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THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED; THERE WAS NO SHOWING THE CITY AND FIRE DEPARTMENT HAD TIMELY KNOWLEDGE OF A POTENTIAL NEGLIGENCE ACTION ARISING FROM A RESPONSE TO A 911 CALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application for leave to file a late notice of claim should not have been granted. Plaintiff alleged the city and the fire department (the appellants) were negligent in the response to a 911 call made after petitioner’s daughter was discovered drowning in a swimming pool. The petitioner did not demonstrate the appellants were timely made aware of a potential negligence action:

Contrary to the petitioner’s contention, the appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter by virtue of their possession of a portion of the relevant 911 call. The appellants demonstrated that 911 calls are initially answered by a representative of the New York Police Department (hereinafter NYPD) and are transferred to the FDNY’s Emergency Medical Dispatch Center if, as here, the reported emergency is of a medical nature. The appellants showed that the NYPD portion of the call was deleted in the normal course of business after 180 days, while the FDNY portion was retained. The FDNY portion of the call and other communications maintained by the appellants revealed that the arrival on the scene of an Advanced Life Support ambulance was delayed because the ambulance was initially directed to an incorrect address, but did not reveal whether the appellants’ employees or the 911 caller was the source of the error. Rather, it was the deleted NYPD portion of the call that would likely have contained that information. Furthermore, the petitioner’s daughter’s pulse and breathing were restored in the ambulance, and nothing in the records maintained by the appellants revealed the extensive injuries that the petitioner’s daughter allegedly suffered. Thus, despite the appellants’ knowledge of facts surrounding the response to the 911 call, there was little to suggest injury attributable to any negligence on their part … .

… [E]ven assuming that the petitioner demonstrated an absence of prejudice, in response, the appellants made a particularized evidentiary showing that they would be substantially prejudiced by the more than one year delay in serving the notice of claim by showing that the NYPD portion of the call, which would likely have revealed the source of the erroneous residential address, had been deleted … . The petitioner additionally failed to demonstrate a reasonable excuse for the failure to timely serve a notice of claim … . Matter of Adbelghany v City of New York, 2020 NY Slip Op 04391, Second Dept 8-5-20

 

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WHERE THERE ARE TWO POSSIBLE CAUSES OF A DANGEROUS CONDITION AND THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION ABOUT WHETHER THE ALLEGED NEGLIGENCE OF THE DEFENDANT WAS THE PROXIMATE CAUSE, THE ACTION MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant New York City Housing Authority’s (NYCHA’s) summary judgment motion in this playground injury case should have been granted. Plaintiff alleged a water sprinkler, in which children could play, was too close to the monkey bars and infant plaintiff was injured falling from the wet monkey bars. However the plaintiff presented evidence that children who were wet from playing in the sprinkler had climbed the monkey bars before infant plaintiff slipped and fell. The Second Department held that finding the NYCHA negligent would have to be based upon speculation:

The infant plaintiff testified at a General Municipal Law § 50-h hearing and his deposition that the wind was pushing water from the sprinkler to the monkey bars. However, the infant plaintiff also testified at his deposition that, immediately before he went on the ladder to the monkey bars, two children who were wet from playing in the sprinkler climbed on the ladder. “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” … . Given the wet children who preceded the infant plaintiff on the ladder, it would require impermissible speculation to conclude that the water on which the infant plaintiff slipped was caused by the proximity of the sprinkler to the monkey bars … .

The affidavit of the infant plaintiff to the effect that the ladder was wet before the wet children climbed on it “presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony” that he did not see that the ladder was wet before he climbed on it … .  Wilson v New York City Hous. Auth., 2020 NY Slip Op 04427, Second Dept 8-5-20

 

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PLAINTIFF’S DECEDENT’S MEDICAL MALPRACTICE AND WRONGFUL DEATH ACTIONS WERE NOT TIME-BARRED, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice and wrongful death causes of action on behalf of decedent should not have been dismissed as time-barred:

The plaintiff’s decedent died due to complications related to cancer on August 29, 2015. On May 26, 2016, the plaintiff commenced this action to recover damages for wrongful death and medical malpractice against, among others, the defendants Forest Hills Hospital (hereinafter FHH) and Sergio Martinez, a physician (hereinafter together the defendants). As is relevant to these appeals, the complaint alleged negligent acts and omissions by the defendants related to the decedent’s hospitalization at FHH from July 30, 2013, to August 1, 2013. After joinder of issue, Martinez and FHH separately moved pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of malpractice committed before November 26, 2013, insofar as asserted against each of them. … Supreme Court granted the defendants’ separate motions. …

We disagree with the Supreme Court’s determination that the statute of limitations barred causes of action to recover damages for medical malpractice that accrued prior to November 26, 2013 (i.e., 2½ years before the date the action was commenced), rather than February 28, 2013 (i.e., 2½ years before the date of the decedent’s death) (see EPTL 5-4.1 …). Since, at the time of his death, the decedent had a valid cause of action to recover damages for medical malpractice based upon acts or omissions occurring on or after February 28, 2013, and since the wrongful death cause of action was commenced within two years of the date of his death, the wrongful death cause of action was timely commenced … . Accordingly, any causes of action to recover damages for medical malpractice that accrued on or after February 28, 2013 (i.e., within 2½ years of the decedent’s death), including the decedent’s July 2013 hospitalization, were timely. Further, the plaintiff then had one year from the decedent’s death to assert a cause of action alleging conscious pain and suffering (see CPLR 210[a]; …). Perez v Baez, 2020 NY Slip Op 04329, Second Dept 7-29-20

 

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ALTHOUGH THERE WAS A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL, THERE WERE QUESTIONS OF FACT WHETHER THE ICE FORMED AFTER A PRIOR STORM AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SIDEWALK; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although there was a storm in progress at the time of the slip and fall, there were questions of fact whether ice had formed from a storm two days before and whether the defendants had constructive notice of the condition:

Under the storm in progress rule, “[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” … . Here, in support of their summary judgment motion, the defendants submitted climatological data which showed that on January 26, 2015, trace amounts of snow fell in the morning, and that the snow began to increase in intensity at about the time of the accident and continued into the next day. That same data, however, also showed that 3.6 inches of snow fell on January 24, 2015, and that 2 inches of snow depth remained on January 26, 2015. Although the defendants established that a snowstorm was in progress at the time of the plaintiff’s fall, the defendants failed to establish that the plaintiff’s fall was a result of an icy condition which developed as a result of the snowfall on January 26, and not that of January 24 … . Notably, while the defendants provided evidence of their general snow removal practices, they provided no evidence regarding any specific removal efforts following the January 24 storm, including on January 26 prior to the plaintiff’s fall. Thus, the defendants failed to establish that the plaintiff slipped and fell on an icy condition that was a product of the storm in progress, or that they lacked constructive notice of a preexisting condition … . Kearse v 40 Wall St. Holdings Corp., 2020 NY Slip Op 04296, Second Dept 7-29-20

 

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PLAINTIFF-PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; ALTHOUGH A PLAINTIFF NEED NOT DEMONSTRATE THE ABSENCE OF COMPARATIVE NEGLIGENCE IN SUPPORT OF SUMMARY JUDGMENT, THE COURT CAN CONSIDER COMPARATIVE NEGLIGENCE WHERE, AS HERE, THE PLAINTIFF MOVES TO DISMISS THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-pedestrian’s motion for summary judgment in this traffic accident case should have been granted. The court noted that evidence of a plaintiff’s comparative negligence, although no longer an impediment to summary judgment, can be considered by the court where the plaintiff moves to dismiss a comparative-negligence affirmative defense:

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … . Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, her own affidavit, which demonstrated that she was walking within a crosswalk with the pedestrian signal in her favor when Martinez, who was attempting to make a left turn, failed to yield the right-of-way and struck her … . The plaintiff’s affidavit was also sufficient to establish, prima facie, that she was not at fault in the happening of the accident, as it demonstrated that she exercised due to care by confirming that she had the pedestrian signal in her favor and by looking for oncoming traffic in all directions before entering the crosswalk and that the collision occurred so suddenly that she could not avoid it … . Hai Ying Xiao v Martinez, 2020 NY Slip Op 04295, Second Dept 7-29-20

Similar issues and result in Maliakel v Morio, 2020 NY Slip Op 04298, Second Dept 7-29-20

 

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INFANT PLAINTIFF WAS APPARENTLY INJURED BY HOT COALS LEFT AFTER A FIRE IN A COUNTY PARK; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE COUNTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision cause of action against the county should not have been dismissed. Apparently infant plaintiff was injured in a county park by hot coals left after a fire:

“While a municipality is not an insurer of the safety of those who use its parks, it does have a duty to maintain its parks in a reasonably safe condition,’ which includes exercising ordinary care in providing an adequate degree of general supervision'” … . Here, the defendants, in moving for summary judgment dismissing the complaint, failed to demonstrate their prima facie entitlement to judgment as a matter of law. Under the circumstances presented here, the evidence submitted by the defendants in support of their summary judgment motion failed to eliminate all triable issues of fact as to whether they exercised adequate supervision of park visitors’ use of fires and disposal of hot coals … . S.A.P. v County of Westchester, 2020 NY Slip Op 04337, Second Dept 7-29-20

 

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WHETHER THE DEFENDANT FIRST STOPPED AT THE STOP SIGN OR DROVE THROUGH THE STOP SIGN DOESN’T MATTER BECAUSE EITHER WAY THE VEHICLE AND TRAFFIC LAW WAS VIOLATED; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a judgment as a matter of law (CPLR 4401) was properly denied, but the motion to set aside the defense verdict in this intersection traffic accident case (CPLR 4404 (a)) should have been granted. Defendant violated the Vehicle and Traffic Law by proceeding into the intersection on a road controlled by a stop sign. Whether defendant first stopped at the stop sign or went through the stop sign doesn’t matter:

… [T]he Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The evidence established that the defendant violated Vehicle and Traffic Law §§ 1142(a) and 1172(a) … . The defendant’s statutory duty to yield to the plaintiff continued even after the defendant entered the intersection. Such statutory violations constitute negligence as a matter of law and could not properly be disregarded by the jury … . Accordingly, the jury could not have returned a verdict that the defendant was not negligent on any fair interpretation of the evidence … . Ramirez v Cruse, 2020 NY Slip Op 04334, Second Dept 7-29-20

 

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PLAINTIFF’S SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST (SUM) COVERAGE WAS GREATER THAN THE BODILY INJURY COVERAGE IN THE TORTFEASOR’S POLICY; SO THE SUM PROVISION OF PLAINTIFF’S POLICY WAS TRIGGERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant-insurer’s supplemental uninsured/underinsured motorist (SUM) benefits were triggered in the traffic accident case. The (SUM) coverage under plaintiff’s policy was greater than the bodily injury coverage in the  tortfeasor’s policy. Plaintiff had settled for the tortfeasor’s policy limit and then sought to collect SUM benefits under his policy. Plaintiff’s insurer had determined the policy was not triggered and Supreme Court agreed:

“Insurance Law § 3420 (f) (2) was enacted to allow an insured to obtain the same level of protection for himself [or herself] and his [or her] passengers which he [or she] purchased to protect himself [or herself] against liability to others’ ” … . It is well settled that, “[u]nder Insurance Law § 3420 (f) (2), an insured’s [SUM] coverage is triggered when the limit of the insured’s bodily injury liability coverage is greater than the same coverage in the tortfeasor’s policy”… . More particularly, when determining whether SUM coverage is triggered, “[t]he necessary analytical step . . . is to place the insured in the shoes of the tortfeasor and ask whether the insured would have greater bodily injury coverage under the circumstances than the tortfeasor actually has” … , which “requires a comparison of each policy’s bodily injury liability coverage as it in fact operates under the policy terms applicable to that particular coverage” … .

Here, a comparison of the two policies at issue, in light of the circumstances of this case, demonstrates that plaintiff would be afforded greater coverage under his policy than under the tortfeasor’s policy. The tortfeasor’s policy would have provided plaintiff with only $100,000 of coverage for bodily injury, whereas plaintiff’s policy would have provided him with up to $300,000 of coverage for bodily injury. Although plaintiff’s SUM benefits would be reduced by the amount paid to his wife under the policy’s $300,000 per accident maximum, he is still afforded more coverage under his policy than under the tortfeasor’s policy because the bodily injury limit for an accident in which two people are injured would be $200,000 under the tortfeasor’s policy, which is less than the coverage afforded by plaintiff’s policy. Consequently, the SUM provision of plaintiff’s policy was triggered … . Gross v Travelers Ins., 2020 NY Slip Op 04253, Fourth Dept 7-24-20

 

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MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motions for leave to file late notices of claim in these actions stemming from pollution escaping from a landfill should have been granted. Although leave to file a late notice of claim can not be granted after the statute of limitations has run, here the statute of limitations was tolled by the filing of a federal class action suit:

Although more than one year and ninety days had elapsed between the November 2016 accrual date alleged in claimants’ proposed notices of claim and their application for leave to serve late notices of claim, we agree with claimants that the filing of the federal class action in March 2017, in which claimants are putative class members, tolled the statute of limitations … . …

… [T]he court abused its discretion in denying their application insofar as it sought leave to serve late notices of claim on respondent … . “In determining whether to grant such [relief], the court must consider, inter alia, whether the claimant[s have] shown a reasonable excuse for the delay, whether the [respondent] had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the [respondent]” … . Although claimants failed to establish a reasonable excuse for the delay, “[t]he failure to offer an excuse for the delay is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” … .

… [B]ecause respondent knew that its Site was upgraded to a Class 2 site in 2015 and because similarly situated individuals served timely notices of claim on respondent alleging “substantively identical” exposure to the Site’s pollutants and resulting damages … , we conclude that claimants established that respondent received the requisite actual timely knowledge of the claims claimants now assert. We further conclude that claimants met their initial burden of establishing that respondent would not be substantially prejudiced by the delay inasmuch as respondent has been investigating similar claims since early 2017 … and that, in opposition, respondent failed to make a “particularized showing” of substantial prejudice caused by the late notice … . Matter of Bingham v Town of Wheatfield, 2020 NY Slip Op 04241, Fourth Dept 7-24-20

 

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ALTHOUGH DEFENDANTS’ INSURER OBTAINED A DECLARATORY JUDGMENT (BY DEFAULT) THAT IT WAS NOT OBLIGATED TO PAY NO-FAULT BENEFITS TO PLAINTIFF PEDESTRIAN IN THIS TRAFFIC ACCIDENT CASE, THE DECLARATORY JUDGMENT DID NOT PRECLUDE, UNDER EITHER CLAIM OR ISSUE PRECLUSION, PLAINTIFF’S PERSONAL INJURY ACTION AGAINST DEFENDANTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, after a comprehensive analysis of res judicata and collateral estoppel, refusing to follow the Second Department, determined a default judgment in a declaratory judgment action brought against plaintiff by defendant driver/owner’s insurer (Nationwide) did not preclude plaintiff’s subsequent personal injury action against defendants. Plaintiff alleged he was walking his motorcycle across a street when he was struct by defendants’ vehicle. Nationwide brought the declaratory judgment action to obtain a ruling it was not obligated to pay no-fault benefits to plaintiff and plaintiff did not appear in that action:

Claim preclusion prevents relitigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions that either were raised or could have been raised in the prior proceeding … . As the Court of Appeals has stressed, this “identity” requirement is a “linchpin of res judicata,” which applies “only when a claim between the parties has been previously brought to a final conclusion'” … . Stated differently, the “doctrine of res judicata only bars additional actions between the same parties on the same claims based upon the same harm” … . …

Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action … . Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action … . There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party … .

… .”An issue is not actually litigated” for collateral estoppel purposes “if, for example, there has been a default” … . …

Claim preclusion cannot apply here, because plaintiff and defendants are litigating a claim against each other for the first time. * * * Defendants’ rights to be defended and indemnified by Nationwide remained intact regardless of the outcome of the no-fault benefits dispute. Rojas v Romanoff, 2020 NY Slip Op 04237, First Dept 7-23-20

 

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