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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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IN THIS DENTAL MALPRACTICE ACTION, PLAINTIFF RAISED ISSUES OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS, THE DEVIATION FROM THE STANDARD OF CARE, AND THE LACK OF INFORMED CONSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this dental malpractice action, determine there were questions of fact about (1) the applicability of the continuous treatment doctrine to toll the statute of limitations, (2) the deviation from the standard of care, and (3) the lack of informed consent:

The instant case does not involve gaps in treatment longer than the 2½-year statute of limitations … , and “a discharge by a physician [or dentist] does not preclude application of the continuous treatment toll if the patient timely initiates a return visit to complain about and seek further treatment for conditions related to the earlier treatment” … . …

… [B]y submitting the affidavits of her experts, plaintiff raised issues of fact whether defendants deviated from the standard of care and whether such deviation was a proximate cause of plaintiff’s injuries … . …

… [P]laintiff raised an issue of fact whether she would have opted for extraction of several teeth and placement of implants had she been fully informed … . Bellamy v Baron, 2021 NY Slip Op 00953, Fourth Dept 2-11-21

 

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THE POLICE REMOVED PLAINTIFF’S BOYFRIEND FROM PLAINTIFF’S PREMISES THREE TIMES TELLING PLAINTIFF HE WOULD NOT COME BACK AND SHE WILL BE OKAY; THEN HER BOYFRIEND THREW HER OUT A THIRD FLOOR WINDOW; THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE CITY; THE CITY WAS NOT LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined no special relationship had been created between the plaintiff and the city stemming from police officers’ telling plaintiff that her former boyfriend (Gaskin) would be removed from the premises and would not be back. The police responded to plaintiff’s calls when Gaskin showed up three times. On the next occasion, Gaskin threw plaintiff out of a third floor window:

“When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person” … . Such a special duty can arise, as relevant here, where the plaintiff belongs to a class for whose benefit a statute was enacted, or where the municipality voluntarily assumes a duty to the plaintiff beyond what is owed to the public generally … . A municipality will be held to have voluntarily assumed a duty or special relationship with a party where there is: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by establishing that no special relationship existed between them and the plaintiff … . Specifically, the defendants established, prima facie, that the officers made no promise to arrest Gaskin, and the plaintiff could not justifiably rely on vague assurances by the officers that she would “be okay” and that Gaskin would not be returning to the building where both he and the plaintiff lived … . Howell v City of New York, 2021 NY Slip Op 00840, Second Dept 2-10-21

 

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THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE SHOULD NOT HAVE BEEN DISMSSED DESPITE PLAINTIFF’S SIGNING A CONSENT FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the lack of informed consent cause of action should not have been dismissed in this dental malpractice action:

To establish a cause of action for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to inform the patient of reasonably foreseeable risks and benefits associated with the treatment, and the alternatives thereto, that a reasonable medical practitioner would have disclosed under similar 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 (see Public Health Law § 2805-d …). “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, although the injured plaintiff signed a consent form, the defendants submitted in support of their motion, inter alia, a transcript of the injured plaintiff’s deposition, during which she testified that the defendants never explained the risks of the tooth extraction or whether there were any alternatives … . Xiao Yan Ye v Din Lam, 2021 NY Slip Op 00895, Second Dept 2-10-21

 

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CVS, A DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION, HAD BEEN AWARDED SUMMARY JUDGMENT WHICH IS THE EQUIVALENT OF JUDGMENT AFTER TRIAL; DEFENDANT DOCTORS SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT CVS’S PROVIDING PLAINTIFF’S DECEDENT WITH THE WRONG DOSAGE OF MEDICINE MAY HAVE CONTRIBUTED TO HIS DEATH (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial in this medical malpractice case, determined the jury should not have heard evidence that CVS mistakenly gave plaintiff a double dose of a drug. CVS was a defendant but successfully moved for summary judgment prior to the trial:

… [T]he Supreme Court erred in permitting the jury to hear evidence that CVS Pharmacy, Inc. (hereinafter CVS), mistakenly gave the decedent a double dose of digoxin, and testimony from [defendant] Manvar that the double dose of digoxin predisposed the decedent to an arrhythmia that caused his cardiac arrest. CVS, a defendant in this action, was awarded summary judgment based on its argument that its error in giving the decedent a double dose of digoxin was not a substantial factor in causing the decedent’s cardiac arrest. As summary judgment is the “functional equivalent” of a trial, the court should have precluded [defendants] Huppert and Manvar from presenting evidence at trial that CVS’s negligence may have been a substantial factor in causing the decedent’s cardiac arrest … . Raineri v Lalani, 2021 NY Slip Op 00890, Second Dept 2-10-21

 

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THE COURT OF CLAIMS PROPERLY DISMISSED THE CLAIM FINDING THAT CLAIMANT’S DECEDENT WOULD HAVE BEEN KILLED IN THE CAR ACCIDENT EVEN IF THE PROPER W BEAM AS OPPOSED TO THE IMPROPER BOX BEAM HAD BEEN ERECTED AS A BARRIER ACROSS THE CLOSED BRIDGE; TWO JUSTICE DISSENT ARGUED THE MAJORITY IMPROPERLY APPLIED A “BUT FOR” STANDARD OF CAUSATION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the Court of Claims properly dismissed the claim on the ground that claimant’s decedent would have been killed in the car crash even if the barrier the car struck was a proper W beam as opposed to an improper steel box beam. The beams were erected across a closed bridge and claimant’s decedent was a passenger in the convertible which struck and passed under the box beams at both ends of the bridge. The dissenters argued that, upon remittal after a reversal in the first appeal, the Court of Claims was called upon to determine if the box beam was a dangerous condition which was a proximate cause in aggravating the injuries and did not do so. The dissenters noted that claimant’s decedent’s head injuries occurred when the car passed under the second box beam and he survived for 18 hours after the accident:

… [W]e remitted the matter to the Court of Claims to determine “whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death” … . …

… [W]e conclude that a fair interpretation of the evidence supports the court’s determination that the steel box beam was not a substantial factor in aggravating decedent’s injuries and causing his death. Claimant’s witnesses testified with respect to the type of barrier that defendants were required to use to block access to the bridge, i.e., a W-beam. Claimant also presented evidence that decedent’s impact with a W-beam would have led to the same result, i.e., a fatality.

FROM THE DISSENT:

… [T]he majority improperly elected to apply a “but for” standard of causation, rather than considering whether the negligence was a proximate cause of injury. In our view, applying a “but for” causation standard “would relieve from liability a negligent actor if the same harm might have been sustained had the actor not been negligent; yet the law is clear that that fact may be considered in fixing damages but does not relieve from liability” …  . Reames v State of New York, 2021 NY Slip Op 00712, Fourth Dept 2-5-21

 

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IN THE FOURTH DEPARTMENT, UNLIKE IN THE SECOND DEPARTMENT, A MUNICIPALITY MOVING FOR SUMMARY JUDGMENT IN A SLIP AND FALL CASE NEED ONLY SHOW IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION EVEN WHERE THE COMPLAINT ALLEGES THE MUNICIPALITY CREATED THE DANGEROUS CONDITION; HERE AN ONLINE COMPLAINT DID NOT SATISFY THE WRITTEN NOTICE REQUIREMENT; EVIDENCE A MUNICIPAL CONTRACTOR CREATED THE DANGEROUS CONDITION RAISED A QUESTION OF FACT ABOUT MUNICIPAL LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) disagreeing with the Second Department, a municipality moving for summary judgment in a slip and fall case need only show it did not receive written notice of the dangerous condition and need not affirmatively show it did not create the dangerous condition even if alleged in the complaint; (2) if the lack of written notice is demonstrated the burden shifts to plaintiff to show the municipality created the condition; (3) the written notice requirement is not necessarily satisfied by an online (CityLine) complaint; and (4) plaintiff raised a question of fact whether a municipal contractor created the dangerous condition. Plaintiff was injured when his bicycle went into a pavement cutout concealed by a puddle:

… [D]efendant met its initial burden by submitting the affidavit of its commissioner of public works establishing that he did not receive prior written notice of the allegedly dangerous or defective condition in the street as required by its prior notification law … . As a result, the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact as to the requisite written notice or, as relevant here, the applicability of the affirmative negligence exception … . …

… [As] CityLine complaints were simply received by complaint investigators and routed through a computer system to the appropriate department, and … such complaints were stored solely in the electronic file on the computer system, there is no indication in the record that such complaints were actually given to the commissioner of public works as required by the prior notification law … . …

… [T]here is circumstantial evidence that defendant created the defect through its contractor’s actions and, thus, a triable issue of fact whether the affirmative negligence exception applies … . Horst v City of Syracuse, 2021 NY Slip Op 00708, Fourth Dept 2-5-21

 

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