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ALTHOUGH THE MOTION TO DISMISS FOR FAILURE TO SERVE A DEFENDANT SHOULD HAVE BEEN DENIED AND THE MOTION TO EXTEND TIME TO SERVE GRANTED, THE MOTION TO DISMISS ON FORUM NON COVENIENS GROUNDS WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to dismiss the complaint based upon the failure to serve defendant (Bryan) should have been denied and plaintiff’s motion to extend the time to serve defendants (Bryan and Carroll) should have been granted. However the action was properly dismissed on forum non conveniens grounds:

… [T]he plaintiff promptly sought an extension after Bryan challenged the court’s jurisdiction, the respective insurance carriers for Bryan and Carroll had actual notice of this action within 120 days of its commencement, there was evidence of a potentially meritorious cause of action, and there was no demonstrable prejudice to Bryan and Carroll … . Accordingly, that branch of the respondents’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Bryan must be denied, and the plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve both Bryan and Carroll must be granted.

However, the Supreme Court providently exercised its discretion in granting that branch of the respondents’ motion which was pursuant to CPLR 327(a) to dismiss the complaint insofar as asserted against them on the ground of forum non conveniens. In granting that branch of the respondents’ motion, the court properly considered all the relevant factors … , including that the plaintiff and the respondents are residents of New Jersey, Carroll was also a resident of New Jersey at the time of the accident, Bryan’s insurance policy was issued in New Jersey, and both vehicles involved in the accident were registered in New Jersey … . The fact that the accident occurred in New York is insufficient by itself to provide the substantial nexus required to warrant the retention of jurisdiction in the State of New York … . Considering all of the relevant factors, including the fact that the plaintiff primarily received medical treatment for her alleged injuries in New Jersey, we find no basis to disturb the court’s determination to dismiss the action insofar as asserted against the respondents on forum non conveniens grounds … . DelGrosso v Carroll, 2020 NY Slip Op 04148, Second Dept 7-22-20

 

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THE DEFENDANTS DEMONSTRATED THE CITY DID NOT NOTIFY THEM OF THE NEED TO REPAIR THE ABUTTING PUBLIC SIDEWALK AND THEREBY DEMONSTRATED THEY HAD NO STATUTORY DUTY TO REPAIR THE SIDEWALK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERTY GRANTED (SECOND DEPT).

The Second Department determined defendant abutting property owner demonstrated it was not responsible for the repair of any alleged defects in the public sidewalk in this slip and fall case. The city code imposed liability only if the landowner was notified of the need for repair:

Section 167-50(A) of the Code of the City of Rye provides that “[i]t shall be the duty of the Department of Public Works to require the owner of property abutting upon a street to repair or replace any sidewalk in front thereof that is required to be repaired or replaced,” and “[w]here the owner of such property shall fail to neglect to repair or replace such sidewalk for five days after notice to do so has been served upon the owner . . . the Department of Public Works shall repair or replace such sidewalk, and a statement of 100% of the cost incurred thereby shall be served upon the owner.” Section 167-50(B) imposes tort liability upon landowners for injuries resulting “from the failure of any owner or other responsible person to comply with the provisions of this section.” … [Defendants] established [they did not receive] notice from the Department of Public Works requiring them to perform sidewalk repairs. Accordingly, the … defendants demonstrated, prima facie, that they had no statutory duty to repair the sidewalk …  The … defendants’ submissions also demonstrated, prima facie, that … the … defendants [did not create] the defective condition that allegedly caused the injured plaintiff’s fall … . DeBorba v City of Rye, 2020 NY Slip Op 04147, Second Dept 7-22-20

 

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DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant home owner’s motion for summary judgment in this Labor Law 200 action should have been granted. Defendant was not home when plaintiff fell through an open hole in the deck while removing a window. The defendant demonstrated he did not have any control over the manner of plaintiff’s work and did not have actual or constructive knowledge of the dangerous condition. Supreme Court should not have considered the affidavit of a nonparty who was not previously disclosed as a witness who had actual notice of the condition.

… [T]he defendant established, prima facie, that he did not exercise supervision or control over the performance of the work giving rise to the accident … . Further, to the extent that the accident could be viewed as arising from a dangerous or defective premises condition at the work site, the defendant established, prima facie, that he did not create or have actual or constructive notice of the alleged dangerous condition … .

In opposition, the plaintiffs failed to raise a triable issue of fact. We disagree with the Supreme Court’s determination to consider the affidavit of a nonparty witness submitted by the plaintiffs in opposition to the defendant’s motion. In his discovery demands, the defendant sought disclosure of, inter alia, the name of any witness who had actual notice of the alleged condition, or the nature and duration of such condition. The nonparty witness was not disclosed in the plaintiffs’ discovery responses, the plaintiffs failed to offer an excuse for their failure to do so, and nothing that transpired during discovery would have alerted the defendant of the potential significance of the nonparty’s testimony … . Casilari v Condon, 2020 NY Slip Op 04146, Second Dept 7-22-20

 

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THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the hospital defendants’ expert’s affidavit did not establish that the expert (D’Amico) was qualified to offer an opinion on several issues surrounding the birth process and therefore did not provide sufficient evidence to support the hospital defendants’ motion for summary judgment:

… [T]he expert affirmation offered by the hospital defendants lacked probative value, because the expert, a physician who was board-certified in the fields of obstetrics and gynecology, failed to lay a foundation for the reliability of his opinions in the fields of pediatrics, orthopedics, or anesthesia.

” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” … . “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion … . …

We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether [defendant] De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s [plaintiff’s] pubic bone diastasis; (2) whether [defendant] Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries … . Roizman v Stromer, 2020 NY Slip Op 04196, Second Dept 7-22-20

 

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ALTHOUGH THE EMERGENCY HAD DIMINISHED AND THE POLICE OFFICER HAD TURNED OFF HIS SIREN AND LIGHTS WHEN THE ACCIDENT OCCURRED, THE OFFICER WAS STILL ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant police officer (Hurley) was engaged in an emergency operation when the officer’s car struck the plaintiffs’ car as the officer made a turn onto the street where plaintiffs’ car was at a stop sign. Although the officer thought the urgency had diminished and had turned off the siren and lights, he was awaiting word that the emergency was over. The police had been called by a resident who saw someone on her porch who then ran into the woods. Another officer had stopped a man who explained he was looking for his dog. That story was being checked out when the accident occurred:

The fact that Hurley believed the call was no longer a “high” priority and had deactivated the lights and siren on his vehicle does not, as the plaintiffs contend, mean that Hurley was no longer engaged in an emergency operation … . An “emergency operation” is statutorily defined to mean, among other things, “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is . . . responding to . . . the scene of a[ ] . . . police call” (Vehicle and Traffic Law § 114-b … ). Since Hurley was responding to the scene of a police call at the time of the accident, he was engaged in an emergency operation … .

… Hurley was engaged in privileged conduct at the time of the accident, as the driver of an authorized emergency vehicle is permitted to, inter alia, “[d]isregard regulations governing directions of movement” (Vehicle and Traffic Law § 1104[b][4] …). As such, Hurley’s conduct was governed by the reckless disregard standard … .

The reckless disregard standard “demands more than a showing of a lack of due care under the circumstances’—the showing typically associated with ordinary negligence claims. It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … . Here, although Hurley’s conduct may have constituted a momentary lapse in judgment, it did not rise to the level of reckless disregard for the safety of others … . Proce v Town of Stony Point, 2020 NY Slip Op 04195, Second Dept 7-22-20

 

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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was not entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a truck which apparently failed to yield the right of way and pulled into the path of defendant’s car. The majority held there was a question of fact whether defendant saw what she should have seen when approaching the intersection. The dissenters argued defendant was entitled to assume the truck would yield the right of way:

” It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield’ ” ( … see Vehicle and Traffic Law § 1142 [a]). “Nevertheless, a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … . Here, defendant’s own submissions, including her own deposition testimony, raised an issue of fact whether she met her “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Brooks v Davis, 2020 NY Slip Op 04021,, Fourth Dept 7-17-20

 

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DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Stop 1’s) motion for summary judgment in this slip and fall case should not have been granted. The decision does not describe the facts but apparently rainfall had something to do with the fall:

Defendant (Stop 1) did not meet its initial burden of demonstrating “that it neither created a hazardous condition, nor had actual or constructive notice of its existence” … , as it made no specific, affirmative showing that it did not have actual or constructive notice of the hazardous condition. Defendants failed to establish their prima facie entitlement to summary judgment as they “failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time [the area in question] was inspected, cleaned, or maintained before [the] fall” … . Witness Nashwen Nagi testified that he was not in the bodega at the time of plaintiff’s accident because he was on vacation, and did not have any knowledge of the accident until Stop 1 received a letter from plaintiff’s lawyer. According to Nagi, Stop 1 did not maintain employment or repair records for the bodega.

The record in any event raises triable issues of fact sufficient for trial, as the affidavit from a nonparty witness presents an issue as to how long before the accident the rain had started. Ruiz v Stop 1 Gourmet Deli, 2020 NY Slip Op 04000, First Dept 7-16-20

 

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WHETHER THE TRAFFIC ACCIDENT INVOLVING A SALT-SPREADING TRUCK OCCURRED ON A PUBLIC OR PRIVATE PARKING LOT AFFECTED THE APPROPRIATE STANDARD OF CARE UNDER THE VEHICLE AND TRAFFIC LAW, PROOF ON THAT ISSUE SHOULD HAVE BEEN ALLOWED; DEFENDANTS’ ACCIDENT RECONSTRUCTIONIST SHOULD HAVE BEEN ALLOWED TO TESTIFY; THE $12 MILLION VERDICT WAS PROPERLY SET ASIDE AS EXCESSIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a new trial was necessary on both liability and damages in this traffic accident case. Supreme Court had found the $12,000,000 verdict excessive and had ordered a new damages trial. The accident occurred in a parking lot at LaGuardia Airport during a snowfall and involved a salt-spreading truck. Proof whether the parking was public or private should have been allowed because the reckless disregard standard (Vehicle and Traffic Law) would apply if the parking lot was public. The First Department further found that the defendants’ accident reconstructionist should have been allowed to testify:

Plaintiff, an employee at a Dunkin Donuts franchise in LaGuardia Airport, was involved in an accident with a salt spreading truck operating in parking lot 10 of the airport during a snowfall. The trial court erred in truncating proof on the issue of whether lot 10 was public or private. This error then directly impacted whether the jury should have been charged with the recklessness standard as set forth in Vehicle and Traffic Law § 1103, or Vehicle and Traffic Law § 1163 … . The error in the charge warrants a new trial … .

The court also erred in precluding defendants’ accident reconstructionist from testifying … . The court’s in limine inquiry of the expert concerning scientific studies was not relevant, as the subject of the testimony, accident reconstruction and perception reaction time are not novel scientific theories, such as to require a Frye hearing … . The proposed expert testimony was based on evidence in the record concerning the accident, and was not entirely speculative … . Similarly, defendants’ notice of expert exchange was not insufficient such as to warrant his in toto preclusion. The remedy for any alleged failures in specificity could have been handled by limiting his testimony to the subject matters listed in the exchange (CPLR 3101[d]). Cabrera v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 03993, First Dept 7-16-20

 

THE CASINO WHERE PLAINTIFF WAS DRINKING WITH THE MAN WHO ASSAULTED HER AFTER SHE LEFT THE CASINO DID NOT OWE A DUTY TO PLAINTIFF AFTER SHE LEFT THE PREMISES (SECOND DEPT).

The Second Department determined the defendant casino’s motion for summary judgment in this third-party assault case was properly granted. Plaintiff alleged she was drinking in defendant casino and left with the man who had brought her drinks. The man sexually assaulted the plaintiff in a car:

A cause of action alleging negligence “must be founded upon a breach by a defendant of a legal duty owed to a plaintiff” … . “Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” … . However, a landowner’s duty is “limited to conduct on its premises, which it had the opportunity to control, and of which it was reasonably aware” … .

Here, the defendant demonstrated, prima facie, that it did not owe a legal duty to the plaintiff with respect to her subsequent, off-premises sexual assault perpetrated by a man she met at a casino bar earlier in the evening … . Stenson v Genting N.Y., LLC, 2020 NY Slip Op 03939, Second Dept 7-15-20

 

THE DEMONSTRATION THAT THE APPELLANTS’ VEHICLE WAS STOPPED WHEN IT WAS STRUCK FROM BEHIND WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN APPELLANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellants’ motion for summary judgment in this rear-end collision case should have been granted. Appellants demonstrated their vehicle was stopped when it was struck from behind by a vehicle driven by Bruce. Bruce’s assertion that appellant’s vehicle made a sudden stop was not sufficient to raise a question of fact:

The appellants established their prima facie entitlement to judgment as a matter of law dismissing the second amended complaint and all cross claims insofar as asserted against them by demonstrating that their vehicle was stopped when it was struck in the rear by the vehicle operated by Bruce … . … Bruce’s bare assertion that the appellants’ vehicle made a sudden stop, without more, was insufficient to raise a triable issue of fact as to whether … the operator of the appellants’ vehicle, was partly at fault, so as to defeat summary judgment … . Ross v JFC Intl., Inc., 2020 NY Slip Op 03935, Second Dept 7-15-20

 

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