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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))

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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))

ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment should not have been granted in this slip and fall case. The defendant demonstrated that plaintiff did not know the cause of her fall. In her opposing affidavit plaintiff alleged she felt the back of her coat when she got up and it was wet. Plaintiff also presented evidence it was snowing at the time. The court noted Supreme Court had found that defendant did not have notice of the condition, but the defendant had not presented any evidence on that issue:

The defendant established its prima facie entitlement to judgment as a matter of law through the deposition testimony of the plaintiff, which demonstrated that she was unable to identify the cause of her fall … . However, in opposition to the defendant’s prima facie showing on this ground, the plaintiff raised a triable issue of fact through her affidavit, in which she averred that when she stood up after falling, she put her hands on the back of her coat to straighten it and felt that the coat was wet. This, coupled with the fact that it had been snowing, led her to believe that she slipped on snow that had been tracked into the bank. Viewing the evidence in the light most favorable to the plaintiff, which included climatological data establishing that it had been snowing that morning, and according her the benefit of all reasonable inferences … , we find that there are triable issues of fact as to whether a slippery condition was present where the plaintiff allegedly fell… .

We note that although the Supreme Court found that the defendant established that it did not have actual or constructive notice of the allegedly dangerous condition… , the defendant did not move for summary judgment on this ground and did not submit evidence that would eliminate issues of fact on the issue of notice. Matadin v Bank of Am. Corp., 2018 NY Slip Op 05297, Second Dept 7-18-18

NEGLIGENCE (SLIP AND FALL, ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT))/SLIP AND FALL (ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT))

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COUNTY DID NOT DEMONSTRATE THAT IT DID NOT CREATE THE DANGEROUS CONDITION, I.E. SNOW PILED AT AN INTERSECTION, PLAINTIFF ALLEGED THE INTERSECTION COLLISION WAS CAUSED BY THE INABILITY TO SEE BECAUSE OF THE PILE OF SNOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county was not entitled to summary judgment in this intersection collision case. Plaintiff alleged her field of vision was blocked by snow piled at the intersection. The county demonstrated it did not have written notice of the condition, but did not demonstrate it did not create the condition:

Where ” a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street . . . unless it has received written notice of the defect, or an exception to the written notice requirement applies'”… . As relevant here, an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence … . Here, the plaintiff alleged that the County affirmatively caused or contributed to the dangerous condition through its snow plowing operations, which caused snow to be piled unreasonably high at the intersection. Therefore, to establish its prima facie entitlement to judgment as a matter of law, the County was required to demonstrate, prima facie, that it did not receive prior written notice of the alleged dangerous condition and that it did not create the alleged dangerous condition … . Although the County demonstrated, prima facie, that it did not receive prior written notice, the County’s submissions failed to demonstrate, prima facie, that its snow removal operations did not create a dangerous condition … . Manzella v County of Suffolk, 2018 NY Slip Op 05296, Second Dept 7-18-18

NEGLIGENCE (TRAFFIC ACCIDENTS, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE THAT IT DID NOT CREATE THE DANGEROUS CONDITION, I.E. SNOW PILED AT AN INTERSECTION, PLAINTIFF ALLEGED THE INTERSECTION COLLISION WAS CAUSED BY THE INABILITY TO SEE BECAUSE OF THE PILE OF SNOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, COUNTY DID NOT DEMONSTRATE THAT IT DID NOT CREATE THE DANGEROUS CONDITION, I.E. SNOW PILED AT AN INTERSECTION, PLAINTIFF ALLEGED THE INTERSECTION COLLISION WAS CAUSED BY THE INABILITY TO SEE BECAUSE OF THE PILE OF SNOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, MUNICIPAL LAW,  COUNTY DID NOT DEMONSTRATE THAT IT DID NOT CREATE THE DANGEROUS CONDITION, I.E. SNOW PILED AT AN INTERSECTION, PLAINTIFF ALLEGED THE INTERSECTION COLLISION WAS CAUSED BY THE INABILITY TO SEE BECAUSE OF THE PILE OF SNOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendants’ motion for a new trial (CPLR 4404) in this car-bus-accident wrongful death case if plaintiff did not agree to a reduction of damages for pre-impact terror and conscious pain and suffering:

Here, the evidence at trial established that the decedent made eye contact with the defendant bus operator, William R. Dortch, for approximately one second before the bus collided with the decedent’s vehicle. Under these circumstances, we agree with the Supreme Court’s determinations that the $250,000 award for pre-impact terror deviated materially from what would be reasonable compensation and to grant the branch of the defendants’ cross motion which was for a new trial on the issue of pre-impact terror unless the plaintiff agreed to an award in the principal sum of $50,000 … . …

Here, we agree with the Supreme Court’s determination that the jury award in the principal sum of $1,250,000 deviated materially from what would be reasonable compensation for the decedent’s post-impact conscious pain and suffering. The evidence established that the decedent was able to feel pain following the collision, but that she was able to do so for, at most, 11 to 20 minutes and that, during that time, she was minimally conscious (see id. at 460). Under these circumstances, that branch of the defendants’ motion which was for a new trial on the issue of conscious pain and suffering unless the plaintiff agreed to an award in the principal sum of $400,000 was properly granted … . Vatalaro v County of Suffolk, 2018 NY Slip Op 05352, Second Dept 7-18-18

NEGLIGENCE (TRAFFIC ACCIDENTS, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/CIVIL PROCEDURE (MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/CPLR 4404 (MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/BUSES (TRAFFIC ACCIDENTS, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, BUSES, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/WRONGFUL DEATH (DAMAGES, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/DAMAGES (WRONGFUL DEATH, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/PRE-IMPACT TERROR  (WRONGFUL DEATH, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))/CONSCIOUS PAIN AND SUFFERING (WRONGFUL DEATH, MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT))

QUESTION OF FACT WHETHER PLAINTIFF, A YOUTH HOCKEY PLAYER INJURED BY A TIPPING BENCH IN THE LOCKER ROOM, WAS IN THE CUSTODY OF THE COACH OR HIS FATHER IN THIS NEGLIGENT SUPERVISION ACTION (THIRD DEPT). ​

The Third Department determined there was a question of fact whether plaintiff, a youth hockey player (Beninati), was in the custody and control of the coach or plaintiff’s father at the time he was injured falling off a tipping bench in the locker room:

Where a child participates in an athletic activity, such as the youth hockey program involved here, we recognize that the team and its coach owe a duty of care to adequately supervise the child while participating in the event … . That custodial duty, however, ceases once the child is returned to the care and control of his or her parent … . “A plaintiff claiming negligent supervision must demonstrate both that the defendant breached its duty to provide adequate supervision [as would a reasonably prudent parent placed in comparable circumstances], and that this failure was the proximate cause of the plaintiff’s injuries”… .

The pivotal question presented is whether Beninati was in the custody of his father or the coach at the time that he was injured. Beninati v City of Troy, 2018 NY Slip Op 05254, Third Dept 7-12-18

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF, A YOUTH HOCKEY PLAYER INJURED BY A TIPPING BENCH IN THE LOCKER ROOM, WAS IN THE CUSTODY OF THE COACH OR HIS FATHER IN THIS NEGLIGENT SUPERVISION ACTION (THIRD DEPT))/NEGLIGENT SUPERVISION (QUESTION OF FACT WHETHER PLAINTIFF, A YOUTH HOCKEY PLAYER INJURED BY A TIPPING BENCH IN THE LOCKER ROOM, WAS IN THE CUSTODY OF THE COACH OR HIS FATHER IN THIS NEGLIGENT SUPERVISION ACTION (THIRD DEPT))

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ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT).

The Third Department determined defendant’s motion to set aside the verdict in this stairway-fall case was properly denied. Plaintiff’s decedent was found at the bottom of a deteriorating concrete exterior staircase and later died from his injuries. Although plaintiff’s decedent made some remarks to emergency personnel about the fall, he died before he could be deposed. The Third Department described the evidentiary standards in such a case and found that the “Noseworthy” jury instruction was properly given:

… [P]laintiff had to rely entirely on circumstantial evidence to establish that defendant’s negligence was the proximate cause of decedent’s fall. In doing so, plaintiff was not “required to rule out all plausible variables and factors that could have caused or contributed to the accident” … . Rather, plaintiff had to prove that defendant’s negligence was the more likely cause of decedent’s fall than any other potential cause… . Plaintiff’s proof had to “render other causes sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation” … . …

We are also unpersuaded by defendant’s contention that Supreme Court erred in giving a jury charge based upon Noseworthy v City of New York (298 NY 76 [1948]), which — in cases where the alleged negligent act or omission resulted in death — imposes a lighter burden of persuasion on the plaintiff by allowing the jury “greater latitude in evaluating such factual issues as the decedent might have testified to had [he or she] lived” … . The theory behind the Noseworthy charge is “that it is unfair to permit a defendant who has knowledge of the facts to benefit by remaining mute in a wrongful death action where the decedent is unavailable to describe the occurrence” … . The charge, however, is inapplicable “where the plaintiff and the defendant have equal access to the facts surrounding the decedent’s death” … . Tyrell v Pollak, 2018 NY Slip Op 05251, Third Dept 7-12-18

NEGLIGENCE (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/SLIP AND FALL (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/JURY INSTRUCTIONS (NOSEWORTHY, ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/NOSEWORTHY (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))

QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT).

The Third Department determined the defendant lessee’s motion for summary judgment in this negligence action based upon the placement of a propane heater in defendant’s store was properly denied. Plaintiff’s clothing caught fire when she stood near the stove:

… [P]laintiff relied upon a section of the then-applicable version of the Fuel Gas Code of New York State providing that an unvented room heater must be installed as directed by the manufacturer (see Fuel Gas Code of NY St § 621.1 [2007]). In turn, the manual for the heater at issue here provided, in accordance with standards established by the American National Standards Institute, that “[d]ue to high temperatures, [the] heater should be kept out of traffic” and should never be installed “in high-traffic areas.” The manual further stated that the heater was intended for supplemental use and should never be installed as a primary heat source. Plaintiff submitted defendant’s deposition testimony that he chose not to read or refer to the manual, although he was aware that it contained instructions about the safe placement of the heater. Significantly, he acknowledged that the heater was the store’s only source of heat. As for whether the heater was kept out of traffic, defendant stated that customers often spent several hours in the store during regularly-conducted gaming tournaments, that customers moving between the bathroom and certain tables and chairs used during these events would “pass right in front of the heater,” and that he had seen people walk past the heater to reach the bathroom and stand in front of it to warm themselves. While violations of rules such as the Fuel Gas Code do not establish negligence per se, they “do[] provide some evidence of negligence” … . Defendant’s testimony thus gave rise to triable issues of fact as to whether the heater’s placement violated the manufacturer’s instructions and whether defendant was negligent in placing it for use in the store. …

Viewing the facts in the light most favorable to plaintiff, as we must, we find that she demonstrated the existence of a triable issue of fact as to whether defendant’s negligence was a proximate cause of her injuries … . Palmatier v Mr. Heater Corp., 2018 NY Slip Op 05250, Second Dept 7-12-18

NEGLIGENCE (QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT))/HEATERS (NEGLIGENCE, QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT))

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