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QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT).

The Third Department determined a question of fact precluded summary judgment in favor of defendant in this truck-car intersection collision case. The defendant truck driver, Head, alleged the driver of the car in which plaintiff was a passenger (Sinclair) made a left turn across the truck’s path and Head did not have time to avoid the collision. However an eyewitness, Fuller, testified there was sufficient time for the truck driver to take evasive action:

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In this context, Head “was bound to see what[,] by the proper use of [his] senses[,] [he] might have seen” and, if the circumstances were as described by Fuller, and if Head should have observed Sinclair’s car turning left, “then the accident would be a reasonably foreseeable risk and [Head] would have had a duty to avoid striking [Sinclair], if it were possible to do so”… . Fuller’s materially different version of the accident, if credited, could support the conclusion that Head had adequate time and opportunity to observe Sinclair’s turning car and take evasive action … . That is, Head had “a duty to use reasonable care to avoid a collision” and, unless he had “only seconds to react” to Sinclair’s failure to yield the right-of-way, an issue disputed by plaintiff’s evidence, Head may be partly at fault … . Debra F. v New Hope View Farm, 2017 NY Slip Op 08429, Third Dept 11-30-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/TRAFFIC ACCIDENTS (COMPARATIVE FAULT,  QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))/RIGHT OF WAY (TRAFFIC ACCIDENTS, COMPARATIVE FAULT, QUESTION OF FACT WHETHER DRIVER WITH RIGHT OF WAY HAD TIME TO TAKE EVASIVE ACTION TO AVOID A CAR CROSSING HIS PATH TO MAKE A LEFT TURN (THIRD DEPT))

MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT).

The Third Department determined defendant store’s motion for summary judgment in this slip and fall case was properly granted because the manner in which Christmas decorations were stacked did not present a foreseeable risk. Plaintiff was taking down a Christmas decoration when things started to fall from the shelf:

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Plaintiff testified that while taking down garland, she felt a snag on the garland and, when she turned back and saw that the garland was attached to a loop of garland above it, she saw — through her peripheral vision — “stuff” starting to fall and, when she started to move her feet, she fell. Plaintiff further testified that she did not trip over anything and was not struck by anything before she fell, nor did she strike anything on the way down as she fell. In opposition to defendant’s motion, plaintiff submitted defendant’s Holiday Sales Planner and Stocking Procedural Manual. Plaintiff also submitted an affidavit of plaintiff’s expert witness — a retail sales merchandising specialist, consultant and planner — who attested to the proper, correct and safe way to install, stock and display consumer products and merchandise for sale to the public in retail stores. However, such testimony failed to demonstrate how the location and stocking of the garland presented a foreseeable risk. Therefore, plaintiff failed to raise a triable issue of fact that plaintiff’s injury was reasonably foreseeable … . Supreme Court properly found that there was “nothing about the nature of packages of garland falling from above that would lead a reasonable person to foresee said garland knocking a person to the ground and/or breaking a person’s wrist.” Supreme Court also correctly found that the doctrine of res ipsa loquitur did not apply. “The doctrine cannot be used where, as here, the defendant against whom the doctrine is asserted owes no duty in connection with the mechanism that caused the injury” … . Parke v Dollar Tree, Inc.2017 NY Slip Op 08427, Third Dept 11-30-17

 

NEGLIGENCE (FORESEEABILITY, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))/FORESEEABILITY (NEGLIGENCE, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))/SLIP AND FALL (FORESEEABILITY, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))/RES IPSA LOQUITUR (SLIP AND FALL, MANNER IN WHICH DECORATIONS WERE STACKED IN A STORE DID NOT PRESENT A FORESEEABLE RISK, RES IPSA LOQUITUR DOCTRINE DID NOT APPLY (THIRD DEPT))

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PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).

The Third Department determined plaintiff’s motion to amend the complaint to add a cause of action for wrongful death was properly granted. Plaintiff’s daughter died after the lawsuit had begun. She had ingested a harmful substance at a festival and the complaint alleged the failure to prevent the use of drugs at the festival and the inadequacy of medical treatment facilities at the festival. Defendants argued there was insufficient evidence of a causal link between the ingestion of the harmful substance and plaintiff’s daughter’s death:

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… [D]efendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment… . Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent’s injuries were caused by defendants’ failure to ensure that she received adequate and timely emergency medical care … . Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence … , is “palpably insufficient or patently devoid of merit” … .

To the extent that defendants argue that the motion for leave to amend to add a cause of action for wrongful death must be supported by competent medical proof showing a causal connection between their alleged negligence and decedent’s death, they are incorrect. Prior decisions have held that, “[w]here a plaintiff seeks to amend a complaint alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by ‘competent medical proof showing a causal connection between the alleged negligence and the decedent’s death'” … . Matter of Bynum v Camp Bisco, LLC, 2017 NY Slip Op 08433, Third Dept 11-30-17

 

CIVIL PROCEDURE (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/COMPLAINT, AMENDMENT OF (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/NEGLIGENCE (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/WRONGFUL DEATH (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))

DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the truck defendants’ (Crown and Kumar’s) motion for summary judgment in this traffic accident case should have been granted. Another defendant, Ferreira, had cut the truck off attempting to make a right turn from the left lane. Ferreira’s actions were the sole proximate cause of the accident:

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Ferreira’s testimony indicated that she violated Vehicle and Traffic Law § 1128(a), which states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Therefore, she was negligent as a matter of law … . The appellants further established that Kumar was not negligent, since he took prompt evasive action by applying his brakes hard.

Thus, by demonstrating that Ferreira was negligent and that her negligence was the sole proximate cause of the accident, the appellants established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff and Ferreira failed to raise a triable issue of fact. Accordingly, the appellants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them should have been granted. Pipinias v Ferreira, 2017 NY Slip Op 08400, Second Dept 11-29-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE PER SE,  DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a question of fact about the storm in progress proof precluded summary judgment in favor of the defendants in this slip and fall case. In support of the motion, defendants submitted plaintiff’s deposition testimony and climatological data. Because there was a conflict between those two sources of evidence, summary judgment was not available:

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“Under the storm in progress rule,’ a landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter'” … . Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint … based on the storm in progress rule. The climatological data submitted by the defendants in support of their motion contradicted the plaintiff’s deposition testimony, which the defendants also submitted, as to whether precipitation was falling at or near the time of the accident. Since the evidence submitted by the defendants was in conflict and, thus, could not establish, prima facie, that the storm in progress rule applied … , the court should have denied that branch of their motion which was for summary judgment dismissing the complaint … regardless of the sufficiency of the plaintiff’s opposition papers … . Pecoraro v Tribuzio, 2017 NY Slip Op 08386, Second Dept 11-29-17

 

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (STORM IN PROGRESS, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STORM IN PROGRESS (SLIP AND FALL, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. Defendants failed to show that they did not create the dangerous snow-ice condition or have notice of it:

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Here, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law … . Their own submissions, which included, inter alia, the deposition testimony of the plaintiff and the defendants’ superintendent, in addition to a certified weather report for the month of February 2014, failed to eliminate all triable issues of fact as to the whether the defendants caused or exacerbated the alleged icy condition on the subject sidewalk or had notice of it. The plaintiff testified that, at the time of the accident, she slipped on ice on the path which had been shoveled through the snow on the sidewalk adjacent to her apartment building. She also testified that the path was slippery when she had used it the night before and that she did not observe any salt or sand on it. Although the building superintendent testified as to general snow removal procedures for the building, he could not remember what he did on the date of the accident and did not have an independent recollection of removing snow from the outside of the building at any time on either February 3, 2014, or February 4, 2014. His testimony conflicted with statements set forth in his affidavit, submitted in support of the motion, in which he stated that he personally checked the path at issue at the end of his shift at 5:00 p.m. on February 4, 2014, and did not observe any snowy and/or icy condition. Such contradictory statements raise an issue of credibility which cannot be resolved on a motion for summary judgment … . Further, the certified weather report demonstrated that there was an accumulation of 6.7 inches of snow as of 5:00 p.m. on February 3, 2014, approximately 26½ hours prior to the accident, and that no snow fell on the date of the accident. Consequently, the defendants did not establish, prima facie, that they neither created the alleged hazardous icy condition on the sidewalk nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Michalska v Coney Is. Site 1824 Houses, Inc., 2017 NY Slip Op 08365, Second Dept 11-29-17

 

NEGLIGENCE (DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ICE AND SNOW (SIDEWALKS, SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT).

The Second Department, affirming Supreme Court, determined defendants’ motions for summary judgment on the lack of informed consent cause of action were properly denied. Plaintiff had signed a consent form but alleged the wrong tooth was extracted:

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“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action for malpractice based on lack of informed consent, plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law”… .

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… Supreme Court properly determined that triable issues of fact precluded an award of summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against them. The deposition testimony of the parties and the generic consent form signed by the plaintiff revealed a factual dispute as to whether the plaintiff was adequately informed about the extraction, namely which tooth would be removed… . In addition, each of the expert opinions submitted on the summary judgment motions was in agreement that a root canal was a viable alternative treatment to the extraction of tooth number four. Thus, there were triable issues of fact as to whether a reasonably prudent patient in the plaintiff’s position would have undergone the extraction of tooth number four if he or she had been fully informed … . Godel v Goldstein, 2017 NY Slip Op 08260, Second Dept 11-22-17

 

NEGLIGENCE (DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/MEDICAL MALPRACTICE (LACK OF INFORMED CONSENT, DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/DENTAL MALPRACTICE (LACK OF INFORMED CONSENT, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))

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OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant out-of-possession landlord (NYC Housing Authority) should have been granted summary judgment in this personal injury action. Plaintiff alleged a window in his apartment failed to stay open and slammed shut, severing a portion of a finger. Apparently a window had been repaired by the landlord about a year before, but no subsequent complaints about windows were made:

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“An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it” … . Here, with respect to the negligent maintenance claim, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged injury-producing condition or have actual or constructive notice of the condition … . The evidence showed that, more than one year prior to the incident, a window in the living room of the subject apartment had been repaired following an inspection by the defendant, and that there had been no complaints about the windows in the apartment following the repair. In opposition, the plaintiff failed to raise a triable issue of fact … .

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing the remaining theories of liability by demonstrating that they had not been included in the notice of claim … . Cotto v New York City Hous. Auth., 2017 NY Slip Op 08258, Second Dept 11-22-17

 

NEGLIGENCE (OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LANDLORD-TENANT  (OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, NEGLIGENCE, OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, THEORIES NOT INCLUDED IN NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT))

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PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this traffic accident case should have been granted. Defendants were in the far right lane when plaintiff attempted to turn right from the center lane, crossing in front of defendants:

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[The] evidence demonstrated, prima facie, that the plaintiff violated Vehicle and Traffic Law §§ 1128(a) and 1163, and that defendant driver was free from fault in the happening of the accident … . This evidence also demonstrated, prima facie, that the plaintiff’s actions were the sole proximate cause of the subject accident.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit, which contradicted admissions he made in the certified motor vehicle report, was insufficient to defeat the defendants’ motion for summary judgment because it merely raised what appear to be feigned issues of fact … . Park v Sanchez, 2017 NY Slip Op 08279, Second Dept 11-22-16

 

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE,  PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))/EVIDENCE (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT,  PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))

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STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the complaint in this negligent supervision case was properly dismissed. The student plaintiff had cerebral palsy and was being supervised at recess by an aide who was ten feet aware. The student was playing a game which was supervised by an athletic director when the student plaintiff and another student collided:

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The infant plaintiff … [alleged] that the defendants were negligent in failing to provide adequate supervision, and in allowing the infant plaintiff to participate in the wall ball game. … [T]he defendants moved for summary judgment … contending that they provided adequate supervision to the children during recess, that the infant plaintiff’s Individualized Education Plan did not restrict him from playing during recess, and that … any alleged failure to provide adequate supervision was not a proximate cause of the infant plaintiff’s injuries because the collision occurred suddenly and unexpectedly.

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“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision”… . Schools are not, however, insurers of their students’ safety, and may not be held liable ” for every thoughtless or careless act by which one pupil may injure another'” … . Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury … .

Here, the defendants … [demonstrated] that they provided adequate supervision to the infant plaintiff during recess… and, in any event, that the accident was caused by a sudden and spontaneous collision which could not have been prevented by more intense supervision … . Tzimopoulos v Plainview-Old Bethpage Cent. Sch. Dist., 2017 NY Slip Op 08296, Second Dept 11-22-17

 

NEGLIGENCE (SUPERVISION, SCHOOLS, STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT))

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