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NEGLIGENT CONCEALMENT CAUSE OF ACTION AGAINST HOSPITAL ALLEGING THE FAILURE TO DISCLOSE BILLING PRACTICES SHOULD HAVE BEEN DISMISSED; GENERAL BUSINESS LAW 349 CAUSE OF ACTION PROPERLY SURVIVED (SECOND DEPT).

The Second Department determined the complaint did not state a cause of action for negligent concealment/misrepresentation, but did state a cause of action for violation of General Business Law 349. The plaintiff alleged defendant hospital failed to to disclose material facts about the hospital’s billing practices for emergency treatment:

As a threshold matter, while the parties appear to dispute whether the first cause of action should be characterized as one sounding in “negligent concealment” or “negligent misrepresentation,” this is a distinction without a difference. The gravamen of the plaintiff’s allegations are that the hospital negligently failed to disclose material facts to him concerning the hospital’s billing practices. This is a species of negligent misrepresentation based on the omission to disclose material facts … . As a general proposition, “a duty to speak with care exists when the relationship of the parties, arising out of contract or otherwise, [is] such that in morals and good conscience the one has the right to rely upon the other for information” … . Thus, “liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified” … . Contrary to the plaintiff’s contention, the fact that the parties are in a contractual relationship, without more, is insufficient to support the imposition of a duty to speak with care … .

While it cannot be doubted that the relationship between a physician and a patient is one of confidence and trust regarding matters of medical treatment … , we decline to hold that such relationship, and any duty to speak with care that may come with it, also extends to matters of billing having nothing to do with the rendition of medical treatment. …

… [W]e agree with the Supreme Court’s determination that the hospital was not entitled to summary judgment dismissing the General Business Law § 349 cause of action insofar as asserted against it. First, contrary to the hospital’s contention, it was engaged in consumer-oriented activity … . Second, it is possible to engage in deceptive trade practices through omissions as well as affirmative representations … , particularly where, as here, it is alleged that “the business alone possesses material information that is relevant to the consumer and fails to provide this information” … . Third, contrary to the hospital’s contention, there is a triable issue of fact as to whether the plaintiff suffered an injury under General Business Law § 349 … . Krobath v South Nassau Communities Hosp., 2019 NY Slip Op 08838, Second Dept 12-11-19

 

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ALTHOUGH DEFENDANT PSYCHIATRIST ALLEGED HE CALLED PLAINTIFF’S DECEDENT TO TELL HER SHE SHOULD SEE ANOTHER PSYCHIATRIST, THE NEXT SCHEDULED APPOINTMENT WITH DEFENDANT WAS NOT CANCELLED; THERE IS A QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED AND RENDERED THE ACTION TIMELY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that the medical malpractice causes of action should not have been dismissed as time-barred. Plaintiff’s decedent had seen the defendant psychiatrist for the first time on November 20, 2014 and the next appointment was set up for December 11, 2014. Defendant alleged he called decedent on November 21, 2014 to tell her she should be treated by someone else, but the December 11, 2014 appointment was not cancelled. Decedent committed suicide on November 24, 2014. The action was commenced on May 24, 2017:

Under the continuous treatment doctrine, the period of limitations does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient “continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period”; (2) the course of treatment was “for the same conditions or complaints underlying the plaintiff’s medical malpractice claim”; and (3) the treatment is “continuous” … . To satisfy the requirement that treatment is continuous, further treatment must be explicitly anticipated by both the physician and the patient, as demonstrated by a regularly scheduled appointment for the near future … . * * *

The question here is whether the statute of limitations began to run on November 20, 2014, when the decedent met with the defendant for a medical appointment, or November 24, 2014, when she died. The Supreme Court concluded that the limited interactions between the defendant and the decedent failed to give rise to a continuing trust and confidence between them upon which the court could conclude that the decedent anticipated further treatment. However, since a further appointment was scheduled and was not cancelled—further treatment of some sort was anticipated, or there is at least a triable issue of fact on that issue … . Hillary v Gerstein, 2019 NY Slip Op 08658, Second Dept 12-4-19

 

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DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE LIQUID ON THE FLOOR WHICH ALLEGEDLY CAUSED PLAINTIFF TO SLIP AND FALL; 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. Defendant did not demonstrate a lack of constructive notice of the liquid on the floor:

… [T]he evidence submitted by the defendant in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall. The deposition testimony of the assistant manager of the supermarket, who did not recall if he was working on the date of the accident, and the affidavit of the defendant’s vice president of loss prevention, merely referred to the defendant’s general cleaning and inspection practices. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Furthermore, the defendant failed to demonstrate, prima facie, that the condition on which the plaintiff fell was not visible and apparent, and would not have been discoverable upon a reasonable inspection of the area where the plaintiff was injured … . Fortune v Western Beef, Inc., 2019 NY Slip Op 08656, Second Dept 12-4-19

 

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THE ALLEGED NEGLIGENCE IN THE PROCEDURE USED WHEN PLAINTIFF DONATED BLOOD SOUNDED IN MEDICAL MALPRACTICE, DESPITE THE FACT THAT NO DOCTOR WAS INVOLVED IN THE PROCEDURE; PLAINTIFF’S FAILURE TO PROVIDE A CERTIFICATE OF MERIT AS REQUIRED BY CPLR 3012-a WAS DUE TO THE GOOD FAITH BELIEF THE ACTION SOUNDED IN COMMON LAW NEGLIGENCE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED WITHOUT AFFORDING PLAINTIFF THE OPPORTUNITY TO PROVIDE A CERTIFICATE OF MERIT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined: (1) the action stemming from alleged negligence in drawing blood donated by plaintiff sounded in medical malpractice, not common law negligence; (2) therefore a certificate of merit was required (CPLR 3012-a); and (3) the failure to provide a certificate of merit does not warrant dismissal of the action, rather the plaintiff should be allowed 60 days to provide the certificate:

… [M]any of the plaintiff’s allegations bear a substantial relationship to the rendition of medical treatment to a particular patient …. The complaint alleges, inter alia, that the defendant failed to properly screen the plaintiff for health problems, obtain her medical history, monitor her physical condition, measure her hemoglobin levels, and keep her at the donation site for a specific period of time to observe any signs of an adverse reaction. The issues of whether the plaintiff needed additional screening, monitoring, or supervision, and whether she was at risk of falling due to a medical condition, involve the exercise of medical judgments beyond the common knowledge of ordinary persons. Only a medical professional would know what factors make a person ineligible to donate blood, how much blood should be drawn, what constitutes the signs and symptoms of an adverse reaction, and how to immediately treat an adverse reaction. Thus, the interaction between the plaintiff and the defendant implicates issues of medical judgment that sound in medical malpractice. * * *

… [A]lthough the complaint was not accompanied by a certificate of merit as required by CPLR 3012-a, dismissal of the complaint is not warranted as the plaintiff’s attorney should be provided with an opportunity to comply with the statute now that it is determined that the statute applies to this particular action … . There is no reason to believe from this record that the plaintiff’s attorney’s failure to file a certificate of merit was motivated by anything other than a good faith assessment that CPLR 3012-a did not apply to the action. The proper remedy at this stage, since the defendant had also sought in its underlying motion “such other and further relief as this court may deem just, proper and reasonable” … , is for this Court to extend the plaintiff’s time to serve a certificate of merit upon the defendant until 60 days after service of this opinion and order.  Only if the plaintiff is recalcitrant in complying with both the statute and this Court’s order may the Supreme Court, in its discretion, then dismiss the complaint … . Rabinovich v Maimonides Med. Ctr., 2019 NY Slip Op 08724, Second Dept 12-4-19

 

DEFENDANT DRIVER WAVED TO PLAINTIFF’S DECEDENT, A PEDESTRIAN, INDICATING SHE WAS ALLOWING PLAINTIFF’S DECEDENT TO CROSS THE STREET; ONE SECOND LATER PLAINTIFF’S DECEDENT WAS STRUCK BY ANOTHER CAR; THE ACCIDENT WAS THE RESULT OF A SUPERSEDING, INTERVENING ACT AND DEFENDANT WAS NOT LIABLE AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant driver, Biesty, was entitled to summary judgment in this pedestrian accident case because the act of another driver was the supervening cause of the accident. Biesty had stopped at a stop sign and waved to plaintiff-pedestrian (Nanfro) indicating Biesty would allow Nanfro to cross the street. One second later Nanfro was struck by a car driven by Agostinelli:

A driver of a motor vehicle may, under certain circumstances, be liable to a pedestrian where the driver “undertakes to direct a pedestrian safely across the road in front of his [or her] vehicle, and negligently carries out that duty” … . “However, even if a pedestrian is injured because he or she relied on a driver’s gesture directing him or her to cross a roadway, the acts of another driver may constitute a superseding, intervening act that breaks the causal nexus” … . “Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law” … .

Here, assuming without deciding that Biesty negligently motioned Nanfro to continue walking across the street and that Nanfro relied upon the gesture, Agostinelli’s unforeseeable failure to see what was there to be seen and failure to yield the right-of-way to Nanfro, who was crossing the street within an unmarked crosswalk, constituted an intervening and superseding cause that established Biesty’s prima facie entitlement to judgment as a matter of law … . Levi v Nardone, 2019 NY Slip Op 08665, Second Dept 12-4-19

 

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DEFENDANT, A PODIATRIST, USING ALTERNATIVE MEDICINE (OZONE THERAPY), TREATED PLAINTIFF FOR LYME DISEASE; DEFENDANT DID NOT SUBMIT PROOF OF THE APPLICABLE STANDARD OF CARE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should not have been granted because defendant did not submit proof of the appropriate standard of care. The defendant, a podiatrist, treated plaintiff for Lyme disease with “ozone therapy:”

In this medical malpractice action, plaintiff testified that after he saw an advertisement by defendant in a magazine about alternative medicine he sought treatment from defendant for Lyme disease. Defendant is a licensed podiatrist who the record shows told plaintiff that he could treat a host of incurable non-podiatric conditions.  * * *

Defendant has a history of being accused of using his putative study of ozone therapy’s ostensible benefits in treating podiatric conditions as a cover for his treatment of non-podiatric conditions … . In the present case, the record reflects that the putative treatment was not for a podiatric condition, and thus that defendant was practicing medicine outside of the medical confines of podiatry … , which raises an issue of professional misconduct … .

Defendant failed to make the necessary prima facie showing of entitlement to judgment as a matter of law, requiring reversal and denial of his motion for summary judgment regardless of the sufficiency of the opposing papers … . Defendant failed to establish the standard of care with which he should have complied for the treatment of Lyme disease, as to which he submitted no expert evidence … . Thus, on this record, it cannot be determined whether defendant deviated from accepted standards of practice. A trial is required on the issue whether defendant’s treatment proximately caused the physical and neurological manifestations of injury alleged by plaintiff. Georgievski v Robins, 2019 NY Slip Op 08619, First Dept 12-3-19

 

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14-YEAR-OLD PLAYING CATCH ON A SCHOOL ATHLETIC FIELD ASSUMED THE RISK OF INJURY FROM A TWO TO FIVE INCH DEPRESSION IN THE FIELD (SECOND DEPT).

The Second Department, over an extensive dissent, determined that the primary assumption of risk doctrine applied to a 14-year-old experienced football player who was injured by stepping into a 2 to 5 inch depression in a school athletic field. The majority distinguished the condition here, part of the natural features of a grass field, and a condition resulting from disrepair:

The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field … . Moreover, the infant plaintiff’s testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed … .

Like our dissenting colleague, we acknowledge the Court of Appeals’ admonition that the doctrine of primary assumption of risk “does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . Thus, the doctrine does not necessarily absolve landowners of liability where they have allowed certain defects, such as a hole in a net in an indoor tennis court, to persist … . In this case, we do not determine the doctrine’s applicability to similar to that of a hole in an indoor tennis net, as there is a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field … . Ninivaggi v County of Nassau, 2019 NY Slip Op 08568, Second Dept 11-27-19

 

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PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM; ALTHOUGH THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL, IT COULD BE CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, held that plaintiff-student could not proceed based upon a theory not included in the notice of claim. Plaintiff, who alleged she was sexually assaulted at a BOCES facility, did not allege in her notice of claim that the school district (North Shore), which did not have custody of her when she was assaulted, was also liable because it had formulated an Individualized Education Program for her. The court noted that the issue, although raised for the first time on appeal, could be considered because it was a question of law that could not have been avoided by the lower court:

“A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim” … . “A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose” … . “[A] mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by [General Municipal Law § 50-e], not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby” (General Municipal Law § 50-e[6]). Under General Municipal Law § 50-e(6), “[a] notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability” … .

We agree with North Shore that the plaintiff may not proceed under the theory that North Shore negligently failed to formulate an appropriate IEP for her, as the plaintiff did not include this theory in her notice of claim. Although North Shore did not raise this argument before the Supreme Court, we may consider it because “it presents an issue of law that appears on the face of the record, and could not have been avoided had it been raised at the proper juncture” … . In her notice of claim, the only theory of liability that the plaintiff asserted was negligent supervision. In opposition to North Shore’s motion for summary judgment, the plaintiff contended for the first time that North Shore had negligently failed to formulate an appropriate IEP for her. This was not a technical change, but was an impermissible substantive change to the theory of liability … . I. T. K. v Nassau Boces Educ. Found., Inc., 2019 NY Slip Op 08557, Second Dept 11-27-19

 

PLAINTIFFS, PASSENGERS IN A CAR WITH THE RIGHT OF WAY, WERE ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; COMPARATIVE NEGLIGENCE CAN BE CONSIDERED WHERE, AS HERE, PLAINTIFFS MOVED TO DISMISS DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs were entitled to summary judgment in this intersection traffic accident case. Plaintiffs were passengers in a car which had the right of way. Defendant may or may not have stopped at a stop before proceeding into the intersection. The Second Department noted that whether the defendant stopped or not was irrelevant. Although comparative negligence is generally not an issue at the summary judgment stage, it can be considered where, as here, the plaintiffs moved to dismiss defendant’s comparative-negligence affirmative defense. The defense obviously does not apply to innocent passengers:

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … . Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence … .

Here, in support of their motion, the plaintiffs submitted evidence sufficient to establish, prima facie, that the defendant driver was negligent in failing to see what was there to be seen and in entering the intersection without yielding the right-of-way, even if he did initially stop at the stop sign (see Vehicle and Traffic Law §§ 1142[a]; 1172[a] … ). With respect to the issue of comparative negligence, the plaintiffs demonstrated, prima facie, that they were innocent passengers who did not contribute to the happening of the accident. The right of the plaintiffs, as innocent passengers, to summary judgment is not “restricted by potential issues of comparative negligence” which may exist as between the defendant driver and the driver of the host vehicle … . Balladares v City of New York, 2019 NY Slip Op 08549, Second Dept 11-27-19

 

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PLAINTIFF WAS KNOCKED TO THE FLOOR BY A SHOPPING CART PUSHED BY ANOTHER STORE CUSTOMER; THE DEFENDANT STORE DID NOT HAVE A DUTY TO MONITOR CUSTOMERS’ USE OF SHOPPING CARTS; ISSUE COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff was knocked to the floor by a shopping cart pushed by another customer in the defendant’s store. Apparently the customer had piled items high in the cart and couldn’t see ahead of it. The court noted that, although defendant raised the “no duty to monitor customers” issue for the first time on appeal, it could be considered because it raises an issue of law than could not have been avoided by the court below:

The defendant contends that it was entitled to summary judgment dismissing the complaint insofar as asserted against it because it did not have a duty to control the conduct of the customer who struck Novak with the shopping cart. Although the defendant has raised this contention for the first time on appeal, “we may consider it . . . because the existence of a duty presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture”… .

“Store owners are charged with the duty of keeping their premises in a reasonably safe condition for the benefit of their customers” … . “[T]his duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances” … . “This duty is, however, not limitless” … . “[A]n owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … .

Here, the plaintiff contends that the defendant was negligent in failing to monitor its customers’ use of the U-boat shopping carts and, more specifically, in failing to require customers to refrain from loading the carts over a certain height. However, the defendant did not owe the plaintiff a duty to protect her from the other customer’s negligent use of the U-boat shopping cart because it did not have control over that customer’s actions … . Aupperlee v Restaurant Depot, LLC, 2019 NY Slip Op 08548, Second Dept 11-27-19

 

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