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NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT).

The First Department determined New York courts had jurisdiction over a New Jersey radiologist (Daulto) in this failure-to-diagnose-cancer medical malpractice action:

Plaintiff alleges that defendant Dauito, a radiologist, negligently read her sonogram, leading to a delay in the diagnosis and treatment of her breast cancer. Dr. Dauito avers that, at all relevant times, he was a New Jersey resident and worked only at an office in New Jersey. However, he acknowledges that he was licensed to practice medicine in New York and that he contracted with defendant Madison Avenue Radiology, P.C., a New York corporation, to provide radiology services to some of its New York patients. Plaintiff’s sonogram was performed in New York, Dr. Dauito relayed his diagnostic findings to Madison Avenue Radiology in New York, and Madison Avenue Radiology issued a report based on his findings that was allegedly relied upon by plaintiff and her doctors. Under these circumstances, New York courts may exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(1), notwithstanding his lack of physical presence in New York, because he transacted business with Madison Avenue Radiology and provided radiology services to patients in New York, including plaintiff, projecting himself into the State by electronically or telephonically transmitting his diagnostic findings … .

New York courts may also exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(3), because, as alleged, Dr. Dauito’s negligent misdiagnosis resulted in a delay in plaintiff’s treatment, thereby causing injury to plaintiff in New York, and Dr. Dauito should reasonably expect his out-of-state negligent misdiagnosis in plaintiff’s case to have consequences in New York … . Allen v Institute for Family Health, 2018 NY Slip Op 01998, First Dept 3-22-18

CIVIL PROCEDURE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/LONG ARM JURISDICTION (NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT)))/CPLR 302(a) (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/MEDICAL MALPRACTICE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))

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CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT).

The Second Department determined the negligent supervision lawsuit against the city by an inmate who was assaulted by another inmate was properly dismissed. The attack was not foreseeable from the standpoint of the correctional facility personnel:

A municipality owes a duty of care to inmates in correctional facilities to safeguard them from attacks from other inmates … . This duty, however, does not place the municipality in the role of insurers of inmate safety … . Rather, “the scope of the [municipality’s] duty to protect inmates is limited to risks of harm that are reasonably foreseeable” … . Foreseeability includes what the defendant municipality knew or should have known … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the assault upon the plaintiff was not reasonably foreseeable. In this regard, the defendants’ submissions demonstrated that the plaintiff’s assailant was not a known gang member, had no prior incidents of fighting or aggressive behavior while at Rikers Island, and was not classified as high risk for fighting. Additionally, their submissions established that the plaintiff did not know or see his assailant, who, without provocation, punched him in the jaw, and that at the time there was a correction officer present providing the proper level of supervision in accordance with the applicable standard of “active supervision” as defined in the State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries … . McAllister v City of New York, 2018 NY Slip Op 01909, Second Dept 3-21-18

NEGLIGENCE (SUPERVISION OF INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/ASSAULT (NEGLIGENCE, INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/INMATES (NEGLIGENCE, SUPERVISION, MUNICIPAL LAW,  CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, INMATES, SUPERVISION, SUPERVISION OF INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/THIRD PARTY ASSAULT (INMATE ON INMATE, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))

PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendants made out a prima facie case that they did not create or have notice of the icy condition where plaintiff fell, the plaintiff, with submissions which included certified climatological data and the deposition of the nonparty witness, raised questions of fact about the weather conditions, the presence of ice and defendants’ notice:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created the alleged ice condition nor had actual or constructive notice of it … . In opposition, however, the plaintiff submitted certified climatological data and the deposition testimony of the nonparty witness Fredy Calle, which raised triable issues of fact as to what the weather conditions were like preceding the accident, whether ice was present on the landing at the time of the accident, how long the ice may have been present, and whether the defendants had notice of the alleged ice condition that proximately caused the plaintiff to fall … . Monje v Guaraca, 2018 NY Slip Op 01911, Second Dept 3-21-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CLIMATOLOGICAL DATA (SLIP AND FALL,  PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the difference in elevation which caused plaintiff to fall was not inherently dangerous and was readily observable:

… [T]he plaintiff, while walking on a walkway after parking his car at a lot located on the Citi Field complex in Queens, allegedly was injured within the defendants’ exterior grounds when he fell due to a difference in elevation between the walkway, which consisted of patio pavers, and an abutting tree bed … . …

… [T]here is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses … . Here, the defendants established, prima facie, that the difference in elevation between the surface of the walkway and the surface of the tree bed was not inherently dangerous and was readily observable by the reasonable use of one’s senses … . Costidis v City of New York, 2018 NY Slip Op 01901, Second Dept 3-21-18

NEGLIGENCE (SLIP AND FALL, HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/SLIP AND FALL (HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))

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SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF EMPLOYEE, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that the sophisticated intermediary doctrine did not apply as a matter of law to this failure to warn case. Under the doctrine the manufacturer of the silica product at issue would be under a duty to warn plaintiff’s employer, a sophisticated intermediary, but not the plaintiff:

… [I]t is not a complete defense to a failure to warn claim against a product manufacturer under New York law that an injured worker’s employer was adequately warned or otherwise knowledgeable of the dangers of the product… , or that the employer may have been in the best position to give the warning at issue … . Instead, evidence that an employer had knowledge of a hazard or was better able than the manufacturer to provide a warning to the injured worker is relevant to whether a manufacturer satisfied its duty to provide adequate warnings, which is typically a question of fact … . * * *

… [W]e decline to recognize the sophisticated intermediary doctrine on the facts of this case, and we conclude that there is a triable issue of fact whether defendants provided adequate warnings to the injured workers … . Rickicki v Borden Chem., 2018 NY Slip Op 01829, Fourth Dept 3-16-18

PRODUCTS LIABILITY (SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, FAILURE TO WARN, SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))/SOPHISTICATED INTERMEDIARY DOCTRINE (PRODUCTS LIABILITY, FAILURE TO WARN, SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))/WARN, FAILURE TO PRODUCTS LIABILITY, FAILURE TO WARN, SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))

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NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant did not demonstrate a lack of constructive notice of the condition alleged to have caused plaintiff’s parking lot slip and fall. The evidence described only general inspection practices and did not indicate when the area of the fall was last inspected:

… [T]he defendant failed to demonstrate that it lacked constructive notice of the hazardous condition which allegedly caused the injured plaintiff’s fall. The defendant relied upon, inter alia, the deposition testimony and affidavit of the property manager, which merely referred to her general inspection practices for the parking lot and provided no evidence regarding any specific inspection of the area in question prior to the injured plaintiff’s fall … . Maria De Los Angeles Baez v Willow Wood Assoc., LP, 2018 NY Slip Op 01589, Second Dept 3-14-18

NEGLIGENCE (NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CONSTRUCTIVE NOTICE, NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, over a dissent, determined defendants were entitled to summary judgment in this parking lot slip and fall case. Defendants demonstrated they did not have notice that water pooled in the parking lot in the area where plaintiff allegedly fell on ice. The dissent argued that defendants did not demonstrate the formation of ice was not a recurring condition. The majority held that, because plaintiff did not allege the ice was a recurring condition, defendants did not have to present evidence on the issue:

The evidence submitted by the defendants in support of their motion established, prima facie, that they did not create the alleged black ice condition or have actual or constructive notice of it … . In particular, Picone’s [Picone worked at the property] statement in his affidavit that water did not pond in the parking lot during the 38 years he worked at the property necessarily addresses and excludes any recurring condition in the same lot. In opposition to the prima facie showing, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendants created the alleged condition or had actual or constructive notice of it. …

… .[T]he plaintiff failed to allege the existence of a recurring condition at the specific site of her fall. Thus, the defendants had no obligation, in support of their motion for summary judgment, to address the issue of a recurring condition. Further, in opposition to the motion, the plaintiff failed to argue that any recurring condition was specific to the location within the parking lot where she is alleged to have fallen … . Bader v River Edge at Hastings Owners Corp., 2018 NY Slip Op 01588, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/SLIP AND FALL (DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EVIDENCE (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/RECURRING CONDITION (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

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SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT).

The Second Department, in a comprehensive decision dealing with several related issues not summarized here, determined a snow removal contractor (Cristi) and parking lot manager (Five Star) demonstrated their contracts with Port Authority did not give rise to liability for a slip and fall in the parking lot:

A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his 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” … . …

The submissions in support of their respective motions show that neither Cristi nor Five Star created or exacerbated the icy condition and thereby launched an instrument of harm. Rather, they merely failed to be ” an instrument for good,’ which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” …

The contracts between the Port Authority, Cristi, and Five Star were not comprehensive and exclusive property maintenance agreements intended to displace the Port Authority’s general duty to keep the premises in a safe condition … . Castillo v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 01593, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))/CONTRACT LAW (SLIP AND FALL, ESPINAL,  SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))/SLIP AND FALL (ESPINAL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))

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SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department noted that Supreme Court properly refused to consider a new theory raised for the first time in opposition to a summary judgment motion. Plaintiff alleged she slipped on a piece of trash on stairs. In opposition to defendants’ motion for summary judgment code violations and the absence of a handrail were alleged:

On their motion, the defendants established their prima facie entitlement to judgment as a matter of law by establishing that they did not create or have actual or constructive notice of the alleged dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact in this regard.

A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint … . As such, the Supreme Court did not err in declining to consider the plaintiff’s new theory of recovery, raised for the first time in opposition to the defendants’ motion, based on alleged building code violations related to the lack of a handrail on the subject staircase, since this theory was not pleaded in her amended complaint or set forth in her bill of particulars. Mazurek v Schoppmann, 2018 NY Slip Op 01601, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, UPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/SUMMARY JUDGMENT (SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))

QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT).

The Second Department determined the bar owner’s (SNMT’s) motion for summary judgment on the Dram Shop Act and negligence causes of action were properly denied. Plaintiff was struck by a bar patron (Coscia). There were questions of fact whether the patron was served alcohol while visibly intoxicated and whether the assault was foreseeable:

… [T]he Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the General Obligations Law § 11-101 cause of action, and properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on that cause of action. The submissions of both parties revealed the existence of triable issues of fact as to whether the bar served alcoholic beverages to Coscia while he was visibly intoxicated, whether the bar served alcoholic beverages to Coscia when it had knowledge or reasonable cause to believe that he was under 21 years of age, and whether there was some reasonable or practical connection between the service of alcohol to Coscia and the plaintiff’s injuries … .

In addition, the Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the negligence cause of action. “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … . Here, SNMT failed to establish, prima facie, that the attack on the plaintiff was not foreseeable … . Tansey v Coscia, 2018 NY Slip Op 01633, Second Dept 3-14-18

NEGLIGENCE (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/DRAM SHOP ACT (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/ASSAULT, THIRD PARTY (DRAM SHOP ACT, NEGLIGENCE, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/BARS (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))

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