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PLAINTIFF, WHO HAD PASSED OUT AT A CONCERT, REFUSED ASSISTANCE IN WALKING TO THE BACK OF THE THEATER SO THE EMERGENCY MEDICAL TECHNICIAN COULD CHECK HIS BLOOD PRESSURE AND PULSE; WHEN HE ATTEMPTED TO WALK TO THE BACK OF THE THEATER HE PASSED OUT AGAIN AND FELL, HIS FACE HITTING THE FLOOR; THE DEFENDANTS DID NOT HAVE A DUTY TO ASSIST PLAINTIFF AFTER HE REFUSED THEIR HELP AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the causes of action against the security company, Beacon, and the EMT provider, Transcare, should have been dismissed. Plaintiff passed out in his seat at a concert and defendants responded. The medical technician found that plaintiff was fully conscious and alert. Because the music was so loud the medical technician asked plaintiff to go to the back of the theater to check his blood pressure and pulse. Plaintiff was offered assistance in walking but he refused. He passed out again and fell with his face hitting the floor:

Any duty Beacon or Transcare owed to plaintiff to assist him in exiting the theater terminated when he refused such assistance. It is well settled that a competent adult has the right to determine the course of his or her own medical treatment, including declining treatment … . Plaintiff does not dispute that he refused assistance in standing or ambulating. Further, the testimony was that the EMT technician assessed plaintiff as alert and oriented as he left his seat to exit the theater. Given this, the complaint should have been dismissed in its entirety as to defendants Beacon and Transcare … . Fornabaio v Beacon Broadway Co., LLC, 2020 NY Slip Op 06853, First Dept 11-19-20

 

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PLAINTIFF ALLEGED A VALID NEGLIGENCE CAUSE OF ACTION AGAINST DEFENDANT INSURANCE BROKER FOR FAILURE TO NOTIFY THE EXCESS CARRIER OF A CLAIM AGAINST PLAINTIFF; IT WAS ALLEGED THAT PLAINTIFF ROUTINELY NOTIFIED DEFENDANT BROKER OF ANY CLAIMS AND DEFENDANT BROKER ROUTINELY NOTIFIED THE AFFECTED CARRIERS, GIVING RISE TO A DUTY TO DO SO (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint against the insurance broker, T & H, stated a cause of action in negligence based on T & H’s failure to notify the excess carrier of its potential exposure to a claim:

Under ordinary circumstances, it is understood that “insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . Nevertheless, if an insured asks the broker to take on additional responsibilities above and beyond procuring specifically requested coverage, and the broker agrees to do so, a duty is created that the broker must execute with reasonable care … . Thus, we have held that a duty was imposed on a broker to notify the appropriate primary and excess carriers of a potential claim where there was “evidence that as a matter of routine [the insured] referred all questions regarding its insurance claims to [the broker] and [the broker] handled all [the insured]’s insurance needs, including referring its claims to insurers” … . Here, plaintiff alleged that it and T&H had established a course of conduct whereby plaintiff would notify the latter of claims against it and T&H would inform the carriers, and that T&H acknowledged that plaintiff relied on it to carry out this function. Indeed, plaintiff alleges, in this case T&H affirmatively represented that it had placed both the primary and the excess carrier on notice. Accordingly, plaintiff has stated a cause of action for negligence predicated on T&H’s alleged failure to advise the excess carrier of its potential exposure. Martin Assoc., Inc. v Illinois Natl. Ins. Co., 2020 NY Slip Op 06860, First Dept 11-19-20

 

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QUESTIONS OF FACT WHETHER THE CONTRACTOR HIRED TO WORK ON A SIDEWALK WAS RESPONSIBLE FOR MAKING SURE PEDESTRIANS HAD A SAFE PASSAGEWAY; PLAINTIFFS WERE STRUCK BY A CAR WHEN THEY WALKED IN THE PUBLIC STREET BECAUSE THE SIDEWALK WAS BLOCKED; THE THEORY OF LIABILITY APPEARS TO STEM FROM THE CONTRACTOR’S ALLEGED CREATION OF A DANGEROUS CONDITION UPON A PUBLIC STREET OR SIDEWALK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether defendant contractor, CSI, was responsible for providing a safe alternative passageway while construction work blocked the sidewalk. Plaintiffs were struck by a car when they attempted to walk in the street. The CSI was hired by the general construction manager hired by Taco Bell, the owner of the premises:

“A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk” … . Here, CSI failed to demonstrate its prima facie entitlement to judgment as a matter of law, as its submissions failed to eliminate all triable issues of fact as to whether it created the dangerous condition alleged to have caused the accident. Byrd v Hughes, 2020 NY Slip Op 06741, Second Dept 11-18-20

 

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PLAINTIFF’S KNEE BECAME STIFF AND IMPOSSIBLE TO BEND AFTER SURGERY; PLAINTIFF SUED THE DEFENDANT DOCTOR WHO TREATED HER AT THE POST-SURGERY REHABILITATION CENTER; THE DEFENDANT DOCTOR, WHO DID NOT PERFORM THE SURGERY, HAD CERTIFIED AND RECOMMENDED PHYSICAL AND OCCUPATIONAL THERAPY FOR PLAINTIFF AT THE REHABILITATION CENTER; BECAUSE THE DEFENDANT DOCTOR PLAYED NO ROLE IN THE THERAPY ITSELF, HIS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Raber’s) motion for summary judgment should have been granted. Dr. Raber treated plaintiff at a nursing and rehabilitation center, Glen Cove, where, after knee surgery, plaintiff voluntarily transferred. After about a month at Glen Cove, plaintiff was seen by her orthopedic surgeon who found plaintiff’s knee had become stiff and impossible to bend. Dr. Raber had certified and recommended physical and occupational therapy at Glen Cove, for which Dr. Raber was not responsible. Dr. Raber moved for summary judgment on the ground that any regimen of physical therapy was the responsibility of Glen Cove:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, Raber testified at his deposition that he is trained only in internal medicine, and was the plaintiff’s internist while she was at Glen Cove. Raber established that he was not the plaintiff’s physical or occupational therapist and was not involved in the plaintiff’s physical therapy plan of care. Physical therapists (see Education Law §§ 6731, 6732) must be educated and licensed in that specific field (see Education Law § 6734), and Raber had no such training. Occupational therapists must similarly be educated and licensed in their field (see Education Law § 7904). Raber’s medical expert opined that Raber’s training as an internal medicine specialist did not encompass the skills and knowledge required to assess a patient’s physical therapy needs, create a physical therapy plan of care, or supervise a physical therapy plan of care. …

Raber established that he did not depart from good and accepted medical practice by deferring to the physical and occupational therapy specialists at Glen Cove for the assessment and treatment of the plaintiff’s right knee, and had no duty to evaluate the efficacy of that treatment, since he was not involved in that aspect of the plaintiff’s care … . Aaron v Raber, 2020 NY Slip Op 06738, Second Dept 11-18-20

 

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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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