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MANUFACTURER AND SELLER OF THE PRODUCT WHICH ALLEGEDLY INJURED INFANT PLAINTIFF CANNOT SUE THE PARENTS FOR CONTRIBUTION ON A THEORY OF NEGLIGENT SUPERVISION OF THE INFANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the third-party complaint brought by the defendant manufacturer and seller of a humidifier against the parents of the injured child, alleging negligent supervision of the child, should have been dismissed:

In March 2014, the then-10-month-old infant plaintiff allegedly was injured when she knocked over a humidifier and hot water spilled onto her foot. The infant’s father had placed the humidifier on the living room floor before leaving the apartment with the infant’s five-year-old sibling. The infant’s mother was in the living room when the accident occurred. In August 2014, this action to recover damages for the infant’s injuries was commenced against the defendants, which allegedly manufactured and sold the humidifier. In December 2015, the defendants commenced a third-party action against the parents for contribution. …

There is no legally cognizable cause of action to recover damages for injuries suffered by a minor child against his or her parent for negligent supervision … . Additionally, where a secondary right of contribution is dependent upon “the parent’s alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats the . . . third-party complaint” … . Although there is an exception when the parent’s conduct implicates a duty owed to the public at large … , the acts complained of in the third-party complaint were encompassed within the intrafamily immunity for negligent supervision … . Martinez v Kaz USA, Inc., 2020 NY Slip Op 02776, Second Dept 5-13-20

 

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DEFENDANTS DID NOT DEMONSTRATE, PRIMA FACIE, THE UNEVEN SEWER GRATE WAS A TRIVIAL DEFECT; THEREFORE THE BURDEN OF PROOF NEVER SHIFTED TO THE PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly tripped on an uneven sewer grate in a parking lot. The evidence did not demonstrate, prima facie, that the defect was trivial. Therefore the burden of proof on the summary judgment motion never shifted to plaintiff:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or per se rule that the condition must be of a certain height or depth in order to be actionable … . Physically small defects may be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . Bishop v Pennsylvania Ave. Mgt., LLC, 2020 NY Slip Op 02756, Second Dept 5-13-20

 

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ALTHOUGH THE PARTY TWICE FILED FOR BANKRUPTCY WITHOUT LISTING THE MEDICAL MALPRACTICE ACTION AS AN ASSET, THE BANKRUPTCY PROCEEDING WAS SUBSEQUENTLY REOPENED AND THE ACTION WAS ADDED AS AN ASSET; AT THAT POINT THE BANKRUPTCY TRUSTEE BECAME THE PLAINTIFF IN THE MEDICAL MALPRACTICE ACTION AND THE DOCTRINE OF JUDICIAL ESTOPPEL, BASED UPON THE PARTY’S INITIAL FAILURE TO LIST THE ACTION AS AN ASSET, DID NOT APPLY TO THE TRUSTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion to dismiss the medical malpractice complaint on judicial estoppel grounds should not have been granted. Vormnadiryan commenced a medical malpractice action in 2006. In two bankruptcy proceedings in 2008 and 2016 the medical malpractice action was not listed as an asset by Vormnadiryan. In 2017 Vormnadiryan opened the 2008 bankruptcy action and the medical malpractice action was added as an asset, making the bankruptcy trustee the plaintiff in that action. The Second Department determined Vormandiryan’s initial failure to list the malpractice action as an asset did not subject the bankruptcy trustee, as the plaintiff in the malpractice action, to the judicial estoppel doctrine:

“The integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets. By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims. Thus, the doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding” … . “Because the doctrine is primarily concerned with protecting the judicial process, relief is granted only when the risk of inconsistent results with its impact on judicial integrity is certain” … . …

Here, the 2008 bankruptcy proceeding was reopened by the Bankruptcy Court so that the 2006 medical malpractice action could be identified as an asset of the bankruptcy estate. Therefore, judicial estoppel cannot be predicated on Vormnadiryan’s failure to list the action as an asset when she originally filed the 2008 bankruptcy petition … . Further, once a bankruptcy proceeding is commenced, all legal or equitable interests of the debtor become part of the bankruptcy estate, including any causes of action (see 11 USC § 541[a][1] … ). The trustee in bankruptcy, as representative of the estate, “has capacity to sue and be sued” … . Pereira v Meisenberg, 2020 NY Slip Op 02815, Second Dept 5-13-20

 

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PLAINTIFFS, THE DRIVER AND PASSENGER IN THIS TRAFFIC ACCIDENT CASE, REPRESENTED BY THE SAME ATTORNEY, REFUSED TO PARTICIPATE IN THE GENERAL MUNICIPAL LAW 50-h HEARING(S) UNLESS EACH PLAINTIFF WAS PRESENT WHEN THE OTHER TESTIFIED; THE COURT OF APPEALS AFFIRMED THE DISMISSAL OF ACTION BASED UPON PLAINTIFFS’ FAILURE TO APPEAR FOR THE 50-h HEARING(S) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion, determined plaintiffs, the driver and passenger in this traffic accident case, did not have the right to observe each other’s testimony at a General Municipal Law 50-h hearing. Both plaintiffs were represented by the same attorney. The action was dismissed because plaintiffs refused to appear for the hearing(s) after plaintiffs’ counsel insisted that both plaintiffs be present during the testimony. The Court of Appeals affirmed the dismissal of the action:

As General Municipal Law § 50-h (5) makes clear on its face, compliance with a municipality’s demand for a section 50-h examination is a condition precedent to commencing an action against that municipality … . A claimant’s failure to comply with such a demand generally warrants dismissal of the action … . Requiring claimants to comply with section 50-h before commencing an action augments the statute’s purpose, which “is to afford the city an opportunity to early investigate the circumstances surrounding the accident and to explore the merits of the claim, while information is readily available, with a view towards settlement” … . Colon v Martin, 2020 NY Slip Op 02681, CtApp 5-7-20

 

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DEFENDANT DID NOT OFFER PROOF OF WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON WATER WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendant failed to demonstrate it did not have constructive notice of the water on the floor because it did not offer any proof of when the area had last been cleaned or inspected:

“A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “A defendant has constructive notice of a dangerous condition when the dangerous condition is visible and apparent, and existed for a sufficient length of time before the accident that [it] could have been discovered and corrected” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendant failed to meet its initial burden as the movant to affirmatively demonstrate that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall, because the defendant did not proffer any evidence as to when the subject area was last cleaned or inspected … . Merchant v New York City Tr. Auth., 2020 NY Slip Op 02666, Second Dept 5-6-20

 

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ALTHOUGH THE CAR DEALER, DUE TO AN ERROR, DID NOT SUBMIT THE CORRECT REGISTRATION DOCUMENTS TO THE DEPARTMENT OF MOTOR VEHICLES WITHIN THE MANDATED FIVE-DAY PERIOD, THAT DEFECT DID NOT INVALIDATE THE TRANSFER OF OWNERSHIP OF THE CAR TO THE DRIVER INVOLVED IN THE ACCIDENT; THE DEALER WAS NOT THE OWNER OF THE CAR AT THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dealer (Zaki’s) which sold a car to the hit-and-run driver (Marcial) in this pedestrian traffic accident case demonstrated it was not the owner of the car at the time of the accident. The transaction was complete and the driver was insured. When the dealer submitted the title paperwork to the Department of Motor Vehicles (DMV) a mistake was discovered requiring that the dealer submit corrected paperwork. Therefore, technically, the dealer was not in compliance with requirement that the title paperwork be submitted to the DMV within five days. That technical defect did not affect the validity of the transfer of ownership to the driver:

Vehicle and Traffic Law § 420-a authorizes qualified automobile dealers to issue a temporary vehicle registration to a person to whom the dealer has sold or transferred a vehicle … . The temporary registration is valid for a period of 30 days after the date of issuance (see Vehicle and Traffic Law § 420-a[1]). Before issuing the temporary registration, the dealer must comply with certain statutory requirements, and, upon issuing the temporary registration, the dealer must send the permanent vehicle registration application to the commissioner of the DMV within five calendar days … . A dealer who fails to comply with the statutory requirements regarding vehicle registration procedures may be estopped from denying ownership of the vehicle and be held liable as if it were, in fact, the owner of the vehicle … .

It is not disputed that Zaki’s complied with all of the statutory requirements before issuing the temporary registration, and that Marcial had obtained insurance on the vehicle before being issued the temporary registration and taking the vehicle into his possession … . Further, Zaki’s evidence established that Zaki’s was diligent in its efforts to comply with the statutory requirements concerning the permanent registration, and that its failure to do so within the statutory five days was because of an error in the title that required correction, and not any negligence by Zaki’s in its statutory obligations … . In addition, there is no evidence that Zaki’s engaged in any act whereby it held itself out as the owner of the vehicle on the date of the accident or that it gained any financial advantage by failing to submit the permanent registration application within the five days following the issuance of the temporary registration … . Gonzalez v Zaki’s Auto Sales Corp., 2020 NY Slip Op 02644 Second Dept 5-6-20

 

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PLAINTIFF-PASSENGER DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT-DRIVER’S NEGLIGENCE; DEFENDANT-DRIVER WAS STRUCK FROM BEHIND WHEN HE STOPPED QUICKLY AFTER AN SUV MERGED INTO DEFENDANT’S LANE (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff-passenger did not raise a question of fact about defendant-driver’s negligence in this traffic accident case. Plaintiff alleged defendant failed to keep a proper lookout when an SUV merged into defendant’s lane and stopped. Defendant was able to stop without hitting the SUV but was struck from behind by the Robbins vehicle:

“Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . “[W]here the lead driver is forced to brake and stop suddenly without striking the vehicle in front due to that vehicle coming to a sudden stop, there is no basis for imposing liability on that driver” … . Defendant testified at his deposition that he was driving in the right lane on a highway and that he saw the SUV move from the left lane to the middle lane. Defendant testified that, as the SUV was in the middle lane, he looked to his right to see if he “had an out to go” because there was a vehicle to the left of him. The SUV suddenly “jumped in front” of defendant without flashing a turning signal, hit the brakes and came to a complete stop. … Defendant braked and avoided hitting the SUV. Shortly thereafter, however, Robbins struck defendant’s vehicle in the rear. In view of the foregoing, defendant satisfied his moving burden by establishing that he was not negligent … . Guerin v Robbins, 2020 NY Slip Op 02511, Third Dept 4-30-20

 

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EXTRINSIC COLLATERAL DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN ADMITTED TO IMPEACH DEFENDANT DOCTOR’S CREDIBILITY IN THIS MEDICAL MALPRACTICE TRIAL; DEFENDANT’S MOTION TO SET ASIDE THE $400,000 VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined the defendant doctor’s motion to set aside the plaintiff’s $400,000 verdict should have been granted. The trial court should not have allowed extrinsic documentary evidence on collateral matters to impeach defendant’s credibility:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise”  … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the Supreme Court should not have permitted the plaintiff to introduce extrinsic documentary evidence concerning collateral matters solely for the purpose of impeaching the defendant’s credibility … . In view of the importance of the defendant’s testimony and the emphasis given to the improperly admitted credibility evidence by the plaintiff’s counsel during summation, the errors were sufficiently prejudicial to warrant a new trial … . Rudle v Shifrin, 2020 NY Slip Op 02487, Second Dept 4-29-20

 

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DEFECT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the defect which caused plaintiff’s slip and fall was trivial as a matter of law:

The plaintiff testified that he stopped by one of the benches and when he started to walk away, “[his] foot got caught under the bench leg.” The plaintiff further testified that he returned to the site of the accident later that day and observed that the bench leg, which had allegedly caught his foot, was bent and protruding outward approximately two inches into the pedestrian walkway. The plaintiff, who had frequented that mall more than 100 times and had previously been to the area of the mall where the accident had occurred, had never noticed the bent bench leg. No one, including the plaintiff, had ever complained about the bent bench leg to the defendants. Nor had any prior accidents involving the bent bench leg been reported to the defendants. The plaintiff’s engineering expert opined that the defendants were negligent in permitting the bench leg to protrude into the pedestrian walkway so as to create a tripping hazard. * * *

“[A] property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes or trip” … . Photographs which fairly and accurately represent the accident site may be used to establish whether a defect is trivial and not actionable … .

Here, the evidence that the defendants submitted in support of their motion, including several photographs of the alleged defect, established prima facie that, as a matter of law, under all the circumstances, including the lighting conditions at the time of the accident, the plaintiff’s unobstructed view of the alleged defect, and the condition and location of the bench leg, the alleged defect was trivial and, therefore, not actionable … . Reich v Alexander’s, Inc., 2020 NY Slip Op 02486, Second Dept 4-29-20

 

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POLICE OFFICER DID NOT VIOLATE THE RECKLESS DISREGARD STANDARD BY MAKING A U-TURN IN RESPONSE TO A CALL FOR ASSISTANCE; THE STATE’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the “reckless disregard” standard applied to a police making a u-turn. Plaintiff motorcyclist alleged he lost control of the motorcycle because he was forced to brake when the officer (Balletto) pulled out from the shoulder to make the turn. Believing it was safe to do so, the officer made the u-turn to respond to another officer’s call for assistance. The state’s (defendant’s) motion for summary judgment was properly granted:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” … . “Conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) includes disregarding regulations governing the direction of movement or turning in specified directions” (… see Vehicle and Traffic Law § 1104[b][4]).

Here, the defendant established, prima facie, that by attempting to execute a U-turn in response to another trooper’s radio call for assistance, Balletto’s conduct was exempted from the rules of the road by section 1104(b)(4), and that, as a result, his conduct was governed by the reckless disregard standard of care in section 1104(e) … . The defendant also established, prima facie, that Balletto did not operate the emergency vehicle in reckless disregard for the safety of others … . Cable v State of New York, 2020 NY Slip Op 02453, Second Dept 4-29-20

 

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