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DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-cemetery had demonstrated it did not have notice of the depression or hole plaintiff stepped in. The area was covered with grass and appeared to be level:

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As alleged by the plaintiff, she was visiting the graves of her family members and was walking behind her father when she took a step near one of the headstones and her left foot began to sink into the ground. The spot where her foot sank into the ground was covered with grass, and it appeared to be level. According to the plaintiff, her father had stepped in the exact spot seconds before her accident without incident. The plaintiff, and her husband suing derivatively, commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appeal.

In a premises liability case, a defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence… . To constitute constructive notice, a dangerous condition “must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create or have actual or constructive notice of the subject dangerous condition before the incident occurred … . Carriero v St. Charles/ Resurrection Cemetery, 2017 NY Slip Op 09112, Second Dept 12-27-17

NEGLIGENCE (DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ summary judgment motion in this traffic accident case should have been granted. Defendant bus driver was aware of an upcoming sharp curve and was aware the road was slippery due to rain. The bus crossed into the on-coming lane, striking plaintiffs’ vehicle. There was no question of fact about whether the bus driver had reacted to an emergency:

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“A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic” … . “Crossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver’s own making”… .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant driver’s negligence in crossing over the double yellow line and entering the opposite lane of traffic, in which the plaintiffs’ vehicle had been traveling, was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s deposition testimony indicated that she knew that there was a sharp curve in the road where she lost control of her vehicle and that rain, which had been falling for some time prior to the accident, had made the roadway slippery. Contrary to the defendants’ contention, the defendant driver merely speculated that there was oil on the ground. Thus, the defendants failed to raise a triable issue of fact as to whether the defendant driver was faced with an emergency situation not of her own making which contributed to the happening of the accident … . Browne v Logan Bus Co., Inc., 2017 NY Slip Op 09111, Second Dept 12-27-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))/TRAFFIC ACCIDENTS (BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))

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CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an off-duty police officer (Rodriguez) working security at a bar was not acting within the scope of his employment during the encounter with plaintiff. Therefore the causes of action against the city based upon vicarious liability or respondeat superior, alleging negligence, assault and false imprisonment, should have been dismissed:​

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… [W]here there are no material disputed facts and there is no question that the employee’s acts fall outside the scope of his or her employment, the determination is one of law for the court and not one of fact for the jury … . A municipality may be held vicariously liable for the conduct of a member of its police department if the officer was engaged in the performance of police business… . Here, in support of their motion, the City defendants established that Rodriguez was at all relevant times off-duty, was engaged in other employment as a private citizen, was not in uniform, did not arrest plaintiff, and did not display his police badge. We thus conclude that the City defendants met their prima facie burden of establishing that Rodriguez was not acting within the scope of his employment as a police officer during the encounter with plaintiff … . In opposition, plaintiff failed to raise a triable issue of fact … . We reject plaintiff’s contention that Rodriguez’s identification of himself as a police officer during the encounter raised an issue of fact sufficient to defeat the motion with respect to the issue of scope of employment … . Maloney v Rodriguez, 2017 NY Slip Op 08993, Fourth Dept 12-22-17

 

NEGLIGENCE (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/MUNICIPAL LAW (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))

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IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the village’s motion for summary judgment in this slip and fall case should have been granted. Where a municipality has a written notice requirement which has not been met, it still can be liable for a dangerous condition it created. However a defect which develops gradually over time, as opposed to immediately after some act by the municipality, is not actionable. Here the collapse of pavement near a storm drain was caused by water over time:

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There is no dispute that defendant established that it lacked prior written notice, thus shifting the burden to plaintiff to demonstrate that an exception to the general rule is applicable … . Such an exception exists where “the municipality affirmatively created the defect through an act of negligence” … . That exception, however, applies only “to work by the [municipality] that immediately results in the existence of a dangerous condition” … . Here, plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work … . Malek v Village of Depew, 2017 NY Slip Op 08998, Fourth Dept 12-22-17

 

NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/MUNICIPAL LAW (SLIP AND FALL, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))

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PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

The Fourth Department determined plaintiffs’ battery and medical malpractice causes of action properly survived summary judgment. The court noted that the defendants had submitted plaintiff’s testimony in support of summary judgment and thereby demonstrate triable issues of fact. With respect to the battery cause of action, the court wrote:

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It is “well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, plaintiffs allege in the complaint that “defendant physician knew that . . . she was exceeding the scope of . . . plaintiff’s consent by performing a medical procedure that . . . plaintiff had not authorized” …  and, inasmuch as defendants do not challenge the battery claim with respect to the element of causation, we conclude that plaintiffs have stated such a claim. Tirado v Koritz, 2017 NY Slip Op 08954, Fourth Dept 12-22-17

 

NEGLIGENCE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’s TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)/BATTERY (MEDICAL MALPRACTICE, (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

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DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the lead-paint exposure complaint should not have been dismissed because, although the exposure occurred after the judgment of foreclosure on the property, it occurred before the foreclosure sale, when defendants still held title:

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… [D]efendants sought partial summary judgment dismissing those claims because defendants had lost title to the property by order of foreclosure entered on that date. We agree with plaintiff that the court erred in granting that part of defendants’ motion.

Although defendants established in support of that part of their motion that a judgment of foreclosure had been entered, it is well settled that ” [t]he entry of a judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until [a] sale is actually conducted’ ” … . It is undisputed that the actual sale of the property did not take place until April 1993, after plaintiff had allegedly been exposed to lead paint, and thus defendants failed to meet their burden on that part of their motion. Nero v Kendrick, 017 NY Slip Op 08980, Fourth Department 12-22-17

NEGLIGENCE (LEAD PAINT, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/FORECLOSURE (TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/REAL PROPERTY (FORECLOSURE, TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/LEAD PAINT (DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))

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ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the complaint against the company which owned a truck which struck plaintiff should not have been dismissed. The driver of the truck, an employee, was using it for personal purposes (driving bar to bar) at the time of the accident and was not acting within the scope of his employment. The company was not liable under the doctrine of respondeat superior. However, there was a question of fact whether the driver was using the truck with the company’s permission at the time of the accident, rendering the company liable pursuant to the Vehicle and Traffic Law:

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“It is well settled that Vehicle and Traffic Law § 388 (1) creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary” … . Even in the case of substantial evidence to the contrary, the issue of implied permission is ordinarily a question of fact for a jury … . The Court of Appeals … went so far as to state that “uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission will not necessarily warrant a court in awarding summary judgment for the owner” … . Baker v Lisconish, 2017 NY Slip Op 08943, Fourth Dept 12-22-17

 

NEGLIGENCE (TRAFFIC ACCIDENT, EMPLOYMENT LAW, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/EMPLOYMENT LAW (TRAFFIC ACCIDENT, RESPONDEAT SUPERIOR, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, PERMISSIVE USE, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/RESPONDEAT SUPERIOR (TRAFFIC ACCIDENTS,  ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/TRAFFIC ACCIDENTS (RESPONDEAT SUPERIOR, VEHICLE AND TRAFFIC LAW,  ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/PERMISSIVE USE (TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))

DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment finding defendant negligent in this traffic accident case. Defendant made a left turn in front of an oncoming car and testified he did not see the oncoming car. That constituted negligence as a matter of law, irrespective of whether defendant stopped at a stop sign before the accident:

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Plaintiffs met their initial burden by establishing that defendant was negligent in violating Vehicle and Traffic Law § 1142 (a) by turning left at an intersection directly into the path of an oncoming vehicle and that defendant’s violation of the statute was unexcused … . Additionally, inasmuch as defendant admitted in his deposition testimony that he never saw the oncoming vehicle prior to the collision, we conclude that defendant was negligent as a matter of law in failing to see what was there to be seen and in crossing in front of an oncoming vehicle when it was hazardous to do so … . Although we agree with defendant that there are conflicting accounts concerning whether he stopped at the posted stop sign prior to the accident, we conclude that this minor discrepancy does not raise an issue of fact precluding an award of summary judgment in plaintiffs’ favor on the issue of defendant’s negligence because in either scenario defendant was negligent as a matter of law … . Peterson v Ward, 2017 NY Slip Op 09024, Fourth Dept 12-22-17

 

NEGLIGENCE (DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT))

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THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGED BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissenting opinion, determined the negligence action against the Jewish Child Care Association (JCCA) properly survived summary judgment. The JCCA placed a 29-week-old child with a foster mother (Pineda). The child was left in the care of the teenaged boyfriend of Pineda’s daughter and suffered brain damage at the hands of the boyfriend:

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The record suggests that JCCA may have been negligent in at least five respects. First, the agency placed the child in Ms. Pineda’s home when he was a newborn, even though it had previously determined that children under five should not be placed with her because she was working or looking for work, and that her home required “stabilizing,” because her 16 year-old-daughter had recently given birth to a baby with special needs. Second, JCCA failed to ensure that an appropriate child care plan was in place after it had determined that Ms. Pineda was employed outside the home, as the applicable regulation requires… .. Moreover, there is no evidence that JCCA had ever advised Ms. Pineda that she needed to seek approval of her child care plan. Third, JCCA had notice, prior to the date on which the child was injured, that at least one unauthorized person was caring for him, but failed to take any action to rectify this, violating its own rules and the relevant regulation … . Fourth, JCCA’s contract with Ms. Pineda stated merely that she was not to leave the infant plaintiff without competent supervision. This violates the applicable regulation, entitled “Certification or approval of foster family homes,” which requires agencies to have foster parents acknowledge in writing that they will not “leave children under the age of 10 years alone without competent adult supervision” … . Moreover, Ms. Pineda testified that she was never advised that she was not permitted to leave a foster child in the care of someone under 18. Finally, … JCCA had failed to visit the home for a three-month period, in violation of its own requirement of at least two contacts per month, with at least one to take place in the home. Under these circumstances, a jury could find that, had the agency followed the applicable regulations and its own rules, the special needs infant plaintiff might never have been left alone with a teenager already caring for his own special needs infant, and who was prohibited from caring for the infant foster child.

Where the acts of a third person intervene between a defendant’s negligent conduct and a plaintiff’s injury, the causal connection between the two is not severed as a matter of law. Rather, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. De’L. A. v City of New York, 2017 NY Slip Op 08897, First Dept 12-21-17

 

NEGLIGENCE (THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/FOSTER CARE (NEGLIGENCE, PLACEMENT AGENCY, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/PLACEMENT AGENCY (FOSTER CARE, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/FAMILY LAW (FOSTER CARE, PLACEMENT AGENCY, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))

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TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town did not demonstrate it did not created the dangerous condition in this slip and fall case. The town’s motion for summary judgment should not have been granted:

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Here, the plaintiff alleged in his bill of particulars that the Town negligently caused, permitted, and allowed the barricade to be placed in such a way that a part of the barricade extended out into the line of pedestrian traffic. Thus, to establish its prima facie entitlement to judgment as a matter of law, the Town was required to establish, prima facie, both that it did not receive prior written notice of the condition and that it did not create the condition through an affirmative act of negligence … .

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Although the Town established, prima facie, that it did not have prior written notice of the allegedly negligent positioning of the barricade, it failed to establish, prima facie, that it did not create the allegedly dangerous condition through an affirmative act of negligence. Since the Town’s submissions failed to eliminate all triable issues of fact as to whether it was responsible for the allegedly negligent placement of the barricade, the motion for summary judgment should have been denied regardless of the sufficiency of the papers submitted in opposition … . Toscano v Town of Huntington, 2017 NY Slip Op 08872, Second Dept 12-20-17

 

NEGLIGENCE (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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