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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the verdict in this medical malpractice case should not have been granted. The jury found that the doctor’s postsurgical negligence (ordering an MRI of plaintiff’s hand rather than her wrist) was not a substantial factor in causing plaintiff’s injuries:

… [W]e conclude that the issues of negligence and proximate cause were not so inextricably interwoven as to make it logically impossible to find one without the other… . Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view … , and we conclude that defendants are entitled to that presumption here.

We also agree with defendants that the verdict was not against the weight of the evidence and that the court therefore erred in granting plaintiff’s posttrial motion. It is well settled that a jury verdict will be set aside as against the weight of the evidence only when the evidence at trial so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Applying that principle here, we conclude that there is a fair interpretation of the evidence pursuant to which the jury could have found that, notwithstanding the error in ordering the incorrect MRI, defendant did not cause any postsurgery injuries alleged by plaintiff … . We further conclude that the “trial was a prototypical battle of the experts, and the jury’s acceptance of defendants’ case was a rational and fair interpretation of the evidence”… . Capierseo v Tomaino, 2018 NY Slip Op 02917, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE VERDICT, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))

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DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff passenger’s motion for summary judgment against defendant driver should not have been granted and defendant’s motion to amend the pleadings to add the emergency doctrine defense should have been granted. Defendant lost control of the car but raised an issue of fact whether the cause of the accident was black ice:

… [P]laintiff submitted evidence establishing that defendant lost control of the vehicle. The burden then shifted to defendant, who came forward with the exculpatory explanation that he encountered black ice on the roadway, which constituted an emergency. When the evidence is viewed in the light most favorable to defendant … , there is a triable issue of fact whether there was black ice and thus whether an emergency existed at the time of the accident. * * *

… [T]he court erred in denying that part of defendant’s cross motion for leave to amend the answer to assert an emergency doctrine defense. Motions for leave to amend pleadings should be freely granted in the absence of prejudice, and “[m]ere lateness is not a barrier” … . The fact that defendant’s request was made nine days after the filing of the note of issue does not render the request untimely … . Indeed, “[w]here no prejudice is shown, the amendment may be allowed during or even after trial” … , and here, the record is devoid of any potential prejudice flowing from the proposed amendment. Greco v Grande, 2018 NY Slip Op 02916, Fourth Dept 4-27-18

​NEGLIGENCE (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (AMEND PLEADINGS, DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, in a comprehensive decision not fully summarized here, determined there was a question of fact whether the snow removal contractor (SWBG) had launched an instrument of harm or created or exacerbated a dangerous condition by piling snow near where plaintiff slipped and fell:

With respect to the third-party action, we agree with defendants that the court erred in granting SWBG’s motion insofar as it sought dismissal of the contribution cause of action. It is undisputed that SWBG entered into a contract with the Church to provide snowplowing services, which included salting or sanding the plowed areas at the discretion of SWBG. There are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm’ . . . (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties . . . and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . In their verified bill of particulars, defendants relied solely on the first situation.

With respect to the first situation, although SWBG piled the snow in the area of the incline, SWBG established that it did so only at the Church’s direction. Even assuming, arguendo, that such evidence is sufficient to establish that SWBG did not launch a force or instrument of harm, we conclude that defendants raised a triable issue of fact whether SWBG piled the snow at that location on its own initiative and thus whether SWBG launched a force or instrument of harm, i.e., created or exacerbated a dangerous condition … . Chamberlain v Church of the Holy Family 2018 NY Slip Op 02949, Fourth Dept 4-27-18

​NEGLIGENCE (SLIP AND FALL, CONTRACTOR LIABILITY, QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/CONTRACT LAW (NEGLIGENCE, SLIP AND FALL, CONTRACTOR LIABILITY, QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (CONTRACTOR LIABILITY, QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

QUESTION OF FACT WHETHER DEFENDANTS UNREASONABLY INCREASED THE RISK IN THIS HORSEBACK-RIDING-LESSON ACCIDENT CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this horseback-riding-lesson accident should not have been granted. Plaintiffs’ expert raised questions of fact whether defendants unreasonably increased the risk of riding:

The expert opined that defendant unreasonably increased the risks of horseback riding by numerous acts and omissions, including selecting an inappropriate horse for a novice rider such as plaintiff; providing an unsafe riding space that had ground poles; and failing, prior to bringing the horse to a trot, to ensure that plaintiff knew how to control the horse’s speed and dismount in the event of an emergency. Thus, even assuming, arguendo, that defendants met their burden of establishing their entitlement to judgment as a matter of law… , we conclude that plaintiffs raised an issue of fact whether defendants unreasonably increased the risks of horseback riding … . Enos-Groff v Schumacher. 2018 NY Slip Op 02960, Fourth Dept 4-27-18

​NEGLIGENCE (HORSEBACK RIDING, ASSUMPTION OF THE RISK, QUESTION OF FACT WHETHER DEFENDANTS UNREASONABLY INCREASED THE RISK IN THIS HORSEBACK-RIDING-LESSON ACCIDENT CASE (FOURTH DEPT))/ASSUMPTION OF RISK (HORSEBACK RIDING,  QUESTION OF FACT WHETHER DEFENDANTS UNREASONABLY INCREASED THE RISK IN THIS HORSEBACK-RIDING-LESSON ACCIDENT CASE (FOURTH DEPT))/HORSES (ASSUMPTION OF RISK,  QUESTION OF FACT WHETHER DEFENDANTS UNREASONABLY INCREASED THE RISK IN THIS HORSEBACK-RIDING-LESSON ACCIDENT CASE (FOURTH DEPT))

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VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT).

The Third Department determined plaintiff’s motion to set aside the defense verdict in this pedestrian-car accident case (exonerating defendant driver from any comparative fault) should have been granted. Defendant testified she saw persons in the road about 100 yards ahead but did not slow down. When she realized she was going to hit someone she swerved to the left, apparently striking plaintiff at that point:

As a general matter, a motorist has a duty to maintain a proper lookout under the driving circumstances presented and to maintain a reasonably safe rate of speed… . A motorist is further “required to keep a reasonably careful look out for pedestrians, to see what was there to be seen, to sound the horn when a reasonably prudent person would have done so to warn a pedestrian of danger and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway” … . These principles in mind, defendant testified that she first observed three people at the edge of Route 9N in front of the Algonquin restaurant heading across the road toward the parking lot on the west side. She estimated being “[p]robably about a football field” away when she first saw the pedestrians. She also estimated her speed at 30 miles per hour and acknowledged that she did not slow down. Explaining how the accident occurred, defendant testified as follows: “As I got closer to the people, who I thought were crossing the road, they were not moving and I knew that if I continued I would hit them so I severely twisted my wheel of the car thinking I could get around them.” She stated that, as she turned her wheel to the right, the pedestrians were on her left. She did not decrease her speed prior to swerving and could not remember sounding her horn.

Defendant’s version of the accident places Blanchard in the roadway, while Blanchard testified that she was in the west shoulder area at the time of impact. Even accepting defendant’s version, her testimony confirms that Blanchard was within her view for a distance of about 100 yards and defendant was aware that Blanchard was crossing the road, and yet, defendant did not slow down or sound her horn. Defendant’s own account confirms that she failed to take any evasive action until the last moment. In our view, defendant’s failure to take reasonable measures to avoid hitting Blanchard gives rise to some degree of comparative fault for this accident. As the jury’s verdict exonerating defendant could not have been reached on any fair interpretation of this evidence, a new trial is in order. Blanchard v Chambers, 2018 NY Slip Op 02852, Third Dept 4-26-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))

TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this “stepped in a hole” case was properly denied. The testimony that the defendant cemetery had not received any complaints about a hole and the absence of any evidence of when the area was last inspected did not demonstrate the lack of actual or constructive notice:

Defendant did not establish its entitlement to judgment as a matter of law in this action where plaintiff allegedly injured her ankle when she stepped in a hole on defendant’s grounds. The fact that defendant’s director testified that he did not receive any complaints about the condition of the grounds prior to the accident does not establish that defendant lacked actual notice of the hole, because the director did not state that he was working on the day of the accident … .

Defendant also failed to demonstrate that it lacked constructive notice of the hole. Its director’s testimony that he would inspect the premises when his duties permitted does not establish when the subject location was last checked before the accident … . Savio v St. Raymond Cemetery, 2018 NY Slip Op 02906, First Dept 4-26-18

​NEGLIGENCE (SLIP AND FALL, TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL (TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT))/NOTICE (SLIP AND FALL, HOLE, TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT))

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COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT).

The Second Department determined the plaintiffs had stated causes of action against the sellers (the Lyubarskys) of a condominium for fraudulently concealing mold and water damage in the condominium and in the common areas. The complaint also alleged plaintiffs’ attorney committed malpractice in representing them in the purchase. The court explained the how the doctrine of caveat emptor (buyer beware) relates to the allegations in the complaint:

“New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment”… . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property”… . “To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor” … .

Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference… , the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. The complaint alleges that the Lyubarskys took several steps to hide the existence of leaks and mold damage including, inter alia, claiming that they had lost the key to the storage area in the cellar which was assigned to the subject condominium, and removing and replacing damaged sheetrock from the cellar and the parking area. These allegations, if true, might have thwarted the plaintiff’s efforts to fulfill her responsibilities imposed by the doctrine of caveat emptor with respect to the common areas of the building … . Razdolskaya v Lyubarsky, 2018 NY Slip Op 02817, Second Dept 4-25-18

​REAL ESTATE (COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/FRAUD (REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/CAVEAT EMPTOR  (REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/NEGLIGENCE (ATTORNEYS, REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/LEGAL MALPRACTICE (REAL ESTATE,  COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/ATTORNEYS (REAL ESTATE, MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))

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INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the incident reports concerning plaintiff’s injury when he was struck by a chain link fence he was installing did not provide the city with notice of the essential elements of his negligence and Labor Law claims. Therefore the petition for leave to file a late notice of claim was properly denied:

… [T]he incident reports … were insufficient to provide the respondents with actual knowledge of the essential facts underlying the petitioner’s claim. These reports merely indicated that the petitioner injured his shoulder when the temporary chain link fence was blown over by the wind or came down on him as he was working on the fence. The reports made no reference to the claims listed in the proposed notice of claim, inter alia, that the respondents were negligent in allowing a dangerous condition to exist, in failing to provide protective and safety devices, and in failing to properly secure or hoist the fence, and violated certain sections of the Labor Law and unspecified sections of the Industrial Code … .

Furthermore, the petitioner failed to proffer any excuse for the failure to serve a timely notice of claim … . Moreover, the petitioner presented no “evidence or plausible argument” that his delay in serving a notice of claim did not substantially prejudice the respondents in defending on the merits … . Matter of Wilson v City of New York, 2018 NY Slip Op 02794, Second Dept 4-25-18

​MUNICIPAL LAW (NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW,  INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/ACCIDENT REPORTS (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/INCIDENT REPORTS (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT).

The First Department determined there was a question of fact whether the owner of a building could be liable for injury to a sidewalk pedestrian caused by an object that fell from the building (which was under construction):

Plaintiff Joseph Kosakowski was a pedestrian on the sidewalk adjacent to a building owned and occupied by the Broadway defendants, which was undergoing construction, when he was struck by a piece of sheet metal that fell from above. Under the circumstances presented, issues of fact exist as to whether the Broadway defendants can be held liable for plaintiff’s injuries based upon the nondelegable duty not to cause harm to those traveling on the nearby public sidewalk … . Kosakowski v 1372 Broadway Assoc., LLC, 2018 NY Slip Op 02753, First Dept 4-24-18

​NEGLIGENCE (FALLING OBJECTS, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))/FALLING OBJECTS (NEGLIGENCE, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))/PEDESTRIANS (FALLING OBJECTS, NEGLIGENCE, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))

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EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment, based upon the emergency doctrine, should not have been granted in this “sudden stop” bus-passenger injury case. The defendants alleged that the bus driver reacted to an emergency when a car in front of the bus stopped suddenly. However, the emergency doctrine does not usually apply in this situation:

Defendants contend that the driver of the bus on which plaintiff was a passenger was not negligent in braking to a sudden, hard stop that allegedly caused plaintiff to be injured, but reacted reasonably to the sudden stop of a car in front of the bus. However, the emergency doctrine is typically not available to the rear driver in a rear-end collision, who is responsible for maintaining a safe distance … . The bus driver’s affidavit demonstrates that he was confronted with a “common traffic occurrence” when the vehicle in front of the bus stopped short … . A factfinder could reasonably conclude that the bus driver was negligent in failing to maintain a safe distance between the bus and the car in front of it (see Vehicle and Traffic Law § 1129[a]) and that his own conduct caused or contributed to the emergency situation … . Contrary to defendants’ contention, a violation of Vehicle and Traffic Law § 1129(a) may be found even where there was no collision … . Vanderhall v MTA Bus Co., 2018 NY Slip Op 02720, First Dept 4-19-18

​NEGLIGENCE (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/BUSES (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (BUS, SUDDEN STOP, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, BUSES, SUDDEN STOP, BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)}/REAR-END COLLISIONS BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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