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DEFENDANT’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SPECIFIC ALLEGATIONS ASSERTED BY PLAINTIFFS; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant surgeon was not entitled to summary judgment in this medical malpractice action. The defendant’s expert affidavit did not address specific allegations of negligence asserted by plaintiffs:

… [T]he defendants failed to establish .. that Ashraf [defendant] did not depart from the applicable standard of care in treating the injured plaintiff or that any such departure did not proximately cause the injured plaintiff’s injuries. An expert affidavit of Ashraf submitted by the defendants in support of their motion failed to address specific allegations of negligence asserted by the plaintiffs, including whether Ashraf departed from the applicable standard of care in placing a 14-millimeter polyethylene component during the September 2016 surgery, as opposed to a smaller size, and whether such departure was a proximate cause of the injured plaintiff’s injuries … . Sanchez v Ashraf, 2025 NY Slip Op 02803, Second Dept 5-7-25

Practice Point: Summary judgment dismissing a medical malpractice action is dependent upon the defense expert’s affidavit. If the affidavit fails to address specific allegations of negligence made by the the plaintiff, summary judgment is not warranted. This is a fairly common ground for reversal.

 

 

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THE PORT AUTHORITY DEMONSTRATED IT WAS NOT LIABLE FOR PLAINTIFF’S DECEDENT’S DEATH BY SUICIDE; PLAINTIFF’S DECEDENT CLIMBED OVER A FOUR-FOOT-TALL PEDESTRIAN RAILING AND JUMPED OFF THE GEORGE WASHINGTON BRIDGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, over a dissent, affirming summary judgment dismissing the complaint, determined the Port Authority was not liable for the plaintiff’s decedent’s death by suicide.  Plaintiff’s decedent climbed over the four-foot-tall pedestrian railing and jumped off the George Washington Bridge (GWB). Plaintiff alleged the Port Authority was negligent in failing to install suicide prevention barriers along the pedestrian walkways:

In this action to recover damages for wrongful death, plaintiff seeks to hold defendant the Port Authority of New York and New Jersey liable for the death of the decedent, who died by suicide after jumping off the George Washington Bridge (GWB). To fully capture the nature of this appeal, however, it is pertinent to first discuss that the issue here is not whether the Port Authority’s alleged negligence arose out of the performance of a governmental rather than a proprietary function; this Court has already determined that the Port Authority, as owner of the GWB, was acting in a proprietary capacity at the time this claim arose and therefore that the ordinary rules of negligence apply. In the appeal now presented to us, the Port Authority’s expert engineer opines that the engineering concerns associated with modifying the 100-year-old bridge justified the steps taken and the interim measures implemented, but also opines that reasonable engineering judgment delayed the implementation of the safety mechanism that plaintiff contends would have ultimately prevented the decedent’s death by suicide. We therefore consider whether, given the record presented, the Port Authority has established its prima facie burden under ordinary rules of negligence. For the reasons that follow, we find that the Port Authority established that the pedestrian walkways on the bridge were safe for the public at large, and the steps taken, including additional interim measures implemented prior to this incident to help individuals who, like the decedent, were suffering from suicidal ideations, were reasonable in light of the complexity and size of the bridge. Donaldson v Port Auth. of N.Y. & N.J., 2025 NY Slip Op 02719, First Dept 5-6-25

 

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THERE WERE QUESTIONS OF FACT WHETHER A RAISED MANHOLE COVER, EXPOSED WHEN THE ROAD SURFACE AROUND THE MANHOLE WAS MILLED IN PREPARATION FOR REPAVING, CONSTITUTED A DANGEROUS CONDITION CREATED BY THE CITY AND WHETHER THE CONDITION WAS OPEN AND OBVIOUS (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the complaint, determined there were questions of fact whether the raised manhole cover constituted a dangerous condition, and whether the condition was open and obvious. Plaintiff was a passenger in a car which struck a raised manhole cover. In preparation for repaving, the existing road surface was milled or scarified such that the manhole covers extended above the surface of the road. Although asphalt was placed around the manhole (called ramping) so that the wheels on one side of a vehicle could pass over it, here the wheels on both sides of the manhole were on the milled surface and undercarriage of the car apparently struck it, causing the windshield to crack and the air bags to deploy:

[Defendant’s witness] could not say whether that ramping made it safe [for a vehicle to traverse directly over the manhole, with the wheels completely to the side of the entire width of the manhole’s ramping. It is this condition that plaintiff alleges was dangerous and defective, and the City adduced no evidence to refute that allegation. Accordingly, whether the City’s work — the ramping of the manhole — “immediately resulted in the existence of a dangerous condition,” thus rendering the City liable to plaintiff for her injuries, is a question of fact for the jury … . …

The City’s argument that the court erred in rejecting its argument sub silentio that it is nonetheless entitled to summary judgment dismissing the complaint as against it on the ground that the condition was open and obvious is unavailing. Whether a dangerous or defective condition is open and obvious relates to the duty to warn of the hazard, not the duty to neutralize it … . Summary judgment may only be granted on an open-and-obvious defense “when the established facts compel that conclusion . . . on the basis of clear and undisputed evidence”; otherwise, the inquiry “is generally fact-specific and thus usually a jury question” … . Timmons v Praylow, 2025 NY Slip Op 02744, First Dept 5-6-25

Practice Point: The question whether a condition, here a raised manhole cover, is open and obvious applies to the duty to warn, not the duty to neutralize a hazard, and is rarely appropriate as a basis for summary judgment.

Practice Point: The written-notice requirement, which is often a condition precedent for a negligence action against a municipality stemming from a road-condition, does not apply where, as here, it is alleged the municipality created the dangerous condition (a raised manhole cover).

 

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DEFENDANT IN THIS SLIP AND FALL CASE OFFERED NO EVIDENCE THAT THE AREA OF THE FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE SLIPPERY CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant did not not demonstrate a lack of constructive notice of the slippery substance because no proof the area was inspected or cleaned close in time to the fall was presented:

The defendant … failed to establish … that it lacked actual or constructive notice of the alleged slippery substance on the floor. “To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’ … . Evidence of general cleaning practices are inadequate to show “lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … . Here, the managing member of the defendant testified only that all staff had a general responsibility for the upkeep and cleanliness of the restaurant. Outside these general statements, the defendant provided no further information on when the specific area of the plaintiff’s fall had last been inspected or cleaned … . Rhoden v 515 Rest., LLC, 2025 NY Slip Op 02617, Second Dept 4-30-25

Practice Point: This case presents another instance of the failure to demonstrate a lack of constructive notice of the condition alleged to have caused plaintiff’s slip and fall. A lack of constructive notice is demonstrated by specific proof the area of the fall was cleaned or inspected close in time to the fall, not by proof of general cleaning practices.

 

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THE LAWSUIT AGAINST DEFENDANT RESIDENTIAL NURSING FACILITY STEMMING FROM PLAINTIFF’S DECEDENT’S COVID-19-RELATED DEATH IS PRECLUDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA); THE REPEAL OF THE ACT IS NOT RETROACTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence-based lawsuit against defendant residential nursing facility stemming from plaintiff’s decedent’s death from COVID-19 was precluded by the immunity conferred by the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1) (EDTPA). The repeal of the EDTPA was not retroactive:

The EDTPA, as effective August 3, 2020, to April 5, 2021, provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of providing health care services,” if: (a) the health care facility “is providing health care services in accordance with applicable law, or where appropriate pursuant to a COVID-19 emergency rule”; (b) the act or omission occurs in the course of providing health care services and the treatment of the individual is impacted by the health care facility’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives”; and (c) the health care facility “is providing health care services in good faith” (Public Health Law former § 3082[1][a]-[c]). …

Here, the Supreme Court should have granted the defendant’s motion to dismiss the complaint on the ground of immunity … . Contrary to the plaintiff’s contention, the repeal of the EDTPA is not retroactive … . Lara v S&J Operational, LLC, 2025 NY Slip Op 02582, Second Dept 4-30-25

Practice Point: Although the EDTPA has been repealed. the repeal is not applied retroactively. The COVID-19-related immunity conferred by the act precluded the lawsuit here.

 

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THE RAISED SIDEWALK FLAG WAS NOT A “TRIVIAL DEFECT” AS A MATTER OF LAW, YET PLAINTIFF’S ATTORNEYS DID NOT SUBMIT WRITTEN OPPOSITION TO THE SUMMARY JUDGMENT MOTION IN THE SLIP AND FALL CASE WHICH WAS DISMISSED; PLAINTIFF THEREFORE RAISED A QUESTION OF FACT IN THIS LEGAL MALPRACTICE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court in this legal malpractice action, determined there was a question of fact in the underlying slip and fall case which plaintiff’s attorneys could have, but failed to, raise. The raised sidewalk flag which caused plaintiff’s fall was not trivial as a matter of law, as the judge in the slip and fall case ruled. Plaintiff’s attorneys did not submit written opposition to the defendants’ summary judgment in the slip and fall case:

There is no “per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (id. at 510). A “holding of triviality must be based on all the specific facts and circumstances of the case, not size alone” … . Thus, the “issue is generally a jury question because it is a fact-intensive inquiry” … .

Even assuming defendants met their initial burden of proof in showing that plaintiff could not prevail on her negligence claim, plaintiff raised an issue of fact in opposition. Plaintiff estimated that the elevation differential of the defect was an inch and a half or “a couple of inches” at the time of her accident, and the adjacent building’s superintendent testified that the elevation was about half an inch to one inch on the day of the accident. Administrative Code of the City of New York requires remediation for sidewalk flags with a height differential of one-half inch or more (see Administrative Code § 19-152[a][4]). Violation of that code is “not per se non-trivial . . . [but] is one factor to consider when deciding the issue of triviality” … . Barrett v Sacks & Sacks, LLP, 2025 NY Slip Op 02547, First Dept 4-29-25

Practice Point: Plaintiff’s attorneys could have successfully precluded summary judgment in the underlying slip and fall case but failed to submit written opposition to the summary judgment motion. That failure raised a question of fact in the instant legal malpractice action.

 

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PLAINTIFF’S DECEDENT’S LAWSUIT AGAINST DEFENDANT NURSING HOME, WHICH APPARENTLY ALLEGED, AMONG OTHER THINGS, THAT PLAINTIFF’S DECEDENT WAS NEGLIGENTLY EXPOSED TO COVID-19, WAS NOT PRECLUDED BY THE “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT” OR THE “FEDERAL PUBLIC READINESS AND EMERGENCY ACT” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the wrongful death complaint, which apparently alleged, among other things, decedent was negligently exposed to COVID-19 in defendant nursing home, should not have been dismissed. The Fourth Department held that the defendants submissions did not demonstrate the COVID-19-releated immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) and the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d) precluded the lawsuit:

… [D]efendants’ submission of the affidavit of Robert G. Hurlbut, the administrator of the facility during the relevant time period, does not conclusively establish that the act or omission constituting defendants’ alleged negligence occurred in the course of arranging for or providing health care services, and it likewise does not conclusively establish that the treatment of decedent was impacted by the health care facility’s or health care professionals’ decisions or activities in response to or resulting from the COVID-19 outbreak … . We therefore conclude that defendants’ submissions did not conclusively establish the three requirements for immunity under the EDTPA … . …

With respect to the PREP Act * * * plaintiff alleged … that defendants failed to properly sterilize equipment to prevent the spread of infection, failed to follow their own infection control practices, and failed to maintain and utilize the proper personal protective equipment as required by federal law. Plaintiff further alleged that decedent suffered a range of injuries from defendants’ negligence, including pressure ulcers, head injuries, and lacerations, in addition to the contraction of COVID-19. Defendants’ submissions failed to establish that decedent’s injuries arose from the use of an approved countermeasure under the PREP Act … . Sweatman v The Hurlbut, 2025 NY Slip Op 02522, Fourth Dept 4-25-25

Practice Point: In the context of a motion to dismiss the complaint, which apparently alleged, among other things, that plaintiff’s decedent was negligently exposed to COVID-19 in defendant nursing home, the immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) and the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d) was not demonstrated to preclude the lawsuit.

 

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” issue:​

… [I]t is undisputed that the reckless disregard standard of care applies because Fong was driving an emergency vehicle and was engaged in an emergency operation at the time she proceeded through the red traffic signal (see Vehicle and Traffic Law § 1104 [b] [2]). In addition, defendants established that Fong’s conduct did not rise to a level of reckless disregard for the safety of others. Defendants’ submissions established, in particular, that Fong took several precautions before proceeding into the intersection against the red traffic signal, including bringing her vehicle to a complete stop, looking in all directions, activating her emergency lights, and proceeding slowly into the intersection … . Granath v Monroe County, 2025 NY Slip Op 02521, Fourth Dept 4-25-25

 

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CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined conflicting evidence precluded summary judgment in this civil action stemming from the street stop and arrest of the plaintiff. Although plaintiff pled guilty, which usually forecloses any argument that the arrest was not supported by probable cause, here evidence submitted the defendant transit authority raised a question of fact about probable cause. The action alleged the negligent use of excessive force (plaintiff was shot through the windshield of his vehicle), false arrest and unlawful imprisonment:

Excessive force claims are evaluated ” ‘under the Fourth Amendment’s “objective reasonableness” standard’ ” … . * * *

“Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … .

” ‘The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer’ ” … . …

Though “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the [false imprisonment cause of action]” … , the issue of probable cause is “generally a question of fact to be decided by the jury, and should ‘be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest’ ” … . Thomas v Niagara Frontier Tr. Auth., 2025 NY Slip Op 02433, Fourth Dept 4-25-25

Practice Point: Consult this decision for an analysis of “negligent use of excessive force,” “false arrest,” and “unlawful imprisonment” causes of action at the summary-judgment stage, in the face of conflicting evidence.​

 

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PLAINTIFF FELL AT HER NURSING HOME AND EMERGENCY PERSONNEL FOUND HER UNATTENDED ON THE FLOOR WITH NO IDENTIFICATION BAND; DEFENDANT’S EXPERT, A CARDIAC CRITICAL CARE PHYSICIAN, DID NOT DEMONSTRATE FAMILIARITY WITH NURSING HOME CARE AND DID NOT ADDRESS ALL THE ALLEGATIONS IN THE PLEADINGS; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice/Public Health Law 2801-d action should not have been granted. The defendant relied on the expert opinion of a physician who did not demonstrate familiarity with nursing home care and did not address the allegations that plaintiff’s decedent was left unattended on the floor after she fell and defendant’s personnel did not cooperate with the EMS personnel who attended the decedent:

“On a motion for summary judgment dismissing the complaint in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure” … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … .

“Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient. …

… [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . …

… [T]he defendant relied on an expert affirmation of a physician who engaged in, inter alia, the practice of cardiac critical care. This affirmation did not indicate that the physician had training in geriatric or nursing home care or what, if anything, the physician did to become familiar with the standard of care for these specialties … . … [T]he defendant’s expert failed to specifically address the allegations that the defendant’s staff members left the decedent on the floor unattended while awaiting the arrival of EMS and failed to cooperate with EMS personnel upon their arrival … . … [T]he EMS report reflected that the defendant failed to provide EMS personnel with more than mere transfer paperwork. … [T]he decedent initially could not be identified because she did not have an identification band, and EMS personnel did not know whether the patient was on blood thinners or subject to any “advance directives.” Deitch v Sands Point Ctr. for Health & Rehabilitation, 2025 NY Slip Op 02317, Second Dept 4-23-25

Practice Point: Consult this decision for a clear explanation of the very different nature of a medical malpractice action as compared with a Public Health Law 2801-d action.

Practice Point: Here plaintiff’s decedent fell at her nursing home. Defendant’s expert, a cardiac physician, did not demonstrate any familiarity with nursing home care, rendering his affidavit insufficient.

Practice Point: In a medical malpractice/Public Health Law 2801-d action, the expert’s failure to address all the allegations in the pleadings renders the expert evidence insufficient.

 

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