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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT SUPERVISION AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACTION AGAINST THE DEPARTMENT OF EDUCATION STEMMING FROM THE ALLEGED RAPE OF PLAINTIFF ON SCHOOL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for leave to file a late notice of claim should have been granted for the negligent supervision and negligent infliction of emotional distress causes of action against the Department of Education stemming from the the sexual assault of the plaintiff on school grounds:

The DOE had actual knowledge, within the statutory period or a reasonable time thereafter, of the facts constituting [the] claims, which arose as a result of the alleged rape that occurred on September 28, 2017 … . Furthermore, in light of the DOE’s actual knowledge of the essential facts constituting the claims of negligent supervision and negligent infliction of emotional distress, the plaintiff met her initial burden of establishing a lack of substantial prejudice to the DOE in maintaining a defense with respect to those claims … . In opposition, the DOE failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice with respect to those claims was allowed … . “[W]here there is actual notice and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Doe v City of New York, 2020 NY Slip Op 03768, Second Dept 7-8-20

 

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QUESTION OF FACT WHETHER THE POLICE OFFICER, ANSWERING A CALL, ACTED RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the defendant police officer (McMahon) acted recklessly in this traffic accident case. The officer, responding to a call, passed a line of cars by straddling the yellow line without siren or lights and struck plaintiff as plaintiff was attempting to make a left turn:

“[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 … .

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to McMahon’s conduct because he was responding to a radio call of a motor vehicle accident with unknown injuries … . However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because their moving papers presented a triable issue of fact regarding whether McMahon was reckless in straddling the double-yellow line to pass a row of vehicles without using his warning siren or lights when he collided with the plaintiff’s vehicle … . Rodriguez-Garcia v Southampton Police Dept., 2020 NY Slip Op 03813, Second Dept 7-8-20

 

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NEW THEORY PRESENTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LACK-OF-INFORMED-CONSENT CAUSE OF ACTION SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s lack-of-informed-consent cause of action in this medical malpractice case should have been dismissed. Plaintiff had alleged a new theory in response to defendant’s motion for summary judgment which should not have been considered because the theory was not discernable from the pleadings:

… [T]he Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for lack of informed consent insofar as asserted against him. The defendant made a prima facie showing of his entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against him through the affidavit of his expert, the deposition testimony, and the written consent form signed by the plaintiff, which demonstrated that the defendant disclosed to the plaintiff the risks, benefits, and alternatives to the procedure … .

In opposition, the plaintiff alleged, for the first time, a new theory that the procedure performed by the defendant exceeded the scope of her consent in specific respects, a theory that was not referred to when the plaintiff’s counsel questioned the defendant at his deposition. The general rule is that ” [a] plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars'” … . If the theory is discernable from the pleadings, it may be considered … , especially if the theory is referred to in the depositions … . In this case, the assertion of the new theory was not discernable from the pleadings, nor alluded to by the plaintiff’s counsel when deposing the defendant … . Therefore, that theory should not have been considered. Larcy v Kamler, 2020 NY Slip Op 03652, Second Dept 7-1-20

 

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QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS ARCHITECTURAL MALPRACTICE/BREACH OF CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous representation doctrine tolled the statute of limitations in this architectural malpractice/breach of contract action. Defendant’s decedent was hired by plaintiff to construct a four-story condominium. Although the work was completed in 2008 there were problems getting approval by the city and new architectural services contracts were entered in 2015 and 2018. The court noted that, where a motion to dismiss pursuant to CPLR 3211 is made on statute-of-limitations grounds, a plaintiff may remedy any defects in the pleadings in an affidavit:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6] … ). Such an action, founded upon “defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship” … . However, “a professional malpractice cause of action asserted against an architect or engineer may be tolled under the continuous representation’ doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided” … . * * *

Even if the defendant had met her prima facie burden, the plaintiff raised a question of fact as to whether the continuous representation toll applied. Specifically, the plaintiff averred in an affidavit in opposition to the motion that [defendant’s decedent] continued to work on the project from 2008 through the time that the parties entered into the 2015 agreement, including by continuing to revise the plans so as to subdivide the property, regularly meeting with the plaintiff, renewing building permits with the plaintiff, meeting with a “commissioner” at the DOB [NYC Department of Buildings] to discuss revised plans, and filing an application concerning the project with the DOB in 2014. Anderson v Pinn, 2020 NY Slip Op 03636, Second Dept 7-1-20

 

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MOTHER CANNOT RECOVER DAMAGES FOR EMOTIONAL DISTRESS FOR INJURY IN UTERO WHERE, AS HERE, THE CHILD WAS BORN ALIVE (SECOND DEPT).

The Second Department determined plaintiff-mother’s action for damages for emotional harm stemming from the birth of her child was properly dismissed. A mother cannot recover for emotional distress for injury in utero if the child is born alive:

A mother cannot recover damages for emotional harm where the alleged malpractice causes in utero injury to a fetus that is born alive … . New York State Public Health Law defines a “live birth” as “the complete expulsion or extraction from its mother or a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart”  … . According to the defendants’ submissions, the plaintiff’s infant was born with a spontaneous heartbeat of less than 60 beats per minute and was given an Apgar score of “1” at 1 minute, 5 minutes, and 10 minutes after delivery based on a heartbeat of less than 100 beats per minute. The hospital records submitted with the defendants’ motions show that respiratory effort was absent, the infant’s muscle tone was flaccid, her color was “blue/pale,” and there were no reflex responses. The records also show that resuscitative efforts were initiated, but the infant’s heart rate remained at less than 60 beats per minute with no respiratory effort, and the infant died in the delivery room that same day, less than 20 minutes after she was born. …

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted the affidavit of a medical expert in pediatric neurology who conceded that the infant was born with a heartbeat and who never opined that the infant was stillborn. Although the plaintiff’s expert attested that the infant did not show signs of brain activity, was never conscious, was not viable, and was “clinically and legally dead at the time of delivery,” the affidavit of the plaintiff’s expert was insufficient to raise an issue of fact as to whether the infant was stillborn … . Inasmuch as the plaintiff contends that she should be able to recover for emotional injuries because a wrongful death cause of action on behalf of the infant would not have a viable accompanying cause of action for conscious pain and suffering since the records show that the infant was never conscious, “we conclude that this is an inherent aspect of wrongful death actions rather than a specific problem with prenatal medical malpractice actions” … . Waring v Matalon, 2020 NY Slip Op 03686, Second Dept 7-1-20

 

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DESPITE EVIDENCE THAT BOTH DRIVERS WERE FAMILIAR WITH THE INTERSECTION WHERE THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFFS’ EXPERT RAISED A QUESTION OF FACT WHETHER PROPER SIGNAGE COULD HAVE PREVENTED THE ACCIDENT; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ expert raised a question of fact whether proper signage at the intersection where the traffic accident occurred could have prevented the collision. The fact that both drivers were familiar with the intersection did not require that the town’s motion for summary judgment be granted (as Supreme Court had found):

“As a general rule, the question of proximate cause is to be decided by the finder of fact,” but it may be decided as a matter of law “where only one conclusion may be drawn from the established facts” … . Here, in support of its motion for summary judgment, the Town submitted evidence revealing that the drivers had some familiarity with the intersection, together with expert proof that the existing markings and traffic control devices were appropriate and consistent with applicable design standards. However, plaintiffs countered the Town’s showing with evidence that additional devices, such as a stop sign and painted stop bar, as well as pavement markings indicating the proper turning radius, were required for the subject intersection by applicable design standards; plaintiffs’ expert opined that the absence of such markings and devices was a substantial contributing factor to this collision. Notably, “a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact” … . Upon review, we do not find the opinions expressed by plaintiffs’ expert in this matter to be lacking in either substance or foundation … . O’Keefe v Wohl, 2020 NY Slip Op 03579, Third Dept 6-25-20

 

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THE MEDICAL RECORDS DID NOT PROVIDE NOTICE TO THE HOSPITAL OF A POTENTIAL MEDICAL MALPRACTICE ACTION AND PETITIONER FAILED TO SHOW THE HOSPITAL WOULD NOT BE PREJUDICED BY THE DELAY IN SERVING A NOTICE OF CLAIM; LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined leave to file a late notice of claim should not have been granted in this action against NYC Health & Hospitals Corp (HHP) alleging a failure to timely diagnose breast cancer. The medical records did not alert HHP to injury from malpractice and petitioner failed to show the HHP was not prejudiced by the delay in serving a notice of claim:

Petitioner failed to show that HHC had actual notice of her claim within 90 days of accrual of the claim, or a reasonable time thereafter. HHC’s “mere possession or creation of medical records does not ipso facto establish that it had actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff'” … . Here, HHC records of petitioner’s treatment do not on their face show any negligence, malpractice or injury to plaintiff, and plaintiff did not submit a physician’s affirmation to make such a showing … .

Likewise, petitioner failed to demonstrate the lack of any prejudice to HHC from the delay, as HHC’s “possession of medical records that could not alert it to a claim of malpractice obviously cannot, ipso facto, establish a lack of prejudice” … . Because petitioner offered no other basis for the lack of prejudice to HHC, the burden never shifted to HHC to show prejudice from the delay … . Matter of Atkinson v New York City Health & Hosps. Corp., 2020 NY Slip Op 03609, First Dept 6-25-20

 

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PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT-LANDLORD VIOLATED NYC LOCAL LAW NO. 1 BY FAILING TO TAKE REASONABLE MEASURES TO ADDRESS THE HAZARDOUS LEAD-PAINT CONDITION IN PLAINTIFFS’ APARTMENT; HOWEVER DEFENDANTS RAISED A QUESTION OF FACT WHETHER DEFENDANTS’ NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE CHILD’S INJURIES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Moulton, determined plaintiffs demonstrated defendants violated Local Law No. 1 of the City of New York in failing to take reasonable measures to address the hazardous lead-based paint condition in plaintiffs’ apartment. However defendants’ medical expert raised a question of fact whether defendants’ negligence was the proximate cause of the plaintiff’s child’ (S.T.’s) injuries:

Under Local Law 1 defendants’ liability is not predicated on their observations of peeling paint or whether they are informed of it. Defendants’ liability does not depend on the mother demonstrating that she credibly complained about each and every instance or location of peeling paint. Even assuming that the mother never complained about the paint condition, defendants are charged with notice of the hazardous lead-based paint condition under Local Law 1 from the time that defendants were aware that S.T. moved into apartment. Moreover, Local Law 1 imposes on landlords “a specific duty to ameliorate hazardous levels of lead-based paint” … . Defendants cannot avoid liability by attempting to shift their statutory obligation to the mother by questioning her memory or her credibility, or for failing to inform them when the paint began to peel. Shifting the burden to the mother is inconsistent with the purpose of Local Law 1 which “is unquestionably intended to protect a definite class of persons [plaintiffs] from a particular hazard they are incapable of avoiding themselves” … . S.T. v 1727-29 LLC, 2020 NY Slip Op 03630, First Deptp 6-25-20

 

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VILLAGE DID NOT DEMONSTRATE IT DID NOT CREATE THE DEFECT IN THIS SIDEWALK/TREE-WELL SLIP AND FALL CASE; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this sidewalk/tree-well slip and fall case should not have been granted. The Village demonstrated it did not have the required written notice of the defect, but did not demonstrate it did not create the defect:

” A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies'” … . “Two exceptions to the prior written notice requirement have been recognized, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a special use confers a special benefit upon the locality” … .

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiff alleged in her complaint and bill of particulars that the Village affirmatively created the defect that caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate both that it did not have prior written notice of the defect and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Nigro v Village of Mamaroneck, 2020 NY Slip Op 03518, Second Dept 6-24-20

 

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LABOR LAW 200 CAUSE OF ACTION BASED UPON A DANGEROUS CONDITION PROPERLY SURVIVED SUMMARY JUDGMENT, APPELLANTS DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION; JUDGE SHOULD NOT HAVE, SUA SPONTE, DENIED A MOTION ON A GROUND NOT RAISED BY A PARTY (SECOND DEPT).

The Second Department determined the Labor Law 200 and common-law negligence causes of action properly survived summary judgment. The Second Department noted the court should not have, sua sponte, denied appellants’ motion on the ground the deposition transcripts were inadmissible because that issue was not raised. Plaintiff was working in the bottom of a hole which was muddy from heavy rain and littered with boulders and rocks. Plaintiff was injured when he allegedly slipped and fell because of the mud. The Second Department held that the causes of action were based upon a dangerous condition, not the method and manner of work, and the appellants did not demonstrate they lacked actual or constructive notice of the condition:

Labor Law § 200 is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work … . There are “two broad categories of actions that implicate the provisions of Labor Law § 200” … . The first category involves worker injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed … . In those circumstances, “[f]or liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time” … . The second category of actions under Labor Law § 200 involves injuries arising from the method and manner of the work … . A property owner will be held liable under this category only if it possessed the authority to supervise or control the means and methods of the work … .

Contrary to the appellants’ contention, the plaintiff’s accident arose from a dangerous premises condition, not from the method and manner of the work. Where a plaintiff alleges that he or she was injured at a work site as a result of a dangerous premises condition, a property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition … . Modugno v Bovis Lend Lease Interiors, Inc., 2020 NY Slip Op 03508, Second Dept 6-24-20

 

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