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ALTHOUGH AN ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A DANGEROUS CONDITION IN THE GRASSY STRIP BETWEEN THE SIDEWALK AND THE CURB, HERE THE PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION; IN ADDITION, THE VILLAGE CODE DID NOT IMPOSE TORT LIABILITY ON PROPERTY OWNERS, AN ISSUE PROPERLY CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s motion for summary judgment in this sidewalk slip and fall case should have been granted. Although, pursuant to the Vehicle and Traffic Law, defendant can be responsible for a dangerous condition in the grassy strip between the sidewalk and a curb, here defendant demonstrated he did not create the condition and the village code did not impose tort liability on abutting property owners. Although the “village code” issue was not raised below, it was a purely legal issue that can be considered on appeal:

The grass strip situated between a sidewalk and a roadway is part of the sidewalk (see Vehicle and Traffic Law § 144; Code of the Village of Westbury [hereinafter Village Code] § 215-2 … ). “‘An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty'” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by demonstrating that he did not create the alleged dangerous condition or cause that condition through a special use of the sidewalk … . In addition, while Village Code § 215-12 imposes a duty on owners and occupants of abutting land to keep sidewalks free of obstructions, the Village Code does not specifically impose tort liability for breach of that duty … . Although the defendant did not make an argument based on the provisions of the Village Code in support of his motion before the Supreme Court, his argument in this regard is reviewable on appeal because it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised at the proper juncture … . Lamorte v Iadevaia, 2021 NY Slip Op 04126, Second Dept 6-30-21

 

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THE LEGAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS NO WRITTEN RETAINER AGREEMENT AND THEREFORE NO ATTORNEY-CLIENT RELATIONSHIP; THE COMPLAINT ALLEGED WORDS AND ACTIONS SUFFICIENT TO ASSERT THE EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice action should not have been dismissed on the ground there was no retainer agreement and therefore no attorney-client relationship:

As to the legal malpractice cause of action, the … defendants contend that they had no attorney-client relationship with the plaintiff. An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists … . Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship … . Edelman v Berman, 2021 NY Slip Op 04120, Second Dept 6-30-21

 

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THE BREACH OF CONTRACT CAUSE OF ACTION ALLEGING DEFENDANT ATTORNEY OVERBILLED SHOULD HAVE SURVIVED THE MOTION TO DISMISS DESPITE THE DISMISSAL OF THE LEGAL MALPRACTICE CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for breach of contract alleging overbilling by defendant attorney (Drexel) should have survived the motion to dismiss, even though the legal malpractice cause of action was properly dismissed:

… [T]he Supreme Court should have denied that branch of [defendant-attorney] Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services … . In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work … . Dubon v Drexel, 2021 NY Slip Op 04119, Second Dept 6-30-21

 

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THE ALLEGATION PLAINTIFF WOULD HAVE WON HIS WORKERS’ COMPENSATION HEARING HAD HIS ATTORNEY PRESENTED EYEWITNESS TESTIMONY WAS TOO SPECULATIVE TO SUPPORT A LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed. Plaintiff alleged he would have won his Workers’ Compensation hearing had his attorney presented the testimony of alleged eyewitnesses to his alleged fall from a ladder. The claim that, “but for” the attorney’s negligence, the plaintiff would have won the hearing was deemed too speculative:

“To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … .

… The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory … . Denisco v Uysal, 2021 NY Slip Op 04118, Second Dept 6-30-21

 

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14-YEAR-OLD PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH RETRACTED BLEACHERS DURING A BASKETBALL PRACTICE DRILL IN WHICH BOUNDARY LINES WERE TO BE IGNORED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment in this negligent supervision case should have been granted. The 14-year-old plaintiff was participating in a basketball practice drill in which the boundary lines of the court were to be ignored. When plaintiff attempted to retrieve a ball that went over the boundary line she was pushed into the retracted bleachers. The Third Department held plaintiff assumed the risk of injury during that form of practice:

“The primary assumption of risk doctrine . . . encompasses risks involving less than optimal conditions” … . The opinion of plaintiff’s expert that the drill could have been safer by utilizing the boundary lines of the basketball court and having more space was insufficient to raise an issue of fact given that the failure to do so did not unreasonably increase the inherent risks of the drill or playing basketball … . Plaintiff’s expert likewise failed to cite to any specific industry standard violated by defendants … . Furthermore, there is no indication in the record that the boundary lines of the basketball court acted as, or were intended to be, a safety mechanism to prevent a player’s collision with the bleachers. Because plaintiff did not satisfy her burden, defendants’ motion should have been granted … . Secky v New Paltz Cent. Sch. Dist., 2021 NY Slip Op 04071, Second Dept 6-24-21

 

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DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EIGHT-YEAR-OLD SON WAS MORE THAN HALFWAY ACROSS THE STREET WHEN STRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this pedestrian accident cause should not have been granted. Plaintiff’s eight-year-old son was struck by defendant and there was evidence the child was more than halfway across the road at the time he was struck:

… [T]he evidence submitted by the defendant in support of her motion, including a transcript of her own deposition testimony, failed to eliminate triable issues of fact as to whether she was free from fault in the happening of the accident and, if not free from fault, whether the child’s purported negligence was the sole proximate cause of the accident … . The evidence the defendant submitted indicated that the front passenger side of her vehicle came into contact with the child who, approaching from the defendant’s left, was more than halfway across the winding and curved roadway prior to impact (see Vehicle and Traffic Law §§ 1146[a], 1180[a], [e] …). Sage v Taylor, 2021 NY Slip Op 04048, Second Dept 6-23-21

 

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DEFENDANT RADIOLOGIST WAS ASKED TO EVALUATE A MAMMOGRAM AS A ROUTINE-SCREENING PROCEDURE AND, ACCORDING TO HIS EXPERT, DID SO IN ACCORDANCE WITH ACCEPTED PRACTICES; PLAINTIFF WAS DIAGNOSED WITH BREAST CANCER A YEAR LATER; THE RADIOLOGIST’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over an extensive dissent, determined the radiologist’s motion for summary judgment in this medical malpractice (failure to diagnose) action should have been granted. The radiologist was asked to evaluate a “routine-screening” mammogram and indicated there were no suspicious findings. A year later plaintiff was diagnosed with breast cancer and she died a little more than three years after that. From the radiologist’s perspective, the Second Department concluded, there was nothing to indicate that cancer was suspected and that anything more than a routine-screening was prescribed by plaintiff’s physician:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … . “The question of whether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion” … .

Here, the radiology defendants established, prima facie, that [defendant] Blumberg discharged his duty to the decedent in accordance with accepted practice for radiologists … . Siegel-Goldman, the radiology defendants’ expert, concluded that Blumberg’s interpretation of the April 21, 2010 mammogram was in conformity with accepted practices. …

… [T}he mere fact that the decedent indicated on the mammography worksheet that she experienced some pain in her left breast did not impose a heightened duty of care on Blumberg, who never saw or treated the decedent, and whose only role was to interpret the mammography images and report his findings to the prescribing physician … . Mann v Okere, 2021 NY Slip Op 04014, Second Dept 6-23-21

 

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NO ONE, INCLUDING DEFENDANT DRIVER, SAW THE 17-MONTH-OLD BEFORE HEARING A LOUD “THUMP” AND FINDING THE CHILD LYING BEHIND DEFENDANT’S CAR; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver did not eliminate all questions of fact about whether she was negligence. Defendant driver heard a loud “thump” and plaintiff’s decedent, a 17-month old child, was found lying on the ground right behind defendant’s car. No one saw the impact:

Shortly before the accident, the driver had dropped off a passenger in a residential cul-de-sac, with several young children playing nearby. After pulling into a driveway and reversing out in the opposite direction, the driver began moving her vehicle forward again when she heard a loud “thump”—which was also heard by at least four other witnesses in the vicinity. Believing that her vehicle had come into contact with a parked car to her right, the driver began reversing her vehicle when a man outside urgently directed her to stop. Upon exiting the vehicle, the driver observed the infant lying on the ground “right behind” her vehicle, on the passenger side. The infant was taken to a hospital, where she died of her injuries the following day. The driver did not see the infant prior to the accident, and the record does not indicate that anyone actually observed the contact between the infant and the defendants’ vehicle. …

Under the circumstances presented, the evidence submitted by the defendants was insufficient to meet their prima facie burden of proof, since it failed to eliminate all triable issues of fact regarding the driver’s alleged negligence, including her ability to see the infant prior to the accident … . Danziger v Elias, 2021 NY Slip Op 04008, Second Dept 6-22-21

 

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HEIGHT DIFFERENTIAL BETWEEN TWO ADJACENT SIDEWALK SLABS WAS A TRIVIAL DEFECT AS A MATTER OF LAW; SLIP AND FALL ACTION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged one-inch height-differential in adjacent sidewalk slabs was not actionable in this slip and fall case:

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, 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 which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, in support of its motion, the defendant submitted, inter alia, the transcripts of the plaintiff’s testimony from a hearing pursuant to General Municipal Law § 50-h and her deposition testimony as well as photographs of the alleged defective sidewalk, which established, prima facie, that the height differential between the two slabs of abutting concrete that constituted the sidewalk was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed … . Boesch v Comsewogue Sch. Dist., 2021 NY Slip Op 04007, Second Dept 6-23-21

 

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THE ERIE COUNTY SHERIFF’S OFFICE (ECSO) IS NOT A SEPARATE ENTITY APART FROM THE COUNTY; THE COUNTY MAY BE SUED FOR THE ACTIONS OF CIVILIAN EMPLOYEES OF THE SHERIFF’S OFFICE PURSUANT TO RESPONDEAT SUPERIOR; HERE PLAINTIFF ALLEGED PLAINTIFF’S DECEDENT DIED IN HIS CAR AWAITING RESCUE DURING A SNOWSTORM (FOURTH DEPT).

The Fourth Department determined the Erie County Sheriff’s Office (ECSO) is not a separate entity apart from the county, and the county may be liable for the acts of the sheriff’s office’s civilian employees pursuant to respondeat superior. The lawsuit alleged the defendants failed to timely rescue plaintiff’s decedent who died in his car during a snowstorm:

A sheriff’s office has no legal identity separate from its corresponding county, “and thus an ‘action against the Sheriff’s [Office] is, in effect, an action against the [corresponding] County itself’ ” … . …

Although a “county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior” … , we conclude that a county may be vicariously liable for the negligent acts of the sheriff’s civilian employees given the general rule that a sheriff’s office does not exist separately from its corresponding county … . Moreover, and contrary to defendants’ further contention, the County is not entitled to immunity under Executive Law § 25 because that statute was not pleaded as an affirmative defense in the answer (see CPLR 3018 [b] …). Abate v County of Erie, 2021 NY Slip Op 03940, Fourth Dept 6-17-21

 

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