You are here: / Negligence
,

THE STORM-IN-PROGRESS RULE DOES NOT APPLY TO WATER INSIDE A BUILDING TRACKED IN DURING A RAIN STORM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Taylor, clarified and reiterated the principle that the storm-in-progress rule does not apply to tracked-in water inside a building:

… [T]his Court has not expanded the storm in progress rule to include hazards that have been tracked-in to interior spaces … , and we decline [defendant property owner’s] invitation to do so. A property owner’s efforts to remove tracked-in hazards during an ongoing storm are simply not subject to the same exigencies as when removing exterior hazards. In other words, removing tracked-in hazards during an ongoing storm is not a fruitless endeavor, and therefore the suspension of a property owner’s duty of care with respect to such hazards is not justified.

Rather, tracked-in conditions from a storm in progress are to be treated by the principles governing premises liability generally … . Rowland v Brooklyn Hosp. Ctr., 2026 NY Slip Op 02861, Second Dept 5-6-26

Practice Point: The storm-in-progress rule does not apply to water inside a building tracked in during a rain storm.​

 

,

IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendants did not demonstrate the defect was trivial as a matter of law:

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the “‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . Photographs that “‘are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … . When “deciding in a given case whether photographs may sufficiently show triviality without objective measurement, it depends on what the photographs depict” … . The “persuasiveness of photographs will depend on what reasonable inferences regarding the alleged defect may be drawn from them” … .

Here, the evidence submitted by the defendants, including, among other things, a transcript of the plaintiff’s deposition testimony and photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically, the height of the allegedly misleveled portion of the sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or reasonably infer the extent of the defect from the photographs submitted … . Rosario v Wyckoff Supermarket Assoc., Inc., 2026 NY Slip Op 02860, Second Dept 5-6-26

Practice Point: Consult this decision for insight into the evidence required to demonstrate a sidewalk defect is trivial where no measurements are submitted in support of the summary judgment motion.

 

, ,

LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR A DEFAULT IN RESPONDING TO A SUMMARY JUDGMENT MOTION; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that law office failure was an adequate excuse for plaintiffs’ default in responding to defendant’s motion for summary judgment in this traffic accident case:

… [P]laintiffs proffered a reasonable excuse of law office failure for the brief delay in serving their opposition papers to defendant’s motion (see CPLR 2005…). Although plaintiffs’ counsel admittedly failed to properly calendar the motion opposition date, counsel did attempt to seek defendant’s consent for an adjournment prior to the return date of the motion, which plaintiffs’ counsel apparently believed to be the due date for the opposition to defendant’s motion. Further, plaintiffs’ counsel submitted opposition papers on the return date, albeit after business hours, upon the mistaken belief that the motion was to be taken on submission. There is no evidence of a willful default and the negligible delay cannot be said to have prejudiced defendant … . April I.O. v Taylor, 2026 NY Slip Op 02741, Fourth Dept 5-1-26

Practice Point: Consult this decision for a rare instance of law office failure serving as an adequate excuse for a default in responding to a motion for summary judgment.

 

,

IN A REAR-END COLLISION CASE, IN ORDER TO RAISE A QUESTION OF FACT ABOUT WHETHER BRAKE-FAILURE WAS THE CAUSE, THE DEFENDANT MUST DEMONSTRATE THE FAILURE WAS UNANTICIPATED AND REASONABLE CARE WAS TAKEN TO KEEP THE BRAKES IN GOOD WORKING ORDER; NOT THE CASE HERE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendants’ claim that the brakes failed did not raise a question of fact:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause” … . Where the defendants lay the blame for the accident on brake failure, it is incumbent upon them to show that the brake failure was unanticipated and that reasonable care was exercised to keep the brakes in good working order … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit wherein he averred that his vehicle had been stopped for approximately 10 seconds for a red traffic light when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact as to whether the alleged brake failure was unanticipated and whether reasonable care was exercised to keep the brakes in good working order … . Wesa v Consolidated Bus Tr., Inc., 2026 NY Slip Op 02690, Second Dept 4-29-26

Practice Point: Where a defendant in a rear-end collision case claims brake failure was the cause, in order to survive summary judgment defendant must demonstrate the failure was unanticipated and reasonable care had been taken to keep the brakes in good working order.

 

, ,

THE EXPERT TESTIMONY OFFERED TO DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN LOW-BIRTH-WEIGHT AND AUTISM SHOULD HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiffs’ verdict in this medical malpractice action and ordering a new trial, determined the expert testimony offered to demonstrate low-birth-weight has a causal relationship with autism should have been precluded:

There was no testimony at the Frye hearing that any of the studies Rubenstein [plaintiffs’ expert] relied upon concluded that premature birth causes autism. Rather, Rubenstein’s testimony established that the exact mechanism of how autism develops is unknown and that studies found a causal inference or association between prematurity and autism, not a causal relationship. Further, there was no testimony elicited at the Frye hearing that demonstrated that the medical community, specifically pediatric neurologists, have accepted that prematurity causes autism or even that a child’s birth at 25 weeks versus 27 weeks increases that child’s risk of later being diagnosed with autism. In any event, the gap between the statistical analysis relied upon by Rubenstein regarding the prevalence of autism in preterm, low-birth-weight infants and his testimony that the pathophysiology and causes of autism are unknown was too great to allow him to opine as to his theory of causation in this action. Based upon the foregoing, the Supreme Court erred in denying that branch of the defendants’ motion which was to preclude Rubenstein’s testimony on this theory of causation. Terehoff v Frenkel, 2026 NY Slip Op 02688, Second Dept 4-29-26

Practice Point: Consult this decision for insight into when observational studies will not support an expert’s testimony about causation. Here the testimony purporting to link low-birth-weight to autism should have been precluded.

 

, , ,

THE DREXEL UNIVERSITY COOPERATIVE EDUCATION PROGRAM (CO-OP) ARRANGES FOR STUDENTS TO WORK FOR PARTICIPATING EMPLOYERS FOR COLLEGE CREDIT; DREXEL DID NOT EXERCISE SUFFICIENT SUPERVISION OVER THE STUDENTS TO BE HELD VICARIOUSLY LIABLE FOR ANY WORKPLACE NEGLIGENCE ON THE STUDENTS’ PART (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Drexel University was not the employer of two students who were operating a forklift which allegedly caused injury to plaintiff. The students were participating in a Drexel Cooperative Education Program. The Second Department found that Drexel was not exercising sufficient supervision and control over the students such that Drexel could be held vicariously liable for the forklift accident:

… [T]he Drexel Cooperative Education Program [the co-op] … permits students to apply for and obtain paid work experience with participating employers for a period of up to six months. * * *

Drexel demonstrated, prima facie, that it lacked the requisite control over the students’ work and conduct during their employment with Jaidan [a participating co-op employer] to give rise to either an employer-employee or principal-agent relationship. Drexel’s evidence demonstrated that it provided an online recruiting platform on which students searched job descriptions submitted by participating employers and applied for jobs with those employers. Drexel also required that students work 32 hours per week to receive academic credit for the co-op, that students follow Drexel’s code of conduct during the co-op, and that students complete a survey at the end of the co-op to report on their experience. However, the co-op employers decided whether to hire a particular student, paid the co-op students’ salaries, and provided IRS documents. Additionally, employers set the students’ work schedule and were responsible for supervising and training the students. While participating employers were encouraged to communicate with Drexel if there were performance issues so that Drexel could provide support, the participating employer had the authority to terminate the students’ employment. During the time that the students worked at their co-op location, they would have little to no contact with Drexel, which, in the case of the students at issue here, was located approximately 130 miles from where the students were living and working for [the co-op employer]. Sager v Frontpage Invs., 2026 NY Slip Op 02686, Second Dept 4-29-26

Practice Point: Consult this decision for insight into the level of supervision required for an employer-employee or principal-agent relationship which will trigger vicarious liability.

 

, ,

THE FACT THAT THE EMPLOYER MAY BE VICARIOUSLY LIABLE FOR AN EMPLOYEE’S NEGLIGENCE DOES NOT WARRANT DISMISSAL OF THE ACTION AGAINST THE EMPLOYEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee defendant should not have been granted summary judgment on the ground her employer (New Beginnings) was vicariously liable for the employee’s negligence. Allegedly, plaintiff was injured receiving a “facial treatment” from the employee (Wallace):

… [T]he doctrine of respondeat superior does not entitle Wallace to summary judgment dismissing the complaint insofar as asserted against her. “While an employer may be vicariously liable for the torts of its employee while acting within the scope of his or her employment, a claim against the employer does not necessarily preclude a separate claim against the employee” … . “It is ordinarily immaterial to an agent’s liability that the agent’s tortious conduct may, additionally, subject the principal to liability” (Restatement [Third] of Agency § 7.01[b]). “It is consistent with encouraging responsible conduct by individuals to impose individual liability on an agent for the agent’s torts although the agent’s conduct may also subject the principal to liability” … . Castellazzo v David’s New Beginnings, LLC, 2026 NY Slip Op 02625, Second Dept 4-29-26

Practice Point: The fact that an employer may be vicariously liable for an employee’s negligence does not preclude a suit against both.

 

, , ,

IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with several medically acceptable treatments and chooses one, not the case here:

“[A]n error [in] judgment charge is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises [their] judgment by following one course of action in lieu of another” … . However, such a charge should be given “only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . An error in judgment charge is not warranted where, as here, there was no evidence introduced at trial that the defendant physician “made a choice between or among medically acceptable alternatives” … , and the “plaintiffs’ [sole] theory of [the] defendant’s alleged malpractice ar[ose] from [the] defendant’s alleged lack of due care in assessing [the] plaintiff’s condition,” inasmuch as “the [sole] issue before the jury was [then] whether [the] defendant’s failure to diagnose [the] plaintiff’s [condition] constituted a deviation from medically accepted standards of care” … . Inasmuch as the error in judgment charge here “create[d] a risk that [the] jury w[ould] find that, because [Sobieraj] exercised his . . . best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care,” we conclude that the court’s error in giving the charge cannot be deemed harmless … , and plaintiffs are thus entitled to a new trial.  Burns v Sobieraj, 2026 NY Slip Op 02537, Fourth Dept 4-24-26

Practice Point: In a medical malpractice action, the “error in judgment” jury instruction is only appropriate where there evidence of more than one appropriate treatment and the physician chooses one. It was reversible error to give the instruction where it was alleged the defendant misread an X-ray.

 

, , ,

TO THE EXTENT VEHICLE AND TRAFFIC LAW SECTION 370 HAS BEEN INTERPRETED TO REQUIRE RENTAL-CAR COMPANIES TO PROVIDE PRIMARY LIABILITY INSURANCE COVERAGE TO RENTER-DRIVERS, SECTION 370 IS PREEMPTED BY THE FEDERAL “GRAVES AMENDMENT” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a three-judge dissent, determined the federal “Graves Amendment (49 USC 30106),” which relieves rental-car companies of vicarious liability for the negligence of the renter-drivers, preempts Vehicle and Traffic Law 370 to the extent that section 370 has been interpreted to require rental companies to provide primary liability insurance coverage to renters. But section 370’s requirement that rental-car companies carry a specified minimum amount of insurance is not preempted by the Graves Amendment:

The Appellate Division [held] that “the Graves Amendment does not supersede Vehicle and Traffic Law § 370 insofar as it is a state law that requires rental car companies to carry a specified minimum amount of insurance for each of their vehicles” but “is superseded to the extent it requires a rental car company to ‘provide primary insurance to their renters up to the minimum liability limits provided by the statute’ ” … . The Court reasoned that “[t]o hold otherwise would rescue every vicarious liability claim up to statutory minimum insurance amounts and render the Graves Amendment’s preemption clause a nullity” … . The Court further held that section 370 does not reverse preempt the Graves Amendment under the McCarran-Ferguson Act, because the Graves Amendment “does not entirely ‘invalidate, impair, or supersede’ ” section 370 … . * * *

We note that the Graves Amendment does not free car rental companies from all liability arising from the use of a rented vehicle. On the contrary, it expressly permits States to impose liability on rental companies for damages arising from their own negligence or criminal wrongdoing (see 49 USC § 30106 [a] [2]). Nor does the Graves Amendment restrict New York’s ability to require rental companies to obtain insurance, no matter what kind, “for the privilege of registering and operating a motor vehicle” (id. § 30106 [b] [1]). Our decision today does not affect section 370’s requirement that car rental companies obtain insurance coverage for such other liability or for the privilege of registering vehicles in New York. Rather, we narrowly hold that the Graves Amendment preempts Vehicle and Traffic Law § 370 to the extent that it requires car rental companies to provide primary liability insurance to their renters up to the statute’s minimum liability amounts. Second Child v Edge Auto, Inc., 2026 NY Slip Op 02436, CtApp 4-23-26

Practice Point: The interpretation of Vehicle and Traffic Law 370 which required rental-car companies to provide primary liability insurance to renter-drivers has been preempted by the federal “Graves Amendment.”​

 

, ,

THE RENTAL-CAR DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT DEMONSTRATE THE RENTAL CAR WAS NOT NEGLIGENTLY MAINTAINED; THEREFORE, PURSUANT TO THE “GRAVES AMENDMENT,” THE RENTAL CAR DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined the evidence submitted by the rental car company (A-1 Cars) did not eliminate a question of fact whether the car was negligently maintained. Plaintiff driver was rear-ended by the rental car:

“Under the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing” … . Thus, under the circumstances of this case, in order to establish entitlement to judgment as a matter of law dismissing the complaint under the Graves Amendment, A-1 Cars was required to show, prima facie, (1) that it owned the subject vehicle, (2) that it engaged in the trade or business of leasing or renting motor vehicles, (3) that the accident occurred during the period of the lease or rental, and (4) that there is no triable issue of fact as to any allegation of negligent maintenance contributing to the accident … .

Here, the only evidence submitted by A-1 Cars aside from an uncertified police accident report, which was inadmissible … , was an affidavit from its “Claims Administrator,” Mariley Mendez. The conclusory, unsupported affidavit was insufficient to demonstrate, prima facie, A-1 Cars’s entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the basis of the Graves Amendment. Among other things, Mendez’s averments that she “check[ed]” the vehicle prior to the rental and that there were no records of mechanical problems with the vehicle were insufficient to establish, prima facie, that the vehicle was properly maintained and in good repair at the time of the subject accident … . Joseph v Marmolejos, 2026 NY Slip Op 02256, Second Dept 4-15-26

Practice Point: Consult this decision for insight into what a rental-car company must prove with respect to maintenance of the rental car to take advantage of immunity from liability pursuant to the Graves Amendment.​

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy