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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))

RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined an indoor rock-climber’s action against the defendant rock-climbing facility properly survived defendant’s motion for summary judgment. The released signed by the plaintiff was invalid pursuant to the General Obligations Law. And the assumption of risk doctrine did not preclude the suit because the complaint alleged a concealed risk (a gap between two mats concealed by velcro):

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… [T]he release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature … .

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“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … .

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing … . Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers… . Lee v Brooklyn Boulders, LLC, 2017 NY Slip Op 08660, Second Dept 12-13-17

 

NEGLIGENCE (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/ASSUMPTION OF THE RISK (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/RELEASE (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/GENERAL OBLIGATIONS LAW (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/RECREATIONAL FACILITY (ASSUMPTION OF THE RISK, (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT).

The Third Department determined the wrongful death action against state police officers who stopped plaintiff’s decedent (for following too closely) but did not issue a traffic ticket was properly dismissed. Decedent told the officers he had had two drinks, was tired and would call his brother to take him home. The officers left decedent on the side of the road. Decedent was later found dead in his car. Although decedent’s blood alcohol content was above the legal limit, the officers testified they did not see any signs of intoxication when they spoke with decedent. The court found there was no special relationship between the decedent and the officers and the state was therefore immune from suit:

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Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers … , the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party… . As relevant here, a special duty arises when the governmental entity “voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally” … . To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents’ affirmative undertaking … . Barnes v State of New York, 2017 NY Slip Op 08564, Third Dept 12-7-17

 

NEGLIGENCE (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/IMMUNITY (STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/GOVERNMENTAL IMMUNITY (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/POLICE  (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/WRONGFUL DEATH (POLICE, GOVERNMENTAL IMMUNITY,  STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/TRAFFIC STOPS (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/DRIVING WHILE INTOXICATED (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))

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COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).

The Third Department determined that the defendant county’s motion for summary judgment in this road-defect action by an injured motorcyclist was properly denied. Although the county had a written notice requirement as a prerequisite for an action based upon a road defect, the Highway Law also applies and will impose liability if the county had notice of the defect:

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The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, “a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective . . . highway” … . However, where Highway Law § 139 is applicable — in the case of county roads — “[e]ven if a local law exists requiring prior written notice of a defect, a civil action may be commenced absent such notice against a municipality for injuries resulting from a defect in a highway under its care if the ‘defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence'” … . Thus, to establish entitlement to summary judgment, a county must show both that it received no prior written notice of the alleged defect and that it had no actual or constructive notice thereof … . Pasternak v Chenango, 2017 NY Slip Op 08578, Third Dept 12-7-17

 

MUNICIPAL LAW (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, ROAD DEFECTS, WRITTEN NOTICE REQUIREMENT, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))

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FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff firefighter’s General Municipal Law 205-a cause of action should not have been dismissed. It was alleged that the fire which caused plaintiff’s injury was started by a warming plate that was left on when defendant left her apartment in violation of the NYC Fire Code. Although the defendant’s act was not the proximate cause of plaintiff’s injury, the General Municipal Law 205-a cause of action requires only a connection between the injury and a code violation:

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Plaintiff firefighter was injured while attempting to fight a fire that had originated in defendant’s apartment. Issues of fact exist as to whether defendant was negligent in leaving a warming tray/hot plate plugged into a timer, in the “on” position, when she left her apartment to go to a friend’s home for dinner. The Fire Marshall concluded that the fire originated in the area of the warming tray/hot plate and timer. Although the motion court correctly concluded that defendant’s alleged negligence was not a proximate cause of plaintiff’s injuries, General Municipal Law § 205-a imposes liability where there is a practical or reasonable connection between a statutory or code violation and the firefighter’s injury or death … . Plaintiff’s expert fire investigator opined that, by leaving the apartment with the electrical heating devices on, defendant delayed the discovery of the fire and allowed it to grow and spread. Accordingly, there is a sufficient connection between defendant’s alleged negligence and plaintiff’s injury … . The court also improperly found that the New York City Fire Code (Administrative Code of City of NY tit 29, ch 2) § FC 305.4 was inapplicable to the facts of this case. That section is not limited to “combustible waste,” but expressly includes “combustible material.” Moreover, while combustible waste that has economic value to a premises is considered combustible material … , combustible material is not so limited, but is any material capable of combustion. The materials in defendant’s kitchen were clearly combustible. Walsh v Michelson, 2017 NY Slip Op 08616, First Dept 12-7-17

 

MUNICIPAL LAW (FIREFIGHTERS, GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/GENERAL MUNICIPAL LAW 205-a FIREFIGHTERS (FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/FIREFIGHTERS (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/NEGLIGENCE (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))

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PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s (Department of Education’s, DOE’s) motion for summary judgment in this negligent supervision action should not have been granted. Plaintiff, after a confrontation in the school cafeteria, was later beaten up by the same students involved in the cafeteria confrontation. At least one of the attackers had assaulted a student before and the attackers were known to be in a gang. The Second Department determined the DOE’s proof did not sufficiently demonstrate a lack of notice or the provision of adequate security:

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Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students’ potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred… .. The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff’s assailants. Moreover, given the witnesses’ testimony regarding the disciplinary history of one of the infant plaintiff’s assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student’s dangerous propensities … . The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.

Contrary to the defendants’ contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff’s injuries… . In determining whether an incident occurs “in so short a span of time that even the most intense supervision could not have prevented it” … , “[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding” the incident… .. According to the infant plaintiff’s section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell … . “Proximate cause is a question of fact for the jury where varying inferences are possible,” and “[p]roper supervision depends largely on the circumstances surrounding the event” … . Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault. K.J. v City of New York, 2017 NY Slip Op 08508, Second Dept 12-6-17

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION,   PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENCE PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should have been to the driver of the middle car in this three-car rear-end collision case. The middle driver demonstrated the driver of the last car struck the middle car and propelled the middle car into the first car, driven by plaintiff:

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“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” … .

Here, [the driver of the middle car] established his entitlement to judgment as a matter of law by demonstrating, prima facie, that his vehicle was slowing down in response to a traffic condition ahead, and that his vehicle was then propelled forward into the plaintiff’s vehicle after his vehicle was struck in the rear by [the car behind]. Pomerantsev v Vladimir Kodinsky, 2017 NY Slip Op 08545, Second Dept 12-6-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAR-END COLLISIONS (NEGLIGENCE, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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