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THE LETTER OF INTENT WAS AN AGREEMENT TO AGREE WHICH CONTEMPLATED ONLY OUT-OF-POCKET DAMAGES FOR A BREACH; THE JUDGE SHOULD NOT HAVE RELIED ON CREDIBILITY DETERMINATIONS TO, SUA SPONTE, AWARD SUMMARY JUDGMENT TO PLAINTIFFS (FIRST DEPT).

​The First Department, reversing Supreme Court, determined that the letter of intent (LOI) was an agreement to agree which, if breached, supported only out-of-pocket damages, not cover damages. The judge improperly relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs:

… [R]ecovery for breach of a preliminary agreement’s confidentiality provision could not be based on “the theory that it would have acquired” the company at issue, as the “defendant[] w[as] not bound to go forward with the transaction” … . * * *

… [T]he text of the LOI and the surrounding circumstances support a finding that the parties did not contemplate cover damages at the time of contracting. That the parties entered only a preliminary agreement with no obligation to close a transaction and no specific damage provision for breach conclusively shows that defendant did not wish to assume the risk of covering whatever replacement transaction plaintiffs might pursue … .

… [T]he court improperly relied on credibility determinations to resolve material issues that should have been resolved by the jury. It is “not the function of a court deciding a summary judgment motion to make credibility determinations” … . Cresco Labs N.Y., LLC v Fiorello Pharms., Inc., 2023 NY Slip Op 03305, First Dept 6-20-23

Practice Point: Here the letter of intent was an agreement to agree which contemplated only out-of-pocket damages for a breach.

Practice Point: The judge should not have relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs.

 

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IN THIS DOG-BITE CASE, DEFENDANT DEMONSTRATED SHE WAS NOT AWARE OF HER DOG’S VICIOUS PROPENSITIES; PLAINTIFF’S ALLEGATIONS IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DID NOT RAISE A QUESTION OF FACT ON THAT ISSUE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant dog-owner’s motion for summary judgment in this dog-bite case should have been granted. Defendant made a prima facie showing she was not aware of the dog’s vicious propensities. Plaintiff did not raise a question of fact on that issue:

Even when viewing the evidence in the light most favorable to plaintiff, as we must, we find that plaintiff failed to raise an issue so as to defeat the motion. As to the statement that the dogs were play fighting, the child admitted that she was unfamiliar with dogs and that she assumed because they were growling that they were fighting or at least unhappy with “what’s [going on] around them.” However, “[n]o court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities” … . Growling and barking during play activities among dogs is consistent with normal canine behavior … . Even if the growling could be considered some indication of vicious propensities, the child never identified the dog that bit her as being the dog that she heard growling. As to the statement that the dog dislikes males, the child testified that defendant’s son told me “something about [the dogs] not liking guys, but as a joke.” This is not proof of an aggressive behavior and, in any event, does not relate to the child because she is a female … . The mere fact that defendant kenneled the dog, and kept the dog in her bedroom when she was absent from her residence, does not support an inference that defendant was aware the dog might pose a danger, since there was no evidence that this was done due to a concern that the dog would harm someone … ; instead defendant’s son stated that the dogs were kenneled because the puppies might escape. Additionally, it is undisputed that the dog was not confined, gated or tethered while the child was at the residence and in fact the child encouraged the dog to jump up on the bed next to her so she could pet it … . J.S. v Mott, 2023 NY Slip Op 03276, Third Dept 6-15-23

Practice Point: This is a fact-based dog-bite case. Plaintiff’s allegations in opposition to defendant dog-owner’s summary judgment motion did not raise a question of fact about whether defendant was aware of her dog’s vicious propensities.

 

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THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S SLIP AND FALL AND PLAINTIFF TESTIFIED SHE NOTICED THE FLOOR WAS WET AND SMELLED OF CLEANING FLUID AFTER SHE FELL; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT BUILDING OWNER CREATED THE DANGEROUS CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant property owner created the dangerous condition which caused plaintiff’s slip and fall. The area had been mopped with a soap-like substance an hour before the fall and plaintiff testified she noticed the floor was wet and smelled of cleaning fluid after she fell:

… [D]efendant relied upon the deposition testimony of the plaintiff and of the defendant’s maintenance employee who was in charge of mopping the lobby. Their testimony demonstrated that the lobby area where the plaintiff fell had been mopped with a soap-like substance sometime during the hour preceding the plaintiff’s fall and that, after she fell, the plaintiff noticed that the floor was wet and smelled like a cleaning liquid. Given this evidence, the defendant failed to eliminate all triable issues of fact as to whether it created the condition that caused the plaintiff to fall … . Contrary to the defendant’s contention, its submissions failed to establish that the wet or oily condition of the floor was readily observable by a reasonable use of the plaintiff’s senses prior to her fall … . Buestan v Tiff Real Prop., Inc., 2023 NY Slip Op 03220, Second Dept 6-14-23

Practice Point: Evidence that the area of the slip and fall was mopped with soap an hour before plaintiff’s slip and fall and that plaintiff noticed the floor was wet and smelled of soap after her fall raised a question of fact whether the property owner created the dangerous condition which caused the fall.

 

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AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion for summary judgment based upon the res ipsa loquitur theory of liability should have been granted. Plaintiffs’ car was inspected by defendant car dealership and the tires (wheels?) were removed and reattached. When plaintiff Kathleen Becchetti drove the car from the dealership one of the tires (wheels?) detached causing an accident:

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” … . The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause … . The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect … . Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence … .

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence … . Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence … and that the plaintiffs did not contribute to the event … . …

… [S]ince this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” … , the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability. Bicchetti v Atlantic Toyota, 2023 NY Slip Op 03219, Second Dept 6-14-23

Practice Point: Here a wheel fell off plaintiffs’ car after the car was serviced, causing an accident. Although the car was not in the exclusive control of the dealership when the wheel fell off, the negligence occurred when the dealership had exclusive control. This was deemed a rare case warranting summary judgment.

 

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WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS SERVER’S AFFIDAVIT, AN EVIDENTIARY HEARING ON WHETHER THE DEFENDANTS WERE SERVED WITH THE SUMMONS AND COMPLAINT IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants presented sufficient facts to rebut the presumption they were properly served with the summons and complaint, requiring a hearing:

“Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served” … Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit, and necessitates an evidentiary hearing” … . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue”… .

Here, the process servers’ affidavits of service constituted prima facie evidence of valid service upon the defendants at the subject New York and Florida properties … . However, since the defendants’ sworn denial of receipt of process at both properties contained specific facts to rebut the statements in the process servers’ affidavits, the presumption of proper service was rebutted and an evidentiary hearing was required … . Aikens v Kouchnerova, 2023 NY Slip Op 03218, Second Dept 6-14-23

Practice Point: A defendant’s mere denial of receipt of a summons and complaint is not enough to rebut the presumption of valid service. But where a defendant avers specific facts which rebut the statements in the process server’s affidavit, an evidentiary hearing is required.

 

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DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT SCOLIOSIS COULD NOT HAVE BEEN DIAGNOSED UNTIL A YEAR AFTER PLAINTIFF LEFT DEFENDANT’S CARE; PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS THAT ISSUE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant pediatric practice in this medical malpractice action was entitled to summary judgment. Plaintiff alleged the failure to diagnose scoliosis. Defendant submitted evidence that adolescent scoliosis could not have been diagnosed until a year after plaintiff left defendant’s care. Plaintiff’s expert’s affidavit did not address that issue:

… S.V. [defendant pediatric practice] established its prima facie entitlement to judgment as a matter of law by submitting, among other things, an affirmation of a physician board certified in orthopedic surgery. The expert opined that the care and treatment rendered by S.V.’s employees did not deviate from accepted medical practice, and that the injured plaintiff’s adolescent idiopathic scoliosis condition could not have been diagnosed until he reached adolescence, which did not occur for at least one year after he left S.V.’s care, during which time the injured plaintiff tested negative for the condition … . In opposition, the evidence submitted by the plaintiffs, including an affirmation of a physician, failed to raise a triable issue of fact. The plaintiffs’ expert failed to address the specific assertion of S.V.’s expert that the injured plaintiff did not develop adolescent idiopathic scoliosis until after he left S.V.’s care, and was otherwise speculative, conclusory, and unsupported by the record … . Lagatta v Rivera, 2023 NY Slip Op 03227, Second Dept 6-14-23

Practice Point: In this medical malpractice action, plaintiff’s expert did not address defendant’s expert’s prima facie proof on a dispositive issue. In that circumstance, defendant is entitled to summary judgment.

 

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CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION; DEFENDANT, IN ITS MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON PROXIMATE CAUSE; THEREFORE PLAINTIFF, IN OPPOSITION, WAS NOT REQUIRED TO RAISE A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Plaintiff’s decedent was diagnosed with a degenerative spine but died hours later of a heart attack:

To prevail on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing either that there was no departure from accepted community standards of practice or that any alleged departure was not a proximate cause of the plaintiff’s injuries … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … . “Once a defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact’ as to the elements on which the defendant met the prima facie burden” … . “‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions'” … . * * *

… [T]he plaintiff raised triable issues of fact by submitting the affirmation of an expert who opined, based upon his review of, inter alia, the decedent’s medical records, among other things, that the decedent exhibited symptoms consistent with a myocardial infarction when he presented to the hospital emergency department, as well as a large scar from a prior cardiac surgery, and that the defendants departed from the accepted standard of medical care by failing to perform a cardiac workup on the decedent at that time … . Contrary to the defendants’ contention, the opinions of the plaintiff’s expert were not vague or conclusory … . Moreover, the plaintiff was not required to raise a triable issue of fact as to the element of proximate cause, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to that element … . Kielb v Bascara, 2023 NY Slip Op 03226, Second Dept 6-14-23

Practice Point: In opposition to a defense motion for summary judgment in a medical malpractice action, plaintiff need not address issues on which defendant did not make out a prima facie case. Here defendant did not make out a prima facie case on the issue of proximate cause and plaintiff, therefore, did not need to address that issue in opposition.

Similar issues and result in Lopresti v Alzoobaee, 2023 NY Slip Op 03228, Second Dept 6-14-23 (failure to diagnose testicular cancer; inadequate attempt to address proximate cause by submitting an expert affidavit with reply papers).

 

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DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON BLACK ICE WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate it did not have constructive notice of the black ice in the parking lot where plaintiff slipped and fell. Defendant did not submit evidence of when the area was last cleaned or inspected:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Accordingly, a property owner seeking summary judgment in a slip-and-fall case “has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition. The defendant provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall, and there are triable issues of fact as to whether the alleged ice condition had existed for a sufficient length of time before the accident such that the defendant could have discovered and corrected it … . Edwards v Genting N.Y., LLC, 2023 NY Slip Op 03223, Second Dept 6-14-23

Practice Point: To demonstrate a lack of constructive notice of a dangerous condition in a slip and fall case, a property owner must submit proof the area was inspected or cleaned close in time to the fall.

 

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THE FLOOR IN THE BATHROOM WHERE PLAINTIFF SLIPPED AND FELL HAD RECENTLY BEEN MOPPED; THE DEFENDANT GROCERY STORE DID NOT PROVE THERE WAS AN ADEQUATE WARNING; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. The bathroom floor where plaintiff fell had been mopped recently. There were questions of fact whether there was an adequate warning about the condition of the floor:

The evidence submitted by the defendants in support of the motion raised triable issues of fact as to whether Food Parade provided any warning about a potentially hazardous condition in the bathroom and whether any warning that was provided adequately gave notice that there was a hazardous condition inside the bathroom … . Darginsky v Food Parade, Inc., 2023 NY Slip Op 03222, Second Dept 6-14-23

Practice Point: Here plaintiff slipped and fell on a recently mopped floor. Defendant did not demonstrate there was an adequate warning of the condition. Defendant’s motion for summary judgment should not have been granted.

 

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THE PROOF THAT THE SUBWAY TRACKS WERE USED AS A DANGEROUS INSTRUMENT WAS LEGALLY INSUFFICIENT; DEFENDANT’S ASSAULT SECOND CONVICTION VACATED (FIRST DEPT).

The First Department, vacating the assault second as a hate crime conviction, determined the proof did not support the theory that the subway tracks were used as a dangerous instrument:

The theory supporting this count was not that defendant intended to use the electrified third rail or a moving train as a dangerous instrument, or acted recklessly, but instead that defendant intended that the victim be injured by striking the tracks, alleged to be a “hard object.” The evidence failed to establish defendant’s intent to use the tracks in that manner. The People’s evidence, including the victim’s testimony and a blurry video, was consistent with the victim merely tripping and falling onto the tracks during an altercation with defendant … . Moreover, even if defendant merely caused the victim to fall on the tracks, that would not establish the specific intent required for this conviction. For similar reasons, we find that the verdict on this count was against the weight of the evidence. People v Ames, 2023 NY Slip Op 03205, First Dept 6-13-23

Practice Point: The proof that the victim tripped and fell onto subway tracks during an altercation did not demonstrate defendant’s intent to use the subway tracks as a dangerous instrument. The assault second conviction was vacated.

 

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