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THE AMOUNT OF DAMAGES FOR PAST PAIN AND SUFFERING SHOULD BE BASED UPON THE EVIDENCE; THE AWARD SHOULD NOT HAVE BEEN LIMITED TO THE AMOUNT IN THE AD DAMNUM CLAUSE (SECOND DEPT).

The Second Department, reversing the Court of Claims and remitting the matter for a new determination of damages for past pain and suffering. The Court of Claims interpreted the ad damnum clause which read “!0.000.000” to mean $10,000 and awarded that amount. The Second Department noted that the amount of damages should be based on the evidence, not on the ad damnum clause:​

… [A]lthough the Court of Claims found that the claimant’s evidence could support a “substantial recovery for past and future pain and suffering,” it limited the award of damages to $10,000 based on its interpretation of the ad damnum clause. The court should have granted “any type of relief within its jurisdiction appropriate to the proof whether or not demanded” (CPLR 3017[a] …). Although the trier of fact’s “determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . An award of $10,000 deviates materially from awards for similar injuries … . Consequently, the court should have awarded an amount for past pain and suffering that was supported by the evidence submitted by the claimant … . Bonneau v State of New York, 2025 NY Slip Op 03699, Second Dept 6-18-25

Practice Point: The damages awarded for past pain and suffering should be based on the evidence. The award is not limited to the amount in the ad damnum clause of the claim.​

 

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THE DEFENDANT DID NOT SUBMIT ACTUAL MEASUREMENTS OF THE DEFECT WHICH CAUSED PLAINTIFF’S FALL; THE PHOTOGRAPHS AND THE TESTIMONY THAT THE DEFECT WAS ONE-INCH IN HEIGHT WAS NOT ENOUGH TO PROVE THE DEFECT WAS TRIVIAL AS A MATTER OF LAW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendant did not demonstrate the defect which cause plaintiff’s fall was trivial as a matter of law. Plaintiff tripped over the raised edge of a cellar door in a sidewalk:

Defendant Teng Dragon, as the party seeking dismissal of the 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” … . While it is true that “there is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … , producing measurements of the defect together with evidence of the surrounding circumstances is required for a prima facie showing that the defect was trivial as a matter of law … . Photographs produced by the plaintiff appear to show a non-trivial defect in the raised cellar door, and the testimony of defendant Mazal Ubracha 101 LLC’s principal indicates a surface differential between the sidewalk and cellar door of approximately one inch. The Court of Appeals has made it clear that summary judgment should not be granted in a case in which “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Teng Dragon has not provided the actual measurements of the defect here, and thus, making every favorable inference in favor of the nonmovant plaintiff, has failed to establish its prima facie entitlement to summary judgment … . Weatherspoon v Mazal Ubracha 101 LLC, 2025 NY Slip Op 03662, First Dept 6-17-25

Practice Point: Here the defendant did not submit actual measurements of the defect over which plaintiff slipped and fell. Despite photographs of the defect and testimony it was one-inch in height, defendant did not prove the defect was trivial as a matter of law.

 

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DEFENDANT HOSPITAL DISCHARGED A PATIENT WITH A HISTORY OF SCHIZOPHRENIA BUT NO HISTORY OF THREATENING OR ASSAULTING PEOPLE; THE PATIENT ASSAULTED PLAINTIFF, THE CAB DRIVER PAID BY THE HOSPITAL TO TAKE THE PATIENT HOME; THE HOSPITAL DID NOT OWE A DUTY OF CARE TO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not owe a duty of care to the cab driver injured (assaulted) by a patient (Barrio) who was just released, despite the fact that the cab fare was paid by the hospital:

… [T]he defendant Francis Barrios was taken by ambulance to the emergency department of the defendant John T. Mather Memorial Hospital (hereinafter the hospital). Barrios, who had a history of schizophrenia, complained of anxiety, tremors, and blurry vision. The hospital records indicated that Barrios did not have a history of threatening or attempting to hurt others, or of actually hurting others, and that Barrios did not display any signs of violent behavior. After consultation with the psychiatrist on call, it was determined that Barrios should be discharged and should seek outpatient treatment. * * *

“The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach was a proximate cause of the plaintiff’s injury” … . “Without a duty running directly to the injured person, there can be no liability” … . “Generally, a defendant has no duty to control the conduct of third persons so as to prevent them from harming others” … . “A duty may arise, however, where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others” … .

Here, the plaintiffs failed to establish, prima facie, that the hospital owed the injured plaintiff a duty. There is no evidence that the hospital had sufficient authority and ability to control Barrios’s actions after he was discharged and left the hospital … . The hospital’s decision to pay for a taxi service for Barrios after his discharge did not make the hospital the injured plaintiff’s employer, make the hospital an agent for Barrios, or otherwise create a special duty … . Further, absent evidence in the record that the hospital knew or should have known that Barrios posed a threat to the injured plaintiff, she was a member of the general public and not of a class of people to whom the hospital owed a duty … . Melio v John T. Mather Mem. Hosp., 2025 NY Slip Op 03562, Second Dept 6-11-25

Practice Point: Here a discharged patient with schizophrenia assaulted the cab driver paid by the hospital to take the patent home. The hospital did not owe a duty of care to the cab driver.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormack, determined the plaintiffs in this wrongful death action, who are the parents of plaintiffs’ decedent and the administrators of decedent’s estate, are not bound by the decedent’s agreement to arbitrate. The decedent rented an electric moped from defendant Ravel by downloading an app with an arbitration clause. Decedent was killed when he was thrown from the moped and struck by a car. All agreed that the negligence causes of action were subject to the arbitration clause. Plaintiffs successfully argued the wrongful death action is distinct from the negligence actions and is not subject to the arbitration clause. The winning argument was first raised on appeal. The court heard the appeal because it “present[ed] a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture” …:

Here, it is undisputed that the plaintiffs, individually, did not enter into an agreement with Revel to arbitrate. However, the plaintiffs are the administrators of the decedent’s estate, and the causes of action arise from the same incident that caused the decedent’s death. The issue, therefore, turns on the nature of wrongful death causes of action and whether they are derivative of negligence causes of action or independent of negligence causes of action. * * *

The law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death. “‘A cause of action to recover damages for wrongful death is a property right belonging solely to the distributees of the decedent and vests in them at the decedent’s death'” … . This is true even where no cause of action alleging negligence exists. * * * … [T]his Court [has] determined that a cause of action alleging wrongful death was not derivative of a negligence cause of action, but [is] an independent cause of action vested in the distributees. “… [T]he surviving personal injury action and the wrongful death cause of action … are different in many respects. The two causes of action exist in order to protect the rights of different classes of persons, and the measure of damages is entirely different” … . “Wrongful death actions are brought not to compensate the decedent or his [or her] estate for the pain and suffering attendant to the injury, but rather to recover, on behalf of decedent’s distributees, the pecuniary value of the decedent’s life” … . Further, the different causes of action accrue at different times. A negligence cause of action accrues at the time of the injury, while a wrongful death cause of action does not accrue until the decedent’s death, which can occur after the injury is sustained … . Marinos v Brahaj, 2025 NY Slip Op 03561, Second Dept 6-11-25

Practice Point: Negligence and wrongful death causes of action are distinct and address different injuries. Here an arbitration clause in a moped rental contract executed to by plaintiffs’ decedent was deemed to apply to the negligence causes of action stemming from the moped accident, but not to the related wrongful death cause of action.​

Practice Point: Consult this opinion for an example of when an issue raised for the first time on appeal will be considered by the appellate court.

 

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PLAINTIFF IN THIS MED-MAL WRONGFUL-DEATH ACTION DID NOT RESPOND TO THE NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, DID NOT PRESENT A REASONABLE EXCUSE FOR THE FAILURE TO RESPOND, AND DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to respond to the ninety-day CPLR 3216 demand to file a note of issue required dismissal of the medical malpractice action. The law-office-failure excuse was vague and conclusory and plaintiff did not demonstrate a meritorious cause of action:

“Where, as here, a plaintiff has been served with a 90-day demand . . . pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day demand period” … . Here, the plaintiff did neither.

“In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates ‘a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action'” … . “‘Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a detailed and credible explanation of the default at issue'” … . Here, the vague and conclusory claim of law office failure set forth by the plaintiff’s attorney did not constitute a justifiable excuse … . Moreover, the plaintiff failed to submit evidentiary proof from a medical expert demonstrating the existence of a potentially meritorious cause of action … . Kresberg v Kerr, 2025 NY Slip Op 03559, Second Dept 6-11-25

Practice Point: Here a vague and conclusory allegation of law-office-failure was not a reasonable excuse for failure to respond to the ninety-day demand to file a note of issue.

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE RAISED QUESTIONS OF FACT ABOUT WHETHER THE RELEASE HE SIGNED WAS INVALID DUE TO MUTUAL MISTAKE ABOUT THE EXISTENCE OF LUMBAR DISC INJURIES AND LEFT HIP DEGENERATIVE JOINT DISEASE; IN ADDITION, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER THE RELEASE WAS INVALID BECAUSE IT WAS “NOT FAIRLY AND KNOWINGLY MADE;” CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff had raised questions of fact the validity of the release he signed in this traffic accident case:

A plaintiff seeking to invalidate a release on the ground that there was a mutual mistake with respect to the extent of the injuries that the plaintiff sustained must establish that, at the time the release was executed, “the parties were under ‘[a] mistaken belief as to the nonexistence of [a] presently existing injury’ ” … . “[I]n resolving claims of mutual mistake as to injury at the time of release, there has been delineated a sharp distinction between injuries unknown to the parties and mistake as to the consequence of a known injury” … . “A mistaken belief as to the nonexistence of presently existing injury is a prerequisite to avoidance of a release” … , whereas “[i]f the injury is known, and the mistake . . . is merely as to the consequence, future course, or sequelae of [the] known injury, then the release will stand” … . “Even where a releasor has knowledge of the causative trauma, . . . there must be actual knowledge of the injury. Knowledge of injury to an area of the body cannot cover injury of a different type and gravity” … . Accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference … , we agree with plaintiff that he sufficiently alleged facts on which to invalidate the release on the ground of mutual mistake inasmuch as, despite the fact that at the time the release was signed plaintiff had pain in the cervical spine and left hip and a diagnosis of a cervical strain, plaintiff alleged that neither party was aware of plaintiff’s lumbar disc injuries or left hip degenerative joint disease at that time … .

A plaintiff seeking to invalidate a release on the ground that it was not fairly and knowingly entered into must establish that “the release was signed by the plaintiff under circumstances that indicate unfairness, [or that] it was not ‘fairly and knowingly’ made” … . Again accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference … , we agree with plaintiff that, in the complaint and his affidavit in opposition to the motion, he sufficiently alleged facts on which to invalidate the release on the ground of whether the release was fairly and knowingly entered into inasmuch as plaintiff averred in his affidavit in opposition to the motion that, inter alia, he signed the release a short time after the accident occurred, he is unable to fluently read, understand or speak English, he did not understand the release, at the time he signed the release he did not have an attorney, he was not provided with an interpretation of the release, and he needed money for a vehicle in order to attend medical appointments … . Pastrana-Ortiz v Wemple, 2025 NY Slip Op 03425, Fourth Dept 6-6-25

Practice Point: Consult this decision for explanations of the criteria for invalidating a release (1) due to fraud, (2) due to mutual mistake, and (3) because it was “not fairly and knowingly made.”

 

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THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL; THE CHARGE USED THE PHRASES “SUBSTANTIAL FACTOR” AND “SUBSTANTIAL PROBABILITY” WHEN THE CORRECT PHRASE IS “SUBSTANTIAL POSSIBILITY” IN REFERENCE TO WHETHER A BETTER OUTCOME WAS DENIED DUE TO A DEVIATION FROM THE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reinstating the complaint and ordering a new trial in this medical malpractice action, determined the “loss of chance” jury instruction was erroneous and required reversal:

As this Court has held since at least 2011, a “loss of chance instruction” is “entirely appropriate for . . . omission theories” in medical malpractice actions … . Although the Pattern Jury Instructions did not include a loss of chance pattern charge until 2023, i.e., after the second trial in this matter took place in December 2022, this Court had already issued numerous decisions prior to December 2022 indicating that “the loss of chance theory of causation . . . requires only that a plaintiff ‘present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care’ ” … .

Here, the court instructed the jury that, in order for plaintiff to recover under a loss of chance theory, it was plaintiff’s burden to establish that the act or omission alleged was a “substantial factor in bringing about the death.” The court also instructed the jury that, if it should find that “there was a substantial probability that the decedent . . . would have survived . . . if he had received proper treatment,” then it could find that defendants’ alleged negligence was a “substantial factor” in causing his death … .

… [T]he charge, as given, did not ” ‘adequately convey[ ] the sum and substance of the applicable law’ ” to the jury … . The primary issue at trial was whether defendants deviated from accepted standards of care in failing to timely treat decedent. Inasmuch as the “court did not adequately charge the jury concerning” the appropriate standard to determine that issue, we conclude that “the court’s failure to define [the correct] standard for the jury” cannot be considered harmless under the circumstances of this case … . Wright v Stephens, 2025 NY Slip Op 03416, Fourth Dept 6-7-25

Practice Point: The “loss of chance” medical malpractice jury instruction requires that plaintiff show there was a “substantial possibility” that a deviation from the standard of care precluded a better outcome. Here the judge used the phrase “substantial probability,” requiring reversal.

 

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IN THIS TRAFFIC-ACCIDENT DAMAGES TRIAL, THE DEFENDANT OFFERED PHOTOGRAPHS OF PLAINTIFF’S DAMAGED VEHICLE AND PLAINTIFF’S EMPLOYMENT RECORDS WHICH WERE ADMITTED INTO EVIDENCE WITHOUT PROPER FOUNDATIONS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment and ordering a new damages trial in this traffic accident case, determined the photographs of plaintiff’s damaged vehicle and the plaintiff’s employment records, offered in evidence by the defendant, should not have been admitted because defendant did not lay a sufficient foundation:

The proponent must lay a proper foundation for the admission of photographs into evidence, “which generally requires proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident” … . Here, the plaintiff, who was the sole witness who testified about the photographs, stated that they did not fairly and accurately depict the condition of her vehicle after the accident and that she did not know when the photographs were taken. Thus, the defendant failed to lay a proper foundation for admission of the photographs, and the Supreme Court erred in admitting them into evidence.

“[D]ocuments obtained by subpoena cannot be admitted into evidence without a proper evidentiary foundation” … . Furthermore, “[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the defendant failed to lay a proper foundation for the admission of the plaintiff’s employment documents, which had been obtained via subpoena, since no witness testified to having personal knowledge of the business practices and procedures of the plaintiff’s former employer. Accordingly, the Supreme Court erred in admitting the employment documents into evidence.

Postaccident photographs of a vehicle are “relevant to show the force of an impact, and [would] therefore ‘help[ ] in determining the nature or extent of injuries and thus relate[ ] to the question of damages'” … . Additionally, the employment documents were relevant to both the plaintiff’s credibility and her prior injury history. Since the improperly admitted photographs and employment documents related to the extent of the plaintiff’s injuries and her credibility, these errors were not harmless … . Powell v Burg, 2025 NY Slip Op 03348, Second Dept 6-4-25

Practice Point: If a party offers photographs and documents which are admitted in evidence without proper foundations, and the evidence is detrimental to the other party, a new trial may be ordered on appeal.

 

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THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF CLAIM IS NOT NECESSARILY FATAL TO A PETITION FOR LEAVE TO FILE A LATE NOTICE WHERE, AS HERE, THE MUNICIPALITY HAD ACTUAL TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND IS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to file a late notice of claim in this traffic accident case involving a city bus should have been granted. Although the excuse for failure to time file (petitioners’ infancy) was not reasonable, that flaw was not fatal because the city had timely actual knowledge of the essential facts underlying the claim and was not prejudiced by the delay:​

Here, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim. Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality or public corporation, where the report reflects that an employee of the municipality or public corporation committed a potentially actionable wrong, such entity can be found to have actual knowledge … . In this case, the police report, which the petitioners sent to the NYCTA [NYC Transit Authority] on or about July 2, 2021, indicated that the multivehicle collision was set in motion by Robinson, who caused the bus to come into contact with the rear of another vehicle. The police report also indicated that several bus passengers reported injuries and named the injured petitioners, among others. In addition, the respondents were in possession of the injured petitioners’ medical records. Under these circumstances, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, since the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice to the respondents’ ability to maintain a defense … . Matter of Arvizu v New York City Tr. Auth., 2025 NY Slip Op 03323, Second Dept 6-4-25

Practice Point: A municipality will be deemed to have timely actual notice of a claim where, as here, the police report reflects that an employee of the municipality committed a potentially actionable wrong.​​​​​​​​​​​

 

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HERE IN THIS BUS-PASSENGER-INJURY ACTION AGAINST THE CITY TRANSIT AUTHORITY, PLAINTIFF STATED THE WRONG ACCIDENT-DATE IN THE NOTICE OF CLAIM; BECAUSE THE WRONG DATE WAS NOT USED IN BAD FAITH AND THE CITY WAS NOT PREJUDICED, PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the wrong accident-date in the notice of claim did not warrant dismissal of the action. The wrong date was not willful and the municipality was not prejudiced. The plaintiff alleged she was injured when the driver of the defendant NYC Transit Authority’s bus stopped short:

“‘To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'” … . General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, “the time when, the place where and the manner in which the claim arose” … . “‘[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident'” … . “Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby” … .

Here, there is no indication in the record that the accident date listed in the notice of claim and the complaint was set forth in bad faith … . Rather, the plaintiff’s mistake was based upon her reliance on a police report that incorrectly listed the accident date … . Moreover, contrary to the Supreme Court’s determination, the proposed amendment to the accident date was purely technical in nature and did not substantively change the nature of the claim … .

Furthermore, the record does not reflect that the defendants will be prejudiced by the plaintiff’s delay in moving for leave to amend the notice of claim. Under the circumstances of this case, including that the plaintiff received medical assistance at the accident site, that specific details regarding the circumstances of the accident, including the accident location and bus route, were set forth in a police report and the notice of claim, and that the plaintiff’s error in listing an accident date several days prior to the actual date of the accident was minimal, the defendants could have ascertained the date of the accident “with a modicum of effort” … . Hernandez v City of New York, 2025 NY Slip Op 03312, Second Dept 5-4-25

Practice Point: Here the wrong accident-date was included in the notice of claim and the plaintiff moved to amend the notice. Because the wrong date was not used in bad faith (the date was taken from the police report) and because the city was not prejudiced by the error, plaintiff’s motion to amend the notice of claim should have been granted.

 

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