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

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of the condition which allegedly caused plaintiff’s slip and fall:

“A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length to afford the defendant a reasonable opportunity to discover and remedy it” … . To meet its burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected before the accident … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice”… . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. While the affidavit of the building superintendent referenced general inspection and cleaning practices, the defendant failed to submit evidence regarding specific cleaning or inspection of the area in question relative to the time when the plaintiff’s accident occurred … . Griffin v PMV Realty, LLC, 2020 NY Slip Op 02068, Second Dept 3-25-20

 

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NON-MANDATORY STANDARDS FOR THE GAP BETWEEN A SUBWAY TRAIN AND THE PLATFORM PROPERLY ADMITTED IN THIS SLIP AND FALL CASE; HOWEVER THE EVIDENCE OF PRIOR GAP-RELATED ACCIDENTS SHOULD NOT HAVE BEEN ADMITTED; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, ordering a new trial, in a brief memorandum with no description of the facts, determined evidence of prior accidents involving the gap between the subway train and the platform should not have been admitted because there was no showing the conditions were the same. However the evidence of the non-mandatory gap standards were properly admitted:

In these circumstances, the trial court properly admitted plaintiff’s expert testimony regarding non-mandatory gap standards promulgated by the American Public Transit Association and the Public Transportation Safety Board … . However, Supreme Court abused its discretion as a matter of law by admitting evidence of prior accidents at New York City subway stations involving the gap between the train car and platform in the absence of a showing that the relevant conditions of those accidents were substantially the same as plaintiff’s accident … . Daniels v New York City Tr. Auth., 2020 NY Slip Op 02027, CtApp 3-24-20

 

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CITY DEFENDANTS SHOULD HAVE BEEN SANCTIONED FOR FAILURE TO PRESERVE PRE-ACCIDENT POLICE COMMUNICATIONS IN THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE BECAUSE THE CITY DEFENDANTS WERE AWARE THEY WOULD PROBABLY ASSERT AN EMERGENCY DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the City defendants should have been sanctioned for spoliation of evidence. The action stemmed from a traffic accident involving a police vehicle and the city defendants were put on notice they would assert an emergency defense by the notice of claim. But the pre-accident police communications were not preserved:

Defendants had an obligation to preserve the pre-accident audio recordings at the time they were destroyed because the Police Department (NYPD) internal report and plaintiff’s notice of claim, which attached the public police accident report, put defendants on notice that they would likely assert an emergency operation defense. Therefore, pre-accident audio communication between the dispatcher and the NYPD vehicle or officers involved in the accident should have been preserved in case it was needed for future litigation … . Under the circumstances presented, the imposition of an adverse inference charge would be an appropriate sanction … . Sanchez v City of New York, 2020 NY Slip Op 01970, First Dept 3-19-20

 

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CONFLICTING EXPERT OPINIONS PRECLUDED SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined conflicting expert opinions in this medical malpractice action created a question of fact:

… [T]he plaintiff’s submissions were sufficient to raise a triable issue of fact. The expert affirmations of two board-certified urologists submitted by the plaintiff contradicted the conclusion of the NYCHH defendants’ experts that the RUMC defendants and other defendants caused the plaintiff’s injuries. The plaintiff’s experts concluded, with a reasonable degree of medical certainty, that the plaintiff’s injuries occurred intra-operatively during the prostatectomy performed by Surasi at Woodhull Medical Center. Summary judgment is not appropriate in a medical malpractice action where, as here, the parties adduce conflicting medical expert opinions. “Such credibility issues can only be resolved by a jury” … . Castillo v Surasi, 2020 NY Slip Op 01903, Second Dept 3-18-20

 

DRIVER/OWNER OF THE MIDDLE VEHICLE IN THIS CHAIN-REACTION REAR-END TRAFFIC ACCIDENT CASE IS NOT LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motion by the driver/owner of the middle vehicle in this chain-reaction accident should have been granted. The rear-most driver pushed the stopped middle vehicle into the plaintiff’s vehicle:

“A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . ” Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation'” … . Thus, “[i]n a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Bardizbanian v Bhuiyan, 2020 NY Slip Op 01897, Second Dept 3-18-20

 

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QUESTION OF FACT WHETHER THE ‘RECKLESS DISREGARD’ STANDARD APPLIES TO THIS POLICE-CAR TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this police-car traffic accident case should not have been granted. The Second Department held there was a question of fact whether the police officer was an “authorized emergency vehicle” triggering the “reckless disregard” standard of care:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when a vehicle she was operating collided with a police vehicle operated by the defendant Moira T. Larmour, a police officer. According to Larmour’s deposition testimony, the collision occurred when Larmour, who had been traveling west, made an “exaggerated u-turn” in an attempt to conduct a traffic stop of an unrelated vehicle for an allegedly expired inspection sticker and accelerated her vehicle, which spun on wet pavement and came into contact with the plaintiff’s vehicle, which was traveling east. * * *

Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an “emergency operation” … . An “emergency operation” is defined under Vehicle and Traffic Law § 114-b as, among other things, pursuing an “actual or suspected violator of the law.” Those privileges set forth in Vehicle and Traffic Law § 1104 include passing through red lights and stop signs, exceeding the speed limit, and disregarding regulations governing the direction of movement or turning in specified directions … . However, pursuant to Vehicle and Traffic Law § 1104(e), “[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his [or her] reckless disregard for the safety of others.” This is commonly referred to as the reckless disregard standard of care, which requires a plaintiff to establish that a police officer acted in reckless disregard for the safety of others in order to impose civil liability upon that officer … . Anderson v Suffolk County Police Dept., 2020 NY Slip Op 01894, Second Dept 3-18-20

 

SCHOOL BUS DRIVER ALLEGEDLY GESTURED TO PLAINTIFF TO MAKE A TURN AND PLAINTIFF’S VEHICLE WAS THEN STRUCK BY ANOTHER VEHICLE; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined the school district’s motion for summary judgment in this intersection traffic accident case was properly denied. Plaintiff alleged the school bus driver gestured to plaintiff to make a turn and plaintiff’s car was then struck by another car (driven by defendant Mallon) going through the intersection:

“When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances” … . Here, the School District failed to establish, prima facie, that the plaintiff did not rely on the bus driver’s gesture that it was safe for the plaintiff to make his left turn … . The School District also failed to establish, prima facie, that the defendant driver’s alleged negligent conduct in operating Mallon’s vehicle constituted an intervening and superseding act which broke the causal nexus between the bus driver’s alleged negligence and the plaintiff’s injuries … . Pittman v Ball, 2020 NY Slip Op 01944, Second Dept 3-18-20

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DEFENDANT, WHO CO-OWNED THE PROPERTY FOR A TWO-YEAR PERIOD, DEMONSTRATED HE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE HAZARDOUS LEAD PAINT CONDITION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this lead-paint exposure case should have been granted. Defendant was a co-owner of the subject property but he was able to demonstrate his connection to the property was such that he did not have actual or constructive notice of the hazardous lead paint condition:

… [D]efendant owned the subject property, as a tenant in common, with his father during the period of plaintiffs’ tenancy from 1992 to 1994. In support of his motions, defendant submitted his affidavit, wherein he averred, among other things, that he was a co-owner of the property “on paper only,” that his father handled all day-to-day maintenance of the property, and that defendant never entered plaintiffs’ apartments or hired anyone to make repairs thereto during plaintiffs’ tenancy. Defendant further averred that he did not have a key to the apartments and that he never spoke to or received complaints from plaintiffs or plaintiffs’ mother. Defendant’s submissions also established that he had no knowledge of inspections for or the existence of lead paint at the property during plaintiffs’ tenancy and that he was unaware that the property was constructed at a time before lead paint was banned, that paint was peeling at the property, that lead paint posed a danger to young children, and that young children lived on the property.

Regardless of whether defendant’s father had actual or constructive notice through his own involvement with the property, that notice cannot be imputed to defendant absent evidence of defendant’s own actual or constructive notice … . McDowell v Maldovan, 2020 NY Slip Op 01748, Fourth Dept 3-13-20

 

WATER CAP IN A SIDEWALK WAS A TRIVIAL DEFECT, SLIP AND FALL ACTION PROPERLY DISMISSED (FIRST DEPT).

The First Department determined that a quarter to half inch depression where a water cap was located in a sidewalk was a trivial defect and therefore could not be the basis of a slip and fall action:

… [T]he alleged defect on which plaintiff tripped was trivial and nonactionable as a matter of law based on the characteristics and surrounding circumstances … . The water cap was a quarter to half of an inch below the surface of the sidewalk and the photographic evidence shows no defects in the water cap and surrounding sidewalk. Furthermore, plaintiff never attributed the cause of the accident to any broken or cracked cement or inadequate lighting … . Rivera v City of New York, 2020 NY Slip Op 01698, First Dept 3-12-20

 

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THE BUS DRIVER VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS NEGLIGENT AS A MATTER OF LAW; DEFENSE VERDICT SET ASIDE (THIRD DEPT).

The Second Department, setting aside the defense verdict in this traffic accident case, determined the bus driver was negligent as a matter of law. To avoid a stopped vehicle the driver (Barreto) crossed a double yellow line and lost control of the bus which crashed into a store. The plaintiffs were bus passengers:

This Court has held that “a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver’s own making, violated the Vehicle and Traffic Law and is guilty of negligence as a matter of law” (… see Vehicle and Traffic Law § 1126[a] …). Here, although the evidence demonstrated that there was snow or slush on the surface of the subject road, the adverse weather conditions, as well as the fact that the road sloped downhill, were foreseeable and known to Barreto and did not provide a nonnegligent explanation for Barreto’s violation of the Vehicle and Traffic Law … . Although the evidence demonstrated that there was a vehicle stopped in the bus’s lane of travel, thereby obstructing its path, the evidence also demonstrated that the stopped vehicle was observable from a far distance, that the bus did not slow down after the stopped vehicle came into Barreto’s view, and that Barreto crossed over the double-yellow line without slowing down. Under the circumstances, Barreto’s loss of control over the bus was the result of his own negligent driving in adverse weather conditions, rather than the result of an emergency not of his own making. The absence of an emergency was recognized by the Supreme Court in its refusal to grant the defendant’s request that the jury be given an instruction on the emergency doctrine.

Barreto’s operation of the bus under the circumstances here violated Vehicle and Traffic Law § 1120(a). Such violation constitutes negligence as a matter of law and could not properly be disregarded by the jury … . Hodnett v Westchester County Dept. of Pub. Works & Transp., 2020 NY Slip Op 01603, Second Dept 3-11-20

 

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