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PLAINTIFF FIREFIGHTER ALLEGED DEBRIS ON STAIRS IN DEFENDANT’S HOME CAUSED HIM TO FALL WHILE FIGHTING A FIRE; THE DEBRIS DID NOT VIOLATE THE NYC ADMINISTRATIVE CODE SO THE GENERAL MUNICIPAL LAW 205-A CAUSE OF ACTION WAS PROPERLY DISMISSED; HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the plaintiff firefighter’s General Municipal Law 205-a action was properly dismissed, but the common law negligence action against the owner of the home where plaintiff fell while fighting a fire should not have been dismissed. Plaintiff alleged debris on a stairway caused the fall. The General Municipal Law 205-a cause of action was dismissed because the debris was not a structural defect and did not therefore violate the NYC Administrative Code:

… Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the cause of action pursuant to General Municipal Law § 205-a as was predicated on violations of Administrative Code of the City of New York §§ 28-301.1 and 29-107.5 i… . The defendant demonstrated, prima facie, that the dangerous condition which allegedly caused the plaintiff’s injuries “did not constitute a specific structural or design defect giving rise to liability under the Administrative Code” … . …

… Supreme Court should not have granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against him. Contrary to the defendant’s contention, the firefighter’s rule does not bar this cause of action under the circumstances of this case … . The defendant failed to establish that he lacked constructive notice of the debris on the stairway, including a box, which allegedly caused the plaintiff to fall … . Pomilla v Bangiyev, 2021 NY Slip Op 04984, Second Dept 9-15-21

 

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PLAINTIFF WAS STRUCK AFTER DEFENDANT CROSSING GUARD MOTIONED FOR HIM TO CROSS; THE CROSSING GUARD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED; THE DISSENT WOULD HAVE DENIED THE MOTION (SECOND DEPT).

The Second Department, over a dissent, affirmed the grant of the crossing guard’s (Gandolfo’s) and the county’s motion for summary judgment in this pedestrian-vehicle accident case. Defendant Gandolfo had assumed her position in the crosswalk and motioned for infant plaintiff to cross the road when plaintiff was struck by a car driven by Upton. The dissent argued there was some evidence that Gandolfo may have been negligent:

Vehicle and Traffic Law § 1102 provides that “[n]o person shall fail or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic.” Here, the County defendants … [submitted] transcripts of the deposition testimony of Gandolfo, Upton, and an eyewitness to the accident, which demonstrated that Upton’s actions were the sole proximate cause of the accident. Gandolfo testified that, upon seeing the infant at the southern corner of the intersection from her post on the northern corner, she entered the crosswalk, and, upon reaching the middle, raised her stop sign toward traffic traveling east on Montauk Highway, and her gloved hand toward traffic traveling west, checked in both directions two times for approaching vehicles, and seeing none, nodded to the infant to enter the crosswalk. Gandolfo further testified that she heard Upton’s vehicle, which was traveling east on Montauk Highway, before she saw it, and that, despite Gandolfo’s presence in the crosswalk, Upton failed to stop her vehicle, and struck the infant as he had almost reached the middle of the crosswalk. The eyewitness testified that, after dropping her child off at the high school, she was waiting for the infant to walk through the crosswalk before making a right turn onto Montauk Highway, and the crossing guard, dressed in a crossing guard uniform, was in the middle of the crosswalk holding a stop sign, when the infant was struck as he approached the middle of the crosswalk. During her deposition, Upton, who frequently traveled the route where the accident occurred, testified that, prior to striking the infant, she saw Gandolfo in the road, holding up her stop sign, but did not see the infant until after her vehicle struck him. Christopher W. v County of Suffolk, 2021 NY Slip Op 04922, Second Dept 9-1-21

 

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QUESTION OF FACT WHETHER A CONTRACTOR WAS LIABLE TO A SUBCONTRACTOR FOR LAUNCHING AN INSTRUMENT OF HARM; THE SUBCONTRACTOR WAS INJURED ATTEMPTING TO FIX THE PROBLEM ALLEGEDLY CREATED BY THE CONTRACTOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a contractor, Home Crafts, launched an instrument of harm such that the contractor was liable to a subcontractor, Catalano, who fell from a ladder when attempting to fix the problem. Home Craft had ordered that sheet metal be placed over a chimney during the installation of gas fireplace inserts. The sheet metal caused smoke to back up when the fireplace was tested. Catalano fell when taking the sheet metal off the chimney:

… “[A] contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm” … .

Here, Home Crafts failed to establish, prima facie, that it did not launch a force or instrument of harm by directing Catalano to seal the chimney, without alerting the other contractors that the fireplace at issue was rendered inoperable due to the inability to ventilate smoke … . Santibanez v North Shore Land Alliance, Inc., 2021 NY Slip Op 04921, Second Dept 9-1-21

 

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A SCHOOL FACULTY MEMBER WHO YELLED “BE QUIET” INTO A MICROPHONE, THE LOUDNESS OF WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S CHILD, DID NOT BREACH A DUTY OWED TO THE STUDENT; THE SCHOOL DISTRICT’S MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district was entitled to a directed verdict in this action which alleged plaintiff’s daughter was injured when a faculty member used a microphone to tell the students to be quiet. It was alleged loudness of the command caused injury:

In order to prevail on a negligence claim, ” ‘a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom’ “… . On appeal, defendant disputes the element of breach only. To that end, the standard to which defendant and its employees are held is “that degree of care which a reasonable [parent] of ordinary prudence would exercise under the circumstances, commensurate with the apparent risk involved” … . Further, “[w]hen a duty exists, nonliability in a particular case may be justified on the basis that an injury is not foreseeable” … .

Although the proof at trial reflected that a school faculty member had “yelled” two words into a microphone and “was really loud” in doing so, there was no proof presented that those words were spoken in a manner or at a volume that was unreasonable, foreseeably unsafe, or in violation of any applicable standard of care. In other words, “[w]ithout knowing what is ‘too loud’,” “there [was] no standard of care by which a jury could determine on the evidence presented that defendant[] had breached a duty owed to plaintiff”… . Because there was no “rational process by which the [jury] could base a finding in favor of [plaintiff]” on the element of breach, we conclude that the court erred in denying defendant’s motion for a directed verdict … . Joni C. v Cheektowaga-Sloan Union Free Sch. Dist., 2021 NY Slip Op 04859, Fourth Dept 8-26-21

 

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THE STATE BREACHED ITS DUTY TO PROTECT AN INMATE FROM AN ATTACK BY OTHER INMATES; COURT OF CLAIMS REVERSED OVER A TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims and granting judgment in favor of the claimant, over a two-justice dissent, determined claimant, an inmate, demonstrated the state was negligent in failing to protect him from an attack by other inmates:

… [C]laimant—who had an unblemished disciplinary record—cooperated with an investigation by the Department of Corrections and Community Supervision (DOCCS) into an illegal sexual relationship between a female correction officer (Parkinson) and several male inmates. Among the inmates involved in the illegal relationship was a gang leader inside the prison. During the course of the investigation, a state official left documents evidencing claimant’s cooperation where an inmate porter could see them, and the porter shared that information with other inmates, including the gang leader implicated in the investigation. The gang leader then collaborated with other inmates to instigate a brutal assault on claimant. Prior to the attack, one of the inmates informed Parkinson of the plan. * * *

… [T]he trial evidence proves decisively that defendant either knew or should have known that claimant was at serious risk of being attacked as a result of his cooperation. Specifically, defendant knew that claimant had just reported an illegal sexual relationship between Parkinson and an inmate gang leader, and defendant’s failure to safeguard the investigatory file allowed that fact to spread through the inmate population. As defendant’s own witnesses testified at trial, the risk to an inmate in claimant’s position under these circumstances would have been obvious and well-known. Notwithstanding the reasonably foreseeable risk to claimant, defendant failed to take any steps to protect him. In short, given Parkinson’s prior retaliation, the gang leader’s influence, motive, and ability to instigate an attack, and defendant’s failure to safeguard the facility’s investigatory file, we conclude that defendant’s decision to simply leave claimant in his dormitory, surrounded by associates of the gang leader and guarded only by Parkinson, constituted a grave breach of its duty to use “reasonable care under the circumstances” to protect an inmate in its custody … . McDevitt v State of New York, 2021 NY Slip Op 04795, Fourth Dept 8-26-21

 

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PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE RENDERED THE LEGAL MALPRACTICE ACTION TIMELY; REFERENCE TO THE “ENFORCEMENT” OF THE LOAN DOCUMENTS INDICATED THE POSSIBILITY OF REPRESENTATION AFTER THE DATE OF THE LOAN TRANSACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs raised a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely:

The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … , and ” ‘where the continuing representation pertains specifically to [that] matter’ ” … . Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. … [W]e conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed. Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 2021 NY Slip Op 04841,, Fourth Dept 8-26-21

 

THERE WAS A QUESTION OF FACT WHETHER A DEFENDANT WHICH DID NOT OWN THE AREA WHERE PLANTIFF SLIPPED AND FELL COULD BE LIABLE UNDER THE SPECIAL USE DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was question of fact whether defendant Ayer made a “special use” of the area of the pavement defect where plaintiff fell:

Although the Ayer defendants met their initial burden on their motion by establishing that the defect in the pavement was located on a portion of the alley owned by the Benderson defendants, the Benderson defendants raised an issue of fact in opposition with respect to whether Ayer could nevertheless be found responsible for plaintiff’s injury under application of the special use doctrine … . Specifically, the Benderson defendants’ submissions established that the defect in the pavement was located close to the property line, that an entrance to Ayer’s apartments was near the defect, and that fixtures attached to the building on Ayer’s property encroached over the property line near the defect. Therefore, the Benderson defendants raised an issue of fact as to whether Ayer had the requisite “access to, and control of,” the alley where plaintiff fell to give rise to a duty of care … . Jargiello v Ayer Dev., LLC, 2021 NY Slip Op 04828, Fourth Dept 8-26-21

 

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WHETHER A DELAY IN DIAGNOSIS AFFECTED PLAINTIFF’S PROGNOSIS IS USUALLY A JURY QUESTION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact which precluded summary judgment in favor of defendant. The court noted that whether a delay in diagnosis affected prognosis is usually a question for the jury:

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” … . On a motion for summary judgment, the party opposing the motion is entitled to every favorable inference that may be drawn from the pleadings and affidavits submitted by the parties … . “Conflicting expert opinions raise credibility issues which are to be resolved by the factfinder” … . …

Contrary to [defendant] Riegelhaupt’s contention, the plaintiffs’ expert, who is board certified in internal medicine and gastroenterology, was qualified to give an opinion of Riegelhaupt’s care of the injured plaintiff in Riegelhaupt’s capacity as the injured plaintiff’s primary care physician. Moreover, there are triable issues of fact as to whether Riegelhaupt assumed a duty to assist in the treatment of the injured plaintiff’s gastrointestinal issue, and whether Riegelhaupt’s alleged departures delayed the diagnosis of the injured plaintiff’s ulcerative colitis and decreased his chances of having a better outcome. Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury … . Wiater v Lewis, 2021 NY Slip Op 04783, Second Dept 8-25-21

 

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ALTHOUGH THE DOCUMENTS SUBMITTED BY DEFENDANT IN THIS SLIP AND FALL CASE MAY HAVE MET THE CRITERIA FOR THE PUBLIC DOCUMENTS EXCEPTION TO THE HEARSAY RULE, THEY WERE INADMISSIBLE BECAUSE THEY WERE NOT AUTHENTICATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence submitted by defendant (Maspeth) in support of its argument it did not create the depression in the roadway where plaintiff allegedly fell was inadmissible hearsay. Although the documents may have met the criteria for the public document exception to the hearsay rule, the documents were not authenticated:

Maspeth submitted various documents from City agencies … which it claimed were admissible under the common-law public document exception to the hearsay rule. Under the common-law public document exception, “[w]hen a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence” since such public official “has no motive to distort the truth” and the writing is prepared in discharge of a public duty … . While the documents are admissible without the testimony of the official who made it, the documents must still be authenticated … . Here, even assuming that the documents submitted by Maspeth would otherwise meet the requirements under the common-law public document exception to the hearsay rule, they were not authenticated (… Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4520:2), and were, therefore, not admissible as evidence. As such, Maspeth failed to establish, prima facie, with evidence in admissible form, that its work at the location prior to the date of the subject accident was not the cause of the depression in the roadway which allegedly caused the plaintiff to fall. Rosenfeld v City of New York, 2021 NY Slip Op 04770, Second Dept 8-25-21

 

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EVIDENCE DEFENDANTS DID NOT CREATE THE WATER-ON-FLOOR CONDITION IN THIS SLIP AND FALL CASE WAS FIRST PRESENTED IN REPLY PAPERS; THEREFORE DEFENDANTS DID NOT MEET THEIR BURDEN ON THAT ISSUE; ALTHOUGH THERE WAS EVIDENCE THE AREA OF THE SLIP AND FALL WAS INSPECTED AT 7:00 AT THE START OF THE EVENT AND SOMETIME THEREAFTER, THERE WAS NO SPECIFIC EVIDENCE THE AREA WAS INSPECTED CLOSE IN TIME TO THE FALL AT 8:30, NEAR THE END OF THE EVENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this water-on-floor slip and fall case should not have been granted. The defendants first addressed whether they created the dangerous conditions in their reply papers, so they did not meet their burden on that issue. In addition they did not demonstrate the lack of constructive notice of the condition because there was no evidence the area was inspected close in time to the alleged fall:

… [T]he defendants were required to demonstrate, prima facie, that they did not create the alleged wet condition … . The defendants failed to make such a showing since they argued only that they lacked actual and constructive notice of the condition. While the defendants addressed the issue of creation for the first time in their reply papers, they failed to make a prima facie showing that they or their agents did not create the alleged wet condition, as it was their obligation to address this issue in their original motion papers … . …

… [T]he defendants’ submissions in support of their motion, including the affidavit of Daniel Sullivan … were insufficient to demonstrate … that the defendants lacked constructive notice of the alleged wet condition. According to Sullivan, he was present at the school function but did not witness the injured plaintiff’s fall. Although he stated that he inspected the floor prior to the event beginning at 7:00 p.m. and at times during the event and did not see any debris or water on the floor, he also stated that the injured plaintiff fell at approximately 8:30 p.m. “near the end of the event.” Sullivan did not provide specific information as to when the area where the injured plaintiff fell was last cleaned or inspected relative to the time of the accident … . Rivera v Roman Catholic Archdiocese of N.Y., 2021 NY Slip Op 04769, Second Dept 8-25-21

 

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