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QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the general contractor’s (Harbour’s) motion for summary judgment in this slip and fall case was properly denied. Plaintiff alleged that Harbour removed a tank and exposed a dangerous opening in a metal plate. Plaintiff alleged, while working at the site, he stepped backwards into the opening and fell, hitting his head on the concrete floor. The First Department held there was a question of fact whether Harbour launched an instrument of harm by not taking remedial measures to make the area safe after removing the tank. The fact that the opening was obvious and plaintiff knew about it did not warrant summary judgment in favor of the defendants:

Although both defendants argue that the exposed opening in the metal plate was open, obvious, readily observable and known to plaintiff, a property owner has a nondelegable duty to maintain its premises in a reasonably safe condition, taking into account the forseeability of injury to others … . Moreover, although a defect or hazard may be discernable, this does not end the analysis, or compel a determination in favor of the property owner … . Plaintiff’s awareness of a dangerous condition does not negate a duty to warn of the hazard, but only goes to the issue of comparative negligence … . Given the exposed opening’s proximity to equipment that required service, the circumstances of plaintiff’s accident present an issue of fact of not only whether the condition was open and obvious, but also whether it was inherently dangerous… . Some hazards, although discernable, may be hazardous because of their nature and location … . Defendants did not establish that the exposed opening – given its location in the floor near other mechanical equipment in the pump room – was not only open and obvious, but that there was no duty to warn, and that the condition was not inherently dangerous … .

A contractual obligation, standing alone, will not give rise to tort liability in favor of a noncontracting third party (Espinal 98 NY2d at 138]). One exception to this broad rule is where the contracting party, in failing to exercise reasonable care in the performance of his duties, “launche[s] a force or instrument of harm” (Espinal at 140). We depart from the dissent in finding that Harbour failed to make a prima facie showing that it did not owe plaintiff a duty of care and that it did not negligently cause, create or exacerbate a dangerous condition. Farrugia v 1440 Broadway Assoc., 2018 NY Slip Op 05222, First Dept 7-12-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/CONTRACT LAW (TORT LIABILITY, SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/ESPINAL (TORT LIABILITY, SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))

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ALTHOUGH THE NYC ADMINISTRATIVE CODE IMPOSES A DUTY TO KEEP SIDEWALKS SAFE ON ABUTTING PROPERTY OWNERS, IT DOES NOT IMPOSE STRICT LIABILITY, DEFENDANT FAILED TO DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITION IN THIS SIDEWALK ICE AND SNOW SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant property owner did not demonstrate that it did not create or have notice of the dangerous condition in this sidewalk snow and ice slip and fall case. The NYC administrative code imposes a duty on abutting property owners to keep sidewalks safe, but it does not impose strict liability:

Administrative Code of the City of New York § 7-210(a) and (b) imposes a duty upon property owners to maintain the sidewalk adjacent to their property, and shifts tort liability to such owners for the failure to maintain the sidewalk in a reasonably safe condition, including the negligent failure to remove snow and ice … . However, Administrative Code of the City of New York § 7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable… . Thus, to prevail on its summary judgment motion, the defendant was required to establish that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … .

Here, in support of the motion, the defendant submitted, inter alia, the deposition testimony of its custodian, who had no specific recollection as to when it last snowed prior to the incident, what snow and ice removal efforts he undertook prior to the incident, or what the sidewalk at issue looked like within a reasonable time prior to the incident. The custodian’s deposition testimony, along with the defendant’s other submissions, including its expert evidence, were insufficient to demonstrate, prima facie, that the defendant did not create the alleged ice condition through its snow removal efforts or that it did not have actual or constructive notice of the existence of the condition for a sufficient length of time to discover and remedy it … . Muhammad v St. Rose of Limas R.C. Church, 2018 NY Slip Op 05181, Second Dept 7-11-18

​NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, ALTHOUGH THE NYC ADMINISTRATIVE CODE IMPOSES A DUTY TO KEEP SIDEWALKS SAFE ON ABUTTING PROPERTY OWNERS, IT DOES NOT IMPOSE STRICT LIABILITY, DEFENDANT FAILED TO DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITION IN THIS SIDEWALK ICE AND SNOW SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, ALTHOUGH THE NYC ADMINISTRATIVE CODE IMPOSES A DUTY TO KEEP SIDEWALKS SAFE ON ABUTTING PROPERTY OWNERS, IT DOES NOT IMPOSE STRICT LIABILITY, DEFENDANT FAILED TO DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITION IN THIS SIDEWALK ICE AND SNOW SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL,  ALTHOUGH THE NYC ADMINISTRATIVE CODE IMPOSES A DUTY TO KEEP SIDEWALKS SAFE ON ABUTTING PROPERTY OWNERS, IT DOES NOT IMPOSE STRICT LIABILITY, DEFENDANT FAILED TO DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITION IN THIS SIDEWALK ICE AND SNOW SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, ALTHOUGH THE NYC ADMINISTRATIVE CODE IMPOSES A DUTY TO KEEP SIDEWALKS SAFE ON ABUTTING PROPERTY OWNERS, IT DOES NOT IMPOSE STRICT LIABILITY, DEFENDANT FAILED TO DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITION IN THIS SIDEWALK ICE AND SNOW SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))

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LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined petitioner’s motion seeking leave to file a late notice of claim for medical malpractice against the NYC Health & Hospitals Corporation was properly granted. Plaintiff alleged malpractice in the treatment of a cancerous lesion:

“Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim'” … . Here, in support of her petition, the petitioner submitted medical records and an affirmation of a physician who reviewed the medical records and concluded, inter alia, that there had been a departure from accepted medical practice. Inasmuch as the medical records show that the hospital failed to confirm that the plaintiff’s tumor had been completely removed, they provided the appellant with actual knowledge of the essential facts constituting the claim … . Furthermore, the petitioner made an initial showing that the appellant would not suffer any prejudice by the delay in serving a notice of claim, and the appellant failed to rebut the petitioner’s showing with particularized indicia of prejudice … . Finally, the lack of a reasonable excuse is not dispositive where there is actual notice and absence of prejudice … . In any event, the petitioner demonstrated that her extensive medical treatment during the time period at issue constitutes a reasonable excuse for the delay … . Matter of Leon v New York City Health & Hosps. Corp., 2018 NY Slip Op 05165, Second Dept 7-11-18

MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL MALPRACTICE, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MEDICAL MALPRACTICE, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))

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PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT).

The Second Department determined the property defendants’ motion to join the slip and fall action with a medical malpractice action stemming from the slip and fall injury was properly denied. Plaintiff had stepped in a rodent hole and subsequently sued hospitals for malpractice in the treatment of her foot injury:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue” (CPLR 602[a]…). The determination of such a motion is addressed to the sound discretion of the trial court… . Denial of the motion may be warranted where common questions of law or fact are lacking … , where the actions involve dissimilar issues or disparate legal theories … , or where a joint trial would substantially prejudice an opposing party … or pose a risk of confusing the jury or rendering the litigation unwieldy … .

Here, the Supreme Court providently exercised its discretion in denying the property defendants’ motion for a joint trial given the limited commonality between the two actions, the disparate legal theories and dissimilar issues they involve, the very different procedural stages of the two actions at the time the motion was made, and the potential prejudice to the opposing parties as well as the risks of juror confusion and unwieldy litigation if a joint trial was granted … . Cromwell v CRP 482 Riverdale Ave., LLC, 2018 NY Slip Op 05137, Second Dept 7-11-18

​CIVIL PROCEDURE (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/MEDICAL MALPRACTICE  (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/CPLR 602  (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/JOINDER (CIVIL PROCEDURE, (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))

$1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT).

The Second Department upheld the $1.5 million verdict in favor of plaintiff, a 72-year-old woman who alleged the bus driver accelerated quickly just after plaintiff got on the bus causing her to fall and sustain disk, nerve, knee and head injuries:

We … agree with the Supreme Court’s determination to deny that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that it was not liable for the plaintiff’s injuries. The evidence submitted by the defendant in support of that branch of the motion failed to eliminate triable issues of fact as to whether the movement of the bus at issue was unusual and violent … . Since the defendant did not sustain its prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact … . …

The award of damages for past and future pain and suffering did not deviate materially from what would be reasonable compensation (see CPLR 5501[c]…). Castillo v MTA Bus Co.. 2018 NY Slip Op 05134. Second Dept 7-11-18

NEGLIGENCE (BUSES, $1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT))/BUSES (NEGLIGENCE, $1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT))

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RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING RECOVERY OF UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff was required to turn over to defendant records pertaining to no-fault benefits in this car accident case. Plaintiff had argued the records were not discoverable because plaintiff was not seeking to recover unreimbursed special damages:

CPLR 3101(a) provides, in relevant part, that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The words, material and necessary,’ are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity”… .

In an action relating to a motor vehicle accident, a plaintiff’s medical records relating to treatment following the accident are material and necessary to the defense of a plaintiff’s claim to having sustained a serious injury within the meaning of Insurance Law § 5102, in addition to any claim to recover damages for loss of enjoyment of life … . Accordingly, since the plaintiff’s no-fault records are material and necessary to the defense of this action, the Supreme Court should have denied the plaintiff’s motion for a protective order … .

The plaintiff improperly relies upon CPLR 4545(a) to support his contention that collateral source records are not discoverable where a plaintiff is not seeking to recover unreimbursed special damages. CPLR 4545(a) governs the admissibilityof evidence to establish that damages have been or will be covered in whole or part by a collateral source. By contrast, in the context of discovery, “[a]ny matter which may lead to the discovery of admissible proof is discoverable, as is any matter which bears upon a defense, even if the facts themselves are not admissible” … . Moreover, whether any of the plaintiff’s no-fault records are admissible for purposes other than for showing collateral source payment is not before us at this stage of the action. Cajamarca v Osatuk, 2018 NY Slip Op 05133, Second Dept 7-11-18

CIVIL PROCEDURE (NEGLIGENCE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/INSURANCE LAW (NO-FAULT, NEGLIGENCE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/NO-FAULT BENEFITS (NEGLIGENCE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/DISCOVERY (NO-FAULT BENEFITS,  RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/TRAFFIC ACCIDENTS (DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))

PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this ice and snow slip and fall case should have been granted. Plaintiffs did not alleged defendant created the dangerous condition and defendant demonstrated it did not have actual or constructive notice of the condition:

Here, the plaintiffs did not allege that the defendant created the ice condition. By submitting the deposition testimony of the director of the preschool and the injured plaintiff, the defendant established, prima facie, that it did not have actual or constructive notice of the alleged ice that caused the plaintiff to fall … . The preschool director testified that she entered the building through the rear entrance about 90 minutes prior to the incident, and she did not see any ice on the ground. The injured plaintiff testified that she did not see the ice before she fell. In opposition, the plaintiffs failed to raise a triable issue of fact. General awareness that snow or ice may be present during winter months was legally insufficient to constitute notice of the particular condition that caused the injured plaintiff’s fall … . Bombino-Munroe v Church of St. Bernard, 2018 NY Slip Op 05131, Second Dept 7-11-18

NEGLIGENCE (PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))

QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department noted that the cause of action alleging defendant bus company had notice of the presence of hydraulic fluid on the floor of the bus, which caused plaintiff to slip and fall, properly survived defendants’ motion for summary judgment. There was a video from inside the bus which appeared to show that the puddle of fluid had been “tracked through” before plaintiff boarded the bus:

” [V]iew[ing] the evidence in the light most favorable to the party opposing the motion, [and] giving that party the benefit of every reasonable inference’ ” … , we conclude that there is a triable issue of fact because the evidence of the size of the puddle and that the puddle had been “tracked through” before any passengers boarded the bus following the layover constitutes circumstantial evidence that would permit a jury to infer that the puddle had existed for a sufficient length of time for defendants to have discovered and remedied it … . Mills v Niagara Frontier Transp. Auth., 2018 NY Slip Op 05098, Fourth Dept 7-6-18

​NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT))/BUSES (SLIP AND FALL,  QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT))

CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the action against the Buffalo Bills and the County of Erie, the owner of the football stadium where the Bills played, based upon an unprovoked attack on the plaintiff at the stadium, was properly dismissed:

Contrary to plaintiff’s contention, the court properly determined that the conduct of the Bills and the County was not a proximate cause of his injuries. “[A]s an independent act far removed from [the allegedly negligent] conduct [of the Bills and the County], the [assailants’ unprovoked] criminal assault broke the causal nexus [between such allegedly negligent conduct and plaintiff’s injury]. The attack was extraordinary and not foreseeable or preventable in the normal course of events” … . Indeed, “[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever [rival football fans] were gathered, surely an unreasonable burden” … . We thus conclude that the court properly granted the motion of the Bills and the County and dismissed the amended complaint against them. Wrobel v Doe, 2018 NY Slip Op 05097, Fourth Dept 7-6-18

​NEGLIGENCE (THIRD PARTY ASSAULT, CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT))/ASSAULT (NEGLIGENCE, THIRD PARTY ASSAULT, CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT))/THIRD PARTY ASSAULT (NEGLIGENCE, CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT))

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THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeJoseph, reversing Supreme Court, determined that the medical professionals involved with review of an x-ray of plaintiff’s decedent’s chest on behalf of plaintiff’s decedent’s employer did not have a duty to report the findings to the decedent or decedent’s physician. The mass that was seen on the x-ray apparently was cancer and plaintiff’s decedent was not informed. He later asked his employer, NYSEG, about the findings but by then the cancer was incurable:

The chest x ray was performed at defendant Lockport Memorial Hospital and decedent signed a consent form prior to the procedure. The consent form provided, in pertinent part, the following: “I, [decedent], understand that medical examinations done at this facility are for evaluation purposes for either employment suitability or worker’s compensation injury/illness treatment. The examinations done here are not intended to detect all underlying health conditions and do not replace the medical care provided by my personal physician. I hereby consent to the examination for the stated purposes or request the services stipulated of [WNYOM]. Furthermore, I understand that all medical information related to my ability to perform the functions of my job will be reported to the designated employer representatives at my place of employment.” …

“The failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence” … . * * *

… [T]there is no dispute that defendants correctly interpreted the results of the x ray and timely conveyed the results to decedent’s employer. Notably absent from the record is the identity or even existence of decedent’s treating physician. Nor is there any indication that defendants were made aware of any treating physician. Furthermore, the consent form, executed by decedent, specifically indicated that decedent “underst[oo]d that all medical information related to [his] ability to perform the functions of [his] job w[ould] be reported to the designated employer representatives at [his] place of employment.” There is also no dispute that defendants adhered to the requirements set forth in the consent form. We therefore conclude that … there was no duty to decedent and, as stated by the Court of Appeals, “[w]e have been reluctant to expand a doctor’s duty of care to a patient to encompass nonpatients. A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs” … . Kingsley v Price, 2018 NY Slip Op 05088, Fourth Dept 7-6-18

​NEGLIGENCE (THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT))/EMPLOYMENT LAW  (THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT))

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