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PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county did not demonstrate it did not create the obstruction of the sidewalk with snow and further did not demonstrate the obstruction was not the proximate cause of plaintiff’s injury. Plaintiff alleged the snow in the sidewalk forced her to walk in the street, where she was struck by a car:

” Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies'” … . As relevant here, an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence … . ” The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars'” … . Here, the plaintiffs alleged that the County affirmatively caused or contributed to the dangerous condition through its snow plowing operations on Old Country Road that caused snow to be deposited onto the sidewalk. Therefore, to demonstrate its entitlement to judgment as a matter of law, the County was required to establish, prima facie, that it did not receive prior written notice of the dangerous condition and that it did not create the alleged dangerous condition … . Although the County demonstrated, prima facie, that it did not receive prior written notice, the County’s submissions failed to establish, prima facie, that its snow removal operations did not create or exacerbate a dangerous condition … .

The County also failed to make a prima facie showing that its alleged negligence was not a proximate cause of the accident. “Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed” … . “An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct'” … . Where, however, “the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist” … . The issue of whether an act is foreseeable is generally for the trier of fact … . Here, the County’s alleged negligent snow plowing operations contributed to the obstruction of the sidewalk, which prevented Piazza [plaintiff] from continuing to walk on the sidewalk, and caused her to walk in the roadway where she was hit by a vehicle driven by Volpe. Under these circumstances, there is a triable issue of fact as to whether Volpe’s act in hitting Piazza with her vehicle was a natural and foreseeable consequence of the County’s alleged negligence. Piazza v Volpe, 2017 NY Slip Op 05986, Second Dept 8-2-17

NEGLIGENCE (MUNICIPAL LAW, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/PEDESTRIANS (MUNICIPAL LAW, TRAFFIC ACCIDENTS,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))

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PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed, fact-based decision, determined plaintiff had raised a question of fact in this medical malpractice action alleging the failure to timely diagnose the presence of cancer. The court noted that the proximate cause element can be satisfied by evidence early detection could have extended plaintiff’s decedent’s life, even if a total cure was not possible:

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“In a medical malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant” … . “As to causation, the plaintiff’s evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased his injury”   * * * To raise a triable issue of fact, a plaintiff need not establish that, but for a defendant doctor’s failure to diagnose, the patient would have been cured. “Curing cancer, while an ultimate and worthy aspiration, is not the only positive treatment outcome. Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury” … . Neyman v Doshi Diagnostic Imaging Servs., P.C., 2017 NY Slip Op 05962, Second Dept 8-2-17

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/MEDICAL MALPRACTICE (CAUSATION, CANCER, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/CANCER (MEDICAL MALPRACTICE, CAUSATION, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))

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MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s action for negligent maintenance of a drainage system, causing flooding, properly survived summary judgment. The court noted that no cause of action lies against a municipality for negligent design of a drainage system. The court further noted that a nuisance cause of action should have been dismissed as duplicative of the negligent maintenance cause of action:

To the extent the plaintiff contends that the Village was negligent in failing to improve or renovate the drainage system, dismissal of that cause of action was properly directed. Evidence as to the Village’s alleged failure to undertake improvements or renovations to the facilities related only to the design of the system, for which the Village may not be held liable … .

However, the Village failed to satisfy its prima facie burden of eliminating all triable issues of fact as to whether it negligently maintained the culvert and drainage system. * * *

A defendant is subject to liability for a private nuisance if the defendant’s conduct is a legal cause of the invasion of an interest in the private use and enjoyment of land, and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities … . … A nuisance based on negligence is but a single wrong, whether characterized as negligence or nuisance … , and the plaintiff may recover only once for harm suffered, regardless of how the causes of action are denominated … . Since the complaint alleges a cause of action for negligent maintenance, the Supreme Court should have granted that branch of the Village’s motion which was for summary judgment dismissing the cause of action alleging nuisance as duplicative of the cause of action alleging negligent maintenance … . Trulio v Village of Ossining, 2017 NY Slip Op 05993, Second Dept 8-2-17

MUNICIPAL LAW (DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NEGLIGENCE (MUNICIPALITY, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NUISANCE (MUNICIPAL LAW, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))

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MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT).

The Second Department determined a 1983 municipal resolution health insurance for non-union town employees did not create a vested contractual right for continued benefits. Therefore the 2012 reduction of the town’s contributions to the retirees health insurance was valid, although the contributions could not be reduced below the levels mandated by the Civil Service Law:

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“A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, does not create any vested contractual rights” … . Nothing in the language of the October 13, 1983, resolution indicates that the Town intended to create a contractual or vested right … . Moreover, the appellants failed to submit any evidence, beyond the resolution, of a right to retirement health insurance benefits … .

Additionally, the Supreme Court properly found that the Town was not barred by the doctrine of promissory estoppel from reducing the appellants’ retirement health insurance benefits … . To establish promissory estoppel, a party must prove a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise … . Here, even assuming the appellants proved a clear and unambiguous promise, they failed to establish reliance thereon … .

However, the Supreme Court erred in determining that the Town was not required to contribute any amount for the retirement health insurance benefits of former Board members who retired prior to July 1, 2012. Civil Service Law § 167(2) provides, in relevant part, that participating employers, such as the Town, are required to contribute 50% of the cost of premiums for retired employees, and 35% of the cost of coverage for their dependents. … [T]he Town may not reduce its contribution rates below the legally mandated minimums … . Matter of Weaver v Town of N. Castle, 2017 NY Slip Op 05960, Second Dept 8-2-17

 

MUNICIPAL LAW (HEALTH INSURANCE, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, HEALTH INSURANCE, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))/HEALTH INSURANCE (MUNICIPAL LAW, EMPLOYMENT LAW, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))

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CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT.

The Second Department determined the city, which operated an animal shelter, was not liable for a dog-bite injury to infant plaintiff. The Second Department held that the operation of the shelter was a government function and there was no special relationship between the city and the plaintiff. Therefore the city was entitled to immunity from liability:

It is undisputed that the City operates the Shelter pursuant to a statutory mandate. Specifically, Agriculture and Markets Law § 114 (former § 115) requires, inter alia, that each town or city that issues dog licenses “shall . . . establish and maintain a pound or shelter for dogs” … . This provision is contained in article 7 of the Agriculture and Markets Law, which states that the purpose of the article “is to provide for the licensing and identification of dogs, the control and protection of the dog population and the protection of persons, property, domestic animals and deer from dog attack and damage” … .

The City’s act of providing an animal shelter constitutes a governmental function and, therefore, it cannot be held liable absent the existence of a special relationship between it and the plaintiffs giving rise to a special duty of care … . ” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … . Abrahams v City of Mount Vernon, 2017 NY Slip Op 05699, 2nd Dept 7-19-17

ANIMAL LAW (CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/MUNICIPAL LAW (ANIMAL SHELTER, DOG BITE, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/IMMUNITY (CITY ANIMAL SHELTER, DOG BITE, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/DOG BITES (MUNICIPAL LAW, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)

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COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined that the county had not sufficiently demonstrated a deliberative decision-making process preceding the installation of a particular type of roadway guard rail. It was alleged plaintiff’s decedent’s car was launched 90 feet after striking the sloping end of the guard rail. The county’s summary judgment motion, based upon qualified immunity, should not have been granted:

We conclude that the County failed to meet its initial burden of establishing its entitlement to summary judgment based on qualified immunity … . In particular, the County failed to establish that the decision to change the end assembly of the guide rail from a Type I to a Type II end assembly was “the product of a deliberative decision-making process, of the type afforded immunity from judicial interference”… . Rather, the record reflects that the decision to change the guide rail end assembly was made after Phelps [the guard rail installer] conducted a walk-through and learned that the owners of a hay field needed a “field drive” to allow them to access County Route 41. Although the County submitted evidence that the change order completed by Phelps was signed by FRA [the engineers], there is no showing by the County that there was prior input from FRA regarding the change and, importantly, no analysis to support the decision for the change. Moreover, although the County contended on its motion that it followed the requisite standards of the New York State Department of Transportation, we note that the County’s expert erroneously combined the criteria for two separate uses of Type II end assemblies into one standard. Morris v Ontario County, 2017 NY Slip Op 05533, 4th Dept 7-7-17

NEGLIGENCE (TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/MUNICIPAL LAW (TRAFFIC ACCIDENTS, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (MUNICIPAL LAW, HIGHWAY DESIGN, TRAFFIC ACCIDENTS,  COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/HIGHWAY DESIGN (MUNICIPAL LAW, TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

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LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT.

The Fourth Department determined Supreme Court properly declared invalid a local law which conflicted with the State Environmental Quality Review Act (SEQRA). The local law allowed the classification of a restaurant with a drive-through window as a Type I project. However, the Fourth Department held the intent of SEQRA was to classify such a restaurant as a Type II project:

We … conclude that the court properly declared that Local Law No. 9-2014 is invalid inasmuch as it is inconsistent with 6 NYCRR 617.5 (c) (7) to the extent that it classifies “[d]rive-through stations or windows” such as “restaurants” as Type I actions under SEQRA. A local law that is “inconsistent with SEQRA” must be invalidated … . Here, although 6 NYCRR 617.5 (c) (7) does not explicitly include the construction of a restaurant with a drive-through window as a Type II action, we conclude that the Department of Environmental Conservation contemplated restaurants with drive-through windows as Type II actions when it promulgated that regulation … . We similarly conclude that the court properly annulled defendant’s classification of the project as a Type I action on the ground that the classification was affected by an error of law inasmuch as Local Law No. 9-2014 is inconsistent with SEQRA … . Nonetheless, the court should have declined to accept, without a revised review by defendant, plaintiff’s contention that the project should be classified as a Type II action … . We therefore modify the judgment by annulling the determination that the project is a Type II action, and we remit the matter to defendant for a new determination. Miranda Holdings, Inc. v Town Bd. of Town of Orchard Park, 2017 NY Slip Op 05554, 4th Dept 7-7-17

ENVIRONMENTAL LAW (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/MUNICIPAL LAW (ENVIRONMENTAL LAW, LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/SEQRA (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)

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CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT.

The Second Department determined the city defendants did not owe a duty of care to plaintiff’s decedent (Rennix) despite the misconduct of a city employee. The city employee, an emergency medical technician (EMT) named Jackson, was in a restaurant when a restaurant employee collapsed. Because Jackson was not supposed to be on a break, she did not attempt to help plaintiff’s decedent, who died before the ambulance arrived. Rennix was pregnant and her baby also died. Because there was no special relationship between the city and plaintiff’s decedent, the city was not liable:

A municipal emergency response system is a governmental function, and thus where an emergency medical technician is alleged to have been negligent while acting in this governmental capacity, the municipality cannot be held liable unless it owed a “special duty” to the injured party … . There are three recognized situations in which a special duty may arise: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … .

The plaintiffs contend that the first category applies to the circumstances here, and a special duty arose from Jackson’s violation of Penal Law § 195.00(2), which criminalizes official misconduct. * * *

Even assuming the plaintiffs could establish that Jackson was guilty of misconduct, the violation of Penal Law § 195.00(2) does not give rise to a special duty so as to impose tort liability. For a special duty to arise from the breach of a statutory duty, the governing statute must authorize a private right of action … . A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme”… .

Here, the plaintiffs’ claim fails at the first step of the analysis, as Rennix was not of a class for whose particular benefit the statute was enacted. Rennix v Jackson, 2017 NY Slip Op 05471, 2nd Dept 7-5-17

 

NEGLIGENCE (MUNICIPAL LAW, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/MUNICIPAL LAW (NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)

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LEAVE TO FILE LATE NOTICE OF CLAIM FOR HUSBAND’S DERIVATIVE CLAIM SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim with respect to husband’s derivative claim stemming from wife’s injuries should have been granted. Because the county was deemed to have knowledge of the wife’s claim within 90 days, the county must also be deemed to have had timely knowledge of the derivative claim:

Here, respondent contends that it did not receive actual knowledge of the facts constituting the husband’s claim because it did not receive knowledge of the injuries or damages claimed by the husband. We reject that contention. “[C]ourts have granted leave to serve a supplemental or amended notice of claim to add a derivative cause of action for loss of consortium . . . where such claim results from the same facts as were alleged in a timely and otherwise admittedly valid notice of claim for personal injuries’ “… . Indeed, courts have generally recognized that derivative causes of action “[are] predicated upon exactly the same facts” as the injured party’s claims … . As a result, where it has been determined that the respondent received timely notice of the injured claimant’s claims, “there can be no claim of prejudice to respondent” resulting from a late notice of a derivative claim (id.).

Although we recognize that claimants did not file a timely notice of claim for the injuries sustained by claimant Melody L. Darrin (wife), the court’s determination to grant the application with respect to her suggests that the court determined that respondent had actual knowledge of the facts underlying her claim. Inasmuch as the husband’s derivative claim is “predicated upon exactly the same facts” as the wife’s claims … , we discern no rational basis upon which the court could have granted the application with respect to the wife but not the husband … . Matter of Darrin v County of Cattaraugus, 2017 NY Slip Op 05352, 4th Dept 6-30-17

 

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QUESTIONS OF FACT RAISED WHETHER DEFAMATORY STATEMENTS WERE MOTIVATED SOLELY BY MALICE, THEREBY OVERCOMING QUALIFIED IMMUNITY, AND WERE MADE WITHIN THE SCOPE OF EMPLOYMENT, THEREBY RENDERING THE EMPLOYER VICARIOUSLY LIABLE.

The Fourth Department, modifying Supreme Court, determined the defamation causes of action properly survived summary judgment with respect to the speaker (Cramer) and the defamation causes of action against Cramer’s employers (the village and fire department), based upon vicarious liability, should not have been dismissed. Cramer had made statements to her employer that plaintiff was a child molester and she had tapes to prove it. There was evidence the statements were motivated solely by malice (and therefore not protected by qualified immunity) and were made within the scope of Cramer’s employment:

We conclude that defendants met their initial burden of establishing that any alleged statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with plaintiff’s application for membership, and thus “the burden shifted to plaintiff[] to raise a triable issue of fact whether the statements were motivated solely by malice’ ” … . “If [Cramer’s] statements were made to further the interest protected by the privilege, it matters not that [she] also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication’ ” … . Plaintiff provided the deposition testimony of the assistant fire chief, who testified that Cramer told him to “go tell [plaintiff] for me that if he continues with this application I’m going to pull out tapes that I have that shows he’s a child molester and that it’s going to ruin his life.” Plaintiff also provided the deposition testimony of a woman who was at the Fire Department … and heard Cramer call plaintiff a “child molester”; that same witness heard Cramer call plaintiff a pedophile in 2011. A Fire Department employee testified in his deposition that he heard Cramer say to her husband that she had proof that plaintiff was a “child molester.” In light of that evidence, we therefore conclude that plaintiff raised an issue of fact whether Cramer’s statements were motivated solely by malice and thus are not protected by a qualified privilege.

“An employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made”… . We further conclude that defendants failed to establish their entitlement to judgment as a matter of law that Cramer was not acting within the scope of her employment when she allegedly made the statements to the assistant fire chief and/or at the meeting … . Stevenson v Cramer, 2017 NY Slip Op 05353, 4th Dept 6-30-17

 

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