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THERE IS NO CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION IN NEW YORK; PLAINTIFF’S DECEDENT, A CHILD, WAS MURDERED BY MOTHER’S BOYFRIEND: THE SUIT ALLEGING THE COUNTY DID NOT ADEQUATELY INVESTIGATE PRIOR REPORTS OF CHILD ABUSE SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the complaint, determined there is no cause of action for negligent investigation in New York:

At the age of five, plaintiff’s decedent was brutally murdered by his mother’s boyfriend … . Plaintiff thereafter commenced this wrongful death action, alleging that the County of Erie (defendant), through its Child Protective Services office, had inadequately investigated multiple prior reports of child abuse and neglect concerning the decedent child. …

As defendant correctly contends, “New York does not recognize a cause of action sounding in negligent investigation” of child abuse and neglect … . “Moreover, ‘a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York’ ” … . Hart v County of Erie, 2020 NY Slip Op 07779, Fourth Dept 12-23-20

 

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PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS ONE CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE CASE; THEREFORE THAT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action alleging defendant doctor caused the bowel perforation should have been dismissed because plaintiff’s expert’s affidavit did not address it:

The affidavit of plaintiff’s expert addressed defendant’s conduct only with respect to the claims that he failed to diagnose and treat the bowel perforation intraoperatively and failed to timely and properly treat the bowel perforation postoperatively. Plaintiff’s expert acknowledged that bowel perforation is a known complication from this type of surgery. Thus, plaintiff failed to raise a triable issue of fact with respect to the claims that defendant negligently caused the bowel perforation … . We therefore conclude that the court erred in denying defendant’s motion with respect to those claims, and we modify the order accordingly. Bristol v Bunn, 2020 NY Slip Op 07773, Fourth Dept 12-23-20

 

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CLAIMANT’S DECEDENT WAS KILLED IN A MULTIVEHICLE ACCIDENT IN WHITE OUT CONDITIONS ON A STATE HIGHWAY; QUESTIONS OF FACT ABOUT NOTICE OF THE RECURRING CONDITION AND PROXIMATE CAUSE (NO SNOW FENCE) WERE RAISED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this “white out” traffic accident case should not have been granted. Claimants argued the state had notice of a recurring white=out condition caused by blowing snow on a portion of a state highway. Claimant’s decedent died in a multivehicle accident in white out conditions:

… [T]he claimants raised a triable issue of fact with respect to whether defendant had actual knowledge of “an ongoing and recurring dangerous condition in the area of the accident” … . Notably, claimants submitted a Highway Safety Investigation Report that was prepared by an employee of defendant in December 2008. The report states that it was written in response to the subject accident with the purpose of “evaluat[ing] the frequency and potential for similar accidents and evaluate potential countermeasures.” The report compared the number and severity of the accidents on that portion of highway to those occurring elsewhere on I-390, and noted that, “[a]lthough the number of accidents in the study area was lower, the severity of the accidents was [greater].” The report also noted that “[s]everal factors exist which increase the degree of risk of poor visibility and drifting due to blowing snow in this section.” Such factors included the large, flat airport property next to the highway, the “abrupt, topographic change due to the proximity of the airport runway and former Pennsylvania railroad embankment,” and the section’s slight reverse curve. The data thus suggested that “snow on the road [was] an issue to be addressed in this area” and that, although the number of accidents was not extraordinarily high, “their occurrence was sufficiently sensational, disquieting to the public, and disruptive to the traveling public and [defendant] to justify making more than ordinary efforts to prevent them.” Furthermore, the deposition testimony of employees of defendant established that, for years prior to the accident, blowing and drifting snow had been an issue on that section of I-390.

We also agree with claimants that the court erred in determining that defendant established that the lack of a snow fence was not a proximate cause of the accident. Klepanchuk v State of N.Y. Dept. of Transp., 2020 NY Slip Op 07766, Fourth Dept 12-23-20

 

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FAILURE TO FILE A NOTICE OF CLAIM AGAINST THE NEW YORK TRANSIT AUTHORITY (AS OPPOSED TO THE CITY OF NEW YORK) IN THIS SLIP AND FALL CASE, AND THE FAILURE TO APPLY FOR PERMISSION TO FILE A LATE NOTICE OF CLAIM, GAVE RISE TO THIS LEGAL MALPRACTICE AND JUDICIARY LAW 487 ACTION WHICH SHOULD NOT HAVE BEEN DISMISSED; THE DISTINCTION BETWEEN THE TWO CAUSES OF ACTION EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice and Judiciary Law 487 causes of action against one of two groups of attorney-defendants should not have been dismissed. The first group of attorneys (the Schneider defendants) failed to file a timely notice of claim against the New York Transit Authority (NYTA) in this slip and fall case. Then plaintiff retained the second group of attorneys (the Kletzkin defendants) and the action was dismissed with prejudice. Then plaintiff sued both groups of attorneys for legal malpractice and for violations of Judiciary Law 487. Supreme Court granted the Kletzkin defendants motion to dismiss and denied the Schneider defendants’ motion to dismiss. The facts were not discussed, but the court noted the difference between a legal malpractice and a Judiciary Law 487 cause of action:

… [T]he plaintiff adequately pleaded the cause of action alleging legal malpractice against the Kletzkin defendants and the Schneider defendants. Contrary to the contentions of those defendants, neither conclusively established that an application for leave to serve a late notice of claim or to deem the late notice of claim timely served upon the NYCTA nunc pro tunc would have been futile … .

Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” … . Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849, Second Dept 12-23-20

 

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QUESTION OF FACT WHETHER THE DEFENDANT’S DOUBLE-PARKED CAR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF’S DECEDENT, A BICYCLIST, WAS STRUCK BY A TRUCK WHEN HE ATTEMPTED TO GO AROUND DEFENDANT’S DOUBLE-PARKED CAR (FIRST DEPT). ​

The First Department determined there were questions of fact about defendant driver’s (Sung’s) negligence and whether the negligence proximately cause plaintiff bicyclist’s injuries and death. Defendant was stopped in the right lane and when plaintiff attempted to go around defendant’s car he was struck by a truck (driven by Cruz-Marte). The First Department noted that hearsay was properly considered in opposition to the summary judgment motion:

Issues of fact exist with respect to whether Wenhua Sung negligently obstructed traffic with his vehicle based on his own testimony, in which he admitted that he was issued a ticket for obstructing a lane of traffic … , as well as that of Cruz-Marte, who testified that a vehicle was “double-parked,” although he was not sure what that vehicle looked like.

This evidence was sufficient to raise issues of fact regarding Sung’s negligence, even absent proof of Sung’s purported contemporaneous admissions to police that he was double-parked. Those admissions may also, however, be properly considered. Even if they are hearsay, they were offered in opposition to a motion for summary judgment and were not the only evidence submitted … .

Issues of fact also exist with respect to whether the Sung defendants’ negligence proximately caused the accident, as a jury could reasonably find that a bicyclist swerving and being hit by a passing vehicle was a reasonably foreseeable consequence of double-parking or obstructing a lane of traffic … . Dong v Cruz-Marte, 2020 NY Slip Op 07699, First Dept 12-22-20

 

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THE SOLE REMEDY PROVISION IN THE REPRESENTATIONS AND WARRANTIES AGREEMENT IN THIS RESIDENTIAL MORTGAGE-BACKED SECURITIES CASE WAS VALID AND ENFORCEABLE; THE GROSS NEGLIGENCE PUBLIC POLICY RULE DOES NOT APPLY WHERE THE SOLE REMEDY PROVISION IMPOSES REASONABLE LIMITATIONS ON LIABILITY OR REMEDIES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Fahey, over a partial dissent, held that the sole remedy provision in the Representations and Warranties Agreement (RWA) in this residential mortgage-backed securities (RBMS) case was valid and enforceable. Plaintiff unsuccessfully tried to avoid the sole remedy provision by arguing the defendants breached the contract with gross negligence:

… [W]e … conclude that the parties’ contract, as written, means what it says. In this RMBS put-back action, plaintiff seeks to avoid a provision in the contract … that sets out a sole remedy for a breach by alleging that defendants breached the contract with gross negligence. This sole remedy provision purports to limit, but not eliminate, the remedies available to the plaintiff in the event of a breach. We conclude that, in a breach of contract action, the public policy rule prohibiting parties from insulating themselves from damages caused by grossly negligent conduct applies only to exculpatory clauses or provisions that limit liability to a nominal sum. The rule does not apply to contractual limitations on remedies that do not immunize the breaching party from liability for its conduct. The sole remedy provision is not an exculpatory or nominal damages clause. Plaintiff cannot render it unenforceable through allegations of gross negligence. * * *

We have previously considered the application of the gross negligence public policy rule only in cases where the contract provision at issue was an exculpatory clause, purporting to wholly immunize a party from liability, or a nominal damages clause limiting damages to, at most, $250 … . We have not yet determined whether grossly negligent conduct may render unenforceable contractual provisions that do not wholly insulate a party from liability for its breach, but instead impose reasonable limitations on either liability or the remedies available to the non-breaching party. We conclude that, in a breach of contract case, grossly negligent conduct will render unenforceable only exculpatory or nominal damages clauses, and the public policy rule does not extend to limitations on the remedies available to the non-breaching party. Matter of Part 60 Put-Back Litig., 2020 NY Slip Op 07687, CtApp 12-22-20

 

PROPERTY OWNERS WERE AWARE THE SIDEWALK IN FRONT OF THE RESTAURANT HAD BEEN HOSED DOWN BY RESTAURANT EMPLOYEES ON A COLD DAY; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS ICY-SIDEWALK SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this icy-sidewalk slip and fall case. Defendants’ employees hosed down the sidewalk in front of the restaurant on a cold day. The argument that plaintiff saw the ice and should have taken another route (comparative negligence) did not preclude summary judgment in plaintiff’s favor:

To obtain partial summary judgment, a plaintiff does not have to demonstrate the absence of his own comparative fault … . Moreover, plaintiff is not required to show that “defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment” … . The evidence plaintiff submitted in support of his motion shows that defendants-tenants … created the dangerous condition when their employees hosed the sidewalk on a cold winter day … . Defendants-owners … had a non delegable duty to maintain the sidewalk and had notice that the restaurant employees had created a dangerous condition, because [the] property manager and … superintendent had observed the restaurants’ employees hosing the sidewalk. Benny v Concord Partners 46th St. LLC, 2020 NY Slip Op 07665, First Dept 12-17-20

 

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PLAINTIFF IN THIS SLIP AND FALL CASE ALLEGED HE WAS INJURED WHEN HE STEPPED ON A LOOSE MANHOLE COVER OWNED BY DEFENDANT-TOWN; THE TOWN DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION BUT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-town’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged he stepped on a loose manhole cover which swung out from under him crushing his leg. The town demonstrated it did not have written notice of the condition, but did not demonstrate it did not create the condition:

Where, as here, the plaintiff alleged that the affirmative negligence exception applies, the defendant must show, prima facie, that the exception does not apply … .

Here, the plaintiff alleged that the defendant created the alleged dangerous condition, inter alia, through its initial placement of the manhole and by the use of an ill-fitting manhole cover, and the defendant’s submissions in support of its motion for summary judgment do not address these allegations. Accordingly, the defendant failed to establish, prima facie, that it did not create the alleged defect … . Dejesus v Town of Mamaroneck, 2020 NY Slip Op 07542, Second Dept 12-16-20

 

IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE WHEEL STOP, WHICH HAD BEEN MOVED FROM ITS POSITION AT THE TOP OF THE PARKING SPACE, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendants in this slip and fall case did not demonstrate the wheel stop which was an open and obvious condition that was not inherently dangerous. The wheel stop had been moved from its normal position at the top of a parking space. Plaintiff tripped over it after getting out of her car and taking a few steps while looking toward the store:

A landowner has a duty to maintain its premises in a reasonably safe condition … . There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . “Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . Brett v AJ 1086 Assoc., LLC, 2020 NY Slip Op 07532, Second Dept 12-16-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS DENTAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; DEFENDANT DEMONSTRATED THE PERFORMED PROCEDURE WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, THEREBY NEGATING THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant established he did not depart from good and accepted practice and the procedure he performed was not the proximate cause of plaintiff’s injury. Plaintiff’s expert’s affidavit was speculative and conclusory. Plaintiff did not raise a question of fact in support of the “lack of informed consent” cause of action:

… [M]ere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the cause of action at issue, are insufficient to defeat summary judgment … .

“[L]ack of informed consent is a distinct cause of action [which] requir[es] proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … .

The defendant established, prima facie, that his care and treatment did not proximately cause the plaintiff’s alleged injuries. In opposition, the plaintiff failed to raise a triable issue of fact as to whether a lack of informed consent proximately caused his injuries … . Kelapire v Kale, 2020 NY Slip Op 07553, Second Dept 12-16-20

 

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