You are here: / Negligence
, ,

FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined defendant doctor’s (Aronoff’s) motion to set aside the verdict in this medical malpractice action was properly denied. Aronoff’s failure to provide plaintiff (Raymond) with written instructions and warning after the colonoscopy, and his failure to notify plaintiff after a colon perforation was discovered constituted sufficient evidence of proximate cause:

Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury … . “Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause” … . ” A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

Here, there was legally sufficient evidence to support the jury’s findings that Aronoff departed from accepted standards of medical practice in failing to provide Raymond with written post-colonoscopy instructions and failing to warn him as to the signs or symptoms of which he should be aware. Aronoff also failed to contact Raymond and instruct him to go to the hospital after Aro

noff had reviewed CT scan results that revealed a colon perforation. The evidence was legally sufficient to support the jury’s findings that these deviations proximately caused Raymond’s injuries … . Gaspard v Aronoff, 2017 NY Slip Op 06258, Second Dept 8-23-17

 

,

NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the landlord’s (NYC Housing Authority’s, NYCHA’s) motion for summary judgment was properly granted. Plaintiff was shot by an unknown assailant in the hallway of his apartment building. Plaintiff alleged the assailant gained access to the building by virtue of a broken lock:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person”… . Recovery against a landlord for an assault committed by a third party requires a showing that the landlord’s negligent failure to provide adequate security was a proximate cause of the injury … . “In premises security cases particularly, the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder” … .

Here, NYCHA met its prima facie burden by submitting evidence that the rear door lock was operable and not broken on the day of the incident, and, in any event, by demonstrating that the assailant’s identity remains unknown and that it could not be established that the assailant was an intruder … . In opposition thereto, the plaintiff failed to raise a triable issue of fact. “Mere conjecture, suspicion, or speculation is insufficient to defeat a motion for summary judgment” … . Martinez v City of New York, 2017 NY Slip Op 06263, Second Dept 8-23-17

 

NEGLIGENCE (ASSAULT, NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))/LANDLORD-TENANT (ASSAULT, NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))/ASSAULT (NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))

, , ,

SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dentist who provided an affidavit for plaintiff was an expert, the expert raised a question of fact whether defendant departed from the accepted standard of care, and a question of fact was raised about whether plaintiff gave informed consent to the procedure. The court noted that plaintiff’s expert’s qualifications were not questioned in defendant’s reply papers. Therefore, the court should not have raised the issue on its own and used the issue to support granting  summary judgment to the defendant. With regard to informed consent, the court wrote:

“A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation”… .. To establish a cause of action to recover damages for malpractice based on lack of informed consent, a 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 … .

Here, the defendant failed to submit proof sufficient to establish, prima facie, that he had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed … . Dyckes v Stabile, 2017 NY Slip Op 06252, Second Dept 8-23-17

​

NEGLIGENCE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/DENTAL MALPRACTICE (SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EXPERT OPINION  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/CIVIL PROCEDURE (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/SUMMARY JUDGMENT  (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EVIDENCE  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))

,

STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT).

The Second Department determined the state’s motion for summary judgment in this personal injury action was properly granted. Claimant alleged he suffered a head injury when diving into waves at a state park beach. Apparently claimant’s head hit the ocean floor:

Governmental entities owe a duty to ” act as a reasonable [person] in maintaining [their] property in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is also a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … .

Here, in support of its cross motion for summary judgment dismissing the claim, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . Furthermore, the defendant had no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … . Courtney v State of New York, 2017 NY Slip Op 06250, Second Dept 8-23-17

 

NEGLIGENCE (SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/COURT OF CLAIMS (STATE BEACHES, SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/SWIMMERS (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/STATE PARKS  (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))

INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT).

The Second Department. reversing Supreme Court, determined defendant homeowners’ motion for summary judgment should not have been granted. Plaintiff, who was hired to clean defendants’ attic, was injured when she stepped on sheetrock and fell through:

Landowners have a duty to maintain their premises in a reasonably safe condition … ‘ However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous … . “While the issue of whether a hazard is . . . open and obvious is generally fact-specific and thus a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” … .

Here, the homeowners failed to establish their prima facie entitlement to judgment a matter of law, as they failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open and obvious and not inherently dangerous as a matter of law … . Gallardo v Gilbert, 2017 NY Slip Op 06256, Second Dept 8-23-17

 

NEGLIGENCE (INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT))

SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT).

The Second Department determined defendant homeowners’ motion for summary judgment in this slip and fall case was properly granted. Plaintiff slipped and fell on ice and snow which was on defendants’ front steps. The defendants demonstrated the storm in progress rule applied and the condition was open and obvious:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including climatological data, demonstrating that they did not have a reasonable opportunity to remedy the condition under the storm in progress rule … . Similarly, the defendants did not have a duty to warn the plaintiff of the open and obvious condition on the front step … . De Chica v Saldana, 2017 NY Slip Op 06251, Second Dept 8-23-17

NEGLIGENCE (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/SLIP AND FALL (SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/WARN, DUTY TO (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))

,

TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department noted that testimony at a Municipal Law 50-h hearing cannot be relied upon to assert a cause of action not included in the notice of claim. Here the notice of claim alleged the city failed to provide timely medical care to plaintiff’s decedent, who died of a heart attack after he was arrested. Although plaintiff testified at the 50-h hearing that plaintiff’s decedent told a doctor he had been beaten by the police, the notice of claim made no mention of any causes of action based on that allegation:

“In making a determination on the sufficiency of a notice of claim, a court’s inquiry is not limited to the four corners of the notice of claim”… . A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim… . However, in determining the sufficiency of a notice of claim, testimony during an examination conducted pursuant to General Municipal Law § 50-h cannot be used to substantively change the nature of the claim or the theory of liability set forth in the notice of claim … .

Here, the notice of claim was limited to allegations that the police officers involved in the decedent’s arrest failed to obtain timely medical assistance for the decedent while he was in their custody, and that the hospital staff negligently treated the decedent. There were no allegations, either express or implied, that the police had assaulted the decedent, or that the defendants negligently hired, supervised, or retained the police officers who were involved in the decedent’s arrest. The plaintiff’s testimony at the General Municipal Law § 50-h examination cannot be used to amend the theories of liability set forth in the notice of claim … . Davis v City of New York, 2017 NY Slip Op 06155, Second Dept 8-16-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))/50-H HEARING (NEGLIGENCE, MUNICIPAL LAW, TESTIMONY AT THE 50-H HEARING COULD NOT BE THE BASIS FOR THE ASSERTION OF THEORIES NOT MENTIONED IN THE NOTICE OF CLAIM (SECOND DEPT))

,

QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT).

The Second Department determined defendants’ (Herman’s and Capuano’s) motions for summary judgment in this dental malpractice action were properly denied. With respect to the lack-of-informed consent cause of action, despite plaintiff’s signing of a consent form, the deposition testimony raised a question of fact whether plaintiff was properly informed before signing it:

“To establish a cause of action to recover damages for malpractice based on lack of informed consent, a 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 actual procedure performed for which there was no informed consent was the 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” … .

Here, both Herman and Capuano failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. Although Herman and Capuano each submitted a consent form signed by the plaintiff for the respective procedures, they also submitted, in support of their respective motions, the plaintiff’s deposition testimony, which revealed factual disputes as to whether the plaintiff was properly advised before signing each of the forms … . Mathias v Capuano, 2017 NY Slip Op 06174, Second Dept 8-16-17

 

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/DENTAL MALPRACTICE (INFORMED CONSENT, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))

, ,

NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant architect’s motion to set aside the verdict in this professional malpractice case should have been granted. Expert testimony was required and was not presented:

… [T]he plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” … .

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice … , the jury lacked any rational basis for its finding that the defendants committed professional malpractice … . Michael v He Gin Lee Architect Planner, PLLC, 2017 NY Slip Op 06177, Second Dept 8-16-17

 

NEGLIGENCE (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (ARCHITECT MALPRACTICE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PROFESSIONAL MALPRACTICE (ARCHITECTS, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION  (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARCHITECTS (PROFESSIONAL MALPRACTICE,  NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

,

CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (CML’s) motion for summary judgment in this slip and fall case should have been granted because the cause of plaintiff’s fall could not be established without resort to speculation. Plaintiff alleged the her foot went under a mat which had been lifted up by a leaf blower. However she did not see anyone operating a leaf blower and did not see the mat lift up off the ground:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall…  A plaintiff’s inability to identify the cause of his or her fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation … .

Here, CML established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the injured plaintiff’s deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation … . The injured plaintiff testified at her deposition that when she exited the convenience store, her left foot went underneath the floor mat, causing her to trip and fall. While the injured plaintiff assumed that a leaf blower operated by an employee of CML caused the mat to lift up immediately prior to her fall, she did not see anyone in the area using a leaf blower prior to her fall and she never observed the mat lift up from the ground … . Razza v LP Petroleum Corp., 2017 NY Slip Op 06202, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL,  CAUSE OF PLAINTIFF’S SLIP AND FALL COULD NOT BE ESTABLISHED WITHOUT SPECULATION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy