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ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case against NYC, determined the city was equitably estopped from asserting the notice of claim was untimely served. Although the notice of claim was served one day after the 90-day deadline, and the city initially notified plaintiff that service was untimely, subsequent communication from the city indicated the claim was being considered:

The plaintiff’s submissions established that although the Comptroller sent the plaintiff a letter dated March 6, 2020, indicating that a notice of claim was not timely filed within 90 days from the date of occurrence, the Comptroller sent the plaintiff another letter, also dated March 6, 2020, acknowledging receipt of the notice of claim, which was assigned a claim number, and stating that “[w]e will do our best to investigate and, if possible, settle your claim.” That letter also stated that “if we are unable to resolve your claim, any lawsuit against the City must be started within one year and ninety days from the date of the occurrence,” without any reference to the claim being untimely … . Further, the plaintiff’s attorney averred that on March 21, 2021, the City sent a letter requesting certain documents from the plaintiff “to evaluate the claim for settlement purposes” and that the plaintiff’s attorney emailed the requested documents the following day. The plaintiff also submitted an email dated March 25, 2021, from Millicent Nicholas-Richards, Negotiation and Settlement Supervisor for the New York City Law Department, acknowledging receipt of the requested documents, and stating that “[w]e are reviewing” and that the plaintiff’s attorney would be contacted if any additional documents were needed. Thus, the plaintiff demonstrated that the defendants made representations that the plaintiff’s claim was under consideration for settlement and that the plaintiff did not need to take any action other than providing documents “for settlement purposes” or to commence an action against the City within one year and 90 days if a settlement was not possible. Under these circumstances, the plaintiff, who did not move to deem the notice of claim timely served or to extend the time to serve the notice of claim within the one year and 90 day limitations period, was “lulled . . . into sleeping on [his] rights to [his] detriment” … .Guo En Tan v City of New York, 2025 NY Slip Op 04161, Second Dept 7-16-25

Practice Point: The notice of claim in this slip and fall action against the city was served one day late. Communications from the city indicated the city was considering the claim. The deadline for making a motion for leave to serve and file a late notice of claim passed. At that point, the city was equitably estopped from asserting the notice of claim was not timely served as a defense to the action.​.

 

IN THIS REAR-END COLLISION CASE, THE DEFENDANT DRIVER ALLEGED PLAINTIFF DRIVER STOPPED IN THE MIDDLE LANE OF TRAFFIC FOR NO APPARENT REASON, THEREBY RAISING A QUESTION FACT ABOUT WHETHER PLAINTIFF DRIVER WAS SOLELY AT FAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this rear-end collision case were not entitled to summary judgment. Defendant raised a question of fact alleged plaintiff driver stopped suddenly in the middle lane of traffic for no apparent reason:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . Thus, “[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” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit of the plaintiff driver, which demonstrated that the plaintiffs’ vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants’ vehicle … . However, an affidavit of the defendant driver … raised triable issues of fact as to how the accident occurred and whether the defendants had a nonnegligent explanation for their vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault in causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Correa v Cannon, 2025 NY Slip Op 04157, Second Dept 7-16-25

Practice Point: Unless the driver of the rear vehicle in a rear-end collision case raises a nonnegligent explanation for striking the car in front, summary judgment will be awarded to the front driver. Here the rear driver alleged the front driver stopped in the middle lane of traffic for no apparent reason. That allegation raised a question of fact whether the front driver was solely at fault.

 

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TO WARRANT SUMMARY JUDGMENT IN A SLIP AND FALL CASE BASED ON LACK OF NOTICE OF THE CONDITION, A DEFENDANT MUST PROVE WHEN THE SPECIFIC AREA OF THE FALL WAS LAST CLEANED OR INSPECTED; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defendant hospital did not demonstrate a lack of constructive notice of the water on the floor in front of the elevator. To warrant summary judgment the defendant must show that the area of the slip and fall was inspected or cleaned close in time to the fall. Evidence of general cleaning practices is not enough:

… [T]he defendant failed to establish, prima facie, that it did not have constructive notice of the alleged condition that caused the plaintiff to fall. The deposition testimony of the defendant’s security manager and of another employee of the defendant merely referred to the general cleaning and inspection practices at the hospital. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Delfino v Montefiore Nyack Hosp., 2025 NY Slip Op 04082, Second Dept 7-9-25

Same issue and result in Freeman v New York City Hous. Auth., 2025 NY Slip op 04086, 7-9-25 Second Dept

Practice Point: A defendant seeking to prove it did not have constructive notice of the condition which caused a slip and fall must prove the area of the fall was cleaned or inspected close in time to the fall. Proof of general cleaning practices will not suffice.

 

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PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A CHERRY TOMATO IN DEFENDANT’S STORE; CONSULT THIS DECISION FOR A DISCUSSION OF HOW A DEFENDANT CAN DEMONSTRATE A LACK OF ACTUAL AND CONSTRUCTIVE NOTICE; DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this slip and fall case, determined defendant grocery-store’s motion for summary judgment should have been granted. Plaintiff failed to raise a question of fact about the store’s constructive notice of the presence of a cherry tomato on the floor:

Defendant offered plaintiff’s deposition testimony and the deposition testimony of several of its employees, including the produce manager on duty the day of the fall. Plaintiff recalled in her deposition testimony that she was walking, slipped and fell forward to the ground. She did not know what caused her fall at the time, but afterward when she examined both the bottom of her shoe and the floor, she realized that she slipped on a cherry tomato. Plaintiff did not see the tomato prior to falling and has no knowledge of how long it may have been there. The assistant store manager stated that the store was cleaned every night by an outside company, that he inspected the store every morning when he first arrived as well as throughout the day, and that he did not recall any produce on the floor prior to plaintiff’s fall. The produce manager relayed in his deposition testimony that he had been the produce manager at the subject store for 14 years, that he received training regarding safety concerns and that he had, in turn, trained his associates on matters of safety. Here, defendant’s safety policy with regard to the floor area did not call for any sort of regularly scheduled inspections but rather consisted of directing its employees to be continually vigilant for dropped items — in essence, if you see something, immediately pick it up. The produce manager stated that the cherry tomatoes sold at the store are packaged in a clamshell container with a lid that locked into place. He further stated that he regularly inspects the floors for safety issues, that he was not aware of anyone who stepped on or slipped on produce in his department prior to plaintiff’s fall in 2020, nor had he received any complaints about produce being spilled on the floor. He asserted that the cherry tomato display was approximately 15 to 20 feet from where plaintiff fell. Most importantly, he testified that on the day in question, he inspected the area where plaintiff fell approximately 40 minutes before her fall and did not see any produce on the floor.[FN1] Additionally, he testified that he had not received any complaints that morning about produce on the floor. The foregoing was sufficient to establish defendant’s prima facie entitlement to summary judgment by demonstrating that it maintained the property in a reasonably safe condition, did not create the allegedly dangerous condition that caused plaintiff’s injury and had neither actual nor constructive notice of such condition … . Levitt v Tops Mkts., LLC, 2025 NY Slip Op 04060, Third Dept 7-3-25

Practice Point: Here defendant proved a lack of actual and constructive notice of a cherry tomato on the store floor which allegedly caused plaintiff’s slip and fall. Essentially the store demonstrated the floor is inspected continually throughout the day and the area of the fall was inspected 40 minutes before the fall.

 

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BY SUBMITTING A CLAIM TO THE “SEPTEMBER 11TH VICTIM COMPENSATION FUND” (VCF), PLAINTIFF, WHO ALLEGED HIS PROSTATE CANCER WAS RELATED TO HIS WORK AT THE WORLD TRADE CENTER AFTER SEPTEMBER 11TH, WAIVED HIS RIGHT TO SUE HIS PHYSICIAN FOR AN ALLEGED DELAY IN DIAGNOSIS AND TREATMENT OF THE PROSTATE CANCER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the plaintiff’s submission of a claim to the September 11th Victim Compensation Fund (VCF) precluded his medical malpractice action. Plaintiff submitted the claim to VCF alleging his prostate cancer was related to his work at the World Trade Center after September 11th. Years later, in 2021, plaintiff sued his physician alleging a delay in diagnosing and treating the prostate cancer. Apparently the VCF claim was made close in time to the filing of the lawsuit. By filing the VCF claim, plaintiff waived the right to bring a civil lawsuit based on the prostate cancer:

“… [T]he Air Stabilization Act * * * created the [VCF]  . . . to provide no-fault compensation to victims who were injured in the attacks and to personal representatives of victims killed in the attacks … ; and provided an election of remedies —all claimants who filed with the [VCF] waived the right to sue for injuries resulting from the attacks except for collateral benefits” … .

The Air Stabilization Act was amended by the Aviation and Transportation Security Act … . * * *  The waiver provision now provides:

“Upon the submission of a claim under this title, the claimant waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or for damages arising from or related to debris removal. Brennan v MacDonald, 2025 NY Slip Op 03994, Second Dept 7-2-25

Practice Point: Submitting a claim to the September 11th Victim Compensation Fund (VCF) waives the right to bring a civil suit based on the subject of the claim. Here plaintiff alleged his prostate cancer was related to work at the World Trade Center. Because he submitted a VCF claim for the prostate cancer, he cannot sue his physician for medical malpractice alleging a delay in diagnosis and treatment.

 

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CLAIMANT MADE AN APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM CONCERNING INJURIES INCCURRED WHEN WORKING FOR THE CITY; CLAIMANT WAS ENTITLED TO PRE-ACTION DISCOVERY TO ESTABLISH WHEN THE CITY GAINED ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant was entitled to pre-action discovery to support his allegation that the city had timely notice of his accident which would warrant leave to file a late notice of claim:

In determining whether to grant an application for leave to serve a late notice of claim, “the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … . ” ‘While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner’ ” … .

… In support of his application, claimant sought, inter alia, any incident reports concerning the accident and any correspondence between respondents concerning the accident. Claimant alleged that he told his employer about the incident five days after it occurred and believed that his employer notified the City of the accident at that time.

… Supreme Court abused its discretion in denying that part of his application seeking pre-action discovery (see CPLR 3102 [c]). Under the circumstances of this case, claimant demonstrated that pre-suit discovery is needed in support of his application for leave to serve a late notice of claim for the purpose of establishing when the City had actual knowledge of the facts constituting the claim … . Matter of Wisnowski v City of Buffalo, 2025 NY Slip Op 03886, Fourth Dept 6-27-25

Practice Point: When applying for leave to file a late notice of claim, demonstrating the municipality had actual knowledge of the facts underlying the claim within 90 days of the accident is crucial. Here the claimant alleged his employer told the city about the accident five days after it occurred. Claimant was entitled to pre-action discovery on that issue.​

 

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IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT PRESENT EVIDENCE OF A NONNEGLIGENT EXPLANATION OF THE ACCIDENT; PLAINTIFF WAS ENTITLED TO A JUDGMENT NOTWITHSTANDING THE VERDICT FINDING DEFENDANT NEGLIGENT; THE ARGUMENT THAT PLAINTIFF STOPPED QUICKLY IN STOP AND GO TRAFFIC IS NOT A NONNEGLIGENT EXPLANATION OF A REAR-END COLLISION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this rear-end collision case, determined plaintiff’s motion for a judgment not withstanding the verdict finding defendant rear-driver negligent should have been granted. Plaintiff was stopped when her car was struck from behind. Defendant had struck the car directly behind plaintiff. Although there was evidence plaintiff stopped suddenly (in stop and go traffic), defendant did not offer proof of a nonnegligent explanation for the accident:

We … agree with plaintiff that the court erred in denying that part of her posttrial motion for judgment as a matter of law on the issue of defendant’s negligence (see generally CPLR 4404 [a]). A party is entitled to judgment notwithstanding the verdict where there is “no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial” … . As relevant here, “[t]he rearmost driver in a chain-reaction collision bears a presumption of responsibility . . . , and . . . a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate, [nonnegligent] explanation for the accident” … .

Here, the evidence at trial established that, at the time of the collision, plaintiff and defendant were driving in “stop-and-go” traffic during rush hour on a “wet, [d]rizzly” morning. Plaintiff testified that, at the time of the collision, she had come to a stop because the vehicle in front of her had stopped. Defendant testified that the collision occurred when the vehicle in front of her suddenly stopped; she thought the middle vehicle hit plaintiff’s vehicle first. Defendant tried to turn her vehicle to avoid the collision, but was unsuccessful and collided with the middle vehicle. The driver of the middle vehicle in the chain testified that plaintiff’s vehicle stopped suddenly. He denied initially colliding with plaintiff’s vehicle; it was only after he was hit by defendant that his vehicle collided with plaintiff’s vehicle.

In short, the undisputed evidence at trial established that defendant was the rear-most driver involved in the chain-reaction collisions and, therefore, is presumed negligent absent the proffering of a nonnegligent explanation for the collision. We conclude that there is no valid line of reasoning and permissible inferences establishing such a nonnegligent explanation based on the trial record here. Specifically, under the circumstances of this case, the ” ‘[e]vidence that plaintiff’s lead vehicle was forced to stop suddenly in [stop-and-go] traffic’ ” did not constitute a nonnegligent explanation for the collision sufficient to support the jury’s verdict inasmuch as ” ‘it can easily be anticipated that cars up ahead will make frequent stops in [stop-and-go] traffic’ ” Blatner v Swearengen, 2025 NY Slip Op 03880, Fourth Dept 6-27-25

Practice Point: The plaintiff in this rear-end collision case made a motion for judgment notwithstanding the verdict, which preserved the issue of defendant’s negligence for appeal. The appellate court held defendant was negligent as a matter of law. The matter was remitted for a trial to determine proximate cause (there was a car between defendant’s and plaintiff’s cars) and, if necessary, damages.

 

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DEFENDANT’S VEHICLE WAS STRUCK BY A VEHICLE WHICH WAS BEING CHASED BY POLICE AND WHICH FAILED TO OBEY A STOP SIGN; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant was entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a Honda which was being chased by police. Defendant, whose car was struck by the Honda when the driver of the Honda failed to obey a stop sign, could justifiably assume the driver of the Honda would obey the stop sign. The dissent argued there was a question of fact whether defendant breached the duty to see what should be seen:

We respectfully disagree with our dissenting colleagues that defendant failed to meet his initial burden of establishing that he was free of comparative fault. … [Defendant testified] the collision occurred “instantly” after he first saw the car. * * * … [P]laintiff testified that he “blacked out” in the accident and did not know how it was caused. He was not even sure that the accident occurred at an intersection. All he could remember was the Honda proceeding straight with the police behind them and that he was “a little shaken up because [he had] never been in a high speed [chase].” That was “all [he could] remember, and [then] it was just boom.” Another occupant of the Honda testified that, as the Honda approached the intersection, “[i]t tried to stop, but . . . [they] were going a little too fast” and slid into the intersection. Defendant therefore established that the Honda never stopped at the stop sign before proceeding into the intersection and colliding with defendant’s vehicle. Inasmuch as the evidence submitted by defendant established that he had, at most, “only seconds to react” to the Honda that failed to yield the right-of-way, he established as a matter of law that he was not comparatively negligent … . Brown v City of Buffalo, 2025 NY Slip Op 03902, Fourth Dept 6-27-25

Practice Point: Here defendant’s vehicle was struck by a vehicle which was being chased by police and which did not obey a stop sign. The complaint against defendant, brought by a passenger in the vehicle which ran the stop sign, should have been dismissed. A two-justice dissent argued there was a question of fact whether defendant breached the duty of a driver to see what could be seen.

 

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IN THIS CHILD VICTIMS ACT CASE AGAINST A TEACHER, PLAINTIFF’S MOTION TO AMEND THE BILL OF PARTICULARS TO ADD DEPOSITION TESTIMONY CONCERNING STATEMENTS MADE BY WITNESSES TO PLAINTIFF’S ATTORNEYS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act suit, determined plaintiff should have been allowed to amend the bill of particulars to add deposition testimony which included witness statements made to plaintiff’s attorneys concerning the defendant teacher:

“Pursuant to CPLR 3025(b), leave to amend or supplement a pleading is to be ‘freely given'” … . “‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “The burden of proof in establishing prejudice or surprise, or that the proposed amendment lacks merit, falls to the party opposing the motion for leave to amend” … . “[T]he decision of whether to grant or deny leave to amend is subject to the discretion of the trial court” … .

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to amend the bill of particulars to include the proposed witness’s statements to [plaintiff’s attorneys]. The proposed amendment was not palpably insufficient or patently devoid of merit … . In this case, having failed to oppose the motion, the District defendants failed to satisfy their burden of demonstrating any prejudice or surprise … . Fitzpatrick v Pine Bush Cent. Sch. Dist., 2025 NY Slip Op 03794, Second Dept 6-25-25

Practice Point: Amendments to pleadings should be freely allowed. Here deposition testimony about vague and contradictory statements made to plaintiff’s counsel by witnesses concerning defendant teacher’s alleged interaction with students can properly be added to the bill of particulars, criteria explained.

 

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THE AMOUNT OF DAMAGES FOR PAST PAIN AND SUFFERING SHOULD BE BASED UPON THE EVIDENCE; THE AWARD SHOULD NOT HAVE BEEN LIMITED TO THE AMOUNT IN THE AD DAMNUM CLAUSE (SECOND DEPT).

The Second Department, reversing the Court of Claims and remitting the matter for a new determination of damages for past pain and suffering. The Court of Claims interpreted the ad damnum clause which read “!0.000.000” to mean $10,000 and awarded that amount. The Second Department noted that the amount of damages should be based on the evidence, not on the ad damnum clause:​

… [A]lthough the Court of Claims found that the claimant’s evidence could support a “substantial recovery for past and future pain and suffering,” it limited the award of damages to $10,000 based on its interpretation of the ad damnum clause. The court should have granted “any type of relief within its jurisdiction appropriate to the proof whether or not demanded” (CPLR 3017[a] …). Although the trier of fact’s “determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . An award of $10,000 deviates materially from awards for similar injuries … . Consequently, the court should have awarded an amount for past pain and suffering that was supported by the evidence submitted by the claimant … . Bonneau v State of New York, 2025 NY Slip Op 03699, Second Dept 6-18-25

Practice Point: The damages awarded for past pain and suffering should be based on the evidence. The award is not limited to the amount in the ad damnum clause of the claim.​

 

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