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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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THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the SORA court should not have reopened the SORA risk-level hearing to amend its prior risk-level ruling. The criteria for a motion to renew were not met and the other justifications for re-opening the hearing were not applicable:

… [T]here are three ways in which a court could amend its SORA determination…. First, a party may move for leave to renew. A court may grant a motion for leave to renew only where (1) the motion alleges new facts and (2) the movant provides reasonable justification for not offering those facts in the original proceedings (CPLR 2221[e][2], [3]; …). The court has discretion to determine what constitutes a reasonable justification … and to relax the requirements of CPLR 2221(e) in the interest of justice … . * * *

Second, a court has an inherent authority to reopen a hearing “to correct its own order to rectify a mistake of law or fact” on a SORA decision … . This inherent authority stems from the “overriding purposes and objectives of SORA” to, inter alia, “protect [] vulnerable populations and . . . the public from potential harm” …. .

Here, the motion court could not have acted based on its inherent authority because the motion court did not make a mistake in its initial decision … . * * *

Third, a new hearing can be ordered to give the People an opportunity to make an application for an upward modification where the People refrained from making that argument when the motion court assessed points which resulted in the defendant being assigned presumptively to the level sought by the People … . * * *

Here, the motion court properly gave the People time to respond to defendant’s assertions and the People chose to introduce the new materials only belatedly.  People v Adams, 2023 NY Slip Op 04490, First Dept 9-7-23

Practice Point: The three ways a SORA motion court can amend a risk-level determination are described in detail. None were applicable here.

 

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THE EXPERT AFFIDAVITS SUBMITTED BY DEFENDANT HOSPITAL IN THIS MEDICAL MALPPRACTICE ACTION WERE CONCLUSORY AND DID NOT ADDRESS ALL OF PLAINTIFF’S ALLEGATIONS; THEREFORE SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court in this medical malpractice action, determined the expert affidavits were conclusory and did not address all the allegations made by plaintiff. Therefore defendant’s (St. Luke’s) motion for summary judgment should not have been granted:

The expert nurse and expert neurologist on whose affidavits St. Luke’s relied merely averred in a conclusory manner that the decedent could not have been monitored in a way to prevent her fall, that St. Luke’s implemented every appropriate fall risk procedure before the decedent’s fall, and that the decedent’s fall and the resulting subdural hematoma were not substantial factors in causing the decedent’s death … . The expert nurse also did not submit the fall risk assessment or hospital fall prevention policy in accordance with which, she claimed, the decedent was monitored … . Because St. Luke’s did not carry its prima facie burden on its motion, Supreme Court should have denied defendant’s motion with respect to those predicates, regardless of the sufficiency of the moving papers … .

As for the remaining predicates for plaintiffs’ medical malpractice claim, St. Luke’s did not address them in its moving papers, nor did its experts address them in their affidavits. Accordingly, St. Luke’s did not establish its prima facie entitlement to summary judgment dismissing them … . Martir v St. Luke’s-Roosevelt Hosp. Ctr., 2023 NY Slip Op 04478, First Dept 8-31-23

Practice Point: To warrant summary judgment in a medical malpractice action, the expert affidavits cannot be conclusory and must address all of the relevant allegations.

 

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THE PRE-ANSWER MOTION TO DISMISS SHOULD NOT HAVE BEEN CONVERTED TO A SUMMARY JUDGMENT MOTION; THE AFFIDAVITS SUBMITTED BY DEFENDANTS DID NOT WARRANT GRANTING THE MOTION TO DISMISS; THE AFFIFAVITS WERE NOT “DOCUMENTARY EVIDENCE” AND DID NOT DEMONSTRATE ANY MATERIAL FACT ALLEGED BY PLAINTIFFS WAS NOT “A FACT AT ALL” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ pre-answer motion to dismiss the complaint, and the motion to treat the dismissal motion as a summary judgment motion should not have been granted. The motion should not have been treated as a summary judgment motion because it was premature. The motion should not have been granted as a dismissal based on documentary evidence because the affidavits submitted by the defendants do not constitute “documentary evidence” within the meaning of the CPLR:

The record demonstrates that the defendants’ pre-answer motion was made less than two months after the action was commenced, and that the plaintiff has had no opportunity to conduct discovery. Further, the defendants seek summary dismissal on the basis of facts asserted in their affidavits about which the plaintiff has no personal knowledge. Under these circumstances, the plaintiff is correct that a summary judgment motion would be premature … . Therefore, the defendants’ motion pursuant to CPLR 3211(a) should not have been converted into a motion for summary judgment … . * * *

“While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” …  by showing that a material fact as claimed by the plaintiff “is not a fact at all” and that “no significant dispute exists regarding it” … . * * *

The affidavits submitted by the defendants, which merely contained conclusory denials of the facts asserted by the plaintiff in the complaint, as well as bare factual assertions regarding their use and occupancy of the subject premises, did not demonstrate that “a material fact as claimed by the [plaintiff] to be one is not a fact at all” and that “no significant dispute exists regarding it” … . Russo v Crisona, 2023 NY Slip Op 04438, Second Dept 8-30-23

Practice Point: Although a pre-answer motion to dismiss can be converted to a motion for summary judgment, to do so here was premature. Affidavits generally will not be enough to warrant granting a motion to dismiss. Affidavits are not “documentary evidence.”

 

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IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANTS’ EXPERTS DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILLS OF PARTICULARS AND RELIED ON A DISPUTED FACT; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice actions should not have been granted. It was alleged that plaintiff’s decedent was not properly treated for a stroke. The defendants’ experts did not address all the allegations in the bills of particulars and relied on a disputed fact:

… [T]he expert physician for the defendants …, failed to address all of the specific allegations set forth in the plaintiff’s bill of particulars … . Because [the] affirmation relied upon a disputed fact, specifically that the decedent’s condition was improving … , it was insufficient to establish, prima facie, that.[defendants] did not deviate or depart from accepted medical practice or that such deviation or departure was not a proximate cause of the decedent’s injuries … . Hiegel v Orange Regional Med. Ctr., 2023 NY Slip Op 04434, Second Dept 8-30-23

Practice Point: In a medical malpractice action, at the summary judgment stage, the defense experts must address all the allegations in the bill of particulars and may not rely on facts which are disputed.

 

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EVEN THOUGH DEFENDANT’S PHYSICAL CONDITION WAS IN CONTROVERSY, DEFENDANT DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE WITH RESPECT TO THE MEDICAL RECORDS CONCERNING SEXUALLY-TRANSMITTED DISEASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not waive the physician-patient privilege and, therefore, plaintiff was not entitled to defendant’s medical records which relate to sexually-transmitted disease:

“A party seeking to inspect a defendant’s medical records must first demonstrate that the defendant’s physical or mental condition is ‘in controversy’ within the meaning of CPLR 3121(a)” … . “Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and thus exempt from disclosure pursuant to CPLR 3101(b)” … . Once the physician-patient privilege is validly asserted, it must be recognized, and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived (see CPLR 3101[b]; * * *

… [I]n order to effect a waiver, a defendant must affirmatively assert the condition ‘either by way of counterclaim or to excuse the conduct complained of by the plaintiff'” … . * * *

The record was insufficient to establish that the defendant voluntarily disclosed any information to the plaintiff or other third parties which would have served as a waiver of privilege … . Hausman v Smith, 2023 NY Slip Op 04457, Second Dept 8-30-23

Practice Point: Even where a party’s physical condition is in controversy, the physician-patient privilege may preclude discovery of medical records concerning a condition which was not affirmatively asserted by that party.

 

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DEFENDANT SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EXPERT EVIDENCE AT TRIAL, PLAINTIFF WAS GIVEN ADEQUATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been precluded from presenting expert evidence at trial. The Second Department noted that there is no rigid time requirement for the notice of the intent to present expert testimony and plaintiff was provided with the nature of the expert’s opinion prior to setting the trial date:

“CPLR 3101(d)(1)(i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial” … . However, CPLR 3101(d)(1)(i) “does not require a response at any particular time or mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute” … .

Here, the defendant served his expert notice prior to a trial date being set, and thus it was not untimely … . Further, the notice was not deficient. It identified the expert witness, indicated that he was a vocational expert, and included the expert’s qualifications. Although the notice did not include the expert’s opinion and grounds for that opinion, that information was in the draft report that was received by the plaintiff prior to the trial date being set (see CPLR 3101[d]).

The defendant also complied with the requirements set forth in 22 NYCRR 202.16(g) by disclosing his expert witness shortly after the expert had been retained … and serving the expert report more than 60 days before trial (see 22 NYCRR 202.16[g][2]). Giovinazzo-Varela v Varela, 2023 NY Slip Op 04441, Second Dept 8-30-23

Practice Point: There is no strict time-limit for providing notice of the intent to present expert evidence and the nature of that evidence. Here defendant provided plaintiff with timely notice and the expert evidence should not have been precluded.

 

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