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NO ONE AT THE DEFENDANT HEALTH CLUB WHEN PLAINTIFF’S DECEDENT SUFFERED A HEART ATTACK WAS CERTIFIED TO PROVIDE EMERGENCY AID AND THE EMPLOYEE DELAYED CALLING 911; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment against defendant health club for failing to aid plaintiff’s decedent when she had a heart attack at the club. The only club employee on duty, Higgins, was not certified to provide emergency aid and delayed calling 911:

The Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the common-law negligence cause of action to the extent of granting partial summary judgment on the issue of the defendants’ breach of their limited duty of care to render aid to patrons struck down by heart attack or cardiac arrest. In Miglino v Bally Total Fitness of Greater N.Y., Inc. (20 NY3d 342), the Court of Appeals recognized that “New York courts have viewed health clubs as owing a limited duty of care to patrons struck down by a heart attack or cardiac arrest while engaged in athletic activities on premises” (id. at 350). The Court of Appeals has referred to this limited duty as the health club’s “common-law duty to render aid” (id. at 351 …). A health club fulfills this duty by, for example, calling 911 immediately, responding to the patron and performing CPR or other measures, or responding to the patron and then deferring to someone else with superior medical training … . Hamlin v PFNY, LLC, 2020 NY Slip Op 00574. Second Dept 1-29-20

 

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ALTHOUGH THE CITY GAVE A PERMIT TO A BUS COMPANY TO USE A PARKING LOT, THE CITY DID NOT DEMONSTRATE IT RELINQUISHED ALL CONTROL OVER THE MAINTENANCE OF THE PARKING LOT SUCH THAT IT COULD NOT BE HELD LIABLE IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the City did not demonstrate it relinquished maintenance responsibilities for a parking lot licensed to a bus company in this slip and fall case:

… [T]he City failed to meet its prima facie burden of demonstrating that it relinquished control of the premises such that it had no duty to the plaintiff to remedy the allegedly defective condition. In support of its motion, the City submitted a copy of the permit agreement, as well as the deposition testimony of several City employees. The permit agreement provided that the bus company had some responsibility for maintenance of the premises, but that the permit also was revocable at will by the City, and the City reserved “the right at all times to free and interrupted access” to any portion of the premises. Moreover, the deposition testimony submitted by the City established, prima facie, that City employees made regular visual inspections of the premises.

Viewing the evidence in the light most favorable to the plaintiff … , it cannot be said as a matter of law that the City relinquished control of the premises to the bus company such that it owed no duty to the plaintiff to remedy the allegedly defective condition… . D’Angelo v City of New York, 2020 NY Slip Op 00569, Second Dept 1-29-20

 

DEFENDANT DRIVER HAD THE BURDEN TO PROVE FREEDOM FROM COMPARATIVE NEGLIGENCE IN THIS TRAFFIC ACCIDENT CASE; DEFENDANT FAILED TO ELIMINATE QUESTIONS OF FACT ABOUT WHETHER HE WAS TRAVELLING TOO FAST AND WHETHER HE KEPT A PROPER LOOKOUT FOR PLAINTIFF BICYCLIST; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver, Perrone, did not eliminate questions of fact concerning whether he was negligent in travelling too fast for conditions or in keeping a proper lookout. Plaintiff bicyclist was struck while trying to see around a construction wall separating the bicyclist from the traffic:

Since there can be more than one proximate cause of an accident, a defendant moving for summary judgment has the burden of establishing freedom from comparative negligence as a matter of law … . “In order for a defendant driver to establish entitlement to summary judgment on the issue of liability in a motor vehicle collision case, the driver must demonstrate, prima facie, inter alia, that he or she kept the proper lookout, or that his or her alleged negligence, if any, did not contribute to the accident” … . The issue of comparative fault is generally a question for the trier of fact … .

Here, the defendants failed to establish, prima facie, that Perrone was free from comparative fault in the happening of the accident. In particular, the defendants failed to eliminate triable issues of fact as to whether Perrone kept a proper lookout or was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present … . Ballentine v Perrone, 2020 NY Slip Op 00562, Second Dept 1-29-20

 

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PLAINTIFFS CAN NOT RAISE A NEW THEORY OF LIABILITY IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant hospital’s motion for summary judgment in this medical malpractice action should have been granted. The plaintiffs attempted to raise an evidentiary issue and theory of liability for the first time in opposition to the motion:

… [T]he plaintiffs improperly alleged, for the first time, a new theory claiming that other employees of the hospital were negligent in failing to properly administer Decadron and Heparin in accordance with the prescription of the plaintiff’s attending physician. ” 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'” … . Bacalan v St. Vincents Catholic Med. Ctrs. of N.Y., 2020 NY Slip Op 00561, Second Dept 1-29-20

 

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QUESTIONS OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER AND WHETHER THE LANDLORD HAD NOTICE OF THE DEFECTIVE DOOR LOCK IN THIS THIRD-PARTY ASSAULT CASE; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant NYC Housing Authority’s (NYCHA’s) motion for summary judgment in this third-party assault case should not have been granted. Plaintiff raised questions of fact whether the assailant was an intruder and whether the NYCHA had notice of the defective entrance door to the apartment building:

NYCHA failed to eliminate an issue of fact as to whether it was ” more likely or more reasonable than not'” that the man who shot plaintiff in the leg in front of his apartment door was an intruder ” who gained access to the premises through a negligently maintained entrance'” … . Plaintiff testified that a man spoke to him on the sidewalk just outside the building, asking where he could find drugs, and that, after plaintiff entered through the unlocked front entrance and walked up the stairs to his floor and along the hall 10 feet to his apartment, he saw the man again when he heard the door to the stairwell open, and the man held him up at gunpoint.

From plaintiff’s familiarity with building residents, the history of ongoing criminal activity, and the assailant’s failure to conceal his or her identity a jury could reasonably infer “that the assailant was more likely than not an intruder” … . Plaintiff informed the police that he could identify the assailant if shown a photograph … . NYCHA’s evidence also showed that there was a robbery inside the building about 18 months before plaintiff’s incident, requiring repairs to the front door lock, and various shootings on the grounds … .

Contrary to NYCHA’s contention, there is enough evidence as to how the assailant gained entry to the building to require consideration of whether NYCHA had actual or constructive notice of the nonfunctioning door lock … . A jury could infer from plaintiff’s testimony that the assailant entered the building himself and did not need to wait for anyone in the lobby to open the door for him.

Nor does its evidence demonstrate that NYCHA did not have constructive notice of the nonfunctioning door lock, since plaintiff testified that the lock was not functioning the day before and the day of the incident, but the last daily maintenance checklist produced by NYCHA, which included the front door lock, was dated two days before the incident … . Clotter v New York City Hous. Auth., 2020 NY Slip Op 00554, First Dept 1-28-20

 

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BUILDING OWNER NOT LIABLE FOR ALLEGED FAILURE TO ENSURE A SMOKE DETECTOR WAS FUNCTIONAL, DESPITE THE ALLEGATION THE OWNER REGULARLY INSPECTED THE SMOKE DETECTORS (FIRST DEPT).

The First Department determined the defendant landlord could not be held liable for the failure to ensure a smoke detector was functional:

In this action where plaintiff alleges that he was injured as a result of a fire in his apartment due to defendant building owner’s negligent failure to provide an operable smoke detector, defendant demonstrated prima facie that he satisfied his statutory duty to provide a functional smoke detector in the apartment, and accordingly, the obligation to maintain the smoke detector was assumed by plaintiff (see Administrative Code of City of NY § 27-2045[a][1], [b][1], [2]).

Plaintiff’s argument that defendant voluntarily assumed a duty to ensure his smoke detector was in good working condition by regularly inspecting tenants’ smoke detectors, is unavailing. “Liability under this theory may be imposed only if defendant’s conduct placed plaintiff in a more vulnerable position than he would have been in had defendant done nothing” … . Here, however, plaintiff provided no evidence that he relied on defendant’s inspection of his smoke detector to ensure its functionality, and instead testified that he never saw the building superintendent inspect his smoke detector. Figueroa v Parkash, 2020 NY Slip Op 00525, First Dept 1-28-20

 

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THE COURT OF CLAIMS IN THIS MEDICAL MALPRACTICE ACTION CREDITED BOTH EXPERTS, ONE OF WHOM OPINED DEFENDANT WAS AT RISK FOR FUTURE HEART PROBLEMS; THEREFORE THE AWARD OF ZERO DAMAGES FOR FUTURE PAIN AND SUFFERING WAS ERROR; AWARD INCREASED BY $10,000 (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the conflicting expert evidence credited by the Court of Claims forced the conclusion claimant suffered some permanent damage to his heart. Therefore awarding nothing for future pain and suffering was error. The Third Department awarded an additional $10,000:

… [T]he court accepted aspects of both experts’ opinions, crediting both the opinion of defendant’s expert cardiologist that claimant had suffered no significant permanent damage and simultaneously crediting the opinion of claimant’s expert cardiologist that claimant could develop a future arrhythmia because of his injury. As claimant argues, and based upon our review of the record, we find these opinions to be inconsistent with one another. Claimant’s cardiologist based his opinion that claimant was at risk of developing a future arrhythmia upon his opinion that claimant had suffered permanent damage to his heart muscle, consisting of weakness that would not resolve with time and that required the rest of his heart to work harder to maintain normal function. As the court noted, claimant’s cardiologist did not quantify the degree of potential risk to which he believed claimant was exposed. Nevertheless, in order to accept the opinion that claimant’s risk of suffering a future arrhythmia was increased, the court must necessarily also have credited the cardiologist’s opinion that claimant had suffered some, albeit limited, degree of permanent injury.

We thus find that the award of no damages for future pain and suffering deviates from reasonable compensation. Serrano v State of New York, 2020 NY Slip Op 00458, Third Dept 1-23-20

 

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QUESTION OF FACT WHETHER HOSPITAL MAY BE VICARIOUSLY LIABLE FOR TREATMENT PROVIDED BY A NON-EMPLOYEE IN THE HOSPITAL EMERGENCY ROOM (SECOND DEPT).

The Second Department determined there was a question of fact whether the hospital, Good Samaritan, was vicariously liable for the alleged malpractice of a physician, Chin, who, although not a hospital employee, treated plaintiff in the hospital emergency room:

“In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for negligent treatment provided by an independent physician, as when the physician is retained by the patient himself” … . However, “[a]n exception to this general rule exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . …

Here, although Good Samaritan established that Chin was not its employee, the evidence submitted in support of its motion for summary judgment was insufficient to demonstrate, prima facie, that the plaintiff entered Good Samaritan’s emergency room seeking treatment from a privately selected physician rather than from the hospital itself … . Fuessel v Chin, 2020 NY Slip Op 00404, Second Dept 1-22-20

 

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IT WAS ALLEGED ONE MAN INTENDED TO DOUSE ANOTHER WITH LIQUID IN A CUP BUT UNINTENTIONALLY THREW THE CUP ITSELF CAUSING INJURY; THERE WAS A QUESTION OF FACT WHETHER THE INJURY WAS CAUSED BY INTENTIONAL CONDUCT OR AN ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff insurer’s (Unitrin’s) motion for summary judgment in this insurance-coverage dispute should not have been granted. Apparently Sullivan was in one car and the injured party, Ciminello, was in another car when Sullivan allegedly attempted to throw liquid that was in a cup into Ciminello’s car. It was alleged that Sullivan unintentionally threw the entire cup, not just its contents, which injured Ciminello. So there was a question of fact whether Ciminello was injured by intentional conduct (not covered by insurance) or an accident (which would be covered):

Ciminello raised a triable issue of fact as to whether the harm was inherent in the intentional act committed … . Ciminello submitted evidence that, although Sullivan and his passenger intended to douse Ciminello with the liquid contained in the cup, there was no intent to throw the cup and strike Ciminello with it. As the instant case does not fall within the narrow class of cases in which the intentional act exclusion applies regardless of the insured’s subjective intent … , there is a triable issue of fact as to whether the event qualified as an “accident,” as defined by the policy … . Unitrin Auto & Home Ins. Co. v Sullivan, 2020 NY Slip Op 00452, Second Dept 1-22-20

 

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PLAINTIFF’S COUNSEL’S REMARKS DURING SUMMATION DEPRIVED DEFENDANT RESIDENTIAL HEALTH CARE FACILITY OF A FAIR TRIAL; OVER $1 MILLION JUDGMENT IN THIS NEGLIGENCE/PUBLIC-HEALTH-LAW ACTION REVERSED (SECOND DEPT).

The Second Department, reversing the over $1 million judgment in this negligence and Public-Health-Law-2801-d violation case, determined plaintiff’s counsel’s remarks in summation required a new trial. Plaintiff’s decedent, who was at risk for falling, fell after getting up from a wheelchair at defendant residential health care facility and ultimately died:

“[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments by an attorney for a party’s adversary deprived that party of a fair trial or unduly influenced a jury” … .

Here, during summation, the plaintiff’s counsel improperly appealed to the passion of the jurors by characterizing the defendant as a “corporation” that has “two lawyers,” a “tech person,” “general counsel,” and “video people.” Counsel also improperly accused the defendant of willfully depriving the plaintiff of evidence that would have been harmful to the defendant’s case, accused the defendant’s witnesses of having “changed” their testimony after their depositions or pretrial affirmations, which were not in evidence, “because they saw that they couldn’t win,” and improperly argued that the defendant failed to call certain witnesses, who were not under the defendant’s control. Thus, “the comments of the plaintiff[‘s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial comments so tainted the proceedings as to have deprived the defendant . . . of a fair trial” … . Nieves v Clove Lakes Health Care & Rehabilitation, Inc., 2020 NY Slip Op 00422, Second Dept 1-22-20

 

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