You are here: / Negligence
, , ,

VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT).

The First Department determined (1) the ventilator on which plaintiff was crouching when it detached and he fell was not a safety device within the meaning of Labor Law 240 (1), (2) plaintiff’s testimony that he couldn’t reach the ventilator, which he was attempting to remove, from the A-frame ladder he was provided entitled him to summary judgment on the Labor Law 240 (1) cause of action, and (3) the landlord was entitled to summary judgment on the cross-claim for indemnification by the tenant, noting that the indemnification clause in the lease did not require that the tenant be negligent and that a Labor Law 240 (1) violation is not a finding that the tenant was negligent:

Contrary to plaintiff’s contention, the ventilator he was standing on and disassembling when he fell was not a safety device; it was the object of the demolition project on which he was employed, and was not intended to protect him from elevation-related risks … . …

Despite Eight Oranges’ [tenant’s] argument to the contrary, this indemnification provision does not require a finding of negligence on the part of the tenant before it is triggered. Nor does it violate General Obligations Law § 5-321, “since a finding of liability under Labor Law § 240 is not the equivalent of a finding of negligence and does not give rise to an inference of negligence” … . It is clear from the contractual language at issue that the landlord … intended to be indemnified by the tenant, Eight Oranges, for any “damage or injury occurring or arising to any person” on the property, that is caused by the tenant. Hong-Bao Ren v Gioia St. Marks, LLC, 2018 NY Slip Op 05520, First Dept 7-26-18

LABOR LAW-CONSTRUCTION LAW (VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW  (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))

, ,

NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT).

The Third Department determined defendant insurance brokers’ motion for summary judgment in this breach of contract-negligence action by the insureds was properly granted. The Insureds’ alleged there was an agreement to increase the insurance coverage on the insureds’ home which was destroyed by fire after renovations had been made and there was a special relationship between the brokers and the insureds. There evidence did not support either theory:

As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” … . Thus, “[t]o set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy” … . * * *

Stressing that “special relationships in the insurance brokerage context are the exception, not the norm” … , the Court of Appeals has identified three “exceptional situations” that may give rise to a special relationship: “(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . Hefty v Paul Seymour Ins. Agency, 2018 NY Slip Op 05547, Third Dept 7-26-18

INSURANCE LAW (NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/SPECIAL RELATIONSHIP (INSURANCE LAW, (NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))

ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

The Second Department determined a lawsuit alleging injury from a falling tree on defendant’s property should have been dismissed. Defendant property owner (Alice) demonstrated a lack of notice of the condition of the tree:

“In cases involving fallen trees, a property owner will only be held liable if [she or] he knew or should have known of the defective condition of the tree” … . “Constructive notice in such a case can be imputed if the record establishes that a reasonable inspection would have revealed the dangerous condition of the tree” … . Here, Alice established her prima facie entitlement to judgment as a matter of law by submitting evidence that she lacked actual or constructive notice of the alleged defective condition of the tree … . Pagan v Jordan, 2018 NY Slip Op 05477, Second Dept 7-25-18

NEGLIGENCE (FALLING TREES, ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/TREES (FALLING TREES, NEGLIGENCE, ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))

,

NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department determined a negligence cause of action, which was based upon a breach of contract allegation, should have been dismissed:

 “[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” … . “This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” ,,, , “Merely charging a breach of a duty of due care’, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim” … . “[W]here [a] plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory” … .

Here, the complaint did not allege facts that would give rise to a duty owed to the plaintiff that is independent of the duty imposed by the parties’ agreement. Ocean Gate Homeowners Assn., Inc. v T.W. Finnerty Prop. Mgt., Inc., 2018 NY Slip Op 05475, Second Dept 7-25-18

NEGLIGENCE (CONTRACT LAW, NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT))/CONTRACT LAW (NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT))

,

REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the rear-most driver (plaintiff) in this rear-end collision case raised a question of fact whether defendant stopped suddenly and did not signal:

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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . There can be more than one proximate cause of an accident … , and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident … . “[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision”… .

Here, in support of her motion for summary judgment, the defendant submitted an affidavit in which she averred that she brought her vehicle to a gradual stop to make a left turn onto … . She activated her left turning signal and had been stopped for at least 35 seconds, waiting for traffic to clear, when her vehicle was struck in the rear by the plaintiff’s vehicle. … In opposition, the plaintiff averred that the defendant made a sudden stop and failed to give proper signals, as required by Vehicle and Traffic Law § 1163. The plaintiff’s affidavit was sufficient to raise a triable issue of fact as to whether the defendant negligently caused or contributed to the accident … . Martinez v Allen, 2018 NY Slip Op 05462, Second Dept 7-25-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT))/TRAFFIC ACCIDENTS  (REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT))/REAR END COLLISIONS (TRAFFIC ACCIDENTS, REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT))

, , ,

PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ motion in limine to strike plaintiff’s expert witness disclosure and preclude the expert from testifying should not have been granted. The court noted that the evidentiary motion was appealable because it involved the merits of this swimming pool injury case and affected a substantial right. The disclosure indicated the expert would testify about New York State code provisions and ANSI/INSPI-4 standards for slides used in swimming pools. Plaintiff alleged she was injured when her head struck the bottom of the pool after sliding into the water head first:

… [T]he court erred in granting that part of the motion to strike the expert witness disclosure and to preclude the expert from testifying with respect to the 2010 Residential Code of New York State (Residential Code) and the ANSI/NSPI-4 standard for aboveground residential swimming pools, and we therefore modify the order accordingly. Section 1.2 of that standard provides that “[a]boveground/onground residential swimming pools are for swimming and wading only. No . . . slides or other equipment are to be added to an aboveground/onground pool that in any way indicates that an aboveground/onground pool may be used or intended for . . . sliding purposes,” and the ANSI/NSPI-4 standard is incorporated in the Residential Code that was in effect at the time of plaintiff’s accident (see 2010 Residential Code of New York State §§ R102.6, G109.1). Inasmuch as the ANSI/NSPI-4 standard applies only to residential pools, and the Residential Code applies to family dwellings (see Residential Code § R101.2), we conclude that the Residential Code section adopting the ANSI/NSPI-4 standard applies to private homeowners. Thus, we further conclude that plaintiff’s expert may properly rely on any violation of the ANSI/NSPI-4 standard as “some evidence” of defendants’ negligence … . Redmond v Redmond, 2018 NY Slip Op 05417, Fourth Dept 7-25-18

NEGLIGENCE (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/EVIDENCE  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/EXPERT OPINION  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/APPEALS  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/CIVIL PROCEDURE  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))

,

EIGHT YEAR OLD STUDENT MISSED HIS BUS AND WAS ALLEGEDLY TOLD BY A SCHOOL EMPLOYEE TO WALK HOME, THE STUDENT WAS STRUCK BY A CAR ON HIS WAY HOME, THE NEGLIGENT SUPERVISION COMPLAINT AGAINST THE SCHOOL DISTRICT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an action brought by an eight year old student against the school district should not have been dismissed. It was alleged the student missed his bus and was told to walk home (two miles away). The student was hit by a car. The court noted that the school district is not off the hook simply because the injury did not occur on school property:

“[A]lthough a school district’s duty of care toward a student generally ends when it relinquishes custody of the student, the duty continues when the student is released into a potentially hazardous situation, particularly when the hazard is partly of the school district’s own making” … . “Thus, while a school has no duty to prevent injury to schoolchildren released in a safe and anticipated manner, the school breaches a duty when it releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating” … . Contrary to defendants’ contention and the court’s holding, [precedent] does not limit a school’s liability to injuries that occur near school grounds. Rather, a “school district’s duty of care requires continued exercise of control and supervision in the event that release of the child poses a foreseeable risk of harm,” irrespective of the physical distance between the school and the location of the reasonably foreseeable risk … .

Here, plaintiff raised a triable issue of fact concerning whether defendants, in violation of their own policies and procedures, released the child into a “foreseeably hazardous setting” partly of their own making and thereby breached their duty of care … . Deng v Young, 2018 NY Slip Op 05414, Fourth Dept 7-25-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, EIGHT YEAR OLD STUDENT MISSED HIS BUS AND WAS ALLEGEDLY TOLD BY A SCHOOL EMPLOYEE TO WALK HOME, THE STUDENT WAS STRUCK BY A CAR ON HIS WAY HOME, THE NEGLIGENT SUPERVISION COMPLAINT AGAINST THE SCHOOL DISTRICT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, EDUCATION-SCHOOL LAW, EIGHT YEAR OLD STUDENT MISSED HIS BUS AND WAS ALLEGEDLY TOLD BY A SCHOOL EMPLOYEE TO WALK HOME, THE STUDENT WAS STRUCK BY A CAR ON HIS WAY HOME, THE NEGLIGENT SUPERVISION COMPLAINT AGAINST THE SCHOOL DISTRICT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that a plaintiff is not longer required to demonstrate the absence of comparative fault to be entitled to summary judgment. Plaintiff was in the first stopped car. The car behind plaintiff (CCAP/Rosenthal) was also stopped but was struck from behind by a third car (Auto Mall/Edri):

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries … . A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case … . 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 come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … .

The plaintiff’s affidavit submitted in support of his motion established his prima facie entitlement to judgment as a matter of law. The plaintiff’s affidavit demonstrated that he was stopped for between 5 and 10 seconds due to traffic related conditions before his vehicle was struck in the rear by the CCAP/Rosenthal vehicle. The plaintiff’s affidavit also demonstrated that the vehicle operated by Edri struck the rear of the stopped vehicle owned by CCAP and operated by Rosenthal, which propelled that vehicle into the rear of the plaintiff’s stopped vehicle. In opposition, Auto Mall and Edri failed to raise a triable issue of fact regarding a nonnegligent explanation for the rear-end collision. Furthermore, the contention of Auto Mall and Edri that the plaintiff’s motion was premature pursuant to CPLR 3212(f) is unpersuasive. Auto Mall and Edri failed to demonstrate how discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the plaintiff’s knowledge or control … . Tsyganash v Auto Mall Fleet Mgt., Inc., 2018 NY Slip Op 05517, Second Dept 7-25-18

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT))/REAR-END COLLISIONS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT))

, , ,

MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the medical malpractice action should not have been dismissed on the ground that a motion to substitute the representative of plaintiff’s estate was not timely made:

In October 2004, Patricia Tokar (hereinafter Patricia) commenced this action to recover damages for medical malpractice based upon treatment she received from 2000 to 2002. Patricia’s deposition was taken in September 2006 and again in August 2009, while the defendant’s deposition was taken in April 2008. A note of issue was filed in December 2009. The matter was called for trial on 12 separate occasions between 2011 and 2012. By letter dated October 19, 2012, Patricia’s attorney informed the defendant’s attorney that Patricia had died two weeks before, and that her husband, Stanley Tokar (hereinafter Stanley), would be seeking to be appointed administrator of Patricia’s estate after he completed his mourning period. In October 2014, Stanley filed a petition for letters of administration of Patricia’s estate. By order to show cause dated May 12, 2015, the defendant moved pursuant to CPLR 1021 to dismiss the complaint for failure to seek a timely substitution of parties on behalf of Patricia. On June 5, 2015, letters of administration were issued to Stanley, who then moved, seven days later, on June 12, 2015, pursuant to CPLR 1012, to be substituted, as administrator of Patricia’s estate, as the plaintiff in the action. The Supreme Court denied Stanley’s motion and granted the defendant’s motion … .  …

CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit … .

Here, the record does not support a finding that there was a lack of diligence in the filing of the petition for Stanley to be substituted, or that the defendant was prejudiced by the delay in the appointment of Stanley as administrator, particularly since this case turns on medical records in the defendant’s possession … . Further, Stanley sufficiently demonstrated that the action has potential merit … . Moreover, there is a strong public policy that matters should be disposed of on the merits … . ​Tokar v Weissberg, 2018 NY Slip Op 05516, Second Dept 7-25-18

CIVIL PROCEDURE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/TRUSTS AND ESTATES (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/MEDICAL MALPRACTICE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/NEGLIGENCE  (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))

DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court determined defendants did not demonstrate when the area where plaintiff slipped and fell had last been inspected or cleaned and did not demonstrate the handrail was not defective:

… [T]he defendants failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous conditions. While the deposition testimony of the premises’ porter and an affidavit of its superintendent, submitted by the defendants in support of their motion, demonstrated that the porter and the superintendent inspected and cleaned the premises on a regular basis, the defendants failed to present evidence of when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Quinones v Starret City, Inc., 2018 NY Slip Op 05510, Second Dept 7-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy