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DRIVER OF MIDDLE VEHICLE IN THIS THREE-CAR REAR-END TRAFFIC ACCIDENT CASE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the middle driver, Budziak, in this three-car rear-end collision case was entitled to summary judgment:

“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” … .

Here, Budziak established her prima facie entitlement to judgment as a matter of law by demonstrating that she was stopped in traffic behind Hakimi’s vehicle when her vehicle was struck in the rear by Barnett’s vehicle and propelled into Hakimi’s vehicle … . Mihalatos v Barnett, 2019 NY Slip Op 06082, Second Dept 8-7-19

 

QUESTION OF FACT WHETHER THE BUS DRIVER RESPONDED REASONABLY UPON HEARING THE SIREN OF A FIRE TRUCK APPROACHING AN INTERSECTION; PLAINTIFF, A PASSENGER, WAS INJURED WHEN THE BUS DRIVER SLAMMED ON THE BRAKES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether the bus driver reacted properly to an emergency. Plaintiff, a passenger, was injured when the bus suddenly braked to avoid a fire truck entering an intersection. There was a question whether the driver slowed down upon hearing the siren:

The evidence proffered in support of the defendants’ motion demonstrated, prima facie, that the operator of the bus was presented with an emergency situation, to wit, a fire truck that was entering the intersection against the traffic light, and that the operator acted as a reasonable person would under the circumstances … . However, in opposition, the plaintiff noted that the operator testified at her deposition that, as she approached the intersection, she heard a fire truck siren. Although the operator claimed she slowed down prior to reaching the intersection, the plaintiff testified at her deposition that the operator was driving “pretty fast” prior to the accident and that there was no change in speed. The operator’s alleged entry into the intersection without slowing down, after hearing sirens approaching the intersection, raised a triable issue of fact as to whether the operator was faced with an emergency situation not of her own making and whether her actions in relation thereto were reasonable … . Liang-Ying Ren v Doe, 2019 NY Slip Op 06074, Second Dept 8-7-19

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THE TRANSCRIPT OF THE SETTLEMENT PROCEEDING UTTERLY REFUTED PLAINTIFF’S CLAIM TO HAVE BEEN COERCED INTO SETTLING, THE LEGAL MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT),

The Second Department, reversing Supreme Court, determined that defendants-attorneys’ motion to dismiss the complaint in this legal malpractice action should have been granted because the transcript of the settlement proceeding utterly refuted the allegations in the complaint. Plaintiff alleged it was coerced into settling the action:

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . …

A legal malpractice cause of action “is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” … .

In support of their motion, the defendants submitted the transcript of the court proceeding setting forth the terms of the settlement of the underlying action, which conclusively established that the plaintiff was not coerced into settling … . The plaintiff’s allegations that it was coerced into settling the underlying action were utterly refuted by the admissions of its principals during the settlement proceeding that they had discussed the terms of the settlement with their attorneys, understood the settlement terms, and had no questions about them; that they were entering into the settlement freely, of their own volition, and without undue influence or coercion; and that they were satisfied with their legal representation … . Glenwayne Dev. Corp v James J. Corbett, P.C., 2019 NY Slip Op 06069, Second Dept 8-7-19

 

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FACT THAT DEFENDANT CONTRACTOR HAD BEEN ISSUED A PERMIT FOR DRILLING IN THE STREET DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE CONTRACTOR CREATED A DEFECT IN THE SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contractor’s motion for summary judgment in this sidewalk slip and fall case should have been granted. The contractor presented evidence it did no work on the sidewalk. The fact that a permit for drilling on the street had been issued to the contractor did not raise a question of fact:

The plaintiff allegedly was injured when he tripped on a raised sidewalk flag. He commenced this personal injury action against, among others, the defendant Craig Geotechnical Drilling Co., Inc. (hereinafter Craig Drilling), a contractor, alleging that it was negligent in, among other things, creating the allegedly dangerous condition that caused the accident. …

A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk … . Here, Craig Drilling demonstrated its prima facie entitlement to judgment as a matter of law by presenting evidence that it performed no work in the area of the raised sidewalk flag prior to the subject accident … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether Craig Drilling created or exacerbated the raised sidewalk flag. Under the circumstances of this case, the mere fact that a permit had been issued to Craig Drilling to perform work on the street was insufficient to raise a triable issue of fact as to whether Craig Drilling created or exacerbated the raised sidewalk flag … . Sindoni v City of New York, 2019 NY Slip Op 06110, Second Dept 8-7-19     

 

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PROTRACTED DELAY IN PLAINTIFFS’ SEEKING SUBSTITUTION OF PARTIES IN THIS MEDICAL MALPRACTICE ACTION AFTER INFANT PLAINTIFF’S DEATH DID NOT REQUIRE DISMISSAL OF THE COMPLAINT, DEFENDANTS WERE IN POSSESSION OF THE MEDICAL RECORDS AND OTHER RELEVANT INFORMATION AND THEREFORE WERE NOT PREJUDICED BY THE DELAY; IN ADDITION, THE MOTION TO AMEND THE COMPLAINT TO ADD WRONGFUL DEATH SHOULD HAVE BEEN GRANTED UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ protracted delay in substituting father for the deceased infant in this medical malpractice action did not require dismissal of the complaint because the defendants were in possession of all the relevant medical records and therefore were not prejudiced by the delay. The court also noted that motion to amend the complaint to assert wrongful death should have been granted under the relation-back doctrine:

CPLR 1021 requires a motion for substitution to be made within a reasonable time … , and the determination of whether the timing is reasonable requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit … . Here, the plaintiffs moved, inter alia, for leave to substitute Jean Petion, who is the father of the plaintiff Jeremiah Prince Petion (hereinafter the deceased infant) and administrator of the deceased infant’s estate (hereinafter the administrator), in place of the deceased infant as a party plaintiff and to amend the caption accordingly. Although the plaintiffs admit that the delay in seeking the substitution of the administrator was protracted … , the plaintiffs showed that there was no prejudice to the defendants because the defendants were on notice of the claims against them as early as February 2, 2009, when the plaintiffs filed a notice of claim against the defendant New York City Health and Hospitals Corporation, and the defendants possessed all of the relevant medical records … . In opposition, the defendants asserted only conclusory allegations of prejudice based solely on the passage of time … . The plaintiffs also demonstrated that they have potentially meritorious causes of action through their expert’s affidavit of merit, the pleadings, and the testimony of Marie Petion at the General Municipal Law § 50-h hearing … . Petion v New York City Health & Hosps. Corp., 2019 NY Slip Op 06107, Second Dept 8-7-19

 

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PLAINTIFF BUS DRIVER WAS SPRAYED WITH DIESEL FUEL AS SHE ATTEMPTED TO FILL THE TANK OF THE BUS SHE WAS DRIVING; THE MANUFACTURER OF THE GAS PUMP NOZZLE AND THE GAS STATION DEMONSTRATED THE NOZZLE AND THE GAS PUMP WERE WORKING PROPERLY; THERE WAS EVIDENCE OF A RELEVANT DESIGN FLAW IN THE FUEL SYSTEM OF THE BUS; THE NOZZLE MANUFACTURER’S AND THE GAS STATION’S MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined that the products liability cause of action against the manufacturer of a gas pump fuel nozzle (Husky), and the premises liability cause of action against the gas station (Kwik Fill) should have been dismissed. The plaintiff was sprayed with diesel fuel as she attempted to fill the tank in the bus (manufactured by Coach) she was driving. There was evidence that the design of the fuel system of the bus may have been the cause:

In opposition to Husky’s motion, the Coach defendants submitted the affidavit of an expert and the deposition testimony of the vice president of engineering of defendant Motor Coach Industries, Ltd. The expert opined that the accident was caused by a nozzle malfunction. He did not, however, identify any particular defect in the nozzle, which he did not inspect. We thus conclude that the expert’s opinion is based on mere speculation and is insufficient to raise an issue of fact … . …

It is undisputed that the Kwik Fill defendants hired an outside vendor that regularly inspected and serviced their fuel pumps, and, in support of their motion, the Kwik Fill defendants submitted evidence establishing that the vendor determined that the fuel pumps were working properly before and after the accident, thus establishing that the Kwik Fill defendants maintained their property in a reasonably safe condition … . Menear v Kwik Fill, 2019 NY Slip Op 05845, Fourth Dept 7-31-19

 

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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff had raised a question of fact whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action. The attorney had attempted to remedy the failure to file objections in an estate matter after the statute had run. The Fourth Department noted that plaintiff’s expert’s report was missing from the record on appeal and therefore plaintiff was unable to argue on appeal that he had raised a related question of fact (concerning damages) before Supreme Court. Defendant had argued the damages were speculative (requiring dismissal) and Supreme Court did not rule on the issue (because the case was dismissed as untimely). The matter was remitted for a ruling on the damages issue:

We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to … damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” … . …

Defendant met his burden … by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting …, and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” … .

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” … , and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine. Leeder v Antonucci, 2019 NY Slip Op 05898, Fourth Dept 7-31-19

 

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FAILURE TO DISCLOSE THE SLIP AND FALL ACTION AS AN ASSET IN A BANKRUPTCY PROCEEDING DEPRIVED PLAINTIFF OF THE LEGAL CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the legal capacity to sue in this slip and fall case because the action was not listed as an asset in a prior bankruptcy proceeding:

“The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of the legal capacity to sue subsequently on that cause of action'” … .

Here, it is undisputed that the plaintiff did not disclose, in the bankruptcy petition that she filed in October 2015, the existence of the cause of action to recover damages for personal injuries that she had previously asserted against the defendant. The defendant established, prima facie, that when the petition was filed, the plaintiff knew or should have known of the existence of her cause of action, and the plaintiff failed to raise a triable issue of fact in opposition to that prima facie showing … . Jean-Paul v 67-30 Dartmouth St. Owners Corp., 2019 NY Slip Op 05965, Second Dept 7-31-19

 

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NEGLIGENCE, BREACH OF CONTRACT AND DISCRIMINATION CLAIMS BROUGHT BY A DISABLED FORMER POLICE OFFICER CONCERNING GENERAL MUNICIPAL LAW 207-c BENEFITS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department affirmed the grant of summary judgment to all defendants in this action by a disabled former police officer concerning claims for General Municipal Law 207-c benefits:

With respect to the City defendants, … we conclude that the court properly dismissed the negligence and gross negligence causes of action against them inasmuch as they were entitled to governmental function immunity based on the discretion they are afforded in administering payments of General Municipal Law § 207-c benefits … . Although plaintiff’s negligence and gross negligence causes of action involved the health care services that he was receiving, the City defendants were engaged in a governmental function because they were merely administering the payment of General Municipal Law § 207-c benefits, i.e., they did not actually provide plaintiff with health care services ;;; . Moreover, the City defendants were entitled to immunity inasmuch as the administration of section 207-c benefits involved the exercise of their discretion and the record establishes that the City defendants denied payment of the disputed claims for benefits after actually exercising this discretion … .

… Plaintiff was not a party to the contracts between [the remaining] defendants and City defendants, and therefore liability may be established where, inter alia, “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Here, the undisputed evidence established that the [defendants] did not have authority to deny payment of plaintiff’s claims for General Municipal Law § 207-c benefits. That authority rested, at all relevant times, with the City defendants. Thus, it cannot be said that these defendants launched any “instrument of harm” because they never made the decision to deny any of plaintiff’s claims for payment of medical care and treatment. …

… [W]e note that plaintiff, as a public employee, may not sue his employer under Title II of the ADA and the Rehabilitation Act, as plaintiff has done here … . Where, as here, plaintiff’s causes of action are “related to the terms, conditions and privileges of his employment[, i.e., his entitlement to benefits under General Municipal Law § 207-c, they] are covered by Title I” and not Title II of the ADA or the Rehabilitation Act … . Vassenelli v City of Syracuse, 2019 NY Slip Op 05878, Fourth Dept 7-31-19

 

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DAY CARE CENTER’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant day care center’s motion for summary judgment in this negligent supervision case was properly denied. The infant plaintiff allegedly was injured while in the care of the day care center. The facts were not described:

The defendant, as a provider of day care services, was under a duty to adequately supervise the children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “A plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. [The p]laintiff’s burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … .

Here, the defendant failed to establish, prima facie, that the infant plaintiff’s injuries were not proximately caused by its negligence. The defendant’s submissions failed to negate a reasonable inference that the injury occurred at the defendant’s day care center and that the defendant failed to provide adequate supervision … . A.D.G. v Children’s Ark Daycare Ctr., Inc., 2019 NY Slip Op 05959, Second Dept 7-31-19

 

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