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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that the issue of plaintiff’s comparative negligence can be considered at the summary judgment stage if raised as an affirmative defense:

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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence … . Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence … . Diamond v Comins, 2021 NY Slip Op 03019, Second Dept 5-12-21

 

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THERE IS A QUESTION OF FACT WHETHER A 16-YEAR-OLD SOFTBALL PLAYER ASSUMED THE RISK OF STEPPING IN A HOLE ON THE FIELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether a 16-year-old softball player assumed the risk of stepping into a hole on the softball field:

Plaintiff, an experienced 16-year-old softball player was playing softball on an outdoor artificial turf field owned by defendant City of New York (the City). Plaintiff maintained that she sustained injures to her left knee when she stepped into a hole on the turf that had been placed over existing turf. The City contends that the hole was an open and obvious condition and that plaintiff assume the risk of injury. We disagree. The photographs in the record appear to depict a tear or seam in the turf that may have caused a concealed depression relative to the surrounding playing surface.

Accordingly, issues of fact exist whether the City was negligent in maintaining the field in a reasonably safe condition. Although a participant in an athletic activity is deemed to have assumed “those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation,” there remain issues of fact as to whether plaintiff’s injuries resulted from concealed or unreasonably increased risks … . A.S. v City of New York, 2021 NY Slip Op 02975, First Dept 5-11-21

 

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DEFENDANTS DID NOT FOLLOW THE PROCEDURES FOR ELECTRONICALLY FILING A VIDEO; THEREFORE THE VIDEO WAS NOT AVAILABLE TO THE COURT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the video evidence relied upon by defendants’ expert in this elevator-malfunction personal-injury case was not properly electronically filed and therefore was unavailable for review. Because of the unavailability of the evidence defendants’ motion for summary judgment should have been denied:

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving … . Defendants submitted an affidavit by an expert professional engineer who opined — based on his review of the surveillance footage of plaintiff’s accident and still images purportedly extracted therefrom — that plaintiff failed to fully close the elevator car’s scissor gate, which then opened while the elevator car was in flight, triggering the elevator’s sudden stop. However, they failed to submit the video footage on which their expert relied. Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.” The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits … . Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries. Amezquita v RCPI Landmark Props., LLC, 2021 NY Slip Op 02979, First Dept 5-11-21

 

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PLAINTIFF BROUGHT A PERSONAL INJURY ACTION AGAINST A SCHOOL DISTRICT AND AN INDIVIDUAL UNDER THE CHILD VICTIMS ACT ALLEGING SEXUAL ABUSE BY A GUIDANCE COUNSELOR IN THE 1980’S; SUPREME COURT PROPERLY ALLOWED PLAINTIFF’S SUIT TO GO FORWARD UNDER A PSEUDONYM (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Smith, determined Supreme Court properly allowed plaintiff to proceed under a pseudonym in her personal injury action against the school district and an individual defendant pursuant to the Child Victims Act (CBA). Plaintiff alleged she was sexually abused in the 1980’s by a guidance counselor at her high school:

… [P]laintiff alleged that she was employed by the county in which these allegations arose, that her job may be in jeopardy as a result of the allegations, and that she experienced “emotional distress, suicidal thoughts, depression, anxiety, feelings of worthlessness, and many other psychological damages, painful feelings, emotions, nightmares, flashbacks, as well as physical manifestations of these problems” that would recur if her name was publicized.

… [T]he record establishes that plaintiff has disclosed her name to defendants, thereby minimizing any prejudice arising from her use of a pseudonym for the purposes of discovery and investigation, and defendants have not asserted any other prejudice that they will sustain therefrom. An additional factor supporting the court’s determination is that plaintiff did not seek, nor did the court order, that the records in the case be sealed or that public access be denied. Thus, the public’s interest in open court proceedings is preserved … . Although the School and defendant Amherst Central School District are governmental entities, which supports plaintiff’s position, defendant John Koch … is an individual, which favors defendants’ position. Thus, there is no clear advantage to either side with respect to that factor. PB-7 Doe v Amherst Cent. Sch. Dist., 2021 NY Slip Op 02969, Fourth Dept 5-7-21

 

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PLAINTIFF RAISED GROUNDS TO INVALIDATE A RELEASE IN THIS TRAFFIC ACCIDENT CASE BASED ON FRAUD (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff in this traffic accident case raised grounds to invalidate a release plaintiff had signed  based upon fraud:

Defendants met their initial burden of establishing that they were released from any claims by submitting the release executed by plaintiff … . The burden thus shifted to plaintiff to show that the release was voidable based on fraud … . Plaintiff submitted an affidavit in which she averred that, in the midst of negotiating a settlement of her personal injury claim for pain and suffering, a representative of Morgan’s insurer told her that, “under New York Law, [plaintiff] would not be able to sue . . . because [she] did not have any major surgeries or life-threatening injuries.” Plaintiff further averred that, based on those representations, she agreed to sign the release in exchange for $1,500. Accepting plaintiff’s allegations as true … , we conclude that plaintiff sufficiently alleged grounds on which to invalidate the release … . Cain-Henry v Shot, 2021 NY Slip Op 02961, Fourth Dept 5-7-21

 

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DEFENDANT PROPERTY OWNER DEMONSTRATED IT DID NOT CREATE OR HAVE ACTUAL NOTICE OF THE DANGEROUS CONDITION (A DEFECTIVE RAILING ON A SECOND-STORY BALCONY); HOWEVER, THERE WAS A QUESTION OF FACT WHETHER A LETTER FROM THE VILLAGE CODE ENFORCEMENT OFFICER SHOULD HAVE TRIGGERED AN INSPECTION OF THE PROPERTY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment dismissing the cause of action alleging defendant created or had actual notice of the dangerous condition should have been granted. The facts are not described, but apparently a railing on plaintiff’s second-story balcony gave way and he fell to the ground. However, the cause of action alleging defendant had constructive notice of the dangerous condition properly survived summary judgment. The defendant received a letter from the village code enforcement officer which did not specifically address the condition of the plaintiff’s balcony but was sufficient to trigger an inspection of the property:

Defendant met its initial burden on its motion of establishing that it did not create or have actual or constructive notice of the alleged defect in the second-story balcony … . In support of the motion, defendant submitted the deposition of plaintiff, who testified that he lived in the apartment for approximately 15 years prior to the accident and was unaware of a problem with the balcony railing. Defendant also submitted evidence establishing that it had received no complaints with respect to the condition of the railing and that it made no repairs to the railing prior to the accident.

In opposition to the motion, plaintiff raised an issue of fact whether defendant had constructive notice of the alleged defect in the balcony railing by submitting a letter written by the Village of Springville Code Enforcement Officer and sent to defendant. The letter, dated 10 days before the accident, stated that “the porch” with respect to the subject property was “falling apart” and needed “immediate attention,” and asked defendant to schedule a time for the Officer to inspect the property. Although defendant’s reply papers included an affidavit from the Code Enforcement Officer explaining that the letter referred to a first-story porch and not the second-story balcony, a person reading the Officer’s letter without any clarification would not have known specifically which porch the Officer had observed in disrepair. “The duty of landowners to inspect their property is measured by a standard of reasonableness under the circumstances” … , and we conclude that there is an issue of fact whether the information in the letter should have aroused defendant’s suspicion so as to trigger such a duty to inspect … . Maracle v Colin C. Hart Dev. Co., Inc., 2021 NY Slip Op 02939, Fourth Dept 5-7-21

 

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THE DEFECTIVE-DESIGN CAUSE OF ACTION AGAINST THE SELLERS OF A TRUCK WHICH DID NOT HAVE A BACK-UP ALARM SHOULD NOT HAVE BEEN DISMISSED; THE PURCHASER OF THE TRUCK TESTIFIED HE WAS NOT AWARE THE OPTION WAS AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defective-design cause of action against the defendant sellers of a truck should not have been dismissed. The truck was purchased by plaintiff’s employer who testified he did not know a back-up alarm was an available option. Plaintiff was run over as the truck backed up:

Where, as here, a plaintiff buyer claims that a product without an optional safety feature is defectively designed because the feature was not included as a standard feature, the product is not defective if “(1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer’s use of the product” … . Here, defendants submitted the deposition testimony of plaintiff’s employer, who testified that, at the time he bought the truck that was involved in the accident, he “didn’t know” that a backup alarm was available as an option, thereby raising an issue of fact whether he was actually aware of its availability … . Mariani v Guardian Fences of WNY, Inc., 2021 NY Slip Op 02906, Fourth Dept 5-7-21

 

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WRONGFUL DEATH PROCEEDS BELONG TO THE DISTRIBUTEES, NOT THE ESTATE; THEREFORE, RATHER THAN DIVIDING THE PROCEEDS EQUALLY, SURROGATE’S COURT MUST CONDUCT A HEARING AND DISPURSE THE PROCEEDS BASED UPON PECUNIARY LOSS (FIRST DEPT).

The First Department, reversing Surrogate’s Court, noted that the proceeds of a wrongful death action belong to the distributees, not the estate. Therefore the proceeds should not be divided equally among the distributees:

Petitioners commenced this proceeding in Surrogate Court seeking judicial allocation and distribution of the settlement proceeds resulting from a Supreme Court wrongful death action. The proceeds of a wrongful death action belong to the statutory distributees of the decedent and not to the estate; therefore, the law does not presume equal distribution of shares (see EPTL 5—4.3 and 5—4.4[a][1] ). Instead, each distributee receives damages in proportion to the pecuniary injuries suffered by him or her, as determined after a hearing in Surrogate’s Court (see EPTL 5—4.4[a][1]). Here, Surrogate’s Court allocated objectant 50% of the settlement proceeds of the wrongful death action without conducting a hearing on the issue of pecuniary loss. Matter of Dixson, 2021 NY Slip Op 02870, First Dept 5-6-21

 

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PLAINTIFF TESTIFIED IT HAD RAINED FOR ONLY FIVE MINUTES BEFORE SHE SLIPPED AND FELL ON WATER ON THE FLOOR; THEREFORE HER TESTIMONY ESTABLISHED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff testified it had only begun raining five minutes before she slipped and fell on water on the floor, which she did not see until after she fell:

Defendants established prima facie that they did not have actual or constructive notice of the water on their lobby floor that plaintiff alleges caused her to slip and fall … . Their property manager stated in an affidavit that she conducted a search of defendants’ records for complaints about water on the lobby floor between January 1, 2015 and July 14, 2015, the date of plaintiff’s accident, and found none except for the complaint made by plaintiff after she fell. That someone fell in the lobby while it was raining after stepping off a mat about a year before plaintiff’s accident does not raise an issue of fact as to whether defendants had actual notice of the water that caused plaintiff to fall. Plaintiff’s own testimony established prima facie that defendants did not have constructive notice of water on the lobby floor; she testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell … . A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff’s fall … . Barreto v 750 Third Owner, LLC, 021 NY Slip Op 02868, First Dept 5-6-21

 

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PLAINTIFF, ON A BICYCLE, WAS STRUCK BY A BUS AND SUFFERED TRAUMATIC BRAIN INJURY, A TORN ROTATOR CUFF AND SEVERAL HERNIATED DISCS; THE JURY’S DAMAGES AWARDS, WHICH INCLUDED $0 FOR FUTURE PAIN AND SUFFERING AND PAST AND FUTURE LOST WAGES, WERE DEEMED UNREASONABLE; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT).

The First Department vacated several of the jury’s damages awards and ordered a new trial on damages. Plaintiff was struck by a bus while on a motorized bike resulting in traumatic brain injury, a torn rotator cuff and several herniated discs:

The jury’s award of $0 for future pain and suffering is inconsistent with its award of $250,000 for future medical expenses and, in any event, against the weight of the evidence and materially deviates from what would be reasonable compensation … .

Given the jury’s finding that plaintiff sustained a “significant limitation of use,” and its award of future medical costs over a period of 25 years, it is clear that the jury found plaintiff to have suffered injuries that will continue to impair his life into the future, and the award of $0 for future pain and suffering is irreconcilable with this finding and cannot stand … .

The award of $750,000 for past pain and suffering deviates materially from what would be considered reasonable compensation in light of plaintiff’s shoulder, spine, and traumatic brain injuries … .

The $0 awards for past and future lost earnings were against the weight of the evidence in light of plaintiff’s testimony regarding his prior income and current unemployment. Dr. Cornelius E. Gorman testified that plaintiff’s “career is lost” and that he “cannot qualify for competitive employment” given his cognitive deficits. The jury had no reasonable basis for depriving plaintiff of damages for past and future loss of earnings … . Scott v Posas, 2021 NY Slip Op 02885, First Dept 5-6-21

 

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