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BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT).

In a rear-end collision case involving three cars and motions and cross motions for summary judgment, the Second Department carefully laid out the burdens of proof on summary judgment motions in this context, as well as the applicability of comparative negligence in this context. The plaintiff’s car was stopped and was struck in the rear by the Ramos car. Ramos alleged the Nisanov car was on the shoulder and the collision happened when Ramos avoided collision with the Nisanov car. The Nisanov defendants alleged plaintiff was comparatively negligent. The court held that the plaintiff was entitled to summary judgment in the action against Ramos, and plaintiff was entitled to summary judgment dismissing the affirmative defense of the Nisamov defendants alleging plaintiff’s comparative negligence:

A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, “all of the essential elements of the cause of action”… . By contrast, a defendant moving for summary judgment dismissing one of the plaintiff’s causes of action may generally sustain his or her prima facie burden “by negating a single essential element” of that cause of action … . To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact … . …

Ramos’s version of the accident raised a triable issue of fact as to whether Dayan Nisanov was free from fault in the happening of the accident… . Accordingly, we agree with the Supreme Court’s determination to deny that branch of the Nisanov defendants’ cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the accident. …

Inasmuch as the deposition testimony of Dayan Nisanov and the plaintiff indicated that Dayan Nisanov was not negligent in the operation of his vehicle, while the deposition testimony of Ramos indicated that Dayan Nisanov was negligent in the operation of his vehicle, the plaintiff’s submissions failed to eliminate all triable issues of fact as to whether Dayan Nisanov was negligent and, if so, whether any such negligence caused or contributed to the accident … . Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the complaint insofar as asserted against the Nisanov defendants … .

Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability… , the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence  … . Poon v Nisanov, 2018 NY Slip Op 04365, Second Dept 6-13-18

​NEGLIGENCE (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/TRAFFIC ACCIDENTS (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/REAR-END COLLISIONS  (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))

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SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the defendant-school district’s motion for summary judgment in this negligent supervision case was properly denied. And plaintiffs’ motion for an adverse or negative inference jury instruction based on the school district’s destruction of video surveillance evidence was properly granted. Infant plaintiff, a fifth grader, fell from the top of a set of monkey bars while attempting a dangerous cartwheel to a handstand. Apparently he successfully did the stunt just before and fell on his second attempt. The school was aware that infant plaintiff needed some extra supervision because of his past actions. The school preserved only the video of the failed second attempt of the stunt and nothing prior:

… [T]here are triable issues of fact as to whether the infant plaintiff’s alleged prior conduct and his reputation warranted more appropriate supervision, or heightened supervision, and, if so, whether such supervision would have prevented the accident … . The evidence submitted in support of the defendant’s motion for summary judgment did not establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it… . Additionally, the doctrine of primary assumption of risk is not an applicable defense to the facts herein … . …

… [T]he plaintiffs demonstrated that the defendant had an obligation to preserve surveillance footage of the moments leading up to the infant plaintiff’s accident at the time of its destruction, but negligently failed to do so. Given the nature of the infant plaintiff’s injuries and the immediate documentation and investigation into the cause of the accident by the defendant’s employees, the defendant was clearly on notice of possible litigation and, thus, under an obligation to preserve any evidence that might be needed for future litigation … . The defendant failed to meet this obligation. The defendant acted negligently in unilaterally deciding to preserve only 24 seconds of footage and passively permitting the destruction of the remaining footage, portions of which were undisputedly relevant to the plaintiffs’ case. SM v Plainedge Union Free Sch. Dist., 2018 NY Slip Op 04370, Second Dept 6-13-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (SPOLIATION, NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/SPOLIATION (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))

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BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT).

The First Department determined the driver of a bus, Garcia, was not liable for suddenly applying the brakes pursuant to the emergency doctrine. A taxi had suddenly swerved into the bus’s lane:

The motion court properly invoked the emergency doctrine in finding that no issues of fact exist as to defendants’ negligence given plaintiff’s failure in opposition to adduce any evidence tending to show that the bus operator, defendant Garcia, created the emergency or could have avoided a collision with the nonparty livery taxi by taking some action other than applying his brakes … . The sudden unexpected swerving of the livery taxi into the bus’s lane required Garcia to take immediate action … . Garcia’s reaction of pressing the brakes with enough force to prevent an impact between his bus and the taxi and swerving the bus to the right was a reasonable response to the emergency that was not of his own making … . That Garcia was aware that taxis often cut buses off does not require a different result. Jones v New York City Tr. Auth., 2018 NY Slip Op 04281, First Dept 6-12-18

​NEGLIGENCE (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/BUSES (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/EMERGENCY DOCTRINE (BUSES, BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/MUNICIPAL LAW (BUSES, (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/BRAKES (BUSES, BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))

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DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined that a damages award in a negligence suit brought by a police officer receiving accident disability retirement (ADR) benefits must be offset by those benefits as a collateral source pursuant to CPLR 4545:

The … question presented … is whether a retired New York City police officer’s accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree’s jury award for future lost earnings and pension. We hold that ADR benefits operate to replace earnings during the period when the retiree could have been employed, absent the disabling injury, and then serve as pension allotments, and so a court must offset a retiree’s projected ADR benefits against the jury award for both categories of economic loss. * * *

The statutory and regulatory scheme governing ADR benefits, and the text and legislative intent of CPLR 4545 … provide the basis for our conclusion that ADR benefits operate sequentially as payment for future lost earnings and pension benefits. Accordingly, on a motion pursuant to CPLR 4545, a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension. Andino v Mills, 2018 NY Slip Op 04273, CtApp, 6-12-18

NEGLIGENCE (DAMAGES, COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/CIVIL PROCEDURE (NEGLIGENCE, MUNICIPAL LAW, DAMAGES, COLLATERAL SOURCE,  DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/DAMAGES (COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/COLLATERAL SOURCE (DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/CPLR 4545 (DAMAGES, COLLATERAL SOURCE,  DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (DAMAGES, COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/POLICE OFFICERS  (DAMAGES, COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))

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QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this snow plow traffic accident case should not have been granted. The snow plow driver was backing up below the crest of a hill and plaintiff was unable to brake in time when he crested the hill. The Fourth Department held that there was a question of fact whether the snow plow driver acted in reckless disregard of the safety of others in violation of Vehicle and Traffic Law 1103:

Defendants failed to meet their initial burden of establishing that Marsh did not operate the snowplow with reckless disregard for the safety of others, and defendants thus were not entitled to summary judgment dismissing the complaint against them. Vehicle and Traffic Law § 1103 (b) “exempts from the rules of the road all vehicles actually engaged in work on a highway”… . However, the statute does not protect snowplow drivers “from the consequences of their reckless disregard for the safety of others” (§ 1103 [b]). The operator of a snowplow acts with such “reckless disregard” when he or she ” acts in conscious disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow’ ” … . The reckless disregard standard “requires a showing of more than a momentary judgment lapse” … .

Here, defendants’ submissions in support of the motion establish that Marsh had been a driver of the snowplow route for 15 years and was aware that an intersection where he could safely turn around was less than a quarter of a mile away. Despite that knowledge, Marsh drove the snowplow in reverse, in front of a hill that obscured his view of approaching traffic on a narrow, two-lane country road with a speed limit of 55 miles per hour, without first sounding his horn in warning. Marsh’s deposition testimony that he did not realize that he had collided with plaintiff’s vehicle until several seconds after the collision raises a question of fact whether he was utilizing his rear view mirrors while traveling in reverse. Chase v Marsh, 2018 NY Slip Op 04231, Fourth Dept 6-8-18

NEGLIGENCE (TRAFFIC ACCIDENTS, MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS,  QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SNOW PLOWS (TRAFFIC ACCIDENTS, MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT).

The Fourth Department determined the trial court properly prohibited cross examination of the plaintiff about his criminal history and plaintiff’s expert properly relied upon hearsay statements by plaintiff’s treating physician:

… [W]hile a civil litigant is granted broad authority to use the criminal convictions of a witness to impeach the credibility of that witness, the nature and extent of cross-examination, including with respect to criminal convictions, remains firmly within the discretion of the trial court … . …

It is well settled that ” opinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is equally well settled, however, that an expert is permitted to offer opinion testimony based upon facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ “… . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ “… , and “provided that it does not constitute the sole or principal basis for the expert’s opinion” … . Tornatore v Cohen, 2018 NY Slip Op 04145, Fourth Dept 6-8-18

NEGLIGENCE (MEDICAL MALPRACTICE, EVIDENCE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/MEDICAL MALPRACTICE (EVIDENCE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/CRIMINAL HISTORY (EVIDENCE, MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))

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DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the defect which caused the claimant’s slip and fall was not trivial as a matter of law and there were questions of fact about the defendant’s constructive and actual notice of the defect. Claimant is incarcerated and the slip and fall occurred in a walkway at a correctional facility:​

In claimant’s deposition testimony, which defendant submitted in support of the motion, claimant testified that he was proceeding along a walkway from the housing area to the commissary. It had rained, and a large puddle of water had accumulated on the walkway. Claimant attempted to step over the flooded portion of the walkway, but his foot came down on a portion of the walkway that was cracked and damaged. The concrete shifted under his foot, causing him to lose his balance, and he fell. …​

We also agree with claimant that defendant failed to meet its burden of establishing that it lacked actual or constructive notice of the allegedly dangerous condition … . In support of the motion, defendant submitted the affidavit of a correction officer who had worked at the prison for the prior 27 years. The correction officer averred that he was familiar with the walkway and its condition before claimant fell, that the concrete was broken and uneven, and that water can gather there after it rains, but he did not consider the condition to be dangerous. Furthermore, the correction officer averred that he periodically walked the premises to look for anything in need of repair, and claimant testified at his deposition that the walkway was cracked prior to his arrival at the prison and that it flooded every time it rained. Bennett v State of New York, 2018 NY Slip Op 04212, Fourth Dept 6-8-18

NEGLIGENCE (SLIP AND FALL, DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL (DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRIVIAL DEFECT (SLIP AND FALL,  DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))​

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT).

The Fourth Department determined plaintiffs’ summary judgment motion in this vehicle-pedestrian accident case should have been granted. Plaintiff demonstrated the driver’s (Gorman’s) negligence and was not required to show the absence of comparative negligence:

Plaintiffs commenced this action seeking damages for injuries sustained by Michael Edwards (plaintiff) when he was struck by an ambulance driven by defendant Francine M. Gorman. At the time of the collision, plaintiff, a parking attendant, was tasked with instructing vehicles traveling in a two-lane, one-way “pass-through” road of the entrance loop of Strong Memorial Hospital on how to reach an alternate entrance for a nearby parking garage. Plaintiff was standing in the center of the pass-through road between the two lanes of travel, and Gorman struck him as she was slowing down for a stop sign at the end of the pass-through road. …

… [P]laintiffs were required to establish only that Gorman was negligent and that her negligence was a proximate cause of the accident. We conclude that plaintiffs met that burden by providing photographs, video footage and Gorman’s deposition testimony in which she admitted that she executed a wide turn through multiple lanes of the pass-through road, which constitutes a violation of Vehicle and Traffic Law § 1128 (a) … . In opposition, defendants failed to raise a triable issue of fact … . Although defendants successfully raised triable issues of fact with respect to plaintiff’s negligence, that is of no moment in the context of plaintiffs’ appeal. “To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault” … . Edwards v Gorman, 2018 NY Slip Op 04129, Fourth Dept 6-8-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/TRAFFIC ACCIDENTS (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))

QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT).

The Fourth Department determined defendant did not demonstrate plaintiff assumed the risk that his harness would become detached causing him to fall from defendant’s climbing wall:

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” … . A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” … . Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof … . Stillman v Mobile Mtn., Inc., 2018 NY Slip Op 04149, Fourth Dept 6-8-18​

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))/ASSUMPTION OF THE RISK (CLIMBING WALL, QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))/CLIMBING WALL (ASSUMPTION OF THE RISK, QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))

QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this traffic accident case. Plaintiff’s decedent apparently backed into defendant’s lane of traffic from the median. There was conflicting evidence about defendant’s speed and the distance between decedent’s car and defendant (i.e., there was conflicting evidence about the applicability of the emergency doctrine):

Given the conflicting accounts about the distance and the elapsed time between when decedent’s vehicle moved into defendant’s lane and the collision and defendant’s speed prior to the accident, we conclude that triable issues of fact exist as to whether defendant’s actions, when confronted with an emergency situation, were reasonable and whether he could have taken evasive action to avoid decedent’s vehicle … . We further conclude that there are issues of fact as to whether decedent’s actions, under the circumstances of this case, were not the sole proximate cause of the accident. Accordingly, viewing the evidence in the light most favorable to plaintiff, Supreme Court should have denied defendant’s motion for summary judgment … . Brust v McDaniel, 2018 NY Slip Op 04069, Third Dept 6-7-18

NEGLIGENCE (QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/TRAFFIC ACCIDENTS  (QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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