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COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county’s motion for summary judgment in this action brought by a former jail inmate for injuries related to suicide attempt (by jumping out a window) was properly denied. The defendants failed to demonstrate the attempt was not foreseeable and that the medical care provided was adequate:

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The County owes a duty of care to protect its prisoners, even from self-inflicted harm… . However, the County is not an insurer of prisoner safety and negligence cannot be inferred merely because an incident occurred… . Rather, the County’s duty is limited to providing reasonable care to protect prisoners from risks of harm that are reasonably foreseeable, i.e., those that the County knew or should have known… .

Here, the defendants, as the parties seeking summary judgment, bore the burden of establishing that the injured plaintiff’s attempt to commit suicide was not foreseeable… . … The defendants’ submissions failed to eliminate triable issues of fact as to whether the defendants knew or should have known that the injured plaintiff posed a risk of harm to herself and whether the defendants “failed to use adequate supervision to prevent that which was reasonably foreseeable”… . Moreover, the defendants’ submissions failed to eliminate triable issues of fact as to whether they violated 42 USC § 1983 by depriving the injured plaintiff of her Fourteenth Amendment right to adequate medical care … , and Mr. Iannelli’s claim for loss of consortium … . Iannelli v County of Nassau, 2017 NY Slip Op 08815, Second Dept 12-20-17

 

NEGLIGENCE (MUNICIPAL LAW, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL (NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SUICIDE (MUNICIPAL LAW, NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county had not met its burden and its motion for summary judgment was properly denied. Plaintiff, an inmate at the county jail, alleged he was injured in a fight involving other inmates. The complaint alleged the failure to keep the inmate safe and the failure to provide adequate medical care. The proof offered by the county did not demonstrate the altercation was not foreseeable, the protective measures were adequate, or the medical care was adequate. The failure to offer sufficient proof addressing these issues required the denial of summary judgment:

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“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the [municipality owes] a duty of care to safeguard inmates, even from attacks by fellow inmates” … . “Like other duties in tort, the scope of the . . . duty to protect inmates is limited to risks of harm that are reasonably foreseeable” … . On its motion for summary judgment, the County had the burden of establishing that the assault of the plaintiff was not foreseeable … . The County did not meet that burden, as it failed to eliminate triable issues of fact as to whether it knew or should have known of the dangerous propensity of certain inmates involved in the assault, or of prior similar incidents occurring while meals were being distributed by inmates. Evidence submitted by the County indicated that such altercations involving inmates distributing meals occurred monthly. Moreover, the County also failed to eliminate triable issues of fact as to the adequacy of the measures taken to prevent reasonably foreseeable harm … .

With respect to the second cause of action, which alleged a failure to provide the plaintiff with timely, adequate medical attention, a municipality owes a duty to its incarcerated citizens to provide them with adequate medical care … . The County did not submit the affidavit of an expert attesting to the adequacy of the medical care provided to the plaintiff. Its attorney’s conclusory assertion that the plaintiff received timely, adequate medical care, together with its submission of the plaintiff’s medical records, failed to establish the County’s prima facie entitlement to judgment as a matter law dismissing the second cause of action … . Adeleke v County of Suffolk, 2017 NY Slip Op 08803, Second Dept 12-20-17

 

NEGLIGENCE (INMATES, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (INMATES, NEGLIGENCE,  COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

BUILDING OWNER, MANAGER, AND ELEVATOR MAINTENANCE COMPANY ENTITLED TO SUMMARY JUDGMENT IN THIS ELEVATOR MISLEVELING SLIP AND FALL CASE, NO NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department determined the building owner’s, building manager’s and elevator maintenance company’s motions for summary judgment were properly granted in this elevator misleveling slip and fall case. The defendants demonstrated they did not have notice of the misleveling:

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A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect … , or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect… . “An elevator company which agrees to maintain an elevator in safe operating condition can also be held liable to an injured passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found'” … . Goodwin v Guardian Life Ins. Co. of Am., 2017 NY Slip Op 08814, Second Dept 12-20-17

 

NEGLIGENCE (BUILDING OWNER, MANAGER, AND ELEVATOR MAINTENANCE COMPANY ENTITLED TO SUMMARY JUDGMENT IN THIS ELEVATOR MISLEVELING SLIP AND FALL CASE, NO NOTICE OF THE CONDITION (SECOND DEPT))/ELEVATORS (MISLEVELING, SLIP AND FALL, BUILDING OWNER, MANAGER, AND ELEVATOR MAINTENANCE COMPANY ENTITLED TO SUMMARY JUDGMENT IN THIS ELEVATOR MISLEVELING SLIP AND FALL CASE, NO NOTICE OF THE CONDITION (SECOND DEPT))/SLIP AND FALL (BUILDING OWNER, MANAGER, AND ELEVATOR MAINTENANCE COMPANY ENTITLED TO SUMMARY JUDGMENT IN THIS ELEVATOR MISLEVELING SLIP AND FALL CASE, NO NOTICE OF THE CONDITION (SECOND DEPT))/MISLEVELING (ELEVATORS, SLIP AND FALL, BUILDING OWNER, MANAGER, AND ELEVATOR MAINTENANCE COMPANY ENTITLED TO SUMMARY JUDGMENT IN THIS ELEVATOR MISLEVELING SLIP AND FALL CASE, NO NOTICE OF THE CONDITION (SECOND DEPT))

SIGN ON A LIGHT POLE, WHICH PLAINTIFF STRUCK WHEN JUMPING TO CATCH A BALL, WAS A NON-ACTIONABLE OPEN AND OBVIOUS CONDITION (SECOND DEPT).

The Second Department determined the sign which plaintiff struck when jumping to catch a ball was an open and obvious condition which was not actionable. The sign was six feet seven inches from the ground attached to a light pole:

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“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . “[An] owner, however, has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous” … . Here, the defendant established, prima facie, that the sign that the plaintiff came into contact with was open and obvious, as it was not only readily observable by those employing the reasonable use of their senses, but was known to the plaintiff prior to the accident and, as a matter of law, was not inherently dangerous … . Contrary to his contentions on appeal, the plaintiff, in opposition, failed to raise a triable issue of fact as to whether the sign was inherently dangerous. Genefar v Great Neck Park Dist., 2017 NY Slip Op 08812, Second Dept 12-20-

 

NEGLIGENCE (OPEN AND OBVIOUS, SIGN ON A LIGHT POLE, WHICH PLAINTIFF STRUCK WHEN JUMPING TO CATCH A BALL, WAS A NON-ACTIONABLE OPEN AND OBVIOUS CONDITION (SECOND DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, SIGN ON A LIGHT POLE, WHICH PLAINTIFF STRUCK WHEN JUMPING TO CATCH A BALL, WAS A NON-ACTIONABLE OPEN AND OBVIOUS CONDITION (SECOND DEPT))

PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant property owner did not demonstrate leaves on a basement stairway constituted an open and obvious condition and did not demonstrative a lack of constructive notice of the condition in this slip and fall case. Defendant’s motion for summary judgment was properly denied:

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A defendant property owner has a duty to maintain its premises in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . However, it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . Similarly, whether a condition is open and obvious depends on the circumstances of the case, and something that ordinarily would be readily observable may be obscured by inadequate illumination … .

Here, the defendant failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous … . The plaintiff testified at her deposition that she fell on a two-inch thick pile of wet, matted down leaves on the seventh step of a staircase, consisting of 20 steps leading to a basement. The plaintiff further testified that the sky was overcast, that a light at the bottom of the staircase was not functioning, and that she could only see as far as the fifth step.

The defendant also failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition … . The plaintiff testified that she fell into a pile of leaves and other debris one-foot deep at the bottom of the staircase. [the building manager] testified that he could not remember whether he had checked the subject staircase on his last weekly inspection prior to the accident and that he did not know whether the landscaper or anyone else was responsible for removing leaves from the staircase. Thus, the defendant failed to establish, prima facie, that the subject condition had not been there for a sufficient period of time for the defendant to have discovered and remedied it … . Bissett v 30 Merrick Plaza, LLC, 2017 NY Slip Op 08805, Second Dept 12-20-17

 

NEGLIGENCE (SLIP AND FALL, PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, SLIP AND FALL,  PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT SUBJECT TO THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined, among other things, the arbitration of the breach contract claim did not preclude tort actions against the school defendants by a former student and his parents. The Second Department further determined Supreme Court should not have dismissed causes of action against the school on grounds not raised by the parties, should not have dismissed causes of action against a party which did not move for dismissal, and the four-month Article 78 statute of limitations, which usually applies to actions against schools, did not apply to the tort causes of action raised here. The allegations included bullying and an improper relationship between the student and certain defendants:

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On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” … . The complaint must be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true … . Broadly construed, the allegations, inter alia, of an “inappropriate relationship” between the plaintiff’s son and Stowell, an instructor or teacher at Knox School, the allegations of multiple communications from Stowell to the son around the time of his temporary “disappearance” from school and home in late 2012, and the allegations that Stowell refused to cooperate with a police investigation, suffice to state causes of action sounding in negligence … , intentional infliction of emotional distress … , and negligent infliction of emotional distress … . Cheslowitz v Board of Trustees of the Knox Sch., 2017 NY Slip Op 08807, Second Dept 12-20-17

 

NEGLIGENCE (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CPLR 3211 (a)(7)  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))

PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the long-time existence of the sidewalk defect could be inferred from the photograph. Defendants were therefore not able to show the absence of constructive notice and defendants’ motion for summary judgment in this slip and fall case should not have been granted:

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Owner defendants failed to make a prima facie showing that they lacked actual or constructive notice of the defect in the sidewalk that allegedly caused plaintiff to trip and fall … . A jury could infer from plaintiff’s photograph of the defective condition that the condition existed for a sufficient length of time for owner defendants to have discovered it and had time to repair it … .

In opposition, plaintiff raised an issue of fact as to whether the defect was actionable and not trivial. A photograph of the sidewalk at the time of plaintiff’s accident showed the condition of the sidewalk to be well-worn, with cracks between the slabs, and the defect shown in close-up appeared to be capable of causing plaintiff to trip and fall … . Flanders v Sedgwick Ave. Assoc., LLC, 2017 NY Slip Op 08718, First Dept 12-14-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (SIDEWALKS, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Jude DiFiore, over a dissent, determined that the statute of limitations in these actions stemming from in vitro fertilization began to run upon the baby’s birth, not when the egg was implanted. Here the eggs were not screened for a genetic defect. The lawsuits were based upon the theory that, but for the malpractice, the babies would not have been born and sought compensation for the extraordinary expenses necessary to care for the children:

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Two couples — the Dennehys and the Farbers — sought in vitro fertilization (IVF) treatment from defendant Dr. Alan Copperman at defendant Reproductive Medicine Associates of New York, LLP (RMA). The couple discussed the possibility of using an egg donor. Copperman informed each couple that RMA screened donor candidates for all known genetic conditions for which testing is available, but did not state which conditions were included in the screening. The couple then matched with an anonymous egg donor and, after consenting to the IVF procedure, the plaintiff mother was implanted with fertilized embryos using the donor eggs. Pregnancy was confirmed and the couple was discharged to their obstetrician/gynecologist. Each plaintiff mother later gave birth without complications — the Dennehys had a single infant and the Farbers had twins. Following birth, Copperman learned that the egg donor had tested positive for the Fragile X trait, a chromosomal abnormality that can result in intellectual disability and other deficits. He informed the couples within one year of the births, and testing later confirmed that the Dennehys’ infant and one of the Farbers’ twins had the full Fragile X mutation. …

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In 1978, this Court recognized a new, narrow cause of action permitting parents to recover the extraordinary care and treatment expenses “accruing as a consequence of the birth” of a child with a disability … . This claim, “founded essentially upon a theory of negligence or medical malpractice,” requires “a duty flowing from defendants to [plaintiffs] and that the breach of that duty was the proximate cause of the birth of their infants” … . The claim is restricted to those instances in which the plaintiffs can demonstrate “that but for the defendants’ breach of their duty to advise plaintiffs, the latter would not have been required to assume these [extraordinary financial] obligations” … . In other words, parents bringing this type of action may seek to recover only “‘the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority'”… . No recovery is allowed for any consequent psychic or emotional damages …, nor may parents recover the ordinary costs of raising a healthy child born by reason of so-called wrongful conception… . The extraordinary expenses claim belongs to the parents alone — the child cannot bring a claim for “wrongful life” … . This is because, as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all … .

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The action’s gravamen is that, but for defendants’ negligence, the parents would not have conceived or given birth to a child requiring extraordinary expenses for treatment and care. Plaintiffs allege that, by failing to take steps to detect that the egg donor was a carrier for Fragile X and therefore that the embryo may have had the Fragile X trait, defendants left the parents in an uninformed state as to whether to avert pregnancy or birth — and the associated costs resulting from birth. Given the nature of these allegations, it follows that until the alleged misconduct results in the birth of a child, there can be no extraordinary expenses claim. Moreover, we have stated that the “legally cognizable injury” is that the parents will incur extraordinary expenses to care for and treat the child … . These expenses arise “as a consequence of the birth” … , not just the conception. Prior to a live birth, it is impossible to ascertain whether parents will bear any extraordinary expenses … . Due to these unique circumstances, the cause of action accrues upon the birth of an infant with a disability. This date appropriately balances the competing statute of limitations policy concerns — it gives parents a reasonable opportunity to bring suit while at the same time limiting claims in a manner that provides certainty and predictability to medical professionals engaged in fertility treatment and prenatal care … . B.F. v Reproductive Medicine Assoc. of N.Y., LLP, 2017 NY Slip Op 08712, CtApp 12-14-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/MEDICAL MALPRACTICE ( PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/IN VITRO FERTILIZATION (MEDICAL MALPRACTICE, PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/GENETIC DEFECT (MEDICAL MALPRACTICE, IN VITRO FERTILIZATION,  PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/FRAGILE X TRAIT (MEDICAL MALPRACTICE, IN VITRO FERTILIZATION, PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))

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WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the muddy, wet conditions surrounding a town baseball field constituted a non-actionable open and obvious condition:

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Each of the defendants established its prima facie entitlement to judgment as a matter of law by demonstrating that the muddy condition of the field, caused by rain, was an open and obvious condition readily observable by those employing the reasonable use of their senses, and not inherently dangerous… . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on the affidavit of an expert whose opinion concerning the maintenance of the subject field was conclusory and speculative with no independent factual basis, and thus, insufficient to defeat a motion for summary judgment … . Sirianni v Town of Oyster Bay, 2017 NY Slip Op 08707, Second Dept 12-13-17

 

NEGLIGENCE (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS  (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUDDY GROUND (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment by jury verdict, determined the photographs taken of the sidewalk where plaintiff fell should not have been excluded from evidence. Plaintiff took the pictures herself a few days after her fall:

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The plaintiff commenced this action to recover damages for injuries she allegedly sustained in a trip and fall on an uneven sidewalk condition on premises possessed by the defendant … (…CSC). The case proceeded to a trial against CSC, at which the plaintiff attempted to introduce into evidence photographs of the area where she fell, but the Supreme Court refused to admit them into evidence on the ground that the plaintiff did not lay a proper foundation for their admission. …

In order to admit the photographs proffered at trial into evidence, the plaintiff was required to authenticate them by laying a proper foundation, which generally requires proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident… . Contrary to the determination of the Supreme Court, the plaintiff properly authenticated the photographs by testifying that she took them a few days after the accident, and that they fairly and accurately depicted the area where she fell at the time of her accident. … [T]his error was not harmless, since the photographs were illustrative of the plaintiff’s trial testimony and were highly relevant to the issues of constructive notice and trivial defect that were raised at trial … . Davidow v CSC Holdings, Inc., 2017 NY Slip Op 08655, Second Dept 12-13-17

 

NEGLIGENCE (EVIDENCE, SLIP AND FALL, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/SLIP AND FALL (EVIDENCE, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, EVIDENCE, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/PHOTOGRAPHS (EVIDENCE, SLIP AND FALL, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))

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