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IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs:

Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that performed work on the subject stairway, for the period of two years prior to the date of the subject accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of this action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents … .

However, the Supreme Court erred in directing the defendant to disclose such records for the one-year period after the date of the accident. “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case” … . “An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue” … . Here, there is no issue as to the maintenance and control of the subject stairway … . C.B. v New York City Tr. Auth., 2023 NY Slip Op 04650, Second Dept 9-20-23

Practice Point: Plaintiff in this stairway slip and fall case is entitled to discovery of pre-accident, but not post-accident, repairs.

 

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THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE GRAVES AMENDMENT; DEFENDANT LESSOR DID NOT DEMONSTRATE THE ALLEGATION THE CAR WAS NEGLIGENTLY MAINTAINED WAS “NOT A FACT AT ALL” (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s cause of action against the lessor of the car involved in the accident (Rallye) should not have been dismissed pursuant to the Graves Amendment. Defendant lessor did not demonstrate the allegation the car was negligently maintained was “not a fact at all:”

“Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” … .

In considering a motion pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Further, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it,” dismissal should not eventuate … .

Here, contrary to the defendants’ contention, an affidavit from Rallye’s employee, who averred that Rallye’s vehicle was in good working condition at the time it allegedly was rented to Orphanides [the defendant driver], did not show that the plaintiff’s allegation of negligent maintenance on the part of Rallye was not a fact at all … . Holmquist v Orphanides, 2023 NY Slip Op 04660, Second Dept 9-20-23

Practice Point: In the context of a motion to dismiss, an affidavit stating that the leased car involved in the accident was in good working order will not, pursuant to the Graves Amendment, defeat a complaint which alleges the leased car was negligently maintained  The affidavit does not establish the negligent-maintenance allegation is “not a fact at all.”

 

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DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK FOR SPOLIATION OF EVIDENCE; VIDEO OF A FEW SECONDS BEFORE AND AFTER THE FALL WAS PRESERVED, BUT THE REST OF THE VIDEO WAS OVERWRITTEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s answer in this slip and fall case should not have been struck for spoliation of evidence. Defendant preserved video of the slip and fall which happened during a school dance—a few seconds before and after the fall. But the rest of the video was overwritten 21 days after the fall as part of a routine procedure. Defendant did not have notice of a potential lawsuit at the time the video was overwritten:

“‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126′” … . “‘A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” … .

… The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten … . The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant’s normal business practices.

… [D]efendant’s preservation of only a portion of the surveillance footage does not indicate a culpable state of mind … as the defendant’s representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident consistent with ordinary business practices. The assistant principal’s affidavit was also sufficient to provide the court with a “basis to find that the search for [the surveillance footage] had been a thorough one [and] that it had been conducted in a good faith effort to provide [the surveillance footage] to the plaintiff” … . Similarly, no evidence indicates that the defendant was negligent in failing to preserve the additional surveillance footage … . Moreover, the plaintiff did not demonstrate that the defendant’s failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim … . M.B. v St. Francis Preparatory Sch., 2023 NY Slip Op 04651, Second Dept 9-20-23

Practice Point: After video of the fall and a few seconds before and after the fall was preserved by the defendant, the remainder of the video was overwritten in accordance with usual procedure. Defendant was not on notice of a potential lawsuit when the video was overwritten. In the absence of evidence of bad faith, defendant’s answer should not have been struck for spoliation of evidence.

 

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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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