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PLAINTIFF’S MOTION TO REARGUE MERELY REPEATED HER EARLIER ARGUMENTS AND DID NOT DEMONSTRATE THE COURT HAD OVERLOOKED OR MISUNDERSTOOD FACTS OR LAW; THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to reargue the summary judgment motion in this slip and fall case should not have been granted. Supreme Court had originally granted the city’s motion for summary judgment on the ground it did not have written notice of the dangerous condition. After the motion to reargue was granted, Supreme Court denied the city’s motion. Because the motion to reargue did not present new information and merely repeated the earlier arguments, it should have been denied:

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). “Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” … . However, “[a] motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented” … . * * *

In support of her motion for leave to reargue, the plaintiff merely repeated her earlier arguments and did not demonstrate that the Supreme Court had overlooked or misapprehended any matter of fact or law in rendering the prior determination … . Hallett v City of New York, 2023 NY Slip Op 04367, Second Dept 8-23-23

Practice Point: A motion to reargue must be based on law or facts allegedly overlooked or misunderstood by the court. Here the motion merely repeated earlier arguments and, therefore, the motion should not have been granted.

 

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THE DEFENDANT IN THIS SLIP AND FALL CASE DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST CLEANED OR INSPECTED; ONLY EVIDENCE OF GENERAL CLEANING PRACTICES WAS PRESENTED; DEFENDANT SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant shopping mall in this slip and fall case did not demonstrate it did not have constructive notice of the oily patch in the parking lot where plaintiff slipped and fell. Plaintiff testified she saw the oily patch on the way into the mall and slipped and fell an hour later. The defendant presented evidence of its general cleaning and inspection practices, but did not demonstrate when the are was last cleaned or inspected:

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice”… .

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall . The plaintiff testified at her deposition that she saw the oily patch on the ground of the parking lot on her way into the shopping mall, approximately an hour before she slipped and fell after exiting the mall. The defendant’s property manager only testified about the defendant’s general cleaning and inspection procedures. Armenta v AAC Cross County Mall, LLC, 2023 NY Slip Op 04355, Second Dept. 8-23-23

Practice Point: For years slip and fall cases were reversed on this ground (no proof when the area was last cleaned or inspected) every week, now the reversals have slowed to a trickle but still …

 

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PETITIONER WAS ENTITLED TO A HEARING TO DETERMINE WHETHER SHE TOOK ADEQUATE STEPS TO LEARN THE IDENTITY OF THE OWNER AND OPERATOR OF THE CAB IN WHICH SHE WAS A PASSENGER WHEN THE CAB WAS STRUCK BY A HIT AND RUN DRIVER; PETITIONER SOUGHT TO COMMENCE AN ACTION AGAINST THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to commence an action against the Motor Vehicle Accident Indemnification Corporation (MVAIC) should not have been denied without a hearing. Petitioner was injured when a hit and run driver struck the cab she was riding in. The issue was whether petitioner took adequate steps to learn the identity of the owner and operator of the cab:

MVAIC was created to compensate innocent victims of hit-and-run motor vehicle accidents … . Insurance Law § 5218 sets forth the procedure for applying to a court for leave to commence an action against MVAIC in a hit-and-run case. “This statute provides, inter alia, that a person may apply to a court for an order permitting an action against MVAIC when, as relevant here, there is a cause of action to recover damages for personal injury arising out of the ownership, maintenance, or use of a motor vehicle, and when the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained” … . “If the court, after a hearing, is satisfied that, inter alia, all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, then it may issue an order permitting an action against MVAIC” … .

Supreme Court should not have denied the petition and dismissed the proceeding without first having conducted a hearing. * * * Given the efforts made by the petitioner, there are issues of fact as to whether, under the circumstances, her efforts to ascertain the owner and operator of the livery cab were reasonable. Matter of Benalcazar v Motor Veh. Acc. Indem. Corp., 2023 NY Slip Op 04376, Second Dept 8-23-23

Practice Point: Before the Motor Vehicle Accident Indemnification Corporation could be sued in this traffic accident case, the injured party (petitioner) was required take adequate steps to learn the identity of the owner and operator of the cab in which she was a passenger when the cab was struck by a hit and run driver. The efforts made by petitioner here were sufficient to warrant a hearing on the issue.

 

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DEFENDANT ALLOWED PLAINTIFF’S DECEDENT, 18, TO DRIVE HIS LAMBORGHINI WHILE DEFENDANT WAS A PASSENGER; PLAINTIFF’S DECEDENT LOST CONTROL AT 180 MPH, STRUCK A GUARD RAIL, WAS EJECTED AND DIED FROM HIS INJURIES; THERE WAS A QUESTION OF FACT, RAISED BY PLAINTIFF’S EXPERT, WHETHER DEFENDANT HAD SPECIAL KNOWLEDGE WHICH RENDERED PLAINTIFF’S DECEDENT’S USE OF THE CAR UNREASONABLY DANGEROUS; THE NEGLIGENT ENTRUSTMENT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined negligent entrustment causes of action should not have been dismissed. Defendant owned a high performance car (a Lamborghini) and allowed plaintiff’s decedent, who was 18, to drive it. Plaintiff’s decedent apparently lost control of the car at 180 mph, struck a guard rail, was ejected and died from his injuries. Defendant was a passenger at the time of the accident:

“The tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee’s propensity to use the chattel in an improper or dangerous fashion” … . To establish a cause of action under a theory of negligent entrustment, the defendant must either have some special knowledge concerning a characteristic or condition peculiar to the person to whom a particular chattel is given which renders that person’s use of the chattel unreasonably dangerous, or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous … . “An owner of a motor vehicle may be liable for negligent entrustment if [he or she] was negligent in entrusting it to a person [he or she] knew, or in exercise of ordinary care should have known, was not competent to operate it” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent entrustment. Although the decedent’s possession of a driver license is a factor to be considered, the defendant nevertheless failed to eliminate triable issues of fact as to whether he had special knowledge concerning a characteristic or condition peculiar to the decedent which rendered his use of the Lamborghini unreasonably dangerous … . Shepard v Power, 2023 NY Slip Op 04330, Second Dept 8-16-23

Practice Point: Here there was a question of fact, raised by plaintiff’s expert, whether defendant’s allowing plaintiff’s decedent, 18, to drive defendant’s Lamborghini constituted negligent entrustment. Plaintiff’s decedent lost control at 180 mph, crashed and died from his injuries.

 

PLAINTIFF, AT HER DEPOSITION, COULD NOT IDENTIFY THE CAUSE OF HER STAIRWAY SLIP AND FALL; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this stairway slip and fall, based upon her deposition testimony, could not identify the cause of her fall which required dismissal of the complaint:

“… [A] defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without [resort to] speculation'” … . “‘[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation'”  … . “‘Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused [the plaintiff to fall], any determination by the trier of fact as to causation would be based upon sheer speculation'” …  .

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony, in which she identified a defect in another step than that from which she fell as the cause of her accident and admitted that she did not know what caused her to lose her balance and fall. Thus, any determination that the defect identified by the plaintiff was the proximate cause of her accident, rather than a misstep or loss of balance, would be based on speculation … . De Rose v Anna & Rose Realty Co., LLC, 2023 NY Slip Op 04302, Second Dept 8-16-23

Practice Point: A slip and fall plaintiff who acknowledges in a deposition she does not know what caused her to fall loses the case.

 

LOANING PLAINTIFF’S DECEDENT A CAR WITH A BROKEN FUEL GAUGE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH; THE CAR RAN OUT OF GAS AND PLAINTIFF’S DECEDENT PULLED OVER ONTO THE SHOULDER OF A TWO-LANE ROAD; SHE WAS STRUCK BY A HIT AND RUN DRIVER WHILE PUTTING GAS IN THE CAR WITH A GAS CAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence ascribed to the defendant in this fatal traffic-accident case was not a proximate cause of the accident. Defendant allegedly loaned a car with a broken fuel gauge to plaintiff’s decedent. The car ran out of gas on a two-lane highway and plaintiff’s decedent pulled the car over onto the shoulder. When plaintiff’s decedent was attempting to put gas in the car with a gas can, she was struck and killed by a hit-and-run driver:

… [T]he plaintiff alleged that the defendant knew that his vehicle had a malfunctioning gas gauge but nonetheless “allowed the decedent . . . to borrow and use” the vehicle. The plaintiff further alleged that the defendant negligently failed to maintain the vehicle in proper working order and loaned the vehicle to the decedent while it was in a state of disrepair, and that this negligence caused the decedent’s injuries. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending, inter alia, that it was not foreseeable that running out of gas would result in the decedent being struck by a hit-and-run driver, and that the defendant’s alleged conduct was not a proximate cause of the accident. …

… [T]he defendant established, prima facie, that his alleged negligence was not a proximate cause of the accident. Even assuming, arguendo, that permitting the decedent to borrow a vehicle with a malfunctioning gas gauge “furnished the condition or occasion” for the accident … , under the circumstances here, a hit-and-run driver striking the decedent constituted an intervening act which was not foreseeable … . Biamonte v Biamonte, 2023 NY Slip Op 04296, Second Dept 8-16-23

Practice Point: Here plaintiff’s decedent was struck and killed by a hit and run driver after the car loaned to her by defendant ran out of gas. The broken fuel gauge in the loaned car was not a proximate cause of her death. The hit and run accident was deemed an intervening act which was not foreseeable.

 

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THE ORDER DENYING DEFENDANTS THE ABILITY TO ASSERT CPLR ARTICLE 16 DEFENSES IS APPEALABLE; DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM ASSERTING THE CPLR ARTICLE 16 DEFENSES ATTRIBUTING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION TO NON-PARTIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendants in this medical malpractice action should not have been precluded from asserting the negligence of non-parties (CPLR article 16 defenses) as an affirmative defenses. The court noted that, although the a ruling on a motion in limine is generally not appealable, a ruling on a motion which seeks to limit the legal theories which can be asserted is appealable:

“Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . There is, however, “a distinction between an order that ‘limits the admissibility of evidence,’ which is not appealable . . . , and one that ‘limits the legal theories of liability to be tried’ or the scope of the issues at trial, which is appealable” … . * * *

… [D]efendants are entitled to assert their CPLR article 16 defenses regarding the nonparty providers. “As provided in CPLR 1601 (1), a defendant may raise the CPLR article 16 defense regarding a nonparty tortfeasor, provided that the plaintiff could obtain jurisdiction over that party” … . Here, defendants are entitled to raise their pleaded affirmative defenses pursuant to CPLR article 16 … because plaintiff could have sought to maintain an action against the nonparty providers in Supreme Court … .

The crux of the issue on appeal is whether defendants were required, in response to plaintiff’s demands for bills of particulars, to particularize the pleaded CPLR article 16 defense, and thus whether the court properly precluded them from asserting that defense at trial when they did not timely particularize that defense. We conclude that no such particularization was required under the circumstances of this case, and thus that the court erred in precluding defendants from asserting the CPLR article 16 defense at trial. Harris v Rome Mem. Hosp., 2023 NY Slip Op 04273, Fourth Dept 8-11-23

Practice Point: Motions in limine generally are not appealable. But motions seeking to preclude legal theories of liability are appealable.

Practice Point: Under the unique circumstances of this case, defendants in this medical malpractice action should not have been precluded from presenting CPLR article 16 affirmative defenses on the ground the defenses were not particularized in the bill of particulars. It was not clear the demands related to the CPLR article 16 affirmative defenses.

 

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​ DEFENDANT DEMONSTRATED PLAINTIFF CAUSED THE TRAFFIC ACCIDENT BY MAKING AN UNREASONABLE LEFT TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (NEGLIGENCE PER SE); THE COURT MAY DETERMINE THE PROXIMATE CAUSE OF A TRAFFIC ACCIDENT AT THE SUMMARY JUDGMENT STAGE AS A MATTER OF LAW IF ONLY ONE CONCLUSION CAN BE DRAWN FROM THE FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this traffic accident case demonstrated plaintiff violated the Vehicle and Traffic Law by unreasonably making a left turn, which constitutes negligence per se:

… [T]he defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that the plaintiff’s conduct in making a left turn directly into the path of the defendant’s vehicle without yielding the right-of-way to the defendant, in violation of Vehicle and Traffic Law § 1141, and when it was not reasonably safe to make a left turn, in violation of Vehicle and Traffic Law § 1163(a), was the sole proximate cause of the accident … . The issue of proximate cause may be decided as a matter of law where, as here, only one conclusion may be drawn from the established facts … . Lylan Pham v Lee, 2023 NY Slip Op 04200, Second Dept 8-9-23

Practice Point: Causing a traffic accident by making an unreasonable left turn into defendant’s lane of traffic in violation of the Vehicle and Traffic Law is negligence per se.

Practice Point: A judge at the summary judgment stage can determine the proximate cause of a traffic accident as a matter of law if there is only one conclusion which can be drawn from the facts.

 

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THE ALLEGATIONS WERE SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL TO REACH DEFENDANT LLC MEMBER PERSONALLY FOR BREACH OF THE HOUSING MERCHANT IMPLIED WARRANTY OBLIGATIONS; AND DEFENDANT COULD BE HELD PERSONALLY LIABLE FOR NEGLIGENT REPAIRS UNDER A HOME RENOVATION CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this home-renovation-contract dispute sufficiently alleged the corporate veil should be pierced to reach the defendant Assaf, member of the LLC, personally for failing to comply with the implied warrant requirements. Defendant could also be held personally liable for negligent repairs:

Among the plaintiffs’ allegations were that Assaf wound down the LLC’s business following the closing of title in an effort to keep the LLC undercapitalized and judgment proof and that, following the closing, he distributed sale proceeds without reserving sufficient assets needed to satisfy the LLC’s obligations under New York State’s housing merchant implied warranty and any contingent liability.

… “Although [c]orporate officers may not be held personally liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts, corporate officers may be held personally liable for torts committed in the performance of their corporate duties” … . Here, the plaintiffs adequately alleged that Assaf personally engaged in acts of negligence in performing repairs at the home … . Gold v 22 St. Felix, LLC, 2023 NY Slip Op 04194, Second Dept 8-9-23

Practice Point: Here the allegation that defendant LLC member undercapitalized the LLC supported piercing the corporate veil for breach of the home merchant implied warranty obligations.

Practice Point: A member of an LLC may be personally liable for negligent repairs pursuant to a home-renovation contract.

 

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THERE WAS NO REASONABLE VIEW OF THE EVIDENCE WHICH SUPPORTED THE JURY’S CONCLUSION THE BUS DRIVER WAS NOT NEGLIGENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted:

A jury verdict in favor of a defendant should be set aside as contrary to the weight of the evidence where the evidence preponderates so heavily in the plaintiff’s favor that it could not have been reached by any fair interpretation of the evidence … . “A driver . . . has ‘a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses'” … .

Here, no fair interpretation of the evidence supports a finding that Ramirez was free from negligence in the happening of this accident. Although it is unclear whether the plaintiff was crossing the entrance ramp in or near the crosswalk at the time that she was struck, Ramirez’s failure to observe the plaintiff crossing the entrance ramp at the time of the accident was a violation of his common-law duty to see that which he should have seen through the proper use of his senses … . Under these circumstances, the jury’s verdict that Ramirez was free from negligence was not supported by any fair interpretation of the evidence. Wargold v Hudson Tr. Lines, Inc., 2023 NY Slip Op 04153, Second Dept 8-2-23

Practice Point: A driver has a common law duty to see what he should have seen. The motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted.

 

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