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THE CRACK OVER WHICH INFANT PLAINTIFF ALLEGEDLY TRIPPED WAS DEEMED TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the crack in the concrete schoolyard where infant plaintiff allegedly tripped and fell was trivial as a matter of law. Infant plaintiff was running a sprint in an after-school program when he fell. The court noted that plaintiffs raised a “feigned issue of fact” in opposition to the defendants’ motion for summary judgment which tried to avoid the consequences of deposition testimony:

… [T]he defendants established, prima facie, that the alleged defective condition was trivial as a matter of law and therefore nonactionable … . The defendants’ expert inspected the crack and determined that it was “from 1/8 of an inch to 7/16 of an inch in width,” and the pavement “on each side of the crack[ ] . . . contained no vertical height differential.” Further, the infant plaintiff’s General Municipal Law § 50-h hearing and deposition testimony established that the accident occurred during daylight hours on a clear day with nothing obstructing his view.

In opposition to the defendants’ prima facie showing that the defect was trivial, the plaintiffs failed to raise a triable issue of fact. The affidavit of the infant plaintiff stating that “[t]he crack was wide enough that part of [his] right foot was able [to] go into it” “‘presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony'” … that his right “heel” stepped “on” the crack, and his General Municipal Law § 50-h hearing testimony that his right “toes” “stopped really hard” on the crack and the crack “wasn’t wide.” Moreover, the affidavit of the plaintiffs’ expert was speculative, unsubstantiated, and conclusory, as the expert neither provided a description of the crack nor took any measurements of it … . K.A. v City of New York, 2020 NY Slip Op 06737, Second Dept 11-18-20

 

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THE REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED; THE EXCUSE WAS INADEQUATE BUT THE CITY HAD TIMELY NOTICE OF THE NATURE OF THE CLAIM AND WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s request for leave to file a late notice of claim in this sidewalk slip and fall case should have been granted. Although the excuse for filing late was not adequate, the city had timely knowledge of the nature of the claim:

The unusual occurrence report prepared and filed shortly after the petitioner’s accident provided the City with timely actual knowledge of the essential facts constituting the claim, since its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed … .

Moreover, the City’s acquisition of timely actual knowledge of the facts constituting the claim, along with the petitioner’s submission of evidence indicating that the conditions at the accident scene remained unchanged, satisfied the petitioner’s burden of presenting some evidence or plausible argument to support a finding of no substantial prejudice to the City in defending against the claim … . Matter of Catania v City of New York, 2020 NY Slip Op 06776, Second Dept 11-18-20

 

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THE LANDLORD DID NOT HAVE NOTICE OF ANY PRIOR ROBBERIES OCCURRING IN THE BUILDING, THEREFORE THE TENANT-ROBBERY-VICTIM’S COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the landlord defendants were entitled to summary judgment dismissing the complaint by a tenant stemming from a robbery by another tenant and others. Defendant landlord demonstrated it did not have notice of any prior similar criminal activity in the building:

A landlord is not required to insure the safety of tenants or visitors … . However, “[l]andlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . “To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . In the absence of evidentiary proof of notice of prior criminal activity, the owner’s duty reasonably to protect those using the premises from such activity never arises … . “The question of the scope of an alleged tort-feasor’s duty is, in the first instance, a legal issue for the court to resolve” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they lacked notice of the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject premises … . Markov v Grecian Gardens Co., 2020 NY Slip Op 06771, Second Dept 11-18-20

 

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THE 2019 MOTION TO RESTORE THE ACTION TO ACTIVE STATUS AFTER THE NOTE OF ISSUE WAS VACATED IN 2012 SHOULD HAVE BEEN GRANTED; LACHES DOES NOT APPLY WHERE THERE HAS BEEN NO SERVICE OF A 90-DAY DEMAND PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the traffic accident action to active status in 2019 after the note of issue had been vacated in 2012 should have been granted. The doctrine of laches does not apply where there has been not service of a 90-day demand pursuant to CPLR 3216:

CPLR 3404 does not apply to this pre-note of issue action … . Further, there was neither a 90-day demand pursuant to CPLR 3216 … , nor an order dismissing the complaint pursuant 22 NYCRR 202.27 … .

Moreover, “[t]he doctrine of laches does not provide [a] basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable” … . “The procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay where the plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b)” … . In the absence of a 90-day demand pursuant to CPLR 3216, the plaintiff’s motion to restore the action to active status should have been granted … . Guillebeaux v Parrott, 2020 NY Slip Op 06762, Second Dept 11-18-20

 

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DEFENDANTS’ MEDICAL EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY BASED UPON THE MEDICAL RECORDS AND MATERIAL IN EVIDENCE DESPITE NOT HAVING PERSONAL KNOWLEDGE OF THE INJURIES; THE EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT CAUSATION EVEN THOUGH THE ISSUE WAS NOT ADDRESSED IN THE EXPERT REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this rear-end collision case should have been granted because defendants’ expert was precluded from testifying:

“[T]o be admissible, opinion evidence must be based on,” inter alia, (1) “personal knowledge of the facts upon which the opinion rests,” or, (2) “where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial” … . Here, we disagree with the Supreme Court’s determination to preclude the defendants’ medical expert, Edward Weiland, from testifying regarding records and testimony that were in evidence and from testifying on the issue of causation. Contrary to the plaintiff’s contention, Weiland should have been permitted to testify regarding the records and testimony in evidence even if he lacked personal knowledge as to the specific injuries addressed therein … . Furthermore, Weiland should have been permitted to testify on the issue of causation, despite not having addressed this issue in his expert report, because “the issue of causation was implicit on the question of damages” … . The court’s errors in limiting Weiland’s testimony were not harmless … . Therefore, the court should have granted the defendants’ motion, in effect, to set aside the jury verdict, to vacate the judgment entered thereon, and for a new trial on the issue of damages. Gubitosi v Hyppolite, 2020 NY Slip Op 06761, Second Dept 11-18-20

 

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THE DRAM SHOP ACT DOES NOT CREATE A CAUSE OF ACTION IN FAVOR OF THE INTOXICATED PERSON (SECOND DEPT).

The Second Department, in this wrongful death case, determined the Dram Shop Act cause of action was properly dismissed because the act does not create a cause of action in favor of the intoxicated person. Here the complaint alleged defendant Bombace Wine & Spirits, Inc. was liable for selling alcohol to plaintiff’s decedent, who died of alcohol poisoning and was referred to as a habitual drunkard. Although plaintiff’s decedent’s family members could sue under the Dram Shop Act for “means of support” damages, there no were allegations of “means of support” damages in the complaint:

The Dram Shop Act “creates a cause of action in favor of a third party injured or killed by an intoxicated person, but it does not create a cause of action in favor of the intoxicated person” … or his or her estate … . Thus, the first cause of action to recover damages under the Dram Shop Act fails to state a cause of action insofar as it is asserted on behalf of the decedent’s estate, notwithstanding the addition in the amended complaint of the allegation that the decedent’s intoxication at the time of the alleged illegal alcohol sale was “involuntary” … . Further, because the decedent, were she alive, would not possess a viable cause of action against the Bombace defendants to recover damages for injuries sustained as a result of her own intoxication, her estate possesses no viable cause of action to recover damages for wrongful death (see EPTL 5-4.1 …). Estate of Tammy Colleen Feenin v Bombace Wine & Spirits, Inc., 2020 NY Slip Op 06755, Second Dept 11-18-20

 

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PIERCING THE CORPORATE VEIL AND AGENCY ALLEGATIONS SUFFICIENTLY PLED VICARIOUS LIABILTY FOR NEGLIGENCE ON THE PART OF THE NURSING HOME DEFENDANTS FOR AN ASSAULT BY A RESIDENT ON PLAINTIFF’S DECEDENT; THE COMPLAINT ALSO SUFFICIENTLY ALLEGED PUBLIC HEALTH LAW VIOLATIONS; PLAINTIFF’S MOTION TO SERVE AN AMENDED COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the complaint adequately stated negligence and Public Health Law causes of action against a nursing home facility stemming from an assault on plaintiff’s decedent by another resident. The Fourth Department found the complaint adequately alleged the criteria for piercing the corporate veil, the criteria for an agency relationship among the defendants, and for a Public Health Law cause of action. The court further found plaintiff’s motion to serve an amended complaint should have been granted:

… Plaintiff alleges that the … defendants were operated in such a way “as if they were one by commingling them on an interchangeable basis or convoluted separate properties, records or control.” Significantly, plaintiff alleged that the corporate formalities were conduits to avoid obligations to the facility’s residents, and thus the allegations are sufficient to state a cause of action for negligence under a theory of piercing the corporate veil or alter ego … . …

… [P]laintiff’s claims in the negligence cause of action that defendants are vicariously liable under theories of agency and joint venture are … sufficiently stated. “The elements of a joint venture are an agreement of the parties manifesting their intent to associate as joint venturers, mutual contributions to the joint undertaking, some degree of joint control over the enterprise, and a mechanism for the sharing of profits and losses” … . “Agency . . . is a fiduciary relationship which results from the manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act” … . Plaintiff alleges in the first amended complaint that defendants acted as agents for one another and, as relevant here, that they ratified the acts of one another regarding, inter alia, operation of the facility, allocation of resources, and mismanagement of the facility. …

Plaintiff alleged that in addition to residential care, the facility provided “health-related services,” including specialized dementia care, dietary supervision, hygiene and on-site medical and psychological care. Accepting those facts as alleged in the first amended complaint as true, and affording every possible favorable inference to plaintiff, we conclude plaintiff sufficiently alleged facts to overcome defendants’ argument that the facility is an assisted living facility and not subject to those sections of the Public Health Law … . Cunningham v Mary Agnes Manor Mgt., L.L.C., 2020 NY Slip Op 06582, Fourth Dept 11-13-20

 

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PLAINTIFF’S EXPERTS’ AFFIDAVITS WERE CONCLUSORY AND SPECULATIVE WITH RESPECT TO ONE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION; AND ANOTHER DEFENDANT’S EXPERTS WERE QUALIFIED TO OFFER OPINIONS IN AREAS OUTSIDE THEIR PARTICULAR FIELDS OF SPECIALIZATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this medical malpractice action, determined plaintiff’s experts’ affidavits were conclusory and speculative with respect to defendant Neurological Associates and defendant Radiology Associates’ experts were qualified to offer their opinions. The complaint alleged plaintiff’s decedent’s brain tumor was not timely detected and treated:

… [P]laintiff’s experts “failed to provide any factual basis for [their] conclusion[s]” that Neurological Associates deviated from the standard of care in surgically resecting the tumor, documenting the resection, and advising decedent as to post-operative radiation and, therefore, the experts’ affidavits “lacked probative force and [were] insufficient as a matter of law to overcome” the motion with respect to those claims … . … [P]laintiff’s submissions are insufficient to raise a triable issue of fact whether any … deviation was a proximate cause of decedent’s injuries …  and offered only conclusory and speculative assertions that earlier detection of recurrence and additional treatment would have produced a different outcome for decedent … . …

… .Radiology Associates’ experts, who were board certified neurosurgeons, were qualified to offer opinions on the emergency department radiology services provided to decedent … , inasmuch as the experts “possessed the requisite skill, training, knowledge and experience to render . . . reliable opinion[s]” in this case … . It is well settled that “[a] physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Martingano v Hall, 2020 NY Slip Op 06618, Fourth Dept 11-13-20

 

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50% FAULT SHOULD NOT HAVE BEEN APPORTIONED TO PLAINTIFF IN THIS WET-FLOOR SLIP AND FALL CASE; THE WATER ON THE FLOOR WAS NOT OPEN AND OBVIOUS AND THE WARNING SIGN WAS NOT VISIBLE (FOURTH DEPT).

The Fourth Department, modifying the Court of Claims, determined there was no basis for apportioning 50% liability to the plaintiff in this wet-floor slip and fail case. The water on the floor was not open and obvious and the warning sign was not visible. Therefore plaintiff was not at fault for walking briskly, looking forward and not using the mats on the floor:

… [P]eople are “bound to see what by the proper use of [their] senses [they] might have seen” and act accordingly … . Here, however, the evidence at trial established that the wet condition of the floor was not open and obvious … and that the sign warning of a wet floor was not readily observable to claimant as he exited the elevator and proceeded, in a group, toward the front door … . As a result, there was nothing that would have alerted claimant to any danger in walking briskly, looking forward, and walking on the bare floor instead of the available mats.

… [W]e remit the matter to the Court of Claims to direct the entry of judgment in favor of claimant in accordance with the apportionment of 100% liability to defendant. Smiley v State of New York, 2020 NY Slip Op 06635, Fourth Dept 11-13-20

 

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DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT SUBCONTRACTOR DEMONSTRATED IT DID NOT HAVE THE AUTHORITY TO SUPERVISE OR CONTROL THE WORK THAT CAUSED PLAINTIFF’S INJURY; THEREFORE THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED AND THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the documentary evidence submitted by defendant subcontractor in this Labor Law 241(6), 200 and common law negligence action conclusively established defendant did not have the authority to supervise of control the work which caused plaintiff’s injury. Defendant’s motion to dismiss pursuant to CPLR 3211 was properly granted re the Labor Law 240 (1) and 200 causes of action and should have been granted re the common law negligence cause of action:

… [T]he court properly granted defendant’s motion insofar as it sought to dismiss the Labor Law causes of action because defendant submitted documentary evidence “conclusively establish[ing]” … that, “as a subcontractor, it did not have the authority to supervise or control the work that caused the plaintiff’s injury and thus cannot be held liable under Labor Law §§ 200 . . . or 241 (6)” … . … [T]he documentary evidence belies plaintiff’s allegation that he is a third-party beneficiary of the contract between his employer and defendant … . … [G]iven the documentary evidence submitted in support of defendant’s motion, … the court should have also granted the motion insofar as it sought to dismiss the common-law negligence cause of action against defendant … . Eberhardt v G&J Contr., Inc., 2020 NY Slip Op 06627, Fourth Dept 11-13-20

 

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