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PLAINTIFF, WHO TRIPPED AND FELL WHEN HE STEPPED INTO A LARGE CRACK, ASSUMED THE RISK OF PLAYING CRICKET ON A CITY-OWNED TENNIS COURT WITH AN IRREGULAR SURFACE; COMPLAINT PROPERLY DISMISSED; STRONG DISSENT (CT APP).

The Court of Appeals, affirming the dismissal of the complaint, determined plaintiff assumed the risk of playing cricket on a city tennis court with a cracked surface. Judge Rivera, in an extensive dissenting opinion, argued that there is a question of fact whether the city failed to maintain the tennis court in a reasonably safe condition:

Plaintiff was injured while playing cricket on a tennis court in a park owned by the City of New York when he ran to catch a batted ball and stepped into a large crack in the asphalt. The Appellate Division correctly held that the risks of tripping and falling while playing on an irregular surface are inherent in the game of cricket … . There is no evidence in the record that the irregularity in the playing field—the cracked and uneven surface of the tennis court—unreasonably enhanced the ordinary risk of playing cricket on an irregular surface … . Defendants were therefore entitled to summary judgment dismissing the complaint on the ground that the primary assumption of risk doctrine precludes liability on the part of defendants.

From the dissent:

The primary assumption of risk doctrine does not completely displace a landowner’s traditional duty of care to maintain their premises in a safe condition. Tripping on a fissure that is allegedly the result of years of neglect is not a risk inherent to cricket, or any other sport, and defendants were therefore not entitled to summary judgment on the theory that plaintiff assumed the risk of injury by playing on a deteriorated surface. The majority empowers defendants to escape all accountability for their alleged negligence, which put plaintiff and other park users at risk of serious injury. Maharaj v City of New York, 2025 NY Slip Op 02143, CtApp 4-15-25

Practice Point: Here the assumption of the risk doctrine was deemed to outweigh any obligation on the city’s part to maintain the surface of a tennis court in a safe condition.

 

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THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL NOTICE OF THE NATURE OF HER CLAIM AND HER ALLEGATION THAT HER INJURIES PREVENTED HER FROM MAKING A TIMELY CLAIM WAS NOT SUPPORTED BY MEDICAL EVIDENCE; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the city should not have been granted. Petitioner did not demonstrate the city had timey actual notice of the nature of the claim and did not submit medical records to support her excuse that her injuries prevented her from filing a timely notice of claim:

Petitioner failed to show that respondents had actual knowledge of the facts underlying the legal theories on which liability was predicated in the notice of claim … . Contrary to her contention, neither the police report, the NYPD complaint, nor the Department of Education occurrence report provided respondents with the facts underlying her theory of liability, as none of these documents linked the accident to any potentially actionable wrongdoing committed by them.

Although petitioner demonstrated that respondents would not suffer any prejudice by the delay in serving the notice of claim, as the alleged defect has not changed since the incident … , her assertion that the severity of her injuries precluded her from serving notice, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse for her delay … .

Petitioner’s submission to the motion court failed to include any medical records detailing her surgery and follow-up visits, and her petition stated that she was able to leave the apartment for her medical treatments and ultimately work remotely. Furthermore, it is not clear from the petition when she retained counsel, and a lack of due diligence in determining the identity of the parties involved is not a reasonable excuse for the failure to serve a timely notice of claim … . Matter of Kayam v City of New York, 2025 NY Slip Op 02037, First Dept 4-8-25

Practice Point: An allegation that injuries prevented the filing of a timely notice of claim should be backed up by medical records.

 

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THERE IS A QUESTION OF FACT WHETHER DECEDENT’S STATE UNIVERSITY OWED DECEDENT A DUTY TO WARN HIM OF THE HOSTILITY HARBORED BY ANOTHER STUDENT WHO ULTIMATELY MURDERED DECEDENT (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Lynch, determined there exists a question of fact whether decedent’s university (Binghamton) owed decedent a duty to warn decedent of the hostility toward decedent harbored by another student (Roque), a former friend of the decedent, who murdered decedent:

To hold defendant liable for negligence, claimant must establish that the University owed decedent a duty, breached that duty, and that the breach was a proximate cause of decedent’s death … . The threshold issue in any negligence action is whether the defendant owed the plaintiff a legally recognized duty of care … . The existence and scope of a duty are legal questions for the courts to resolve in the first instance … .

… Claimant … is not seeking to hold the University liable for failing to protect decedent simply by virtue of his status as a student on campus … . The crux of claimant’s argument, as we understand it, is that counselors employed by the University’s Counseling Center were negligent in failing to make a threat assessment referral to the Dean of Students’ office upon learning of Roque’s hostility toward decedent in the months before the attack and in failing to warn decedent of Roque’s threats against him. Since the specific acts of negligence occurred during the University’s provision of mental health services — a proprietary function … — we conclude that no special duty need be established to hold the University liable and it is “held to the same duty of care as private individuals and institutions engaging in the same activity” … . * * *

Given that the University had threat assessment and referral procedures in place governing actions to take when faced with a distressed student, we conclude that the University owed decedent a duty to reasonably comply with those policies, if applicable … . Cuomo v State of New York, 2025 NY Slip Op 01991, Third Dept 4-3-25

Practice Point: Here the Third Department held a state university may have a “general” (not a “special”) duty to warn a student of hostility harbored by another student.

 

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ALTHOUGH THE HIRING PARTY IS GENERALLY NOT RESPONSIBLE FOR THE NEGLIGENCE OF AN INDEPENDENT CONTRACTOR, THERE IS A NONDELEGABLE-DUTY EXCEPTION TO THAT RULE; THE OWNER OF A BAR OPEN TO THE PUBLIC HAS A NONDELEGABLE DUTY TO MAINTAIN SAFE INGRESS AND EGRESS; HERE THE INDEPENDENT CONTRACTOR WAS REPAIRING THE BUILDING FACADE WHEN A CONCRETE BUCKET FELL ON THE PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant property owner, 6810 Wai, was liable for an action by an independent contractor hired to repair the facade of defendant’s building. Defendant operated a bar on the ground floor of the building. The independent contractor apparently caused a concrete bucket to fall and strike the plaintiff, who was entering the bar:

[T]he well-settled general rule provides that a party who retains an independent contractor is not liable for the negligence of the independent contractor because it has no right to supervise or control the work” … . “An exception to this general rule is the nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe” … . “Where, for example, premises are open to the public, the owner has a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress” … .

Here, 6810 Wai failed to establish its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it, as its submissions demonstrated that it had a nondelegable duty to the plaintiff. The ground floor hookah bar was open to the public during the construction work, which created a nondelegable duty to the general public to maintain a safe ingress and egress, and, thus, 6810 Wai could be held liable for any negligence of its independent contractor … . Sultan v 6810 Wai, Inc., 2025 NY Slip Op 01966, Second Dept 4-2-25

Practice Point: The owner of property which is open to the public has a nondelegable duty to maintain safe ingress and egress. Here the building owner operated a bar on the first floor of a building. The owner had hired an independent contractor to repair the facade of the building. The contractor apparently caused a concrete bucket to fall and strike the plaintiff. The building owner could be held liable for the negligence of the independent contractor.

 

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THE QUESTION WHETHER THE MUNICIPALITY TIMELY RECEIVED ACTUAL NOTICE OF THE CLAIM IS MORE IMPORTANT THAN THE QUESTION WHETHER THERE IS A REASONABLE EXCUSE FOR MISSING THE 90-DAY DEADLINE; HERE THE PETITIONER DID NOT HAVE A REASONABLE EXCUSE BUT THE MUNICIPALITY DID RECEIVE TIMELY ACTUAL NOTICE; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noting that the absence of a reasonable excuse is not dispositive, determined petitioner should have been granted leave to file a late notice of claim against the New York City Housing Authority (NYCHA). Petitioner, a plumber, allegedly tripped over a piece of rebar protruding from the ground at a construction site:

Here, while the petitioner concedes that his claim of clerical error does not qualify as a reasonable excuse for his delay in serving a notice of claim, “the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application” … .

While the lack of a reasonable excuse is not dispositive on an application for leave to serve a late notice of claim, “whether the municipality acquired timely actual knowledge of the essential facts constituting the claim is of great importance” … . Here, while there is no proof that the petitioner served the notice of claim upon NYCHA on January 27, 2020, NYCHA admits to receiving the first petition on or about January 31, 2020, less than three weeks after the expiration of the 90-day notice period. NYCHA additionally admits that it was able to schedule and conduct a General Municipal Law § 50-h hearing with the petitioner on April 20, 2020. Matter of Herry v New York City Hous. Auth., 2025 NY Slip Op 01928, Second Dept 4-2-25

Practice Point: In determining a request for leave to file a late notice of claim, whether the petitioner has a reasonable excuse for failing to file the notice of claim within 90 days is less important than whether the municipality timely received actual notice of the claim. Here the excuse was not valid but the municipality received timely notice. The request for leave to file a late notice should have been granted.

 

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PLAINTIFF ALLEGED DEFENDANT HOSPITAL WAS NEGLIGENT IN PLACING HIM IN A ROOM WITH A PERSON WITH COVID; PLAINTIFF WAS ENTITLED TO DISCOVERY OF THAT PERSON’S MEDICAL RECORDS TO DETERMINE WHEN THE HOSPITAL BECAME AWARE OF THE COVID DIAGNOSIS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to discovery of another’s medical records. Plaintiff alleged the hospital was negligent in placing plaintiff in a room with a person with COVID. The sought medical records may reveal when the hospital became aware of the COVID diagnosis:

Although “discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … . CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “What is material and necessary is left to the sound discretion of the lower courts and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … .

Pursuant to CPLR 4504 (a), “a person authorized to practice medicine . . . shall not be allowed to disclose any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity.” The physician-patient privilege may be overcome, however, where the plaintiff establishes that the information in the medical records is material and necessary to their claim … . Here, plaintiffs established that the nonparty patient’s hospital records would show when defendant, its agents, servants and employees became aware that the patient had tested positive for COVID-19 and that such information is material and necessary to establish whether defendant had notice that it was placing plaintiff in the same room as a person who had COVID-19 … . Martin v Kaleida Health, 2025 NY Slip Op 01756, Fourth Dept 3-21-25

Practice Point: Here plaintiff was entitled to limited discovery of another’s medical records because the records were “material and necessary to the prosecution of the action.”

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR DAMAGES STEMMING FROM THE ALLEGED FAILURE TO RETURN PLAINTIFF’S TESLA TO ITS PRE-ACCIDENT CONDITION AND THE ALLEGED FAILURE TO PROVIDE PLAINTIFF WITH COMPARABLE TRANSPORTATION WHILE THE TESLA WAS BEING REPAIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint stated causes of action for damages relating to the alleged failure to restore plaintiff’s Tesla to its pre-accident condition and damages relating to the alleged failure to provide plaintiff with comparable transporting while the Tesla was repaired:

We agree with plaintiff … that the court erred in granting defendant’s motion for summary judgment dismissing the complaint. In support of his motion, defendant offered no proof establishing as a matter of law that the repairs to plaintiff’s vehicle restored the vehicle to its pre-accident condition. Defendant relied largely on an affirmation from his attorney, who has no personal knowledge of the facts, along with plaintiff’s deposition testimony. Although defendant contends that plaintiff admitted during his deposition that the repairs to his vehicle were done to his satisfaction, plaintiff made clear during his testimony that, due to the gaps in the paneling, the vehicle was not in the same condition as before the accident. Defendant offered no evidence to the contrary, and it is well established that a party moving for summary judgment “must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof” … .

… [W]ith respect to the loss of use cause of action, defendant merely asserted that plaintiff was not entitled to the use of a vehicle comparable to his Tesla while the Tesla was being repaired. According to defendant, any operable vehicle will suffice regardless of its make, model, size, or safety features. We agree with plaintiff … that he is entitled to damages to the extent that he was not provided with the use of a vehicle generally comparable to his Tesla Model 3 … . Hazlett v Niezgoda, 2025 NY Slip Op 01730, Fourth Dept 3-21-25

Practice Point: A plaintiff can seek damages for the failure to return a vehicle to its pre-accident condition and the failure to provide plaintiff with comparable transportation during the repair-period.

 

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A MEDICAL CORPORATION CAN BE LIABLE IN TORT FOR FAILURE TO SAFEGUARD THE CONFIDENTIALITY OF MEDICAL RECORDS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint against defendant medical corporations stated a cause of action for negligent failure to safeguard the confidentiality of medical records:

Plaintiffs commenced this action alleging that, attendant to the health care services they received from defendant Rochester General Hospital (RGH), confidential medical records were generated and that those confidential medical records were stored on computer systems and networks maintained by RGH and defendants Rochester Regional Health ACO, Inc. (RRH) and Greater Rochester Independent Practice Association, Inc. (GRIPA). Plaintiffs further allege that defendant Christine M. Smith, R.N., a nurse at RGH, impermissibly accessed those records due to the failure of RGH, RRH and GRIPA “to exercise reasonable care in obtaining, retaining, securing, safeguarding, and protecting this confidential medical information from unlawful access.”

“A medical corporation may . . . be liable in tort for failing to establish adequate policies and procedures to safeguard the confidentiality of patient information or to train their employees to properly discharge their duties under those policies and procedures. These potential claims provide the requisite incentive for medical providers to put in place appropriate safeguards to ensure protection of a patient’s confidential information” … . Here, plaintiffs alleged that defendants generated and maintained the medical records that Smith impermissibly accessed and that they breached their duty to properly safeguard or monitor access to those records. Accepting as true the allegations in the complaint and the averments in the affidavits submitted in opposition to the motion, we conclude that plaintiffs have sufficiently alleged a negligence claim. * * * Hurley v Rochester Regional Health Aco, Inc., 2025 NY Slip Op 01729, Fourth Dept 3-21-25

Practice Point: A medical corporation can be liable for failure to safeguard the confidentiality of medical records.

 

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ALTHOUGH THE VEHICLE OWNER, HERE A CAR DEALERSHIP, IS USUALLY VICARIOUSLY LIABLE FOR AN ACCIDENT CAUSED BY A DRIVER OPERATING THE VEHICLE WITH THE OWNER’S PERMISSION, HERE THERE IS A QUESTION OF FACT WHETHER THE DRIVER, WHO WAS TEST DRIVING THE VEHICLE, EXCEEDED THE SCOPE OF THE PERMISSION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined summary judgment against the owner of the vehicle in this traffic accident case should not have been granted. Although summary judgment against the driver, Patel, was properly granted, there was a question of fact whether the driver had exceeded the scope of the permission granted by the owner, Paragon, a car dealership. There was evidence the sales rep told Patel he could drive around the block and return in five or ten minutes. Patel had taken the car on the expressway and called the dealership 35 minutes after leaving to say he had accident:

“Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner’s express or implied consent” … . “The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388, can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner’s consent” … . “An owner may place limitations on a driver’s permission to use a vehicle, such as granting consent to drive only to a particular area or for a specific purpose, and use outside the scope of permission negates the owner’s liability under the statute” … . “Thus, an owner may avoid liability under the statute if the driver exceeded the time, place[,] and purpose of the use permitted by the owner” … . Madrigal v Paragon Motors of Woodside, Inc., 2025 NY Slip Op 01620, Second Dept 3-19-25

Practice Point: The owner of a vehicle may impose limits on the permissive use of the vehicle by another. If the driver exceeds the scope of the permission to use the vehicle, the owner may not be vicariously liable under Vehicle and Traffic Law section 388.

 

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THE DEFENDANT SCHOOL IN THIS CHILD VICTIMS ACT CASE DID NOT DEMONSTRATE WHEN PLAINTIFF COULD HAVE DISCOVERED THE ALLEGED FRAUD WHICH INDUCED HIM TO SIGN RELEASES; THEREFORE THIS FRUAD-BASED ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED; THE COMPLAINT STATED CAUSES OF ACTION FOR FRAUDULENT INDUCEMENT AND FRAUDULENT CONCEALMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school in this Child Victims Act case (1) did not demonstrate the fraud-based causes of action to set aside or rescind the releases signed by the plaintiff were time-barred and (2) was not entitled to dismissal of the fraudulent inducement and fraudulent concealment causes of action. Plaintiff alleged he would not have signed the releases had he known the guidance counsellor who allegedly sexually abused him would be allowed to continue in his employment, and he would not have signed the releases had he known there were other instances of sexual misconduct by the guidance counsellor of which the school was aware:  With respect to the statute of limitations for a fraud-based action, the court explained:

“A fraud-based action must be commenced within six years of the fraud or within two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it, whichever is later” (… see CPLR 203[g]; 213[8]). “The inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was possessed of knowledge of facts from which the fraud could be reasonably inferred” … . “Generally, knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute. Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a [fraud-based cause of action] should not be dismissed on motion and the question should be left to the trier of facts” … . “Ordinarily, an inquiry into when a plaintiff should have discovered an alleged fraud presents a mixed question of law and fact” … .

Here, the defendant failed to establish that the causes of action to set aside or rescind the releases on the ground of fraud were time-barred pursuant to CPLR 3211(a)(5) … . “[T]here was no indication in the [amended complaint] or in the papers submitted by the defendant[ ] on [its] motion as to when the plaintiff became aware” of the alleged fraudulent conduct … . In any event, the plaintiff, in affidavits submitted in opposition to the motion, indicated that he learned of certain facts underlying the fraud-based causes of action in early 2021 … . The defendant failed to demonstrate that the plaintiff, by exercising reasonable diligence, could have discovered those facts at some point prior to the two-year period immediately preceding the commencement of this action … . Gormley v Marist Bros. of the Schs., Province of the United States of Am., 2025 NY Slip Op 01612, Second Dept 3-19-25

Practice Point: Here defendant did not demonstrate when plaintiff could or should have become aware of the defendant’s alleged fraud. Therefore the motion to dismiss the fraud-based action as time-barred should not have been granted.

Practice Point: Consult this decision for an explanation of what must be alleged to state causes of action for fraudulent inducement and fraudulent concealment in the context of setting aside or rescinding a release.

 

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