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PETITION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED, THE CITY’S KNOWLEDGE OF THE CROSSWALK DEFECT IN THIS SLIP AND FALL CASE IS NOT EQUIVALENT TO TIMELY KNOWLEDGE OF THE NATURE OF PLAINTIFF’S CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s petition to deem the late notice of claim timely served should not have been granted in this slip and fall case. Plaintiff alleged she tripped and fell over a defect in a crosswalk. The notice of claim was serve eight months after the fall. Photos of the defect were alleged to have been taken “shortly after” the fall but were not authenticated. An Internet map service apparently depicted the defects in 2013 and 2014. The court held that the fact that the city may have known of the defect does not mean the city had timely notice of the nature of plaintiff’s claim:

… [W]e disagree with the Supreme Court’s determination that the City acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter. While the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the crosswalk defect, actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability… . Similarly, the service of the notice of claim approximately five months after the expiration of the 90-day statutory period for service did not provide the City with the requisite actual knowledge within a reasonable time … .

We also disagree with the Supreme Court’s determination, based on the photographs submitted by the petitioner, that she sustained her burden of demonstrating that the City would not be substantially prejudiced by the late notice. The petitioner contended that the photographic evidence showed that the defective condition was substantially the same in appearance at the time of her accident as it was some eight months later when her petition was served. However, the photographs purportedly taken “shortly after” the accident were never authenticated … , nor did the petitioner identify the actual date the photographs were taken or the person who took them. Moreover, the more recent photographs were taken at different angles than the earlier photos, and neither set of images contained any measurements or dimensions to support the conclusion that a comparison of the two sets of photographs established that the defect did not change in the interim … . Matter of Bermudez v City of New York, 2018 NY Slip Op 08477, Second Dept 12-12-18

 

PLAINTIFF ASSUMED THE RISK OF INJURY STEMMING FROM A FIGHT DURING A HOCKEY GAME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff, an amateur hockey player, assumed the risk of injury stemming from a fight on the ice. Plaintiff alleged he was injured when a referee tried to pull him away from the fight. Plaintiff voluntarily engaged in physical contact with a player involved in the fight (plaintiff alleged he was trying to pull a player out of the fight when the referee grabbed the plaintiff):

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty… . However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … .

Here, the defendants established, prima facie, that the risks inherent in the sport of ice hockey, and in particular, involving oneself in an ongoing fight, were fully comprehended by the plaintiff and perfectly obvious. Further, the defendants established that the referees were permitted to make physical contact with players involved in a fight and, accepting the plaintiff’s version of the events as true, the plaintiff voluntarily engaged in physical contact with a player involved in the fight. Falcaro v American Skating Ctrs., LLC, 2018 NY Slip Op 08469, Second Dept 12-12-18

VOLUNTARY ENGAGEMENT PARTICIPATION FIGHT

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THE DIGNITY FOR ALL STUDENTS ACT (DASA) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR IN-SCHOOL BULLYING AND HARASSMENT (SECOND DEPT),

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brahwaite Nelson, determined that the Dignity for All Students Act (DASA, Education Law section 10) does not create a private right of action for a student injured by a school’s failure to enforce policies prohibiting discrimination and harassment. The plaintiffs alleged Joshua, a student, was bullied and the complaint, in addition to alleging a violation of DASA, alleged negligent supervision and negligent retention of employees. The negligence causes of action properly survived the motions to dismiss:

A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . …

A review of DASA’s legislative history shows that finding a private right of action under the act would be inconsistent with the legislative scheme. As noted above, DASA requires school districts to create and implement certain policies, procedures, and guidelines aimed at creating an educational environment in which children can thrive free of discrimination and harassment (see Education Law §§ 10, 13). In a letter to the Governor, Senator Thomas Duane described DASA as focusing “on the education and prevention of harassment and discrimination before it begins rather than punishment after the fact” …  The letter stated that under the existing regime, school districts were paying “a high cost in civil damages for failure to prevent bullying,” thereby suggesting that implementing DASA would alleviate such costs (id. at 9). Similarly, the Assembly sponsor of the bill also advised the Governor that “the Legislature intends [DASA] to be primarily a preventive, rather than punitive, measure; it should therefore be implemented accordingly, with the emphasis on proactive techniques such as training and early intervention to prevent discrimination and harassment” … . Eskenazi-McGibney v Connetquot Cent. Sch. Dist., 2018 NY Slip Op 08467, Second Dept 12-12-18

 

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A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSED AS TIME-BARRED (SECOND DEPT).

The Second Department. reversing Supreme Court, determined that the medical malpractice action should have been dismissed as time-barred. Plaintiff alleged a ureteral stent/catheter was inserted during surgery in 1993 and was discovered and removed in 2012. If the stent were a “foreign object,” the action would have been timely. But the stent was deliberately inserted for a medical purpose, although it should have been removed after up to six months. Because the stent was purposely inserted, it was not a “foreign object:”

… [T]he plaintiff failed to raise a triable issue of fact as to whether the ureteral stent/catheter allegedly inserted in his body was a “foreign object” such that the discovery rule should apply. According to the parties’ experts, a ureteral stent/catheter is a tube that bridges the kidney to the bladder, and is inserted and intentionally left in a patient for up to six months to assist in the draining of the kidney when the ureter is obstructed or when damage to the ureter was repaired and it is healing. The parties’ experts agree that if a ureteral stent/catheter was inserted in the plaintiff’s body during the 1993 procedure, then it was intentionally left in his body for the purpose of assisting in the draining of the kidney. Thus, the device was retained in the plaintiff’s body (if inserted at all) for ” postsurgery healing purposes'” and was not “analogous to tangible items” or “surgical paraphernalia,” such as clamps, scalpels, sponges, and drains, “introduced into a patient’s body solely to carry out or facilitate a surgical procedure”… . For these reasons, the ureteral catheter/stent was not a “foreign object,” and the action should have been dismissed as time-barred … . Livsey v Nyack Hosp., 2018 NY Slip Op 08289, Second Dept 12-5-18

NEGLIGENCE (A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/MEDICAL MALPRACTICE (A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/FOREIGN OBJECT (MEDICAL MALPRACTICE, CIVIL PROCEDURE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/STATUTE OF LIMITATIONS  (MEDICAL MALPRACTICE, CIVIL PROCEDURE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))

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QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined that defendant-store’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff fell over a small table that was behind a taller table thinking that it was possible to walk behind the taller table:

“Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . Even a condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The determination of “[w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances”… .

Here, the defendants failed to establish, prima facie, that the table at issue was open and obvious and not dangerous given the surrounding circumstances at the time of the accident, including the evidence submitted by the defendants on their motion as to the lighting conditions and the presence of other customers in the area … . Further, the defendants’ own evidence, including the deposition testimony of their employees, demonstrated the existence of a triable issue of fact as to whether the space on the side of the table on which the plaintiff was injured could be anticipated as an area of egress by the plaintiff. Elfassi v Hollister Co., 2018 NY Slip Op 08279, Second Dept 12-5-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT).

The Second Department noted that defendant driver’s allegation that plaintiff driver stopped suddenly in this rear end collision case was not sufficient to create a question of fact:

… [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he was stopped at a red light for 45 seconds before the defendant’s vehicle struck the plaintiff’s vehicle in the rear… . In opposition, the defendant averred that the accident occurred after the plaintiff made a sudden stop in the middle of the road. However, the defendant did not submit any evidence as to the distance he had maintained from the plaintiff’s vehicle, or the speed at which he was traveling, prior to the collision. Without such evidence, the assertion that the plaintiff’s vehicle came to a sudden stop was insufficient to rebut the inference that the defendant was negligent … . Auguste v Jeter, 2018 NY Slip Op 08274, Second Dept 12-5-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/EVIDENCE (NEGLIGENCE, REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/TRAFFIC ACCIDENTS ( REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/REAR END COLLISIONS (DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))

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POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff police officer was patrolling defendants’ property (at defendants’ request) when he slipped and fell an on outside stairway. Both the negligence cause of action and the General Municipal Law 205-a cause of action presented questions of fact. The section 205-a cause of action was properly based upon an alleged violation of the Property Maintenance Code of New York State:

The injured plaintiff’s mere inability to identify the precise nature of the slippery substance upon which he alleges he fell “cannot be equated with” a failure to identify the cause of his fall … . The defendants … failed to establish, prima facie, that they lacked constructive notice of the alleged hazardous substance on the step … , that the lighting for the area was adequate, and that the lack of a handrail on the steps was not a hazardous condition that may have been a proximate cause of the injuries … . …

The defendants … failed to demonstrate, prima facie, that Property Maintenance Code of New York State (2010) § 306.1, which requires a handrail on “[e]very exterior and interior flight of stairs having more than four risers,” did not apply to the location where the injured plaintiff’s accident occurred. …

… [W]e agree with the Supreme Court that the plaintiffs were not entitled to summary judgment on the issue of liability  … . The plaintiffs failed to demonstrate, prima facie, the defendants’ “neglect, omission, willful or culpable negligence” in violating Property Maintenance Code of New York State … . Moreover, the plaintiffs failed to eliminate all material issues of fact regarding whether the alleged hazardous condition actually existed. Furthermore, to the extent that the cause of action is predicated upon a violation of Property Maintenance Code of New York State… , the plaintiffs’ proffered evidence … failed to establish, prima facie, that the injured plaintiff’s accident resulted directly or indirectly from the absence of a handrail … . Stancarone v Sullivan, 2018 NY Slip Op 08344, Second Dept 12-5-18

NEGLIGENCE (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/POLICE OFFICERS (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/GENERAL MUNICIPAL LAW 205-a (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/PROPERTY MANAGEMENT CODE OF NEW YORK STATE (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an adverse inference jury instruction, not striking the answer, was the appropriate sanction in this negligent supervision case. Plaintiffs, coguardians of a blind and disabled adult (Nicholas), alleged negligent supervision and training of an employee (Escajadillo) of the respite care facility where Nicholas fractured his leg. Rosa’s employment records had been negligently destroyed by the facility:

Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ” will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate … . Where evidence has been found to have been negligently destroyed, adverse inference charges have been found to be appropriate … .

Here, because the plaintiffs asserted causes of action alleging negligent training and supervision, the defendants’ knowledge of any prior wrongdoing by its employees and information concerning their training are issues central to the plaintiffs’ causes of action, and the employees’ personnel files would be critical in determining those issues … . In support of their motion, the plaintiffs established that the defendants improperly failed to “suspend [their] routine document retention/destruction policy and put in place a litigation hold’ to ensure the preservation of relevant documents'” … , resulting in the negligent destruction of Escajadillo’s personnel file. However, the plaintiffs did not demonstrate that they were deprived of the ability to establish their case. Accordingly, the drastic sanction of striking the defendants’ answer is not appropriate … , but the lesser sanction of directing that an adverse inference charge be given at trial with respect to Escajadillo’s personnel file is warranted … . Squillacioti v Independent Group Home Living Program, Inc., 2018 NY Slip Op 08343, Second Dept 12-5-18

NEGLIGENCE (ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/EVIDENCE (NEGLIGENCE, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/SPOLIATION (NEGLIGENCE, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))

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SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT).

The Second Department determined Supreme Court properly relied upon the results of a Frye hearing involving the same expert (and judge) in a prior trial. The expert was allowed to testify plaintiff’s injuries could not have been caused by the traffic accident. There was a defense verdict:

“The long-recognized rule of Frye v United States . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . “General acceptance can be demonstrated through scientific or legal writings, judicial opinions, or expert opinions other than that of the proffered expert” … . Further, even if the proffered expert opinion is based upon accepted methods, it must satisfy “the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case” … .

In this case, we agree with the Supreme Court’s determination to permit the expert’s testimony without first holding a hearing to determine its admissibility … . “A court need not hold a Frye hearing where[, as in the case at bar,] it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” … . Moreover, in this particular case, there was a proper foundation for the admission of the expert’s opinion. Shah v Rahman, 2018 NY Slip Op 08342, Second Dept 12-5-18

NEGLIGENCE (SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/EVIDENCE (FRYE HEARING, SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/EXPERT OPINION (FRYE HEARING, SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/FRYE HEARING (SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, EVIDENCE, FRYE HEARING, SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))

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DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether defendant building manager was liable for the injuries to plaintiff from a window which fell out and onto his head when he attempted to close it. The doctrine of res ipsa loquitur may apply:

… [P]laintiff used the locker room to change and opened one of the windows half a foot to cool down. When he attempted to close the window, he used a “little bit more force than [he] did when [he] lifted it.” As the window closed, it reverberated a bit and then the whole window structure came out and crashed over plaintiff’s head. …

The defendant met its prima facie burden on lack of constructive notice of a dangerous condition. While it is disputed that defendant never inspected the windows since installation in 2004, it did not have an affirmative duty to conduct reasonable inspections … .

We find that an issue of fact exists as to the applicability of the doctrine of res ipsa loquitur, which allows for an inference of negligence to be drawn on the occurrence of an accident. The doctrine requires that a plaintiff must demonstrate that the “event is the kind which ordinarily does not occur in the absence of negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and [that] it was not due to any voluntary action or contribution on the part of the plaintiff” … .

Here, “common experience” dictates that a window being shut does not simply fall out absent negligence. In order to establish exclusive control, plaintiff is not required to show that defendant “had sole physical access” to the window… . Further, here remains a question of fact whether plaintiff did something to contribute to the window falling on him. Wilkins v West Harlem Group Assistance, Inc., 2018 NY Slip Op 08247, First Dept 12-4-18

NEGLIGENCE (RES IPSA LOQUITUR, DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/RES IPSA LOQUITUR (DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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