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ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should not have been granted. Although defendant apparently pulled out in front of plaintiff, plaintiff did not demonstrate freedom from comparative fault:

… [T]he defendant failed to establish, prima facie, that the injured plaintiff’s negligence in pulling out of a curbside parking spot was the sole proximate cause of the accident and that the defendant was free from comparative fault … . In particular, the defendant failed to eliminate triable issues of fact as to whether she failed to see what was there to be seen through the proper use of her senses and to use reasonable care to avoid a collision … . Inesta v Florio, 2018 NY Slip Op 01455, Second Dept 3-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS ( ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, COMPARATIVE FAULT, ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS PASSENGER’S SUDDEN STOP INJURY CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the New York City Transit Authority (NYCTA) defendants’ motion for summary judgment in this action brought by a bus passenger alleging injury from a sudden stop was properly denied:

To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of “jerks and jolts commonly experienced in city bus travel” … . Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent … .

However, in seeking summary judgment dismissing such a cause of action, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent. That burden may be satisfied by the plaintiff’s deposition testimony as to how the accident occurred … .

Here, the plaintiff testified at her deposition that she was propelled to the floor and from the front to the middle of the bus. This testimony raised a triable issue of fact as to whether the stop at issue was unusual and violent, as opposed to whether the stop involved only the normal jerks and jolts commonly associated with city bus travel… . Since the NYCTA defendants did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition thereto were sufficient to raise a triable issue of fact … . Gani v New York City Tr. Auth., 2018 NY Slip Op 01452, Second Dept 3-7-18

NEGLIGENCE (BUSES, TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS PASSENGER’S SUDDEN STOP INJURY CASE PROPERLY DENIED (SECOND DEPT))/BUSES (TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS PASSENGER’S SUDDEN STOP INJURY CASE PROPERLY DENIED (SECOND DEPT))/SUDDEN STOP (BUSES, TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS PASSENGER’S SUDDEN STOP INJURY CASE PROPERLY DENIED (SECOND DEPT))

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DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this staircase slip and fall case should not have been granted. Defendant demonstrated it did not have notice of the wet condition of the stairs. Plaintiff’s opposing affidavit contradicted her deposition testimony. Although the deposition was unsigned, defendant demonstrated the certified transcript was provided to plaintiff’s attorneys but it was never returned. Therefore the deposition served as plaintiff’s admission:

Defendant met its prima facie burden on the motion of establishing that it neither created the alleged wet condition nor had prior actual or constructive notice of it. By plaintiff’s own admission, the wet condition, which she never saw but assumes was there, could only have been created moments earlier, having not been present when she walked up the steps … .

Based upon plaintiff’s testimony that she was using both hands to carry her daughter down the steps when she fell, without any indication that she reached for a handrail, defendant established that the lack of a handrail did not proximately cause or contribute to the accident … .

Plaintiff’s affidavit in opposition, wherein she claimed that she tried to reach for a handrail when she fell, raised only feigned issues of fact, as it directly contradicted, and appears to have been tailored to avoid the consequence of, her earlier testimony … .

Pursuant to CPLR 3116(a), plaintiff’s unsigned deposition transcript may be used as though fully signed, as defendant submitted proof that the certified transcript was provided to her attorneys for execution and not returned. Moreover, an unsigned but certified transcript may be used as an admission… , especially where, as here, there is no dispute as to the accuracy of the transcript … . Luna v CEC Entertainment, Inc., 2018 NY Slip Op 01429, First Dept 3-6-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CIVIL PROCEDURE (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CPLR 3116 (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/DEPOSITION (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/EVIDENCE (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ADMISSION  (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/STAIRS  (SLIP AND FALL, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this staircase collapse case was properly granted. Plantiff demonstrated the defendant had constructive notice of the rusted condition of the staircase:

Plaintiff, a handyman employed by defendant’s managing agent, was injured when the landing of a metal staircase in the sub-basement of defendant’s building collapsed under him, causing him to fall about 20 feet to the cement floor below. Plaintiff established prima facie that defendant had constructive notice of the defective condition of the stairs by submitting photographs showing the staircase covered in rust, and evidence that defendant had no program of inspection for the staircase and had never inspected it in the 27 years preceding the accident … . Conklin v 500-512 Seventh Ave., LP, LLC, 2018 NY Slip Op 01437, First Dept 3-6-18

NEGLIGENCE (CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/CONSTRUCTIVE NOTICE (NEGLIGENCE, CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/STAIRS (CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this truck-bicycle accident case should not have been granted. Although plaintiff had the right of way and defendant crossed into plaintiff’s path, there was a question of fact whether plaintiff could have avoided the accident:

Plaintiff, while traveling south on a bicycle, collided with the passenger side of defendants’ northbound truck as it turned left across his path. While the record establishes that plaintiff had the right of way, an issue of fact exists as to whether plaintiff was negligent in that he could have avoided the collision through the exercise of reasonable care but failed to do so. Accordingly, plaintiff was not entitled to summary judgment on the issue of liability. Bermeo v Time Warner Entertainment Co., L.P., 2018 NY Slip Op 01433, First Dept 3-6-18

NEGLIGENCE (EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))/BICYCLES (TRAFFIC ACCIDENTS, EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))

QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT).

The First Department, modifying Supreme Court, determined that the cause of action against the elevator company (Nouveau) alleging negligence should not have been dismissed in this personal injury action. Plaintiff alleged she was struck on her head by a hot object when she was in the elevator. A washer was found in the elevator. Nouveau was working in an adjacent elevator shaft at the time. The court noted it was not necessary for plaintiff to plead the doctrine of res ipsa loquitur in order to assert it, however, the record was not sufficient for the court to consider it:

… [P]laintiff raised triable issues of fact, as circumstantial evidence showed that a prompt investigation of the incident indicated that Nouveau’s workers were installing equipment in an adjacent elevator shaft several floors above where plaintiff’s elevator cab had come to a stop, and that no other construction crews were in the vicinity of the elevator bank in question. Contrary to the motion court’s finding, the evidence could be sufficient to support an inference that it was more likely that the injury was caused by negligence on the part of Nouveau rather than by some other actor … .

Contrary to the motion court’s finding, “neither plaintiff’s failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence . . . constitutes a bar to the invocation of res ipsa loquitur where the facts warrant its application”… . However, we are unable to determine on this record whether, as plaintiff contends, the doctrine of res ipsa loquitur is applicable to Nouveau. Ocasio v Dormitory Auth. of the State of N.Y., 2018 NY Slip Op 01424, Frist Dept 3-6-18

NEGLIGENCE (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/ELEVATORS (NEGLIGENCE, QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/RES IPSA LOQUITUR (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/ELEVATORS (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT).

The Third Department reversed (modified) Supreme Court’s dismissal of products liability complaint against the distributor (At Last Sportswear) and seller (Walmart) of plaintiff’s clothing which caught fire. The court also determined the Enerco defendants (the manufacturer, designer, and distributor of the heater which ignited the clothes) were aggrieved by the order, based upon joint liability principles, and therefore could appeal it:

Although liability can be apportioned between any tortfeasors, whether they are codefendants or nonparties, if an alleged tortfeasor was a codefendant whom the court had dismissed from the case, the law of the case doctrine would preclude the remaining defendants from introducing at trial any evidence regarding the same type of defect or error by that alleged tortfeasor that was previously litigated … . Thus, the Enerco defendants were entitled to challenge motions by any codefendants seeking to be released from the action, they were aggrieved by any orders granting dismissal and they could, therefore, appeal any such orders. …

[At Last’s and Walmart’s] expert opined that the dress materials complied with and exceeded the requirements of the Federal Flammable Fabrics Act (15 USC § 1191 et seq. [hereinafter FFA]) and accompanying regulations (16 CFR part 1610) for general wearing apparel, as well as the industry standard, that the dress was reasonably safe and suitable for its intended use, that it was not defective in any manner and that this type of 100% cotton dress was a standard commodity.  …

… [T]he Enerco defendants submitted an affidavit from their own expert, who opined that the FFA standards are insufficient to determine whether a garment is safe because it addresses only some factors affecting flammability of the fabric but not the design of the garment itself … . He supported his opinion with literature in which industry professionals addressed the inadequacy of the FFA standards to protect consumers. These competing expert opinions present a triable issue of fact regarding whether a design defect exists … . …

The parties’ experts disagreed as to whether labels warning about the dress’s flammability and the need to be cautious around heat sources were appropriate for such general wearing apparel and existed in the United States market for this type of garment. Thus, factual issues remain regarding whether At Last Sportswear and the Wal-Mart defendants breached a duty to warn. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 01368, Third Dept 3-1-18

PRODUCTS LIABILITY (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/CIVIL PROCEDURE (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/APPEALS (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/JOINT TORTFEASORS (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))

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ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT).

The First Department determined plaintiff mother was entitled to the infant plaintiff’s foster care records in connection with her claim that SCO Family Services negligently certified the individual defendant as a foster parent, and failed to properly supervise the foster home:

Pursuant to Social Services Law § 372(1), SCO was required to maintain records while the children were in foster care. Those records are confidential, but are discoverable pursuant to article 31 of the CPLR (Social Services Law § 372[3]). The statutory confidentiality requirement is intended to protect the privacy of children in foster care and their natural parents … , not to prevent former foster children from obtaining access to their own records.

When a former foster child “seeks her own records, so she can further her own suit against the defendant custodian of those records, who would otherwise have unequal access to them”… , she is “presumptively entitled to her own records” and “only a powerfully compelling showing would justify the court in potentially restricting” her access to the records … .

In this case, the court properly undertook in camera review of the foster care records to ensure that no private information of nonparties would be disclosed. However, the court erred in determining that the identities of ACS caseworkers, mental health professionals and other professionals should be redacted. Plaintiffs sought access to those witnesses to determine whether they had any relevant knowledge, and SCO did not articulate any privacy interests of those professionals that would warrant redacting their names from the foster care records. K.B. v SCO Family of Serv., 2018 NY Slip Op 01400, Second Dept 3-1-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/DISCOVERY (FAMILY LAW, FOSTER CARE,  ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/FOSTER CARE (DISCOVERY, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/NEGLIGENCE (DISCOVERY, FOSTER CARE RECORDS, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))

ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment in this traffic accident case was properly denied. Plaintiff made out a prima facie case by demonstrating defendant, Gavitt, made a left turn across the plaintiff’s path and plaintiff entered an intersection. However Gavitt raised a question of fact by alleging plaintiff was speeding:

Here, the plaintiff demonstrated, prima facie, that Gavitt was negligent in violating Vehicle and Traffic Law § 1141 “by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety”… . The undisputed fact that Gavitt was, in fact, unable to complete his left turn ” without being struck by [the plaintiff’s] vehicle'” … demonstrates that he violated Vehicle and Traffic Law § 1141 by failing to “yield the right of way to any vehicle approaching from the opposite direction which [was] . . . so close as to constitute an immediate hazard” … . “Regardless of which vehicle entered the intersection first, [the plaintiff], as the driver with the right-of-way, was entitled to anticipate that [Gavitt] would obey traffic laws which required [him] to yield”… .

The plaintiff also demonstrated, prima facie, that Gavitt’s negligence was the sole proximate cause of the accident, and that the plaintiff was not comparatively at fault in the happening of the accident. In this regard, the plaintiff testified at his deposition that he was traveling at 25 miles per hour immediately prior to the accident and, upon seeing Gavitt commence making the left turn in front of him, he immediately applied his brakes in an attempt to avoid colliding with Gavitt’s vehicle, but he was unable to avoid the collision … .

In opposition to the plaintiff’s prima facie showing, however, the defendants raised a triable issue of fact as to whether the plaintiff was traveling at an excessive rate of speed immediately prior to the accident and whether he could have avoided the accident through the exercise of reasonable care … . Shashaty v Gavitt, 2018 NY Slip Op 01347, Second Dept 2-28-18

NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT))

PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRCASE FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly granted because the plaintiff could not identify the cause of her staircase fall. The allegation that the staircase lacked a handrail in violation of the building code did not raise a question of fact:

In support of its motion, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact … . The plaintiff’s conclusory assertion that the absence of a handrail on the side of the stairs where she fell constituted a building code violation was insufficient to defeat the defendant’s motion. Morchyk v Acadia 3780-3858 Nostrand Ave., LLC, 2018 NY Slip Op 01302, Second Dept 2-28-18

NEGLIGENCE (SLIP AND FALL, STAIRS, PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRCASE FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))/SLIP AND FALL ( STAIRS, PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRCASE FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))/STAIRS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRCASE FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))

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