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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the continuous representation doctrine tolled the statute of limitations. Defendant attorney (Weiss) were hired by plaintiff to bring a personal injury action. The legal malpractice action was filed more than three years after the statute had run on the personal injury case:

The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and ” everyone that touched the table saw'” until it was sold to the homeowner; the personal injury claim was ” worth millions of dollars'”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to ” put the case on the back burner as it was going to take a long time to resolve,'” and that Weis ” had the plaintiff’s contact information,'” and ” if he needed the plaintiff, he would contact him.'” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had ” no case,'” and that Weis thought the plaintiff had ” disappeared.'” …

… [T]the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date. The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced … . Schrull v Weis, 2018 NY Slip Op 07769, Second Dept 11-14-18

LEGAL MALPRACTICE (QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/CIVIL PROCEDURE (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/ATTORNEYS (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))

DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION FOR THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear end collision case should not have been granted. Although plaintiff made out a prima facie case (because there is no longer any need to demonstrate freedom from comparative fault in the motion papers), defendant alleged plaintiff suddenly changed lanes and stopped suddenly:

The plaintiff is no longer required to show freedom from comparative fault in order to establish his prima facie entitlement to judgment as a matter of law on the issue of liability… . 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 … . However, the inference of negligence may be rebutted by evidence that the accident was caused by the lead vehicle abruptly changing lanes in front of the rear vehicle and then slowing down or coming to a sudden stop … .

Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability. Although the plaintiff submitted evidence that his vehicle was struck in the rear by the defendants’ vehicle, he also submitted the deposition testimony of the defendant driver that the plaintiff’s vehicle changed lanes abruptly in front of defendants’ vehicle and then came to a sudden stop. Under these circumstances, the plaintiff’s submissions failed to eliminate triable issues of fact as to whether the defendant driver was negligent. The deposition testimony of the defendant driver, if true, would constitute a nonnegligent explanation for the rear-end collision into the plaintiff’s vehicle … . Any inconsistencies in the deposition testimony of the defendant driver, and the other evidence submitted in support of the motion, did not render the defendant driver’s deposition testimony incredible as a matter of law or unworthy of belief, but rather, raised issues of credibility to be resolved by the factfinder … . Merino v Tessel, 2018 NY Slip Op 07717, Second Dept 11-14-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAR END COLLISIONS (DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s motion for leave to file a late notice of claim was properly granted. Apparently plaintiff had fallen. The ambulance call report, prepared by defendants, indicated that plaintiff had limited response in her lower body. Plaintiff was rendered a partial quadriplegic. Expert opinions submitted in support of the motion were based upon a review of the ambulance report and concluded that plaintiff should have been immobilized and her injuries would not have been so severe if she had been immobilized. The Second Department explained that where malpractice is apparent from and independent review of the records, the records constitute timely actual knowledge of the essential facts constituting the claim:

While the ambulance call report, without more, does not establish actual knowledge of a potential injury where the record does not evince that the medical staff, by its acts or omissions, inflicted any injury … , where malpractice is apparent from an independent review of the medical records, those records constitute “actual notice of the pertinent facts” … . Here, the plaintiff submitted the expert opinions of Paul Werfel and Robert E. Todd. Werfel, a certified paramedic and professor of clinical emergency medicine at Stony Brook University, reviewed the medical records, including the appellants’ ambulance report. In his affidavit, Werfel stated that, in his “opinion to a reasonable degree of EMT standards,” Rescue Squad “failed to use spinal precautions and/or follow required EMT protocols as it relates to mobilizing and placing a patient on a stretcher who has a high index of having sustained a spinal cord injury.” Werfel further averred that Rescue Squad and NDP failed to comply with required protocols when transferring the plaintiff to the hospital. … Inasmuch as the ambulance report, upon independent review, suggested injury attributable to malpractice, it provided the appellants with actual knowledge of the essential facts constituting the claim … .

Furthermore, the plaintiff made an initial showing that the appellants were not prejudiced by the delay in serving a notice of claim inasmuch as the appellants acquired actual knowledge of the essential facts of the claim via their own ambulance report … . Ballantine v Pine Plains Hose Co., Inc., 2018 NY Slip Op 07697, Second Dept 11-14-18

NEGLIGENCE (MEDICAL MALPRACTICE, MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, NEGLIGENCE, MEDICAL MALPRACTICE, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LATE NOTICE OF CLAIM, MUNICIPAL LAW, NEGLIGENCE, MEDICAL MALPRACTICE,  WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/NOTICE OF CLAIM  (MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))

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VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant employer should not have been allowed to amend its answer to assert a release from liability for plaintiff’s injury based on plaintiff’s signing a “Volunteer Agreement.” The Volunteer Agreement purported to release the employer from any liability for injury to plaintiff on the job. Plaintiff was struck by a forklift operated by defendant’s employee. The release violated public policy:

While leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b] …), here, the proposed amendment was patently devoid of merit … . New York courts have long found agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence whether of itself or its employees or limiting its liability on account of such negligence void as against public policy … .

As observed by the Court of Appeals more than a century ago, “[t]he state is interested in the conservation of the lives and of the healthful vigor of its citizens, and if employers could contract away their responsibility at common law, it would tend to encourage on their part laxity of conduct in, if not an indifference to, the maintenance of proper and reasonable safeguards to human life and limb” … . Contrary to the defendant’s contentions, the public policy considerations applicable to paid employees also apply to a volunteer employee, such as the plaintiff herein. The purported release contained in the “Volunteer Agreement” is void as against public policy. Richardson v Island Harvest, Ltd., 2018 NY Slip Op 07768, Second Dept 11-14-18

EMPLOYMENT LAW (VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/RELEASE (NEGLIGENCE, EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/VOLUNTEER AGREEMENT (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (AMEND ANSWER, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025 (AMEND ANSWER, (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ANSWER (AMEND, (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT).

The Second Department determined plaintiff student’s negligent supervision cause of action against the city and the school district was properly dismissed. The city cannot be liable for the torts of the Department of Education. The student was injured when the gymnasium door closed on his finger. Negligent supervision was not the proximate cause of the injuries because the injury happened so fast. The theory that the door was defective was not included in the notice of claim and could not be raised to defeat summary judgment:

Although schools have a duty to provide supervision to ensure the safety of those in their charge … , schools will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision … . When an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury … .

Here, the defendants made a prima facie showing of the DOE’s entitlement to judgment as a matter of law dismissing the negligent supervision cause of action by establishing that any alleged inadequacy in the level of supervision was not a proximate cause of the accident … . …

The plaintiffs’ allegation that the subject door was negligently maintained does not defeat the defendants’ motion. Since this theory of liability was not included in the notice of claim or the complaint … , and there was nothing in the notice of claim that would provide notice to the defendants about this allegation … , it does not raise a triable issue of fact to defeat the defendants’ motion for summary judgment. Furthermore, the plaintiffs did not seek leave to amend the notice of claim pursuant to General Municipal Law § 50-e … . K.B. v City of New York, 2018 NY Slip Op 07710, Second Dept 11-14-18

EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))/NOTICE OF CLAIM  (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))

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EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined evidence of routine maintenance of the parking lot, essentially evidence habit, was properly admitted in this slip and fall case which resulted in a defense verdict:

… [P]laintiff appeals from an order that, inter alia, denied that part of his pretrial motion seeking to preclude habit evidence. …

” Proof of a deliberate repetitive practice by one in complete control of the circumstances’ is admissible provided that the party presenting such proof demonstrates a sufficient number of instances of the conduct in question’ ” … . Here, the testimony of the maintenance staff concerning their daily routine in maintaining the subject parking lot was properly admitted as evidence of their conduct prior to the incident at issue. Rozier v BTNH, Inc., 2018 NY Slip Op 07575, Fourth Dept 11-9-18

NEGLIGENCE (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/HABIT (SLIP AND FALL, EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

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EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the employer’s motion for summary judgment in this third-party assault case was properly granted. After an employee (Hartfield) had been asked to leave for the day by the employer, the employee assaulted plaintiff in the parking lot. The doctrine of respondeat superior did not apply because the employee was not acting within the scope of her employment at the time of the assault:

… [D]efendant established as a matter of law that the doctrine of respondeat superior is inapplicable because Hartfield was not acting within the scope of her employment at the time of the assault. The doctrine of respondeat superior renders an employer “vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment”… .. Although the issue whether an employee is acting within the scope of his or her employment is generally a question of fact, summary judgment is appropriate “in a case such as this, in which the relevant facts are undisputed” … . Here, we conclude that defendant met its initial burden of establishing that Hartfield’s assault of plaintiff was not committed in furtherance of defendant’s business and was not within the scope of employment … . Stribing v Bill Gray’s Inc., 2018 NY Slip Op 07566, Fourth Dept 11-9-18

NEGLIGENCE (EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/EMPLOYMENT LAW (RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/BATTERY (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/RESPONDEAT SUPERIOR (NEGLIGENCE, BATTERY, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/THIRD PARTY ASSAULT (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))

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NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s and school bus company’s motions for summary judgment in this negligent supervision, third party assault, case should not have been granted. A six minute fight erupted on a school bus during which the two student plaintiffs were punched by another student. The school district did not demonstrate the student’s (Torres’s) violence was not foreseeable, and there was evidence the school aide observed the fight but did nothing to stop it:

Schools have a duty to adequately supervise the students in their care and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether a school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision in the context of injuries caused by an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable… .

Here, the school defendants failed to establish, prima facie, that they had no specific knowledge or notice of Torres’s propensity to engage in the misconduct alleged. In support of their motion, the school defendants submitted, inter alia, the deposition testimony of assistant principal Sharon Flynn, who testified that Torres had a disciplinary record. When asked whether Torres’ prior disciplinary history involved violence, Flynn replied only, “Not that I remember.” Thus, the school defendants failed to sustain their prima facie burden of establishing that they had no actual or constructive notice of Torres’s propensity to engage in the misconduct alleged … . … [T]riable issues of fact also exist as to whether Torres’s dangerous conduct occurred in such a short span of time that no amount of supervision by the school defendants could have prevented the infant plaintiffs’ injuries … , whether the infant plaintiffs’ injuries were a foreseeable consequence of the security aide’s alleged failure to respond appropriately as the events unfolded … , and whether security personnel took “energetic steps to intervene” in the fight to stop Torres from injuring the infant plaintiff … . Palopoli v Sewanhaka Cent. High Sch. Dist., 2018 NY Slip Op 07441, Second Dept 11-7-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly caught her foot under a tire/wheel stop in defendants’ parking lot. The defendants did not present any evidence about when the wheel stop was last inspected:

The defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition. They failed to submit evidence as to when, prior to the accident, the tire/wheel stop at issue was last inspected … . Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied their motion, without regard to the sufficiency of the opposition papers … . Troina v Canyon Donuts Jericho Turnpike, Inc.. 2018 NY Slip Op 07482, Second Dept 11-7-18

NEGLIGENCE (PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/WHEEL STOP (SLIP AND FALL, PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TIRE STOP (SLIP AND FALL, PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff submitted defendant’s deposition in which defendant testified plaintiff stopped abruptly for no apparent reason:

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 rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A nonnegligent explanation includes, but is not limited to, sudden or unavoidable circumstances'” … .

The Supreme Court should have denied the plaintiff’s motion for summary judgment on the issue of liability. The plaintiff’s deposition testimony, submitted in support of the motion, demonstrated that her vehicle was struck in the rear while stopped on the exit ramp due to traffic conditions, thus raising an inference of the defendant driver’s negligence. However, the plaintiff’s submissions also included a transcript of the defendant driver’s deposition testimony, wherein he testified that the plaintiff’s vehicle came to an abrupt stop when there was no vehicular traffic in front of it on the exit ramp, and the two vehicles collided. Under these circumstances, the plaintiff’s motion papers presented a triable issue of fact as to whether the defendant driver was negligent in the happening of the subject accident … . Richter v Delutri, 2018 NY Slip Op 07475, Second Dept 11-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAR END COLLISIONS ( QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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