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DEFENDANT GRANDFATHER DID NOT HAVE A DUTY TO CONTROL HIS COLLEGE-AGE GRANDSON IN THIS ROAD RAGE INCIDENT, THEREFORE THE NEGLIGENCE ACTION WAS PROPERLY DISMISSED, HOWEVER THE AIDING-AND-ABETTING ASSAULT CAUSE OF ACTION AGAINST DEFENDANT GRANDFATHER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined defendant Mancuso’s motion for summary judgment on the negligence cause of action was properly granted, but the motion for summary judgment on the aiding-and-abetting-assault cause of action should not have been granted. The action stemmed from a road rage incident. Defendant Mancuso was driving and his college-age grandson, Vaccaro, was a passenger. The grandson got out of the car and hit plaintiff in the face:

Mancuso established, prima facie, that he did not owe a duty to the plaintiff by virtue of the relationship Mancuso had with Vaccaro. The fact that Mancuso could have exercised control over Vaccaro, his college-aged grandson, did not create a duty to do so … . In addition, the mere fact that Vaccaro was a passenger in Mancuso’s vehicle did not create a duty on the part of Mancuso to control Vaccaro’s conduct … . …

To be liable for an assault under an aiding and abetting theory, a defendant must have committed some overt act, either by words or conduct, in furtherance of the assault … . Here, Mancuso established, prima facie, that he did not commit an overt act in furtherance of Vaccaro’s assault on the plaintiff … . In opposition, however, the plaintiff raised a triable issue of fact as to whether Mancuso’s actions preceding the assault constituted an overt act in furtherance of the assault … . McKiernan v Vaccaro, 2019 NY Slip Op 00267, Second Dept 1-16-19

 

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IN THIS SLIP AND FALL CASE, THE PARKING LOT WAS THE SUBJECT OF A LICENSE AGREEMENT BETWEEN THE CITY AND THE ATHLETIC CLUB, NOT A LEASE, THEREFORE THE OUT OF POSSESSION LANDLORD DOCTRINE WAS NOT APPLICABLE, ALTHOUGH THE LICENSE AGREEMENT REQUIRED THE ATHLETIC CLUB TO MAINTAIN THE PARKING LOT, THE LICENSE AGREEMENT IMPOSED CERTAIN MAINTENANCE DUTIES ON THE CITY AS WELL, THE CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant city did not demonstrate that it had relinquished control over the parking lot where plaintiff allegedly fell into an access pit. The access pit was exposed because a snow removal contractor pushed the cover off when plowing snow. The city had a license agreement with an athletic club, Fitmar, which required Fitmar to maintain the parking lot. Fitmar had hired the snow removal contractor. The city argued it was an out of possession landlord and the parking lot was solely Fitmar’s responsibility. The Second Department held that the parking lot was subject to a license agreement, not a lease, and therefore the out of possession landlord doctrine did not apply. The Second Department went on to find that the terms of the license agreement did not demonstrate as a matter of law that the city had relinquished control over the maintenance of the parking lot:

… [T]he license agreement granted Fitmar a license to use the premises, and not a leasehold interest … . Thus, the standard applied to out-of-possession landlords is inapplicable here … . Rather, the City, “as landowner, remains in presumptive control over its property and subject to the attendant obligations of ownership until it is found that control was relinquished” … .

The City failed to meet its prima facie burden of demonstrating that it relinquished control of the premises such that it owed no duty to the plaintiff to remedy the allegedly defective condition. While the license agreement assigned responsibility for maintenance of the premises, and specifically of the parking lot, to Fitmar, it vested the City with ultimate approval authority over Fitmar’s operating procedures. The City had unfettered access to the premises and could sponsor or promote its own special events at the premises. The agreement required a yearly inspection of the premises by the City to determine the extent of any repairs to be performed by Fitmar, and the City was permitted to inspect the premises at any time and direct Fitmar to undertake repairs. The City could maintain field personnel at the premises to observe the means and methods of anticipated construction work by Fitmar, and also reserved the right for the City to perform construction or maintenance work at the premises at any time. Fitmar’s former general manager testified at his deposition that the City conducted regular inspections of the premises, and that representatives of the Parks Department would often show up unannounced to conduct inspections. Agbosasa v City of New York, 2019 NY Slip Op 00250, Second Dept 1-16-19

 

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NEGLIGENCE AND NEGLIGENT SUPERVISION CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT BROUGHT BY A STUDENT WITH SPECIAL NEEDS WHO LEFT SCHOOL AND ATTEMPTED SUICIDE ARE NOT SUBJECT TO THE EXHAUSTION OF REMEDIES REQUIREMENTS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence and negligent supervision, hiring, training and retention causes of action against the school district should not have been granted. Infant plaintiff is a special needs student who had an Individualized Education Program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA). The infant plaintiff left school, went home and attempted suicide. The school district argued plaintiffs did not exhaust their administrative remedies as required by the IDEA. The Second Department held that the negligence causes of action were not subject to the administrative requirements of the IDEA:

“An IEP is developed jointly by a school official, the child’s teacher and parents, and, where appropriate, the child. It details the special needs of a disabled child and the services which are to be provided to serve the individual needs of that child” … . Because parents and school officials sometimes cannot agree on such issues, the IDEA establishes formal administrative procedures for resolving disputes… . If a parent is dissatisfied with the outcome after having exhausted the IDEA’s administrative remedies, the parent may then seek judicial review by filing a civil action in state or federal court… . The IDEA’s exhaustion requirement is not limited to actions brought explicitly pursuant to the IDEA. 20 USC § 1415(l) states: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.”

Here, the complaint alleges only common-law causes of action to recover damages for, inter alia, negligence, negligent supervision, hiring, training, and retention, and loss of consortium. Thus, the plaintiffs were not required to exhaust the IDEA’s administrative remedies before commencing the instant action … . Matter of P.S. v Pleasantville Union Free Sch. Dist., 2019 NY Slip Op 00282, Second Dept 1-16-19

 

ALTHOUGH DEFENDANT LANDLORD DID NOT DEMONSTRATE WHEN THE STAIRS WERE LAST CLEANED OR INSPECTED, PLAINTIFF’S DEPOSITION TESTIMONY ESTABLISHED THE WETNESS ON WHICH SHE SLIPPED AND FELL COULD NOT HAVE BEEN PRESENT FOR MORE THAN AN HOUR, THEREFORE THE LANDLORD HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the plaintiff’s deposition testimony demonstrated that the wetness on the stairs could not have been present for more than an hour. Therefore the defendant landlord had neither actual nor constructive notice of the condition and the landlord’s motion for summary judgment in this slip and fall case should have been granted:

The building superintendent testified that he had no knowledge of the condition and received no complaints about it on the day of the accident. On the issue of constructive notice, although he described a reasonable cleaning and inspection routine… , there was no evidence when the stairs were last inspected or cleaned before plaintiff’s accident so as to satisfy defendant’s burden … .

Plaintiff’s deposition testimony offered in support of defendant’s motion, however, established that the water condition did not exist for a sufficient period of time to discover and remedy the problem … . Thus, there was neither actual nor constructive notice of the wetness. Although plaintiff testified that she had complained about a wet condition on the stairs on three occasions between 2009 and 2013, she presented no evidence of a recurring condition unaddressed by defendants. Plaintiff also testified that she had no reason to believe that the stair was wet when she left her apartment at 5 p.m. and that she slipped on the stairs when she returned, less than an hour later. Thus, any wet condition was present for less than an hour, and might have been there only minutes or seconds before plaintiff slipped on it …. Plaintiff failed to raise any issue of fact requiring a trial.

Plaintiff’s argument that the absence of a handrail on both sides of the staircase raises an issue of fact as to defendants’ negligence is speculative, as there is no evidence that the absence of a handrail played any role in her accident … . Perez v River Park Bronx Apts., Inc., 2019 NY Slip Op 00196, First Dept 1-10-19

 

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BECAUSE THE ANESTHESIOLOGY GROUP (ATLANTIC) WAS ADDED AS A PARTY AFTER THE STATUTE HAD RUN BASED SOLELY ON VICARIOUS LIABILITY FOR ITS EMPLOYEE (DEBRADY) WHO HAD BEEN TIMELY SERVED, ATLANTIC’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION CEASED WHEN DEBRADY’S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, ATLANTIC COULD NOT BE HELD LIABLE FOR THE ACTIONS OF ANOTHER EMPLOYEE WHO WAS NEVER A PARTY (CANTALUPO), ALTHOUGH PLAINTIFF SUED A JOHN DOE, NO STEPS WERE TAKEN TO SUBSTITUTE CANTALUPO FOR THE JOHN DOE, ATLANTIC’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the relation-back doctrine did not allow plaintiff in this medical malpractice action to sue an anesthesiology group (Atanitic) as a defendant after the statute of limitations had been expired. Atlantic had been added as a defendant after the statute ran when it was discovered that a defendant anesthesiolgist, DeBrady, worked for Atlantic at the time the procedure was performed on plaintiff. DeBrady’s motion for summary judgment was not opposed and was granted. But Supreme Court held that Atlantic could remain a defendant because of the potential liability of another employee of Atlantic, non-party Cantalupo. The Second Department held that Atlantic’s liability was based solely upon respondeat superior as the employer of DeBrady, who was no longer a defendant. The court noted that, although the complaint named a “John Doe, MD,” Cantalupo could not be substituted as a party because plaintiff never moved to substitute Cantalupo and the requirements of CPLR 1024 were not met:

In order for a cause of action asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that “(1) the [cause of action] arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (… see CPLR 203[b]). In malpractice actions, such as this one, “the defendants are considered united in interest when one is vicariously liable for the acts of the other”… . The second prong of the relation-back doctrine requires unity of interest with a party in the action … .

Since Atlantic was made a party to the action after the expiration of the statute of limitations based solely on its unity of interest with DeBrady, who was timely served, Atlantic’s liability in the instant action cannot be predicated upon vicarious liability for the alleged negligent acts of other employees of Atlantic who are not parties to this action, including nonparty Cantalupo. Accordingly, Atlantic demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it, upon dismissal of the action as against DeBrady … . Ferrara v Jerome Zisfein, 2019 NY Slip Op 00096, Second Dept 1-9-19

 

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PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SET ASIDE IN THE INTEREST OF JUSTICE, DEFENDANTS WERE NOT ALLOWED TO CROSS EXAMINE PLAINTIFF’S EXPERTS ABOUT THE POSSIBLE NEGLIGENCE OF TWO NON-PARTY DOCTORS WHO ALSO TREATED PLAINTIFF, IN ADDITION, PLAINTIFF’S EXPERTS WERE NOT SHOWN TO BE QUALIFIED TO OFFER OPINION EVIDENCE CONCERNING EMERGENCY MEDICINE (SECOND DEPT).

The Second Department, reversing Supreme Court, set aside the verdict in this medical malpractice case in the interest of justice. The defendants (Kirschen, Roberts and Winthrop) were involved in emergency treatment of the plaintiff for back pain. Subsequently surgery was performed by two additional (non-party) doctors (Obedian and Sonstein) to deal with an abscess on plaintiff’s spine. At trial the defendants were not allowed to cross-examine plaintiff’s experts about the possible negligence of the surgeons, which was deemed reversible error. The Second Department further held plaintiff’s experts should not have been allowed to testify as experts in emergency medicine because no specialized knowledge of emergency medicine was demonstrated:

” A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise'”… . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … . …

… [T]the evidence at trial failed to demonstrate that the plaintiff’s injuries were capable of any reasonable or practicable division of allocation among Kirschen, Roberts, and Winthrop, and Obedian and Sonstein … . Thus, if, as Kirschen, Roberts, and Winthrop propose, a jury were to find that Obedian and Sonstein departed from accepted medical practice and that this departure was a substantial factor in depriving the plaintiff of a substantial chance for an improved outcome, Obedian and Sonstein could be found at fault together with Kirschen, Roberts, and Winthrop … . As a result, any evidence as to the culpability of Obedian and Sonstein was relevant under CPLR 1601(1) … . The court’s error in precluding Kirschen, Roberts, and Winthrop from cross-examining two of the plaintiff’s expert witnesses on this issue deprived Kirschen, Roberts, and Winthrop of “substantial justice” … . Daniele v Pain Mgt. Ctr. of Long Is.. 2019 NY Slip Op 00093, Second Dept 1-9-19

 

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MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE JURY FOUND THE INJURY TO BE PERMANENT BUT DID NOT AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, DAMAGES FOR PAST PAIN AND SUFFERING TOO LOW, MAY HAVE BEEN AN IMPERMISSIBLE COMPROMISE VERDICT (SECOND DEPT)

The Second Department, reversing Supreme Court and granting a new trial, determined the jury’s damages verdict in this rear-end collision, traffic accident case should have been granted. The jury found that plaintiff suffered a permanent injury but did not award plaintiff with damages for future pain and suffering. The Second Department further determined the $12,500 verdict for past pain and suffering was too low:

A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence… . Here, the Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages for past pain and suffering and future pain and suffering, as the verdict with respect to those damages was contrary to the weight of the evidence. The jury’s determination that the plaintiff was not entitled to damages for future pain and suffering was inconsistent with the jury’s finding that his injuries were permanent in nature and were proximately caused by the accident … . Furthermore, whereas the jury was presented with conflicting evidence and theories as to the cause of the plaintiff’s injuries, and the jury’s award for past pain and suffering was inexplicably low, it appears that the verdict with respect to damages for past pain and suffering may have been the result of an impermissible compromise … . Avissato v McDaniel, 2019 NY Slip Op 00084, Second Dept 1-9-19

 

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PLAINTIFF’S DECEDENT, WHO WAS DELIVERING MEALS ON WHEELS IN DEFENDANT’S BUILDING WHEN HE WAS ASSAULTED, ALLEGED THE ASSAILANT WAS AN INTRUDER WHO ENTERED THE BUILDING THROUGH A NEGLIGENTLY MAINTAINED ENTRANCE, THE LANDLORD’S DUTY TO PROTECT TENANTS EXTENDS TO GUESTS OF TENANTS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this third-party assault case, determined the personal injury and wrongful death action against the landlord should not have been dismissed. Plaintiff’s decedent was delivering “meals on wheels” in the building when he was assaulted, allegedly by an intruder who allegedly entered the building through a negligently maintained entrance:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm,’ including a third party’s foreseeable criminal conduct” … . This duty extends to the guests of a tenant … . A tenant or guest may recover damages, however, only on a showing that the landlord’s negligent conduct was a proximate cause of the injury… . “In premises security cases particularly, the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder” … .

Here, the defendant established its prima facie entitlement to judgment of a matter of law by presenting evidence that the lock on the only entrance to 341 Dumont Avenue was operable on the day of the incident … . In opposition, however, the plaintiffs raised triable issues of fact as to whether the decedent’s assailant was an intruder who entered the building through a negligently maintained entrance … . Aminova v New York City Hous. Auth., 2019 NY Slip Op 00083, Second Dept 1-9-19

 

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PLAINTIFF SUED THE VOLUNTEER FIRE COMPANY, NOT THE FIRE DISTRICT WHICH WAS THE PROPER PARTY, PLAINTIFF NEVER SERVED A NOTICE OF CLAIM ON THE DISTRICT, THE ACTION WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the action against the Coeymans Hollow Volunteer Fire Company was properly dismissed and the proper party, the Coeymans Hollow Fire District #3, could not be sued because it was never served with a notice of claim. Plaintiff alleged she was injured when members of the Coeymans Hollow Volunteer Fire Company evacuated her from her house during a fire call:

A volunteer fire company, such as defendant, “shall be under the control of the . . . fire district . . . having, by law, control over the prevention or extinguishment of fires therein” (N-PCL 1402 [e] [1]). Indeed, the Fire District was responsible for preventing and extinguishing fires within its jurisdiction and trained and supervised defendant’s members. Furthermore, when defendant’s members responded to the fire at [plaintiff’s] house, they acted under the direction of the Chief of the Fire District. Because defendant and the Fire District are separate entities and defendant does not exert control over its members, defendant cannot be held liable for the alleged negligence of its members … . …

We reject plaintiff’s contention that defendant and the Fire District are so inextricably intertwined that timely service of the notice of claim upon defendant equates to timely service upon the Fire District. Furthermore, although defendant conducted an examination of [plaintiff] under General Municipal Law § 50-h, equitable estoppel does not preclude any claim that Roberts failed to serve the notice of claim upon the proper party … . We also note that, even though defendant was not obligated to inform Roberts that she failed to name the proper party … , defendant did so as an affirmative defense in its answer.

Plaintiff additionally contends that General Municipal Law § 50-e (3) (c) permits deeming the notice of claim served upon defendant as being timely served upon the Fire District. We disagree. This savings provision is “limited in scope to defects in the manner of serving the notice of claim on the correct public entity” … . That said, plaintiff fails to identify, nor does the record disclose, any infirmities in the service of the notice of claim. More critically, before any defects in service can be overlooked, service on the proper party must be accomplished in the first instance … . Roberts v Coeymans Hollow Volunteer Fire Co., 2019 NY Slip Op 00006, Third Dept 1-3-19

 

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THE TRIAL EVIDENCE DID NOT SUPPORT THE PLAINTIFF’S EXPERT’S TESTIMONY THAT DEFECTS IN THE HANDRAIL OR THE STAIR RISER HEIGHTS CONSTITUTED THE PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS STAIRWAY SLIP AND FALL CASE, THE OVER $500,000 PLAINTIFF’S VERDICT WAS VACATED AND A NEW TRIAL ORDERED (FIRST DEPT).

The First Department vacated the plaintiff’s jury verdict (over $500,000) in this stairway slip and fall case and ordered a new trial, finding that plaintiff’s expert should not have been allowed to testify about defects in the handrail because the trial evidence did not allege the handrail was a proximate cause of the fall. The First Department further held, without explanation, that the riser heights should not have been charged as an independent theory of liability:

… [D]efendants’ argument that there was insufficient evidence adduced at trial to charge the jury on theories that either riser heights or the handrail were a proximate cause of plaintiff’s fall, has merit… . Although plaintiff testified that it was her usual habit to hold a handrail while descending stairs, her testimony was equivocal on whether she held the handrail that day. Further, she testified that she did not attempt to reach for a handrail at the time of her fall, because the accident happened too fast. Nor did she provide any testimony connecting the handrail to her optical illusion theory. Thus, plaintiff’s expert should not have been allowed to testify that the handrail was a contributing cause of plaintiff’s fall, and the jury should not have been charged on the question whether the handrail was too short. Moreover, while the final step’s size may have helped contribute to plaintiff’s claim of optical illusion, the riser heights in the staircase should not have been charged as an independent theory of liability.

The trial court’s response to a jury note asking whether the building was “up to code” was incorrect in light of the prior summary judgment order. Rather than responding that there was no evidence that the code was either violated or complied with, the jury should have been informed that the building code was not applicable to the staircase. Landau v Balbona Rest. Corp., 2019 NY Slip Op 00051, First Dept 1-3-19

EXPERT OPINION

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