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INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the school district’s motion for summary judgment in this negligent supervision, student injury case should not have been granted. Infant plaintiff was playing touch football during recess in a designated area near the playground. The student was injured when, outside the designated area, he dove to catch the ball and struck a piece of playground equipment:

… [T]he defendants failed to meet their prima facie burden of demonstrating that the risk of colliding into the playground equipment located near the edge of the field was inherent in the activity of playing touch football on the field. Although the risks inherent in a sport include those “associated with the construction of the playing surface and any open and obvious condition on it” … , the playground equipment was not a part of the football field or related to the game… . Accordingly, the defendants failed to establish, prima facie, that their alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport” … . In addition, while the infant plaintiff was a willing participant in the game, in light of his age, it cannot presently be determined as a matter of law that he was aware of and appreciated the risks involved in the activity in which he was engaged … .

Further, the defendants failed to establish, prima facie, that the infant plaintiff’s accident occurred in so short a span of time that even the most intense supervision could not have prevented it, thereby negating any alleged lack of supervision as the proximate cause of the infant plaintiff’s injuries … . Rather, there is a triable issue of fact as to whether the infant plaintiff “was participating in a prohibited activity for an extended period of time and more intense supervision may have prevented the accident” … . M.P. v Mineola Union Free Sch. Dist., 2018 NY Slip Op 08119, Second Dept 11-28-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY (SECOND DEPT).

The Second Department affirmed the defense jury verdict in a case preceded by defendant’s guilty plea to endangering the welfare of an incompetent or physically disabled person. It was alleged that defendant (Tiger), a nurse, scalded a 10-year-old severely disabled child (Alejandra) by bathing the child in hot water. After defendant pled guilty she moved set aside her conviction and submitted evidence the child suffered an allergic reaction which was misinterpreted as skin burns. The Appellate Division granted the motion to set aside the conviction. The Court of Appeals reversed, ruling that the “actual innocence” defense is not available after a guilty plea. In the subsequent civil trial, plaintiff had brought a motion in limine requesting that the guilty plea be given collateral estoppel effect and that the defendant be prohibited from presenting evidence of the allergic reaction. Supreme Court essentially granted the motion but allowed cross-examination of the plaintiff’s experts about the allergic reaction. The Second Department determined the motion in limine was actually an untimely motion for summary judgment. But in light of the defense verdict, no further action by the appellate court was necessary:

During the trial in this action, the defendants sought to establish that Alejandra’s injuries were not caused by scalding water, relying upon medical records and cross-examining the plaintiff’s expert witnesses as to whether Alejandra’s injuries were the result of toxic epidermal necrolysis (hereinafter TEN), a type of severe skin reaction, purportedly caused by a drug Alejandra had been prescribed prior to the incident in question. Of note, Alejandra’s skin was biopsied at the hospital one day after the incident, and a pathology report, which the defendants did not discover until very late during the litigation, concluded that the biopsy was, inter alia, consistent with a diagnosis of TEN. Tiger has sought to set aside her conviction based upon, inter alia, the conclusions asserted in the belatedly discovered pathology report … . …

The plaintiff contends that the Supreme Court failed to give the criminal plea proper collateral estoppel effect and that the sole question for the jury should have been the amount of damages. On the eve of trial, the plaintiff sought an in limine ruling, based upon the doctrine of collateral estoppel, that Tiger’s criminal plea conclusively established that she was negligent as a matter of law and that her negligence proximately caused Alejandra’s injuries. Further, the plaintiff argued that the defendants should be precluded from introducing any evidence that Alejandra’s injuries were caused by TEN. The court, in effect, granted the plaintiff’s application in part, by submitting only the question of proximate cause to the jury and, thus, in effect, awarding the plaintiff judgment as a matter of law on the issue of Tiger’s negligence. The court further ruled that the defendants were precluded from introducing evidence regarding TEN in their case-in-chief, but permitted them to cross-examine the plaintiff’s experts regarding the medical records concluding that Alejandra’s injuries were caused by TEN.

We agree with the defendants’ contention that the plaintiff’s pretrial application, characterized as one for in limine relief, was the functional equivalent of an untimely motion for summary judgment on the issue of liability … . “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” … . Further, “in the absence of any showing of good cause’ for the late filing of such a motion (CPLR 3212[a]) the Supreme Court should have denied the motion”… . We note that, in light of the verdict in favor of the defendants, we do not otherwise review the propriety of the court’s ruling on the plaintiff’s in limine application. Farias-Alvarez v Interim Healthcare of Greater N.Y., 2018 NY Slip Op 08115, Second Dept 11-28-18

NEGLIGENCE (DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY  (SECOND DEPT))/CIVIL PROCEDURE (DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY  (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY  (SECOND DEPT))

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VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion for sanctions for spoliation of evidence should not have been denied and an adverse inference jury instruction was appropriate. Plaintiff alleged a “soft-close” mechanism on a van malfunctioned causing her finger to be crushed. After the “soft-close” mechanism was replaced it was destroyed:

… [W]e disagree with the Supreme Court’s determination to deny that branch of the defendant’s motion which was to impose sanctions for spoliation of evidence. The defendant sustained its burden of establishing that the plaintiff was obligated to preserve the soft-close automatic door mechanism on the driver’s side door at the time of its destruction in September 2015, when the plaintiff had the mechanism replaced, that the evidence was negligently destroyed before the defendant had an opportunity to inspect it, and that the destroyed evidence was relevant to the litigation … . Nevertheless, since the defendant’s ability to prove its defense was not fatally compromised by the destruction of the evidence… , the appropriate sanction for the spoliation herein is not to strike the complaint, but rather to direct that an adverse inference charge be given against the plaintiff at trial with respect to the unavailable evidence … . Richter v BMW of N. Am., LLC, 2018 NY Slip Op 08163, Second Dept 11-28-18

PRODUCTS LIABILITY (VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT))/CIVIL PROCEDURE (SPOLIATION, VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT))/EVIDENCE (SPOLIATION, VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT))/SPOLIATION (VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT))/ADVERSE INFERENCE (SPOLIATION, VEHICLE SOFT CLOSE AUTOMATIC DOOR CLOSING MECHANISM WAS REPLACED AND DESTROYED AFTER PLAINTIFF’S FINGER WAS ALLEGEDLY CRUSHED WHEN THE DOOR ON THE VAN CLOSED, PROPER SANCTION FOR SPOLIATION IS AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT))

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THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the Ibrahims, the driver and owner of the second car in a four-car chain-reaction rear-end accident, were entitled to summary judgment. The accident occurred in Pennsylvania but all parties were residents of New York. Supreme Court, sua sponte, held that Pennsylvania law applied and the Ibrahims summary judgment motion must be denied under Pennsylvania law. The Second Department noted that none of the parties raised the choice of law issue and therefore the parties must be deemed to have consented to the applicability of New York law:

The Supreme Court should not have raised the issue of Pennsylvania law of its own accord, and should not have based its determination of the motion on a ground that was neither raised nor briefed by the parties … . “Parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied” … . By failing to raise a choice of law issue in opposition to Ibrahim’s motion for summary judgment, the codefendants are deemed to have consented to the application of New York law… .

In this case, Ibrahim established his prima facie entitlement to judgment as a matter of law by submitting evidence that he brought his vehicle safely to a stop behind the lead vehicle before being struck in the rear by the Goldman vehicle … . Abdou v Malone, 2018 NY Slip Op 08106, Second Dept 11-28-18

NEGLIGENCE (TRAFFIC ACCIDENTS, THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))/CIVIL PROCEDURE (CHOICE OF LAW, TRAFFIC ACCIDENTS, THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))/JUDGES (SUA SPONTE, (TRAFFIC ACCIDENTS, THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))/SUA SPONTE TRAFFIC ACCIDENTS, THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))/CHOICE OF LAW (TRAFFIC ACCIDENTS, THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))/TRAFFIC ACCIDENTS (THE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))/REAR END COLLISIONS (HE REAR-END CHAIN-REACTION ACCIDENT OCCURRED IN PENNSYLVANIA BUT ALL PARTIES RESIDED IN NEW YORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THAT PENNSYLVANIA LAW APPLIED, BECAUSE THE PARTIES DID NOT RAISE THE CHOICE OF LAW ISSUE THEY ARE DEEMED TO HAVE CONSENTED TO THE APPLICABILITY OF NEW YORK LAW (SECOND DEPT))

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MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT)

The First Department, reversing Supreme Court, determined petitioner’s motion to deem the notice of claim timely filed should have been granted even if the excuse for the delay was not reasonable. The notice of claim was one day late:

CUCF [defendant City University Construction Fund] acquired actual notice of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statute of limitations period due to the fact that petitioner filed his notice of claim only one day late, on the 91st day after the accident occurred. Moreover, the notice of claim provides the essential facts constituting the claim and further describes CUCF’s alleged negligence and alleged violations of Labor Law §§ 240(1), 241(6) and 200, and certain Industrial Code provisions.

Additionally, petitioner has demonstrated that his one-day delay in serving the notice of claim on CUCF did not substantially prejudice CUCF’s defense on the merits. CUCF had actual knowledge of the facts constituting petitioner’s claim only one day after the expiration of the 90-day statutory period and thus, had ample opportunity to conduct a thorough investigation. …

Even if petitioner’s excuse for the delay in filing the notice of claim, specifically, that such delay was due to a clerical error made by the process server, was unreasonable, “the absence of a reasonable excuse is not, standing alone, fatal to the application,” especially in a case such as this one where respondent had actual notice of the essential facts constituting petitioner’s claim and where respondent was not prejudiced by the delay … . Matter of Dominguez v City Univ. of N.Y., 2018 NY Slip Op 08084, First Dept 11-27-18

MUNICIPAL LAW (NOTICE OF CLAIM, MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, (NOTICE OF CLAIM, MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW,  MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT).

The First Department determined the motion to amend the complaint and bill of particulars in this slip and fall case was properly denied. Plaintiff sought to change the dare of the accident from October 12, 2012, to August 15, 2012:

Plaintiff alleges that she slipped and fell on rainwater that came in through negligently maintained windows in the hallway of defendants’ building. In support of her motion to amend, plaintiff stated that she originally alleged that the accident occurred on October 13, 2012, but that after reviewing her medical records she realized that she was mistaken and that the accident actually occurred on August 15, 2012, the day before she sought treatment at the hospital.

The motion court providently exercised its discretion in denying plaintiff’s motion, as defendants demonstrated that the delay in notifying them that plaintiff had incorrectly identified the date of the accident prejudiced their ability to investigate the incident and to defend the action using surveillance videotapes of the hallway … . Defendants showed that, after learning of plaintiff’s claim, they retrieved surveillance tapes of the alleged accident date of October 13th, which showed that no accident occurred on that date, but that they were no longer able to retrieve videotapes from August 2012 by the time plaintiff informed them of the claimed error in the pleadings. Furthermore, the August 2012 hospital record plaintiff relies upon reflects that she sought treatment from a podiatrist for an unrelated foot condition, and does not reference any fall the previous day … . Otero v Walton Ave. Assoc. LLC, 2018 NY Slip Op 08083, First Dept 11-27-18

CIVIL PROCEDURE (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/COMPLAINT (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/BILL OF PARTICULARS (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/NEGLIGENCE (SLIP AND FALL, MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL  (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/EVIDENCE (SLIP AND FALL, MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))

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THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP).

The Court of Appeals, affirming the grant of defendant-Ford’s motion to set aside the verdict in this asbestos case, over two concurring opinions and a dissenting opinion, determined the evidence of a causal connection between the asbestos in brake linings on Ford vehicles and plaintiff’s decedent’s mesothelioma was legally insufficient. Plaintiff’s decedent worked in a garage and was exposed to asbestos-laden dust from new and used brakes, clutches and manifold and engine gaskets:

Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries pursuant to the standards set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and Cornell v 360 W. 51st St. Realty, LLC(22 NY3d 762 [2014]). Accordingly, on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404 (a) … . Matter of New York City Asbestos Litig., 2018 NY Slip Op 08059, CtApp 11-27-18

PRODUCTS LIABILITY (ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/TOXIC TORTS  (ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/NEGLIGENCE (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/EMPLOYMENT LAW (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/ASBESTOS (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/MESOTHELIOMA  (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))

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PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPT DECIDED NOT TO FOLLOW THE 2ND DEPT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive two-justice dissenting opinion, determined that the plaintiff in this traffic accident case did not place her prior knee injuries in controversy and the defendants’ demand for the related medical authorizations should not have been granted. The First Department held plaintiff had not waived her patient-physician privilege regarding the knee injuries. Plaintiff had alleged injury to her back, neck and shoulder, but had also alleged a loss of enjoyment of life, including her inability to wear heels. Defendants argued that her prior knee injury and surgery were relevant to those same issues. The First Department decided not to follow the 2nd Department’s contrary holding:

Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder. Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident. * * *

Defendants cite to [2nd] Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The [2nd] Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries” … .

We are not persuaded by the reasoning of the [2nd] Department. In our view, the [2nd] Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy. Brito v Gomez, 2018 NY Slip Op 08105, First Dept 11-27-18

NEGLIGENCE (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/TRAFFIC ACCIDENTS  (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/EVIDENCE (NEGLIGENCE, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PATIENT-PHYSICIAN PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))

,

A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a metal protrusion of an inch or less in a parking lot constituted a trivial defect which was not actionable in this slip and fall case:

In determining whether a defect is trivial, courts “must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be a certain minimum height or depth in order to be actionable” … . However, a defendant “may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection” … .

The defendants presented evidence that the alleged defect was an inch or less in size, that the incident occurred in the daytime hours under clear conditions, and that the area immediately surrounding the alleged defect was clear of debris and not dangerous or trap-like. Easley v U Haul, 2018 NY Slip Op 08008, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/SLIP AND FALL (A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, TRIVIAL DEFECT, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))

, , ,

WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ motion to set aside the verdict in this stairway slip and fall case should not have been granted, and the plaintiff’s motion for sanctions (attorney’s fees) for frivolous conduct (bringing the motion to set aside) should have been granted. The dissenting justice agreed the verdict should not have been set aside, but disagreed with the imposition of sanctions on defense counsel. The plaintiff alleged she fell (19 inches) because there was no handrail on one side to the stairs. The Second Department explained that even if the jury found the absence of a handrail to be open and obvious, the jury still could have found the absence of the handrail acted as a trap for the unwary:

“Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition”… . “While such proof is relevant to the issue of a plaintiff’s comparative negligence, a hazard that is open and obvious may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of . . . whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts  … . …

… [T}he Supreme Court should have granted the plaintiff’s cross motion for an award of costs in the form of reimbursement of reasonable attorneys’ fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants in moving to set aside the verdict pursuant to CPLR 4404(a) to the extent that the motion was predicated upon the ground that the plaintiff failed to establish at trial that they owned the subject property. * * *

… [T]he record shows that the defendants’ ownership of the property was never genuinely disputed. Cram v Keller, 2018 NY Slip Op 08007, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS  (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (FRIVOLOUS CONDUCT, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SET ASIDE VERDICT, MOTION TO (FRIVOLOUS CONDUCT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO SET ASIDE THE VERDICT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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