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THE ACTIONS TAKEN BY THE 911 DISPATCHER AND THE EMERGENCY MEDICAL TECHNICIANS CONSTITUTED THE EXERCISE OF DISCRETION IN THE PERFORMANCE A GOVERNMENT FUNCTION; THE GOVERNMENT FUNCTION IMMUNITY DEFENSE INSULATED THE MUNICIPAL DEFENDANTS FROM LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants were entitled to summary judgment dismissing the negligence action stemming from decisions made by emergency personnel in response to a 911 call. The emergency services, including the dispatch of a “Basic Life Support” (BLS), as opposed to an “Advanced Life Support” (ALS) ambulance, and the attempts to intubate the unresponsive plaintiff rather than to immediately transport her to the hospital, were deemed the exercise of discretion while performing a government function. Discretionary actions taken in performance of a government function are insulated from liability by the government-function-immunity defense:

“[W]hen both the special duty requirement and the governmental function immunity defense are asserted in a negligence case, the rule that emerges is that government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . In other words, in a negligence action where the municipality has raised the governmental function immunity defense, a plaintiff may only hold the municipality liable for actions taken in its governmental capacity where (1) a special duty exists and (2) the municipality’s actions were ministerial in nature and not the result of discretionary decision-making … . * * *

The defendants demonstrated that the 911 dispatcher’s decision, among other things, to send a BLS ambulance rather than an ALS ambulance “was discretionary and, therefore, protected by the doctrine of governmental immunity” … . Under the circumstances presented, the defendants also established that the EMTs exercised their discretion in declining to immediately transport [plaintiff] to the nearby hospital and to instead wait for the paramedics in the ALS ambulance to arrive. Similarly, the defendants demonstrated that the actions of the paramedics resulted from discretionary decision-making, including with regard to the type of treatment to render … . Walker-Rodriguez v City of New York, 2024 NY Slip Op 05237, Second Dept 10-23-24

Practice Point: Consult this decision for a concise but complete one-paragraph compilation of all the issues associated with municipal liability for negligence–proprietary versus government function, special duty, discretionary versus ministerial acts, etc.

 

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THE NEARLY THREE-YEAR GAP BETWEEN PLAINTIFF’S KNEE SURGERY AND HIS SEEING THE SURGEON TO COMPLAIN OF KNEE PAIN DID NOT PRECLUDE THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact about whether the continuous treatment doctrine applies to render the action timely. Plaintiff had knee surgery and did not see the surgeon again for nearly three years when he experienced pain. He had not seen any other orthopedic surgeons in the interim:

Defendants fail to establish that plaintiff’s claims involving treatment of her right knee before May 21, 2016 are time-barred. Given the evidence of “an ongoing relationship of trust and confidence between the patient and physician,” the record presents disputed issues of fact regarding whether the continuous treatment doctrine applies, thus precluding dismissal at this stage of the litigation … . The 34-month gap between the one-year postoperative follow-up visit after plaintiff’s right total knee replacement and her next complaint to defendant Dr. Steven B. Haas, M.D. about pain in his right knee does not prevent application of the doctrine as a matter of law, as plaintiff visited no orthopedic surgeon other than defendant Dr. Haas during that period, and she returned to Dr. Haas to address increased pain in her right knee, which even he determined would require revision surgery. Karanevich-Dono v Haas, 2024 NY Slip Op 05137, First Dept 10-17-24

Practice Point: Plaintiff had knee surgery and did not see the surgeon again for nearly three years to complain of knee pain. Plaintiff did not see any other orthopedic surgeon in the interim. There was a question of fact whether the continuous treatment doctrine applied to render the medial malpractice action timely.

 

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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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HERE THE SUPERINTENDENT OF HIGHWAYS WAS NOT “ENGAGED IN HIGHWAY WORK” WHEN HE COLLIDED WITH PLAINTIFF; THEREFORE THE ORDINARY NEGLIGENCE STANDARD, NOT THE HIGHER “RECKLESS” STANDARD FOR HIGHWAY WORKERS IN THE VEHICLE AND TRAFFIC LAW, APPLIED TO THIS TRAFFIC ACCIDENT (CT APP).

The Court of Appeals, reversing the Appellate Division and awarding summary judgment to plaintiff, in a full-fledged opinion by Judge Cannataro, determined the defendant, Simone, the Superintendent of Highways for the Town of Carmel, was not engaged in highway work when he failed to look to his right before pulling out of an intersection and collided with plaintiff’s car. Simone had driven to a vantage point to see how much snow had fallen on the town’s roads and had ordered the highway department employees to salt the roads. He was on his way back to his office when the accident happened:

… [T]itle VII of the Vehicle and Traffic Law sets out a uniform set of traffic regulations, or “rules of the road,” which generally “apply to drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of the state” … . Vehicle and Traffic Law § 1103 (b), however, provides that those rules “shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . Although such parties remain liable for “the consequences of their reckless disregard for the safety of others,” they bear no liability for ordinary negligence … . * * *

… [A]ccording to Simone’s own deposition testimony, the accident occurred after he had fully completed his assessment of roadway conditions at his bellwether location and mobilized his entire team to salt the town’s roads. At the time of the accident, Simone was merely using the road to return to work. Although he testified that he saw a slushy accumulation of snow to his left shortly before the collision occurred, he took no action in response to observing that condition. Indeed, he testified that as he pulled into the intersection where the collision occurred, there was nothing keeping his attention drawn to his left and he was no longer looking at the condition.

Because the uncontested evidence demonstrates that Simone was not actually engaged in work on a highway at the time the accident occurred, defendants are not entitled to the protections of [Vehicle and Traffic Law] section 1103 (b). Orellana v Town of Carmel, 2024 NY Slip Op 05131, CtApp 10-17-24

Practice Point: Here ordinary negligence rules applied to the Superintendent of Highways when he had an accident returning to his office after assessing how much snow had fallen. At the time of the accident he had already ordered his employees to salt the roads. He therefore was not “engaged in highway work” when he collided with plaintiff.

 

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STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION FOR PLAINTIFF’S FAILURE TO RESPOND TO DISCOVERY DEMANDS; $2500 PENALTY IMPOSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined sanctions were in order for plaintiff’s failure to respond to discovery demands, but striking the complaint was too severe. A monetary penalty was imposed:

… [T]he plaintiff’s failure to comply with discovery demands and orders directing discovery or respond to the letters from the defendants’ counsel concerning discovery, without providing a reasonable excuse, supports an inference of willful or contumacious conduct … . However, under the circumstances, the sanction imposed was too drastic a remedy and the defendants’ motion pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of directing the plaintiff’s counsel to personally pay the sum of $2,500 as a sanction to the defendants … . Mirabile v Kuwayama, 2024 NY Slip Op 04958, Second Dept 10-9-24

Practice Point: This case presents another instance of an appellate court’s determination the striking of a pleading as a sanction is too severe a penalty. Here plaintiff failed to respond to discovery demands and a $2500 penalty was deemed an appropriate sanction by the Second Department.

 

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IN THIS CHILD VICTIMS ACT CASE, THE SCHOOL DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTFF STUDENT BY TWO TEACHERS; THE FREQUENCY OF THE ALLEGED ABUSE RAISED QUESTIONS ABOUT NOTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the school defendants did not eliminate questions of fact about constructive notice of the sexual abuse of plaintiff student by two teachers. The relevant law is described in detail and should be consulted as a complete overview of the relevant issues:

… [T]o the extent the complaint is premised on the conduct of the music teacher, the defendants failed to establish, prima facie, that they lacked constructive notice of the music teacher’s alleged abusive propensities and conduct … . The defendants’ own submissions established that the plaintiff testified that the alleged abuse by the music teacher occurred once or twice a week during the school year … . In light of the frequency of the alleged abuse, the defendants did not eliminate a triable issue of fact as to whether they should have known of the alleged abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the music teacher or the plaintiff was not negligent … .

Although the single incidence of alleged sexual abuse by the English teacher occurred off of school property and outside of school hours, the defendants’ own submissions demonstrate that the music teacher introduced the plaintiff to the English teacher, describing the plaintiff as his “friend” and a “good girl,” and that, in the presence of the music teacher, the English teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school when the alleged abuse by the English teacher took place … . C. M. v West Babylon Union Free Sch. Dist., 2024 NY Slip Op 04954, Second Dept 10-9-24

Practice Point: Here the frequency of the alleged sexual abuse of plaintiff student by a teacher raised a question of fact about constructive notice by the school defendants.

 

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THE APPLICATION TO TREAT THE NOTICE OF INTENTION TO FILE A CLAIM (NOI) AS A TIMELY FILED CLAIM IN THIS PRISON STABBING CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the notice of intention to file a claim (NOI) in this negligent supervision case met the requirements of a claim. Therefore the application to treat the NOI as a timely filed claim should have been granted. Claimant, a prison inmate, was stabbed in the eye:

Court of Claims Act § 10(8)(a) provides that a court may grant an application to treat an NOI as a claim if, among other things, the NOI “was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.” Court of Claims Act § 11(b) requires a claim to specify: (1) the nature of the claim; (2) the time when it arose; (3) the place where the claim arose; (4) the items of damage or injuries claimed; and (5) the total sum claimed … . While section 11(b) does not require “absolute exactness,” the “guiding principle informing” section 11(b) pleading requirements is whether the State is “able to investigate the claim promptly and to ascertain its liability under the circumstances” … . “In describing the general nature of the claim, . . . or a notice of intention to file a claim, . . . [it] ‘should provide an indication of the manner in which the claimant was injured and how the State was negligent, or enough information so that how the State was negligent can be reasonably inferred'” … .

Here … the claimant provided sufficient details to meet the requirements outlined in Court of Claims Act § 11(b), including the nature of the claim and the alleged act of negligence by the State … . Johnson v State of New York, 2024 NY Slip Op 04949, Second Dept 10-9-24

Practice Point: Where a notice of intention to file a claim (NOI) includes sufficient information about the nature of the claim and the alleged negligence by the state, an application to treat the NOI as a timely filed claim should be granted.

 

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DEFENDANT DID NOT PRESENT A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S STATEMENT THAT HIS “BRAKES FAILED” WAS DEEMED SELF-SERVING AND INADMISSIBLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s failure to offer a nonnegligent explanation for the rear-end collision warranted the award of summary judgment to plaintiff. The statement attributed to defendant in a certified police report claiming his “brakes failed” was deemed self-serving and inadmissible:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting their respective affidavits, which demonstrated, inter alia, that the plaintiffs’ vehicle was traveling at a constant speed of 35 miles per hour in the right lane for at least one minute when it was struck in the rear by the defendants’ vehicle … . The plaintiffs also established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ first affirmative defense, alleging comparative negligence, by demonstrating that they were not comparatively at fault in the happening of the accident … . Barr v Canales, 2024 NY Slip Op 04944, Second Dept 10-9-24

Practice Point: Defendant’s statement that his “brakes failed” was deemed self-serving and inadmissible in this rear-end collision case.

 

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THE QUESTION WHETHER THE SEXUAL ASSAULT OF PLAINTIFF IN DEFENDANT GYM’S STEAM ROOM WAS FORESEEABLE SHOULD NOT HAVE BEEN DECIDED AGAINST THE PLAINTIFF AS A MATTER OF LAW; THERE WAS EVIDENCE OF PRIOR SIMILAR ASSAULTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about the foreseeability of the underlying incident, an alleged sexual assault in the steam room at defendant Equinox’s gym, which precluded summary judgment. Although Equinox had no prior notice with respect to the person who allegedly assaulted plaintiff, there was evidence Equinox was aware of other similar incidents in the steam room:

The Court of Appeals has “repeatedly emphasized” that “[o]nly in rare cases” can questions concerning foreseeability be decided as a matter of law … . * * *

Here, the motion court determined that plaintiff’s alleged attack was not foreseeable because “the ‘notice’ plaintiff relies upon concerns other alleged incidents in the steam room, none of which involved plaintiff’s assailant” and that “some of the other incidents]appear to involve consensual behavior.” New York courts, however, have never required prior incidents to have been committed by the same assailant or even be of the same type of conduct to which the plaintiff was subjected … . … [A]t least three of the other gym members reported that they had been sexually harassed, including the member who complained mere weeks before the assault on plaintiff … .

The motion court additionally found that, even if defendants did have a duty to plaintiff to prevent his alleged assault, “they met their duty to implement reasonable policies to decrease the likelihood of such an incident” and plaintiff failed to present a material issue of fact “with respect to these policies and procedures.”  * * *

We find that whether plaintiff’s alleged assault was foreseeable to Equinox and whether Equinox implemented adequate security measures to decrease the likelihood of such incidents are questions of fact and plaintiff’s negligence claim should advance to a jury trial. We cannot say, as a matter of law, that another gym member allegedly assaulting plaintiff against the backdrop of multiple complaints of inappropriate sexual conduct inside the steam room was “extraordinary under the circumstances or not foreseeable in the normal course of events” … . Crandall v Equinox Holdings, Inc., 2024 NY Slip Op 04902, First Dept 10-8-24

Practice Point: Whether an injury to plaintiff was foreseeable from defendant’s perspective can rarely be decided as a matter of law.

 

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THE IDENTITIES OF THE SUBJECTS OF TWO SCHOLARLY ARTICLES LINKING TALCUM-POWDER PRODUCTS WITH MESOTHELIOMA SHOULD BE RELEASED; THE INFORMATION IS NOT PROTECTED BY HIPAA OR THE FEDERAL COMMON RULE; PRODUCTION OF THE INFORMATION WOULD NOT BE UNDULY BURDENSOME AND WOULD NOT DETER FUTURE RESEARCH (FIRST DEPT).

The First Department, reversing Supreme Court’s denial of a petition to enforce an out-of-state subpoena, determined the identities of the subjects of two scholarly articles linking cosmetic talcum powder products with mesothelioma were not protected by HIPAA’s privacy rule or the federal Common Rule:

The information sought by the subpoenas … is clearly relevant to the underlying New Jersey personal injury action. It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew … .

The information sought by the subpoenas is not protected from disclosure by HIPAA’s privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients … .

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens … .The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order … . Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research. The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers. Moreover, the subjects never actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation … . Matter of Johnson & Johnson v Northwell Health Inc., 2024 NY Slip Op 04909, First Dept 10-8-24

Practice Point: The decision outlines the issues involved in seeking the identities of the subjects of two scholarly articles linking talcum-powder products with mesothelioma.

 

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