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DEFENDANTS’ AFFIDAVITS SUBMITTED IN REPLY TO CLAIMANT’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RAISED A QUESTION OF FACT; DEFENDANTS’ MOTION TO DISMISS THE CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined that the defendants’ motion to dismiss the claim should not have been granted. Claimant alleged she was injured when she collided with a glass exit door at Brooklyn College. The notice of intention to file a claim and the claim indicated photographs of the door were attached. Defendants apparently assumed the door in question was the front door to the building, but discovery indicated it was the back door. Defendants moved for summary judgment arguing that claimant failed to give proper notice of the location of the door as required by Court of Claims Act 11 (b). Defendants submitted affidavits stating that the computer files were searched and no photographs of the door were found. The Second Department held there was a question of fact whether the photographs of the door were attached to the notice of intention and the claim:

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, inter alia, the “place where such claim arose”… . “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party'” … . Summary judgment is to be granted only where the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact” … . “[O]n such a motion, the court’s role is limited to issue finding, not issue resolution” … . Here, the affidavits submitted by the defendants in reply created a triable issue of fact as to whether the claimant had included, with the notice of intention, photographs, which would have directed the defendants to the precise set of doors at issue. Accordingly, the Court of Claims should have denied the defendants’ motion. Shabat v State of New York, 2019 NY Slip Op 08589, Second Dept 11-27-19

 

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COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF MEDICAL MALPRACTICE RAISED FOR THE FIRST TIME IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the court should not have considered a new theory of medical malpractice raised for the first time in response to defendant’s motion for summary judgment:

… [T]he complaint and bill of particulars were only sufficient to put defendant on notice of an allegation that, in January 2013, he failed to properly compare the 2013 EC [echocardiagram] with the 2011 EC contained in decedent’s medical record, and determine that a dilation in decedent’s aorta had increased. Plaintiffs’ papers were insufficient to put defendant on notice of plaintiffs’ new theory of liability – raised for the first time in her expert’s opinion – that he deviated from the standard of care in August 2011, when interpreting the 2011 EC … . Here, where negligence is specifically alleged to have occurred only between December 2012 and January 2013, we conclude that the vague, ambiguous, nonspecific and open-ended assertion “prior or subsequent thereto” contained in plaintiffs’ bill of particulars failed to put defendant on notice of a claim that he acted negligently in August 2011. Carroll v New York City Health & Hosps. Corp., 2019 NY Slip Op 08524, First Dept 11-26-19

 

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FOUR CLASSES PROPERLY CERTIFIED TO BRING CLASS ACTION SUITS BASED UPON THE CONTAMINATION OF AIR, WATER, REAL PROPERTY AND PEOPLE WITH TOXIC CHEMICALS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that Supreme Court properly certified four classes bring class action suits against a manufacturer alleging the contamination of water, air, real property and people with toxic chemicals, PFOA and PFOS:

Plaintiffs, residents of the Town, commenced this action as a proposed class action, alleging that defendant’s use and improper disposal of PFOA and PFOS caused personal injury and property damage. In their complaint, plaintiffs proposed four classes: (1) a public water property damage class; (2) a private well water property damage class; (3) a private well nuisance class; and (4) a PFOA invasion injury class. Generally, the putative class members were individuals who owned or leased property in the Town or who ingested contaminated municipal or well water or inhaled PFOA or PFOS particulates in the Town and had demonstrable evidence of elevated levels of the chemical in their blood system. * * *

We agree with Supreme Court’s determination that, in addition to those questions common to the property classes, the answers to certain additional common questions will be applicable to all members of the invasion injury class, for example: (1) whether medical monitoring is an available remedy; (2) the extent of the health hazard presented by exposure to PFOA; and (3) whether the members of the class are at significant increased risk for disease based on the excess accumulation of PFOA in their bodies. Although defendant contends that there are myriad factual questions that are not common to the class, we do not agree that those predominate. Importantly, this is not a case where there is an issue of fact regarding exposure — rather, each class member must establish exposure and accumulation through blood work … . Burdick v Tonoga, Inc., 2019 NY Slip Op 08461, Third Dept 11-21-19

 

PLAINTIFF’S JUMPING FROM A STALLED ELEVATOR WAS AN UNFORESEEABLE CONSEQUENCE OF THE ELEVATOR MALFUNCTION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s jumping out of a stalled elevator was an unforeseeable consequence of the elevator malfunction:

Plaintiff was injured when she attempted to exit a service elevator in the building where she worked after the elevator stalled near the top floor of the building. A coworker testified that the elevator shook and the lights went out for a few seconds. Plaintiff testified that she used the intercom in the elevator to contact the building’s doorman, who said he would call the elevator mechanic. A few minutes later, another coworker, who was also in the stalled elevator, pried the door open. Plaintiff saw that the elevator was about 2½ feet above the floor level, and decided to jump out, believing she could do so safely. Under these circumstances, plaintiff’s act of jumping from the stalled elevator was an unforeseeable, superseding cause of her accident, which terminates any potential liability of defendant elevator maintenance company for negligent maintenance or repair of the elevator … . Given the evidence that the elevator had been stalled for only a few minutes and that the doorman had been contacted, there was no emergency situation necessitating plaintiff’s jump from the elevator … . Estrella v Fujitec Am., Inc., 2019 NY Slip Op 08501, First Dept 11-21-19

 

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THE LANDLORD DEMONSTRATED THE ASSAILANT IN THIS THIRD-PARTY ASSAULT CASE WAS NOT AN INTRUDER AND PLAINTIFF WAS NOT ABLE TO RAISE A QUESTION OF FACT ON THAT ISSUE, THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, ONE JUDGE DISSENTED (CT APP).

The Court of Appeals, in a brief memorandum with no discussion of the facts, over a dissent, determined the landlord’s (NYC Housing Authority’s) motion for summary judgment in this third-party assault case was properly granted. The dissenter argued the Housing Authority did not demonstrate the assailant was not an intruder:

… [T]he New York City Housing Authority met its initial burden of demonstrating that no material triable issues of fact exist through its showing that plaintiff’s assailant was likely not an intruder. In response, plaintiff failed to adduce any admissible evidence from which a jury could conclude, without engaging in speculation, that her assailant was an intruder and, concomitantly, whether defendant’s alleged negligence was a proximate cause of her injuries … . Laniox v City of New York, 2019 NY Slip Op 08448, CtApp 11-21-19

 

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ALTHOUGH THE TOWN DEMONSTRATED THE DEPARTMENT OF PUBLIC WORKS DID NOT HAVE NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE, IT DID NOT DEMONSTRATE THE TOWN CLERK’S RECORDS WERE SEARCHED; TOWN’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the town did not demonstrate that it did not receive written notice of the alleged sidewalk defect in this slip and fall case. The town’s motion for summary judgment was therefore properly denied:

In support of its motion for summary judgment, the Town submitted the deposition testimony of a project supervisor for the Town’s Department of Public Works, who testified that he directed an administrative aide to perform a record search of “the Town’s complaint database.” The Town also submitted an affidavit from the administrative aide for the Department of Public Works who conducted the search. The administrative aide stated that her duties included “searching the official records of the Department of Public Works” to determine “whether the Department of Public Works ha[d] been provided with any prior written notice” of any defects in the area where the incident occurred. The administrative aide stated that her search revealed that “the Town was not in receipt of any written notice or written complaints.”

While this evidence established, prima facie, that the Town’s Department of Public Works did not have prior written notice of the alleged defect in the sidewalk, neither the deposition testimony nor the affidavit state specifically that the Town Clerk’s records were searched for prior written notice of the alleged defect … . The Town’s failure to provide specific evidence that the records of both the Department of Public Works and the Town Clerk were searched for prior written notice constitutes a failure to demonstrate its prima facie entitlement to judgment as a matter of law. Otto v Miller, 2019 NY Slip Op 08417, Second Dept 11-20-19

 

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DEFENDANT MANUFACTURER DID NOT ELIMINATE QUESTIONS OF FACT WHETHER THE SNOW THROWER WAS DEFECTIVELY DESIGNED AND WHETHER WARNINGS WERE ADEQUATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant snow-thrower manufacturer’s motion for summary judgment in this products liability case should not have been granted. Plaintiff alleged he turned off the snow thrower before placing his hand inside the mechanism in an attempt to clean out a blockage. The impeller was allegedly still spinning at that point and two of plaintiff’s fingers were amputated. Plaintiffs’ expert opined that a $20 clean-out tool should have been provided. The defendant failed to eliminate questions of fact about whether the snow thrower was defective and whether the warnings were adequate:

According to the plaintiffs’ expert, a clean-out tool “would have been technologically and economically feasible to include with the snow [thrower] in 1983” since the defendant manufactured a clean-out tool costing approximately $20 that was sold in Germany in 1983 as part of a “safety kit.” Based on the foregoing, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the causes of action sounding in negligence and strict products liability based on design defect.

… [A]lthough the defendant submitted evidence that certain warnings were placed on the snow thrower and in the owner’s manual, the defendant failed to establish, prima facie, that it adequately warned users that the impeller may continue to rotate after the engine is turned off … . The defendant also failed to establish, prima facie, that the plaintiff was aware of the danger of putting his hand inside the discharge chute after turning off the engine, or that he would not have heeded more prominent or express warnings on the snow thrower … . Samyn v Ariens Co., 2019 NY Slip Op 08435 [177 AD3d 917], Second Dept 11-20-19

 

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SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF WATER ON THE FLOOR IN THIS SLIP AND FALL CASE; SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school did not demonstrate it did not have constructive knowledge of water on the floor of the cafeteria where plaintiff slipped and fell:

… [T]he School District failed to demonstrate, prima facie, that it did not have constructive notice of the alleged water condition that caused the plaintiff to fall. The deposition testimony of the School District’s head custodian merely referred to the general cleaning and inspection practices of the custodial staff in relation to the south cafeteria of the school, but provided no evidence regarding any specific cleaning or inspection of the area in question relative to the time when the plaintiff’s accident occurred … . Williams v Island Trees Union Free Sch. Dist., 2019 NY Slip Op 08443, Second Dept 11-20-19

 

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$13,000,000 VERDICT IS AGAINST WEIGHT OF THE EVIDENCE IN THIS TRAFFIC ACCIDENT BACK-INJURY CASE, NEW TRIAL ORDERED UNLESS PLAINTIFFS STIPULATE TO A SUBSTANTIALLY REDUCED VERDICT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the over $13,000,000 verdict was against the weight of the evidence and ordered a new trial unless the defendants (the Tarpleys) stipulated to substantially reduced damages in this traffic accident back-injury case:

​” The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation'” ( … see CPLR 5501[c]). ” The reasonableness of compensation must be measured against relevant precedent of comparable cases'” … .  …

Considering the nature and extent of the injuries sustained by Tarpley, the awards for past and future pain and suffering and past and future loss of services deviate materially from what would be reasonable compensation … (see CPLR 5501[c] … ). …

“A party claiming lost earnings has the burden of proving the amount of actual past earnings with reasonable certainty, by means of tax returns or other documentation” … . “Unsubstantiated testimony, without documentation, is insufficient to establish lost earnings” … . Here, the award for lost earnings was speculative to the extent that it exceeded the income Tarpley could have expected to earn based on his 2008 and 2009 W2 forms submitted into evidence, since no documentation or expert testimony was presented to establish that Tarpley’s income was likely to increase in future years … . …

Tarpley’s treating physician provided an uncontroverted opinion that Tarpley would require a future lumbar fusion surgery, with an estimated cost of $100,000, due to his ongoing symptoms following the prior laminectomy. However, the verdict awarding damages for future medical expenses in excess of $100,000 was speculative, and we reduce it accordingly … . Tarpley v New York City Tr. Auth., 2019 NY Slip Op 08440, Second Dept 11-20-19

 

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DEFENSE MOTION TO PRECLUDE PLAINTIFF FROM PRESENTING EXPERT EVIDENCE BECAUSE OF LATE DISCLOSURE AND DEMANDING THE MATERIAL RELIED UPON BY THE EXPERT PROPERLY DENIED IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT).

The First Department determined defendant’s motion to preclude plaintiff from offering his expert’s report and to turn over the materials relied upon by the expert was properly denied in this stairway slip and fall case:

“Preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101(d)(1)(i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion” … . “Prejudice can be shown where the expert is testifying as to new theories, or where the opposing side has no time to prepare a rebuttal” … . * * *

Here plaintiff withheld information about an expert he retained and who performed a comprehensive inspection and report before the demand for expert disclosure was served, failed to disclose this in response to such demand, and continued to withhold such information over the course of many court conferences and the years that the case was pending. He offers no excuse for his delay or for having served a response to defendant’s expert disclosure demand that was arguably misleading.

However, when plaintiff eventually did disclose the expert, it was not on the eve of trial … . His disclosure was made on or about March 9, 2018, about six weeks before the originally-scheduled trial date of April 30, 2018, a lead time further expanded with the court’s 60-day adjournment … . Moreover, notwithstanding defendant’s claims to the contrary, plaintiff’s expert did not advance a different theory of liability from that which plaintiff had previously advanced. * * *

Defendant also fails to show grounds to disturb the court’s denial of its motion to direct plaintiff to turn over materials relied on by his expert. Defendant claims it is entitled to these materials because, given the passage of time, any expert it would retain now would not be inspecting premises that resemble the premises at the time of the accident. However, defendant does not adequately explain its failure to timely retain an expert of its own. Rivera v New York City Hous. Auth., 2019 NY Slip Op 08366, First Dept 11-19-19

 

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