traffic Law § 1231 provides that every person riding a bicycle upon a roadway “shall be subject to all of the duties applicable to the driver of a vehicle by this title.”

… [T]he defendants established … that the infant plaintiff negligently entered the roadway mid-block from in front of a parked van without yielding the right-of-way to the defendants’ vehicle, and that such negligence was the sole proximate cause of the accident. The evidence submitted in support of the motion, which included, inter alia, transcripts of the deposition testimony of the infant plaintiff, the defendant driver, and a nonparty witness, demonstrated that the defendant driver was traveling only 15 to 20 miles per hour, and had, at most, two seconds to react before the infant plaintiff’s bicycle struck the passenger side of the vehicle. Thus, the defendants demonstrated that the defendant driver was not negligent for failing to avoid colliding with the infant plaintiff … .  A. B. v Waring, 2023 NY Slip Op 04565, Second Dept 9-13-23

Practice Point: Vehicle and Traffic Law section 1231 applies all the duties of a vehicle-driver to bicyclists. Here the bicyclist violated the Vehicle and Traffic Law by suddenly entering the lane of traffic from in front of a parked van. The defendant driver was not negligent.

 

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IN THIS CONSTRUCTION ACCIDENT CASE, DEFENDANTS WERE ENTITLED TO COMPEL PLAINTIFF TO ANSWER DEPOSITION QUESTIONS ABOUT HIS DRUG AND ALCOHOL USE; THE INFORMATION MAY BE RELEVANT TO LIFE AND/OR WORK-LIFE EXPECTANCY (SECOND DEPT). ​

The Second Department, in this construction accident case, determined defendant’s were entitled to compel plaintiff to answer deposition questions about his alcohol and drug use:

“Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue” … .

Here, the plaintiff asserted … damages claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based upon certain work-life and life expectancy ages. These claims affirmatively placed at issue the plaintiff’s health and ability to work, and the plaintiff’s work-life expectancy … . In making life expectancy determinations in the course of awarding damages for future lost earnings, juries are permitted to make life expectancy determinations based upon statistical life expectancy tables, together with their own experience and the evidence they have heard in determining what the plaintiff’s life and/or work-life expectancy is, based upon the plaintiff’s health, life habits, employment, and activities … . Hogdahl v LCOR 55 Bank St., LLC, 2023 NY Slip Op 04582, Second Dept 9-13-23

Practice Point: In a personal injury case, evidence of plaintiff’s drug and alcohol use may be relevant to life and work-life expectancy (damages).

 

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THE COMPLAINT ADEQUATELY ALLEGED THE COUNTY’S NEGLIGENT SUPERVISION OF PLAINTIFF WHILE SHE WAS IN FOSTER CARE; THE QUALIFIED IMMUNITY PURSUANT TO SOCIAL SERVICES LAW 419 IS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint adequately alleged the defendant county knew or should have known of plaintiff’s foster father’s propensity to commit child abuse. The qualified immunity pursuant to Social Services Law 419 does not apply to negligent supervision of children in foster care:

“[C]ounties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … .

Here, the complaint, which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable care should have known of the foster father’s propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated … . Moreover, the complaint sufficiently alleged that the County was negligent in failing to ensure that proper safeguards were in place so as to ensure the safety of the plaintiff in the foster home … .

… [T]he County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care … . Grabowski v Orange County, 2023 NY Slip Op 04580, Second Dept 9-13-23

Practice Point: In this Child Victim’s Act case, the complaint adequately alleged the county knew or should have known of her foster father’s propensity to commit child abuse. The qualified immunity in Social Services Law 419 does not apply to negligent supervision of children in foster care.

 

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AN ELEVATED BOARDWALK WITH NO GUARDRAILS WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE VILLAGE WAS NOT LIABLE FOR PLAINTIFF BICYCLIST’S RIDING OFF THE BOARDWALK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village was not liable for plaintiff’s riding her bike off an elevated boardwalk. The condition (the elevated boardwalk) was deemed “open and obvious;”

A landowner has a duty to maintain its premises in a reasonably safe manner … . However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . “[T]o obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous” … .

Here, the evidence submitted by the Village in support of its motion, including a transcript of the plaintiff’s deposition testimony and photographs of the accident site, demonstrated, prima facie, that the condition of the elevated boardwalk was both open and obvious, and not inherently dangerous. The plaintiff’s testimony established, inter alia, that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk without incident shortly prior to her accident … . Ferruzzi v Village of Saltaire, 2023 NY Slip Op 04578, Second Dept 9-13-23

Practice Point: Here the plaintiff, after riding her bike on an elevated boardwalk (no guardrails) for a while, rode off the boardwalk and was injured. The elevated boardwalk was deemed open and obvious and not inherently dangerous.

 

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DEFENDANT’S UNSAFE LANE-CHANGE, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, WARRANTED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff alleged defendant (Roman) suddenly attempted to change lanes in violation of the Vehicle and Traffic Law and struck plaintiff’s car. Defendant’s claim that he glanced quickly to the left as plaintiff was attempting to pass him did not raise a question of fact:

… [T]he plaintiff submitted a transcript of his testimony at a hearing pursuant to General Municipal Law § 50-h wherein he testified that while the vehicle that Roman was operating was traveling in the far right lane of a three-lane highway, Roman swerved into the vehicle the plaintiff was operating, which was traveling in the far left lane. This testimony established, prima facie, that Roman changed lanes before ascertaining that such movement could be made safely in violation of Vehicle and Traffic Law § 1128(a) … .

… Roman’s affidavit, wherein he stated that he quickly steered into the left lane after “glanc[ing]” to his left, when the vehicle operated by the plaintiff “apparently attempted to pass [him] quickly on the driver’s side,” did not establish a nonnegligent excuse for the happening of the accident … . Moreover, the defendants failed to demonstrate that the emergency doctrine was applicable … . Elfe v Roman, 2023 NY Slip Op 04575, Second Dept 9-13-23

Practice Point: The evidence that defendant struck plaintiff’s car making an unsafe lane change in violation of the Vehicle and Traffic Law (negligence per se) entitled plaintiff to summary judgment.

 

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FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (DMV) DOES NOT, STANDING ALONE, ESTOP THE DEFENDANT FROM CONTESTING SERVICE OF PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Warhit, reversing Supreme Court, after reviewing the caselaw in the state, determined the defendant was not estopped from contesting service of process based solely on his failure to update his address with the Department of Motor Vehicles (DMV) as required by Vehicle and Traffic Law 505 (5). Although the failure to update the address is a factor in determining whether estoppel applies, it cannot be the sole basis for estoppel. Here the defendant presented detailed evidence demonstrating that he no longer lived at the address on file with the DMV and there was no evidence he was deliberately evading service. Therefore a hearing on whether defendant was properly served was required:

The principal question presented on this appeal is whether an individual defendant’s failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative. … [W]e hold that, while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one’s address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine. Castillo-Florez v Charlecius, 2023 NY Slip Op 04570, Second Dept 9-13-23

Practice Point: Although the failure to update one’s address on file with the DMV can be a factor in determining whether a defendant should be estopped from contesting service of process, it cannot be the sole reason for applying the estoppel doctrine. There must be other evidence of a deliberate effort to evade service.

 

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A 911 CALLER WHO PROVIDES ONLY HIS FIRST NAME IS AN ANONYMOUS INFORMANT AND PROVIDES THE POLICE WITH ONLY THE COMMON-LAW RIGHT TO INQUIRE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the 911 call was from an anonymous informant, even though the caller provided his first name. Because the informant was anonymous, the information about a black man in an orange jacket carrying a handgun gave rise only to the common-law right to inquire. One of the officer’s approached with his gun drawn and the defendant ran, discarding the jacket and handgun:

As a preliminary matter, we conclude that the 911 caller, who identified himself only by a first name, was anonymous inasmuch as he provided no other information from which the police could identify or locate him , and he was not present at the scene when the police arrived  Indeed, it is not clear from the record that the name by which the caller identified himself was the caller’s real first name. Under the circumstances, we analyze the propriety of the police conduct under the law applicable to tips from anonymous informants. * * *

… [T]he anonymous tip was simply that of a man with a gun at a particular location. It follows that the officer’s gunpoint stop of defendant was unlawful, as was the officers’ subsequent pursuit of defendant after he took flight. People v Johnson, 2023 NY Slip Op 04493, Fourth Dept 9-8-23

Practice Point: A 911 caller who only provides his first name is an anonymous informant. Any information provided by the caller triggers only a police officer’s common-law right to inquire. Here the officer approached with his gun drawn. The gun discarded when the defendant ran should have been suppressed.

 

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