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THE MEDICAL MALPRACTICE COMPLAINT DID NOT ALLEGE A LACK OF INFORMED CONSENT; THEREFORE REFERENCES TO A LACK OF INFORMED CONSENT CAUSE OF ACTION IN PLAINTIFFS’ BILL OF PARTICULARS WERE STRICKEN (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this medical malpractice action, determined the hospital’s motion to strike allegations of lack of informed consent should have been granted. That cause of action was not identified in the complaint. Therefore plaintiffs could not use their bill of particulars to assert it:

We agree with the Hospital defendants that the court erred in denying that part of their motion seeking, in effect, to strike the allegations of lack of informed consent from plaintiffs’ amended bill of particulars to the Hospital defendants, and we modify the order accordingly. “[A] bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial . . . Whatever the pleading pleads, the bill must particularize since the bill is intended to [afford] the adverse party a more detailed picture of the claim . . . being particularized . . . A bill of particulars may not be used to allege a new theory not originally asserted in the complaint” … . For those purposes, “[l]ack of informed consent is a distinct theory of medical malpractice liability rooted in a specific professional duty to reasonably inform and obtain consent from the patient,” and claims for traditional medical malpractice and lack of informed consent ” ‘comprise[ ] different elements’ ” … . Here, we conclude that “[t]he complaint is based solely on [traditional] medical malpractice and does not contain a separate cause of action for lack of informed consent” … and that a review of the allegations in the complaint does not support the conclusion that the distinct theory of lack of informed consent was ” ‘sufficiently pleaded to avoid surprise and prejudice to [the Hospital] defendants’ ” … . Inasmuch as plaintiffs’ complaint does not presently plead a cause of action for lack of informed consent, the allegations in plaintiffs’ amended bill of particulars relating to lack of informed consent must be stricken … . Heather J. v Rochester Regional Health, 2026 NY Slip Op 01880, Fourth Dept 3-27-26

Practice Point: Here the complaint did not allege a cause of action for lack of informed consent. Therefore references to lack of informed consent in the bill of particulars can be stricken.​

 

DEFENDANT BUILDING OWNER AND MANAGER WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM-IN-PROGRESS DOCTRINE, 18 INCHES OF SNOW HAD FALLEN LESS THAN TWO HOURS BEFORE; PLAINTIFF SLIPPED AND FELL ON WATER ON STAIRS IN THE LOBBY; PLAINTIFF’S OWN TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants (the building owner and manager) were not liable for plaintiff’s slip and fall on water on interior stairs because of the storm-in-progress doctrine:

Defendants, the owner and manager of the building in which plaintiff was injured, established their entitlement to summary judgment by submitting undisputed meteorological data establishing that plaintiff’s accident occurred no more than 1 hour and 50 minutes after cessation of a major winter storm, which resulted in the accumulation of more than 18 inches of snow. Thus, under the storm-in-progress doctrine, defendants’ duty to maintain the lobby in a safe condition was suspended at the time plaintiff slipped and fell on the stairs, as defendants did not have a reasonable amount of time to permit discovery and remediation of the storm-related wet condition … .

Defendants also demonstrated that there were no triable issues of fact as to whether they created the condition or had actual or constructive notice of it. Plaintiff does not maintain that defendants created the hazardous condition. As to notice, plaintiff himself testified that he saw no wet condition or puddles on the stairs when he ascended them approximately 45 minutes before he slipped and fell on the way down; he also testified that only after his fall did he see dirty water on the stairs and small puddles in the lobby … . Therefore, the wet condition could not have existed for more than 45 minutes, which is insufficient to discover and remedy a dangerous condition … . Alvizurez v North State Realty Assoc. LLC, 2026 NY Slip Op 01839, First Dept 3-26-26

Practice Point: Consult this decision for insight into the application of the storm-in-progress doctrine in a slip and fall case.​

Practice Point: Note that a plaintiff’s own testimony can reveal that a defendant did not have constructive notice of the condition which caused plaintiff’s slip and fall.

 

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THE LANDLORD DID NOT OWE A DUTY TO A TENANT TO PREVENT AN ASSAULT BY ANOTHER TENANT; THE LANDLORD’S DUTY IS NOT TRIGGERED UNLESS THE LANDLORD HAS THE AUTHORITY, ABILITY AND OPPORTUNITY TO CONTROL THE ACTIONS OF A TENANT-ASSAILANT; THE ABILITY TO EVICT DOES NOT CONSTITUTE THE REQUISITE AUTHORITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord did not have a duty to prevent one tenant from attacking another:

… [The landlord] demonstrated prima facie that they were not liable for the third-party defendant’s alleged assault on plaintiff. A landlord has no duty to prevent one tenant from attacking another tenant unless it has the authority, ability, and opportunity to control the actions of the assailant …  Here, defendants had no authority or opportunity to remove Vasquez from the premises prior to the assault. Defendants’ employee testified that defendants were unaware of prior complaints of [the tenant] engaging in violence, and plaintiff acknowledged that before the attack she never complained about [the tenant] being violent. Moreover, the assault upon the plaintiff was not reasonably foreseeable … .

Plaintiff failed to raise an issue of fact in opposition. Defendants’ ability to evict [the tenant] did not constitute the requisite authority, ability, and opportunity to control him … . Plaintiff failed to identify any prior complaints about [the tenant] being violent or making explicit threats of violence. Plaintiff’s generalized complaints about unsupervised children on the complex and about other children engaging in bullying were not sufficient to put defendants on notice that [the tenant] might be violent … . Rodriguez v Madison Sec. Group, Inc., 2026 NY Slip Op 01869, First Dept 3-26-26

Practice Point: Consult this decision for insight into the nature of a landlord’s duty to prevent an assault by one tenant against another.

 

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THE ICY CONDITION WAS CREATED BY “POCKETS OF FREEZING RAIN” FROM MIDNIGHT TO 3:45 AM; THERE WAS NO “STORM;” THE “STORM-IN-PROGRESS” DOCTRINE SHOULD NOT HAVE BEEN APPLIED IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing the nonjury verdict in the Court of Claims in this parking-lot slip and fall cause, over a dissent, determined the defendant state had actual and constructive knowledge of the icy condition and the storm-in-progress doctrine did not apply:

​The evidence establishes that defendant had actual notice of the icy conditions caused by the pockets of freezing rain and called in an employee to take appropriate measures to correct the dangerous condition by implementing defendant’s usual precautions of sanding/salting all paved areas accessible to the sander trucks. Even assuming that the record was insufficient to establish actual notice, we are satisfied that defendant had constructive notice of the dangerous condition in the location of claimant’s slip and fall. Based on the expert’s testimony of icy conditions forming through 3:45 a.m., defendant should have been aware of the slippery conditions on untreated surfaces between approximately 12:00 a.m. and 2:00 a.m., the time when defendant’s employee was performing “multiple” salting and sanding passes on the facility’s roads for “safety,” approximately five to seven hours before claimant’s fall, which is a sufficient time to establish constructive notice … . * * *

… [T]he event in question amounted to “pockets of freezing rain” that fell from approximately midnight until 3:45 a.m. and caused a glaze of ice measuring .05 to 0.1 inches. Defendant begs the question when it immediately argues that it is entitled to a “reasonable period of time” from 3:45 a.m. to address the condition. The threshold question is the applicability of the doctrine in the first instance. While it may be true that there is no need to establish the existence of a major winter event in order to apply the doctrine, it is equally true that there must be some sort of ongoing hazardous weather condition, i.e., a “storm” that amounts to more than an “appreciable accumulation” … . The storm in progress doctrine is not to be applied whenever any type of inclement weather exists and, given the unrefuted testimony of claimant’s expert meteorologist, it has no place in this litigation. Powers v State of New York, 2026 NY Slip Op 01833, Third Dept 3-26-26

Practice Point: In order for the storm-in-progress doctrine to be applicable, there must have been a “storm.” Here “pockets of freezing rain” did not constitute a “storm.”

 

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A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

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ONE PLAINTIFF-TENANT TESTIFIED HE MADE SEVERAL COMPLAINTS TO THE LANDLORD DEFENDANTS ABOUT THE TENANT WHO SET FIRE TO THE APARTMENT BUILDING, INFORMING THE DEFENDANTS THAT THE TENANT THREATENED “TO KILL EVERYONE” IN THE BUILDING AND WAS SEEN CARRYING GASOLINE TANKS INTO THE BUILDING; THE DEFENDANT LANDLORDS DID NOT HAVE A DUTY TO PREVENT THE TENANT FROM STARTING THE FIRE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord defendants did not have a duty to investigate, monitor, or control a tenant who set fire to the five-story building injuring the plaintiff-tenants:

One of the plaintiffs testified that he made several complaints to defendants concerning the tenant’s behavior before the incident. Specifically, he reported to defendants that the tenant threatened “to kill everyone” in the building and was seen carrying gasoline tanks into the building. The motion court found that this testimony “raise[d] issues of fact as to whether defendants failed to take minimal measures to investigate the presence of gasoline in the apartment, and to protect the occupants from the risk of fire arising out of the presence of gasoline.”

The motion court erred in applying the “minimal precaution” standard set forth in negligent security cases because the assailant here was not a third-party nontenant … . Rather, he was a tenant in the building who was lawfully permitted to be there at the time of the fire. The appropriate test is, therefore, whether defendants lacked the “authority, ability, and opportunity to control” the tenant’s actions such that they had a duty to prevent him from starting the fire …  . Applying that standard to the facts here, defendants had no authority or ability to evict the tenant under the lease or New York law prior to the fire … . Moreover, plaintiffs failed to establish a clear basis under New York law for defendants to investigate, monitor, or control the tenant which could have prevented him from setting the fire … . Accordingly, defendants established their entitlement to summary judgment on the basis of their inability to prevent the tenant from starting the fire that caused plaintiffs’ injuries. Molina v Appula Mgt. Corp., 2026 NY Slip Op 01603 First Dept 3-19-26

Practice Point: The negligent-security-minimal-precaution standard of care for landlords applies only to security re: the actions of non-tenants. Here it was a tenant who set fire to the apartment building and injured other tenants. The appropriate test for the landlord’s duty re: a tenant’s actions is whether the landlord has the authority, ability, and opportunity to control the tenant’s actions under the lease or New York law, which was not the case here.

 

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ALTHOUGH THE COURT FOUND THAT THE DEPUTY DID NOT SOUND HER AIR HORN BEFORE THE INTERSECTION COLLISION WITH PLAINTIFFS’ VEHICLE, THERE WAS SUFFICIENT EVIDENCE THAT THE DEPUTY TOOK PRECAUTIONS BEFORE ENTERING THE INTERSECTION; THEREFORE THE COUNTY DEMONSTRATED THE DEPUTY DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1104 (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive dissent, determined the county was entitled to summary judgment in this negligence suit stemming from an intersection accident involving a sheriff’s deputy (Wong) who was responding to an emergency call. Although the court found that Wong did not sound her air horn prior to the collision with plaintiffs’ (Granaths’) car, the evidence demonstrated Wong did not act with reckless disregard for the safety of others:

It is undisputed that, before proceeding through the intersection, Deputy Fong slowed down, came to a complete stop at least once, observed northbound traffic, waited for that traffic to yield to her, and turned on her overheard lights. The Granaths contend that a jury could nonetheless find that Deputy Fong exhibited reckless disregard for the safety of others by failing to activate her air horn or siren; declining to call in a “Code 77” as required by MCSD [sheriff’s department] policy; and proceeding into the intersection despite having an obstructed view of southbound traffic.

We agree with the Appellate Division that defendants met their initial burden on their summary judgment motion and that, in opposition, the Granaths failed to raise a material triable issue of fact. Even assuming Deputy Fong failed to activate her air horn or siren, call in a “Code 77,” or observe southbound traffic—either because her view was obstructed or she neglected to look to her right—taken together with the actions she undisputably did take—slowing down, stopping, activating her emergency lights and proceeding only once she observed northbound traffic yield to her—we cannot conclude that Deputy Fong, with “conscious indifference to the outcome,” “reckless[ly] disregard[ed] . . . a highly probable risk of harm” … . Granath v Monroe County, 2026 NY Slip Op 01586, CtApp 3-19-26

Practice Point: Consult this opinion for insight into the meaning of “reckless disregard for the safety of others” in the context of an intersection traffic accident involving a sheriff’s deputy responding to an emergency call.

 

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THE MEDICAL RECORDS PROVIDED DEFENDANT HOSPITAL WITH TIMELY NOTICE OF THE FACTS UNDERLYING THE MEDICAL MALPRACTICE CAUSE OF ACTION; THEREFORE PLAINTIFF’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The medical records provided the defendant hospital with sufficient timely notice of the cause of action:

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute ‘actual knowledge of the facts constituting the claim'” … .

Here, in support of his motion, the plaintiff submitted, inter alia, medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to medical malpractice, the medical records provided the defendant with actual knowledge of the essential facts constituting the claim … . Kazeem v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2026 NY Slip Op 01497, Second Dept 3-18-26

Practice Point: The medical records themselves can be deemed to have provided a defendant hospital with timely notice of the facts underlying a medical malpractice action such that an application for leave to file a late notice of claim should be granted.

 

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HERE IN THIS TRAFFIC ACCIDENT CASE THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER DIED DURING THE PENDENCY OF THE ACTION; PLAINTIFF PASSENGER HAD SUED DECEDENT DRIVER AND THE DEFENDANT TRUCKING COMPANY; THE ATTORNEYS FOR THE DECEDENT DRIVER DID NOT HAVE THE AUTHORITY TO MOVE TO DISMISS THE COMPLAINT AGAINST THE DECEDENT DRIVER; THE DEFENDANT TRUCKING COMPANY DID NOT GIVE THE INTERESTED PARTIES THE REQUIRED NOTICE OF ITS MOTION TO DISMISS BASED UPON THE DRIVER’S DEATH; AND PLAINTIFF PASSENGER DID NOT COMPLY WITH THE PROCEDURES FOR THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO REPRESENT THE DECEDENT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the attorneys for the decedent driver did not have the authority to move to dismiss plaintiff-passenger’s action against the decedent because the decedent’s death during the pendency of the action divested the court of jurisdiction, (2) the defendant’s motion to dismiss based upon the driver’s death should not have been granted because defendant did not notify the parties with an interest in decedent’s estate of the motion, and (3) plaintiff-passenger’s cross-motion to appoint the Public Administrator to represent the driver’s estate should not have been granted because plaintiff did not notify parties interested in the estate of the cross-motion and did not otherwise follow the procedures for such an appointment:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party … . * * *

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” Further, “a motion to dismiss pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate” … . * * *

… [T]he plaintiff failed to sufficiently demonstrate that she provided notice of her cross-motions to persons interested in [the] estate … . Moreover, the plaintiff “failed to demonstrate the steps [she] had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible . . . and otherwise failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice” … . Ford v Luckain, 2026 NY Slip Op 01493, Second Dept 3-18-26

Practice Point: Consult this decision for insight into the procedures which must be followed when a party in a pending traffic-accident case dies, divesting the court of jurisdiction and curtailing the authority of the decedent’s attorneys to act on decedent’s behalf.

 

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PLAINTIFF WAS A CO-PILOT OF A HELICOPTER USED TO PROVIDE AN AERIAL PLATFORM FOR WORK ON POWER LINES; THE HELICOPTER STRUCK A POWER LINE AND PLAINTIFF JUMPED FROM THE HELICOPTER FROM A HEIGHT OF 75 FEET; THE LABOR LAW 240(1) AND 241(6) STRICT LIABILITY CAUSES OF ACTION WERE PREEMPTED BY THE FEDERAL AVIATION ACT (FAA); THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; RATHER THE FEDERAL STANDARD OF CARE SHOULD BE APPLIED TO THOSE CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ford, determined the Labor Law 240(1) and 241(6) six causes of action were preempted by the Federal Aviation Act (FAA) but the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them. Plaintiff was the co-pilot of a helicopter which was being used to provide an aerial platform for work on power lines. The helicopter struck a power line and plaintiff jumped out of the helicopter from a height of 75 feet:

Under the federal rules, “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft” (14 CFR 91.3[a] …). Various federal courts have held that the pilot thereby has the “sole responsibility to determine whether it is safe or unsafe to undertake the proposed flight” … . * * *

Additionally, under the federal rules, “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” (14 CFR 91.13[a]). This rule is “[c]entral” to the FAA’s overarching standard of care …. Common-law negligence cases require a more stringent standard of care, “that of a reasonable person under the same or similar circumstances” … . Labor Law § 200 codifies the common-law negligence standard … , while Labor Law §§ 240(1) and 241(6) “subject contractors and owners to absolute strict liability” … . The standards of care underlying the four sources of liability alleged by the plaintiff—i.e., liability for common-law negligence and under Labor Law §§ 200, 240(1), and 241(6)—thereby conflict with, and are preempted by, the federal recklessness standard. …

Where applicable, the effect of preemption of a state standard of care is not to preclude recovery or “to deprive Plaintiffs of their state remedies, but rather, to substitute a federal standard of care for New York’s reasonably-prudent-person standard” … . Fabia v Power Auth. of the State of N.Y., 2026 NY Slip Op 01489, Second Dept 3-18-26

Practice Point: Here, although the Federal Aviation Act (FAA) preempted the strict liability Labor Law 240(1) and 241(6) causes of action in this helicopter-accident case, the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them.

Practice Point: Consult this opinion for an in-depth analysis of the issues raised by preemption of state Labor Law and negligence claims stemming from a helicopter accident by the Federal Aviation Act (FAA).

 

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