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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))

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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))

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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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ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT).

The Second Department, in this construction accident case with multiple subcontractors, insurers and insureds, determined that the antisubrogation rule barred plaintiff-insurer’s causes of action:

The nonparty-respondent The New School (hereinafter TNS) entered into a contract with the nonparty-respondent Tishman Construction Corporation of New York (hereinafter Tishman) for the building of a new facility. Pursuant to the agreement, Tishman entered into trade contracts with various subcontractors, including … the defendant subcontractors. Tishman also contracted with nonparty … Geller to provide electrical services.

The defendant subcontractors elected to participate in a Contractor Controlled Insurance Program (hereinafter the CCIP) implemented by Tishman. Geller did not participate in the CCIP, and instead obtained a policy of insurance issued by the plaintiff, Wausau Underwriters Insurance Company … . As required by the trade contract, both TNS and Tishman were named as additional insureds under the Wausau policy.

The nonparty Harripersaud …, an employee of Geller, allegedly was injured when he tripped and fell while working at the construction site. Harripersaud commenced a personal injury action … against TNS and Tishman, alleging negligence and violations of the Labor Law. Tishman’s insurer tendered the complaint to the plaintiff, which accepted the tender and agreed to defend and indemnify Tishman and TNS. Subsequently, the plaintiff, as subrogee for Tishman and TNS, commenced this action against the defendant subcontractors. Tishman and TNS moved for leave to intervene and …to dismiss the complaint. The plaintiff cross-moved to consolidate this action with the Harripersaud personal injury action. …

The antisubrogation rule operates to bar the plaintiff’s causes of action. Under the antisubrogation rule, “an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered” .. . This rule prevents an insurer from passing its losses to its own insured … . Here, the defendant subcontractors were members of the CCIP, and the CCIP imposed a $500,000 retention obligation on Tishman, as to each occurrence under the policy. Accordingly, the antisubrogation rule bars Tishman and TNS from asserting claims against the defendant subcontractors… . Inasmuch as the antisubrogation rule would bar Tishman and TNS from asserting causes of action against the defendant subcontractors, it bars the plaintiff’s causes of action as well. A subrogee “is subject to any defenses or claims which may be raised against the subrogor. Thus, a subrogee may not acquire any greater rights than the subrogor” … . Wausau Underwriters Ins. Co. v Gamma USA, Inc., 2018 NY Slip Op 08055, Second Dept 11-21-18

INSURANCE LAW (ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))/ANTISUBROGATION RULE (INSURANCE LAW, ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))/NEGLIGENCE (INSURANCE LAW, ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (INSURANCE LAW, ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))

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NEITHER THE LEVEL OF PLAYGROUND SUPERVISION NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s motion for summary judgment in this playground student injury case should have been granted. Defendants demonstrated there was an adequate number of monitors supervising the children, infant plaintiff was using the equipment properly, and the equipment was in good working order. There was no showing that plaintiffs’ expert had any expertise re: playground equipment. Infant plaintiff slipped off a bar and fell because his hands were wet:

The defendants submitted evidence demonstrating, prima facie, that the level of supervision afforded to the infant plaintiff and the other students at the time of the accident was adequate… , and, in any event, that any alleged lack of supervision was not the proximate cause of the infant plaintiff’s injuries … . Furthermore, the defendants submitted a report and affidavit from their expert, which established that the playground equipment was appropriate for the infant plaintiff’s age group, and was not defective … .

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs submitted an affidavit from their purported expert, there was no showing that the purported expert had any specialized knowledge, experience, training, or education regarding playground equipment so as to qualify him to render an opinion in this area … . Ponzini v Sag Harbor Union Free Sch. Dist., 2018 NY Slip Op 08046, Second Dept 11-21-18

NEGLIGENCE (NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (EXPERT OPINION, EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION (NEGLIGENCE,  EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice and should not have been dismissed. The court explained that whether the action would survive a subsequent summary judgment motion is not to be considered. The complaint alleged plaintiff was injured by a pizza delivery driver and the attorneys failed to sue the employer (Dominos):

“On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . …

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice … . The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it … . Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 … . Lopez v Lozner & Mastropietro, P.C. , 2018 NY Slip Op 08017, Second Dept 11-21-18

ATTORNEYS (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (MOTIONS TO DISMISS,  COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DISMISS COMPLAINT, MOTION TO (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

QUESTIONS OF FACT WHETHER THE DEFENDANT CITY WAS AWARE OF A DEFECT IN THE SOFTBALL PLAYING FIELD, WHETHER THE DEFECT WAS NEGLIGENTLY REPAIRED AND WHETHER PLAINTIFF ASSUMED THE RISK OF INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined there were questions of fact whether defendant city had notice of a defect in a softball field, whether the defect was negligently repaired, and whether plaintiff assumed the risk of injury from playing baseball on the field:

Plaintiff Rory Martin was injured when, while playing softball on defendant’s field, he unsuccessfully attempted to jump over a hole that was in the field near home plate. Plaintiff testified at his 50-h hearing that a six-inch-deep hole, three-to-four feet long, and four-to-five feet wide, near the right hand batter’s box, had been filled in with loose clay and appeared to be level when he stepped into the batter’s box. After plaintiff safely reached first base and additional players used the batter’s box, the hole became more exposed and surprised plaintiff as he ran home to try to score. When plaintiff saw the size of the hole and attempted to jump over it, his left foot struck a clay-obscured edge of the hole, causing him to suffer a fractured ankle.

Under the circumstances presented, triable issues exist as to whether the City had notice of this particular defect, and, if so, whether the City negligently or improperly repaired the defect, whether the playing field was as safe as it appeared to be, whether plaintiff’s injury arose as a consequence of a condition or practice common to the particular sport, and whether plaintiff assumed the risk of playing on the subject field … . Martin v City of New York, 2018 NY Slip Op 07946, First Dept 11-20-18

NEGLIGENCE (QUESTIONS OF FACT WHETHER THE DEFENDANT CITY WAS AWARE OF A DEFECT IN THE SOFTBALL PLAYING FIELD, WHETHER THE DEFECT WAS NEGLIGENTLY REPAIRED AND WHETHER PLAINTIFF ASSUMED THE RISK OF INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/ASSUMPTION OF THE RISK (NEGLIGENCE, SOFTBALL, QUESTIONS OF FACT WHETHER THE DEFENDANT CITY WAS AWARE OF A DEFECT IN THE SOFTBALL PLAYING FIELD, WHETHER THE DEFECT WAS NEGLIGENTLY REPAIRED AND WHETHER PLAINTIFF ASSUMED THE RISK OF INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SPORTS (ASSUMPTION OF THE RISK, SOFTBALL, QUESTIONS OF FACT WHETHER THE DEFENDANT CITY WAS AWARE OF A DEFECT IN THE SOFTBALL PLAYING FIELD, WHETHER THE DEFECT WAS NEGLIGENTLY REPAIRED AND WHETHER PLAINTIFF ASSUMED THE RISK OF INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant car dealership (Port Motors) had not transferred ownership of the car to the purchaser (Love) at the time of the accident and was therefore liable to plaintiff as the owner of the vehicle. Plaintiff was injured when the driver (Lemos) struck a barricade which in turn struck plaintiff, who was walking on the sidewalk:

Because Port Motors “fail[ed] to comply with the statutory requirements regarding vehicle registration procedures . . . [it] is estopped from denying ownership of the vehicle and is fully liable to the plaintiff as if it were the owner’ of the vehicle” … . Although this Court has held that “title to a motor vehicle is transferred when the parties intend such transfer to occur” … , here, there is no evidence that the parties intended to transfer title to the vehicle from Port Motors to Love prior to the accident. …

The metal barricade standing in the roadway was not “a sudden and unexpected circumstance which le[ft] little or no time for thought, deliberation or consideration, or cause[d] [Lemos] to be reasonably so disturbed that [he] [had to] make a speedy decision without weighing alternative courses of conduct . . . “… . Rather, by colliding with the barricade and propelling it onto the sidewalk, where it struck a pedestrian, Lemos failed to both operate his vehicle in a manner that was reasonable and prudent under the circumstances  … and to see what was there to be seen through the ordinary use of his senses … . Bunn v City of New York, 2018 NY Slip Op 07936, First Dept 11-20-18

NEGLIGENCE (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (OWNER LIABILITY, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PEDESTRIANS  (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, over a two-justice dissent, reversing Supreme Court, determined that defendant driver’s motion for summary judgment in this bicycle-car collision case should not have been granted. Apparently plaintiff was riding on the sidewalk and ran into the side of defendant’s car at an intersection. The majority concluded there was a question of fact whether defendant saw what he should have seen. The dissent relied on the right of way provisions of the Vehicle and Traffic Law:

Plaintiff [contended] that the provisions of the Vehicle and Traffic Law § 1234 (a) are inapplicable because plaintiff was riding his bicycle on a sidewalk and not a roadway, as contemplated by that section. Plaintiff further contended that issues of fact exist regarding whether defendant violated Vehicle and Traffic Law §§ 1142 and 1172 by failing to stop at the stop sign and failing to yield the right-of-way to plaintiff, and whether defendant failed to “see what [was] there to be seen.” …

Defendant, as the movant for summary judgment, had the burden of establishing as a matter of law that he was not negligent or that, even if he was negligent, his negligence was not a proximate cause of the accident … . To meet that burden, defendant was required to establish that he fulfilled his “common-law duty to see that which he should have seen [as a driver] through the proper use of his senses” … , “and to exercise reasonable care under the circumstances to avoid an accident” … , including that he met the obligation “to keep a reasonably vigilant lookout for bicyclists” .. . Defendant also had the burden of establishing as a matter of law that there was nothing he could do to avoid the accident … . Pagels v Mullen, 2018 NY Slip Op 07855, Fourth Dept 11-16-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/TRAFFIC ACCIDENTS  (QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/BICYCLES (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))

,

OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined there was a question of fact whether, Burdick, the owner of a farm and a hay conveyor, was liable for plaintiff’s injury from catching her finger in the unguarded conveyor chain. Burdick, as part of an oral agreement, allowed the Fosters to use the hay conveyor on Burdick’s property and was aware that persons, like plaintiff, would assist the Fosters. Plaintiff was a volunteer, not an employee. The court found  that Burdick, as the owner of the farm and the conveyor, owed a duty of care to the plaintitff and there was a question of fact whether the conveyor presented a dangerous condition that was not open and obvious. The Fosters owed no duty of care to plaintiff. But the Fosters, who now own the conveyor, were required to allow plaintiff to inspect the conveyor in connection with the lawsuit:

It is well established that, “[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” … . “New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition” … . “The duty of a landowner to maintain [his or her] property in a safe condition extends to persons whose presence is reasonably foreseeable by the landowner” … . “[A] landowner’s duty to warn of a latent, dangerous condition on his [or her] property is a natural counterpart to his [or her] duty to maintain [the] property in a reasonably safe condition” … . “It is well settled that both owners and occupiers owe a duty of reasonable care to maintain property in a safe condition and to give warning of unsafe conditions that are not open and obvious” … . …

Additionally, where, as here, “the defendant [property] owner provides . . . allegedly defective equipment, the legal standard [with respect to negligence] is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof’ . . . , because in that situation the defendant property owner is possessed of the authority, as owner, to remedy the condition’ of the defective equipment” … . …

The Fosters, at most, “had a license to [perform hay baling work on Burdick’s farm with his hay conveyor], but the right to use the [farm and hay conveyor] does not establish control or give rise to a duty to warn”… . “In the absence of any authority to maintain or control the [farm or the hay conveyor], or to correct any unsafe condition, [the Fosters] owed no duty of care with respect to any unsafe condition on [Burdick’s] premises” … . Breau v Burdick, 2018 NY Slip Op 07851, Fourth Dept 11-16-18

NEGLIGENCE (OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))/PRODUCTS LIABILITY  (OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))/DUTY OF CARE (NEGLIGENCE, PRODUCTS LIABILITY, OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))

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