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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN ALLOWED TO OFFER A SPECULATIVE CONCLUSION ABOUT HOW PLAINTIFF WAS INJURED WHICH WAS NOT SUPPORTED BY ANY EVIDENCE IN THE RECORD; PLANTIFF ALLEGED THE STEP STOOL SHE WAS STANDING ON COLLAPSED; THE DEFENSE EXPERT TESTIFIED SHE COULD HAVE FALLEN ONTO THE STOOL; THE DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the verdict in this products liability case should have been set aside. Plaintiff alleged she was injured when a step stool collapsed as she stood on it. The defendant’s expert testified she could have fallen onto the stool. There was no evidence in the record to support the expert’s opinion, which was objected to by plaintiff. The defense verdict, therefore, should have been set aside:

Following the accident, one of the injured plaintiff’s coworkers discarded the step stool in the trash. At the trial on the issue of liability, the defendant’s expert testified, over the plaintiffs’ objection, that the injured plaintiff’s accident may have occurred because she slipped and fell onto the step stool. Over the plaintiffs’ objection, the jury was asked the question: “Did the subject step stool collapse under the [injured] plaintiff while she was standing on it on October 22, 2013, causing the [injured] plaintiff’s accident?” The jury answered “No,” thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did. * * *

We agree with the plaintiffs that the evidence so preponderates in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence … . Moreover, the testimony of the defendant’s expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence … . Montesione v Newell Rubbermaid, Inc., 2021 NY Slip Op 01253, Second Dept 3-3-21

 

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PLAINTIFF’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT LAY A FOUNDATION FOR AN OPINION OUTSIDE THE EXPERT’S FIELD AND DID NOT REBUT THE OPINIONS OF DEFENDANT’S EXPERT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice case should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact because there was no foundation for the expert’s opining outside the expert’s field of emergency medicine:

The affirmation of the plaintiff’s expert, a physician with training in emergency medicine, lacked probative value as it failed to specify that the expert had any specific training or expertise in neurology or in the diagnosis and treatment of strokes, or how she became familiar with the applicable standards of care … . Moreover, the plaintiff’s expert failed to rebut the opinions of the defendant’s expert or articulate how the defendant’s alleged deviations from the accepted standard of care were a proximate cause of the plaintiff’s injuries … . Laughtman v Long Is. Jewish Val. Stream, 2021 NY Slip Op 01251, Second Dept 3-3-21

 

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PLAINTIFFS’ ACTION STEMMING FROM PFOA CONTAMINATION PROPERLY SURVIVED SUMMARY JUDGMENT; THE DOCTRINE OF PRIMARY JURISDICTION DID NOT APPLY; QUESTIONS OF FACT RAISED ABOUT THE DUTY OF CARE, PROXIMATE CAUSE, PRIVATE NUISANCE, TRESPASS AND PUNITIVE DAMAGES (THIRD DEPT).

The Third Department determined plaintiffs’ complaint in this PFOA contamination case properly survived defendant’s motion for summary judgment. The court found that the doctrine of primary jurisdiction did not apply, defendant owed plaintiffs a duty of care, defendant did not demonstrate it did not proximately cause the alleged injuries, there was a question of fact on the private nuisance and trespass causes of action, and the punitive damages claim was proper. With respect to the doctrine of primary jurisdiction, the court wrote:

[The] doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views”… . Defendant argues that the various regulatory agencies, who have the requisite expertise, have been investigating the matter at issue and that the recovery sought by plaintiffs is already being provided by these agencies. We disagree. Although defendant points to an announcement that the Department of Health will be providing medical monitoring, this announcement merely stated that a study was being proposed and that, if funded, the study would last for five years. Contrary to defendant’s representation, there was no definitive statement that the medical monitoring would be provided. As to the remediation of plaintiffs’ private wells, the consent order and other announcements, upon which defendant relies, do not address all of the relief requested by plaintiffs in the second amended complaint. Accordingly, defendant’s argument is without merit. Burdick v Tonoga, Inc, 2021 NY Slip Op 01178, Third Dept 2-25-21

 

QUESTION OF FACT WHETHER AN OPEN AND OBVIOUS CONDITION–A STEEP EMBANKMENT NEXT TO A GRASSY WALKWAY–SHOULD HAVE BEEN MADE SAFE BY THE INSTALLATION OF A RAILING OR BARRIER (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Kapnick, over a dissent, determined the defendant property owner’s (COU’s) motion for summary judgment in this slip and fall case should not have been granted. COU owned a campground for developmentally disabled persons. Plaintiff, a developmentally disabled adult, slipped on a narrow grassy walkway and fell down the adjacent steep embankment, striking his head on one of the rocks at the bottom. The First Department held there were questions of fact whether the accident was foreseeable and whether the area should have been made safe with a barrier or handrail:

… [A]n issue of fact does exist as to whether COU violated its duty to maintain the premises in a reasonably safe condition by failing to erect a railing or barrier along the walkway. “A landowner must act as a reasonable [person] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . Indeed, “the duty of the owner or occupier will vary with the likelihood of plaintiff’s presence at the particular time and place of the injury. While [plaintiff’s] status is no longer determinative, considerations of who plaintiff is and what [his or her] purpose is upon the land are factors which, if known, may be included in arriving at what would be reasonable care under the circumstances” … .

… [A] landowner or occupier “has a duty to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property by posting warning signs or otherwise neutralizing dangerous conditions” … . “[E]ven if a hazard qualifies as ‘open and obvious’ as a matter of law, that characteristic merely eliminates the property owner’s duty to warn of the hazard, but does not eliminate the broader duty to maintain the premises in a reasonably safe condition” … . “A landlord’s duty to maintain premises in a reasonably safe condition … is not satisfied by permitting a highly dangerous — but correctible — condition to remain, simply because the dangerous condition is obvious” … . Aberger v Camp Loyaltown, Inc., 2021 NY Slip Op 01188, First Dept 2-25-21

 

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ALLEGED ATTORNEY MISCONDUCT DID NOT WARRANT SETTING ASIDE THE OVER $21 MILLION VERDICT IN THIS MEDICAL MALPRACTICE CASE; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict based upon the conduct of plaintiff’s counsel should not have been granted in this medical malpractice action. Plaintiff suffered a brain injury rendering him unable to take care of himself and was awarded over $21 million:

… [W]e conclude that the Supreme Court improvidently exercised its discretion in ordering a new trial in the interest of justice based upon attorney misconduct. Some of the challenged conduct was improper, and we do not condone it … . However, “where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection and for the court to rule on the objection, to direct the jury to disregard any improper remarks, and to admonish counsel from repetition of improper remarks” … . Here, defense counsel did not object to the challenged remarks during summation or request a curative instruction, thus depriving the court of the opportunity to direct the jury to disregard improper remarks or give other curative instructions, and to avoid further error … . “Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial” … . The misconduct of the plaintiff’s counsel in the instant case was not so pervasive or prejudicial as to have deprived the defendant of a fair trial, or to have affected the verdict, particularly in light of the strength of the plaintiff’s case … .  Accordingly, we deny that branch of the defendant’s motion pursuant to CPLR 4404(a) which was to set aside the verdict and for a new trial in the interest of justice, and reinstate the verdict. Yu v New York City Health & Hosps. Corp., 2021 NY Slip Op 08215, Second Dept 2-24-21

 

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PLAINTIFF STUDENT WAS ASSAULTED BY ANOTHER STUDENT AND SUED THE SCHOOL UNDER A NEGLIGENT SUPERVISION THEORY; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision action by a student who was assaulted at school should not have been dismissed:

While the plaintiff testified that he had never been physically assaulted by the other student prior to the subject incident, he testified that the other student always made threatening comments to him during Spanish class, of which seven or eight were serious in nature, and three or four were accompanied by a closed fist motion in an attempt to get the plaintiff to flinch. The plaintiff also testified that he complained about these threats to the Spanish teacher, who had witnessed the other student make a closed fist motion toward the plaintiff on at least one or two occasions, and that he asked the teacher if she could do something about these threats, but she never said anything to the other student. Moreover, while the plaintiff testified that he did not know whether the other student had ever threatened or assaulted other students, the School District failed to submit any affidavit or deposition testimony from its own personnel establishing that it did not have specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the plaintiff … .

With respect to proximate cause, the School District did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . The plaintiff testified that approximately 10 minutes before the end of class on the date of the assault, while the class was silently working on an assignment, the other student threatened out loud to stab him, which was overheard by the rest of the class and the teacher. Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist., 2021 NY Slip Op 08195, Second Dept 2-24-21

 

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OVERRULING PRECEDENT, THE FAILURE TO TIMELY FILE A CERTIFICATE OF MERIT IN A MEDICAL MALPRACTICE ACTION IS NOT A GROUND FOR DISMISSAL OF THE ACTION; IT IS NOT NECESSARY TO DEMONSTRATE THE ACTION HAS MERIT OR AN EXCUSE FOR THE FAILURE TO FILE IN SEEKING AN EXTENSION TO FILE THE CERTIFICATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy, overruling precedent, determined that the failure to timely file a certificate of merit pursuant to CPLR 3012-a in a medical malpractice action does not require dismissal of the action. In addition, a showing that the action has merit and an excuse for failing to file are not necessary when seeking an extension for filing:

Had the legislature intended to permit dismissal for failure to comply with CPLR 3012-a, the statute would empower the court to do so … . Accordingly, the sanction of dismissal is not authorized and to the extent that this Court’s decisions in Blasoff v New York City Health & Hosps. Corp. (147 AD3d 481), Grad v Hafliger (68 AD3d 543), George v St. John’s Riverside Hosp. (162 AD2d 140), and Perez v Lenox Hill Hosp. (159 AD2d 251) are not in accord with the foregoing, they should no longer be followed.

Moreover, generally, a showing of a meritorious action and a reasonable excuse is required to vacate a pleading default and the failure to make this showing necessarily mandates dismissal of the pleading. However, since this sanction is improper in the context of a CPLR 3012-a violation, it follows that the failure to comply with this provision is not a pleading default and a plaintiff is not required to make this showing … .Accordingly, a showing of a meritorious action through the submission of an affidavit of merit and a reasonable excuse for failing to comply with CPLR 3012-a is not required to obtain an extension of time to comply with the statute. Fortune v New York City Health & Hosps. Corps., 2021 NY Slip Op 01122, First Dept 2-18-21

 

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QUESTION OF FACT WHETHER LEAVING AN ELEVEN-YEAR-OLD BOY UNSUPERVISED CONSTITUTED NEGLIGENCE; THE BOY, WHO WAS VISITING HIS 13-YEAR-OLD FRIEND’S HOME, WAS SEVERELY INJURED ATTEMPTING TO DO A FLIP OFF A PICNIC TABLE (THIRD DEPT).

The Third Department determined whether defendant was negligent in leaving an eleven-year-old boy unsupervised for six hours is a question of fact. School had been cancelled because of snow and defendant went to work. The boy was severely injured when he attempted to do a flip off a picnic table in the backyard:

“The adequacy of supervision and proximate cause are generally issues of fact for the jury” …. It is undisputed that the child was left unattended without any adult supervision for approximately six hours. Although some may argue that it is not unreasonable to leave a child his age unsupervised to allow a parent to go to work, there is no bright line test with regard to age, and we are loathe to impose same. When viewed in a light most favorable to plaintiff, a question of fact exists as to whether Beadle exercised reasonable supervision of the 11-year-old child. As to proximate cause, we discern no reason under the facts here to deviate from the general rule that proximate cause is a jury question … . Justin M. v Beadle, 021 NY Slip Op 01108, Third Dept 2-18-21

 

GRANDMOTHER WHO WITNESSED DEBRIS FROM THE FACADE OF A BUILDING INJURE HER TWO-YEAR-OLD GRANDDAUGHTER IS “IMMEDIATE FAMILY” WITHIN THE MEANING OF “ZONE OF DANGER” JURISPRUDENCE; GRANDMOTHER CAN THEREFORE MAINTAIN AN ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over two concurrences, reversing the Appellate Division, determined that a grandmother who witnesseD the death of her grandchild is “immediate family” such that she may recover damages for emotional distress under the “zone of danger” theory (negligent infliction of emotional distress):

This case begins with the heart-breaking death of a child. Our responsibility is to determine whether plaintiff-grandparent Susan Frierson, who was in close proximity to the decedent-grandchild at the time of the death-producing accident, may pursue a claim for bystander recovery under a “zone of danger” theory.

We have applied the settled “zone of danger” rule to “allow[] one who is . . . threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress” flowing only from the “viewing [of] the death or serious physical injury of a member of [that person’s] immediate family” … . Unsettled at this juncture, however, are “the outer limits” of the phrase “immediate family” … . Once again, we are not asked to fix permanent boundaries of the “immediate family.” Instead, our task simply is to determine whether a grandchild may come within the limits of her grandparent’s “immediate family,” as that phrase is used in zone of danger jurisprudence.

We conclude that the grandchild comes within those limits. Consistent with our historically circumspect approach expanding liability for emotional damages within our zone of danger jurisprudence, our increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense, we conclude that plaintiff’s grandchild is “immediate family” for the purpose of applying the zone of danger rule.

On May 17, 2015, plaintiff Susan Frierson and her two-year-old granddaughter, decedent Greta Devere Greene, were in front of a building when they were suddenly struck by debris that fell from the facade of that edifice. Emergency measures taken to save Greta’s life failed, and she died the next day. Greene v Esplanade Venture Partnership, 2021 NY Slip Op 01092, CtApp 2-18-21

 

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PLAINTIFF NYC SANITATION WORKER STEPPED ON A LIVE POWER LINE AFTER HIS SUPERVISOR ALLEGEDLY TOLD HIM THE POWER WAS OFF; QUESTION OF FACT WHETHER THERE WAS A SPECIAL DUTY OWED BY THE CITY DEFENDANTS TO THE PLAINTIFF; CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC and NYC Department of Sanitation’s motions for summary judgment in this electrocution case should not have been granted. Plaintiff, a NYC sanitation department employee was doing clean up after Hurricane Sandy when he stepped on a live power line. Plaintiff alleged he was told by his supervisor the power had been turned off. The court applied the usual analysis for municipal liability for negligence: (1) the city was engaged in a governmental function; (2) there may have been a special relationship between the city defendants and the plaintiff; (3) it does not appear that a discretionary act was involved such that governmental immunity would apply:

… [T]he City defendants met their prima facie burden of establishing that they were engaged in a governmental function at the time that the causes of action arose … . However, the City defendants failed to establish, prima facie, the absence of a special duty to the plaintiff.

In this case, the plaintiff had an employer-employee relationship with the New York City Department of Sanitation. Therefore, the plaintiff cannot be equated with a member of the general public. It appears from this record that there exists a triable issue of fact as to whether the City defendants voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally that generated the plaintiff’s justifiable reliance … .

This Court has applied the doctrine of governmental immunity to an employee of the New York City Department of Sanitation, but in that case, the issue was whether the City of New York engaged in discretionary governmental actions based upon reasoned judgment in selecting equipment … . On this record, it does not appear that this case involves discretionary determinations … . Lewery v City of New York, 2021 NY Slip Op 01035, Second Dept 2-17-21

 

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