You are here: / Negligence
,

LEAVE TO FILE LATE NOTICE OF CLAIM FOR HUSBAND’S DERIVATIVE CLAIM SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim with respect to husband’s derivative claim stemming from wife’s injuries should have been granted. Because the county was deemed to have knowledge of the wife’s claim within 90 days, the county must also be deemed to have had timely knowledge of the derivative claim:

Here, respondent contends that it did not receive actual knowledge of the facts constituting the husband’s claim because it did not receive knowledge of the injuries or damages claimed by the husband. We reject that contention. “[C]ourts have granted leave to serve a supplemental or amended notice of claim to add a derivative cause of action for loss of consortium . . . where such claim results from the same facts as were alleged in a timely and otherwise admittedly valid notice of claim for personal injuries’ “… . Indeed, courts have generally recognized that derivative causes of action “[are] predicated upon exactly the same facts” as the injured party’s claims … . As a result, where it has been determined that the respondent received timely notice of the injured claimant’s claims, “there can be no claim of prejudice to respondent” resulting from a late notice of a derivative claim (id.).

Although we recognize that claimants did not file a timely notice of claim for the injuries sustained by claimant Melody L. Darrin (wife), the court’s determination to grant the application with respect to her suggests that the court determined that respondent had actual knowledge of the facts underlying her claim. Inasmuch as the husband’s derivative claim is “predicated upon exactly the same facts” as the wife’s claims … , we discern no rational basis upon which the court could have granted the application with respect to the wife but not the husband … . Matter of Darrin v County of Cattaraugus, 2017 NY Slip Op 05352, 4th Dept 6-30-17

 

, ,

COUNTY LAW 308 DOES NOT PROHIBIT DISCOVERY OF 911 CALL RECORDS IN A CIVIL LAWSUIT, INCLUDING THE RECORDS OF 911 CALLS MADE BY NONPARTIES.

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, determined Supreme Court properly ordered the county to provide to plaintiff records of 911 calls made during a severe winter storm. Plaintiff’s decedent was stranded in his car during the storm and called 911 for help. Help did not arrive until nearly 24 hours later, after plaintiff’s decedent died. In addition to the records of plaintiff’s decedent’s 911 call (which the county provided), plaintiff sought records of 911 calls made by others during the storm. The county argued the list of parties allowed access to 911 call records in County Law § 308 (4) was exclusive, and did not include parties in civil lawsuits. The Fourth Department determined the county’s argument was not supported by the legislative history of the statute:

Here, the context and legislative history of section 308 (4) paint a different picture than defendants’ de-contextualized analysis suggests. Section 308 was enacted as part of article 6 of the County Law, which contains 59 discrete provisions related almost exclusively to the financing of a uniform, statewide telephonic emergency response system. * * *

… County Law § 300 reveals unmistakably that the Legislature was motivated to adopt County Law article 6 in order to update the emergency response system across the State and to mitigate the financial burden of that endeavor for local governments. It is hardly surprising, then, that section 308 (4) lacks the hallmark language of other statutory provisions which specifically cut off a civil litigant’s access to certain classes of evidentiary materials for reasons of public policy… .

The relevant legislative history lends further support to our conclusion that the Legislature did not enact section 308 (4) in order to exempt 911 records from the scope of discovery authorized by CPLR article 31. Specifically, the sponsoring memorandum for what would become County Law article 6 referenced only the budgetary implications of enhanced 911 services for local government … , and a later-introduced bill sought to repeal section 308 (4) on the ground that it unjustifiably shielded 911 records from requests under the Freedom of Information Law (FOIL) … . Tellingly, the sponsor … did not identify any need to repeal section 308 (4) in order to make 911 records discoverable under article 31, and for good reason — section 308 (4) had never exempted 911 records from such disclosure in the first place. Abate v County of Erie, 2017 NY Slip Op 05351, 4th Dept 6-30-17

 

CONVENIENCE STORE HAD TAKEN ADEQUATE MEASURES TO ADDRESS TRACKED IN SLUSH AND SNOW DURING A STORM, DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE WAS PROPERLY GRANTED. ​

The First Department determined the convenience store’s motion for summary judgment in this slip and fall case was properly granted. Plaintiff alleged she slipped and fell on tracked in slush and snow at the front counter during a snow storm. Defendants had put a mat down, marked the area with a cone, and mopped the area 15 minutes before plaintiff fell:

Defendants were not required to provide a constant, ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during a storm … . Moreover, defendants demonstrated that they employed reasonable maintenance measures to prevent such a condition…, by laying out a mat, placing an orange cone on the floor, and regularly mopping the store during the day, including within 15 minutes before plaintiff’s accident. These actions were “reasonable measures to remedy a hazardous condition” … .

The record also shows that defendants did not have constructive notice of the dangerous wet condition. The fact that it was snowing, with water and slush tracked in, does not constitute notice of a particular dangerous situation, warranting more than the laying of floor mats … . O’Sullivan v 7-Eleven, Inc., 2017 NY Slip Op 05321, 1st Dept 6-29-17

 

QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF A DEFECTIVE TAILGATE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff had raised a question of fact about defendants’ constructive notice of a defective truck tailgate. Plaintiff, a truck driver, was injured when loading a pallet onto the truck (owned by defendants and rented to plaintiff’s employer). Plaintiff alleged his injury was caused by the deteriorated condition of the tailgate (a gap which caused the pallet to get stuck and then roll on the sloping tailgate). Plaintiff’s experts raised a question of fact about whether the condition developed over a period of months:

… [P]laintiff raised a triable issue of fact whether defendants had constructive notice of the alleged defects by submitting an affidavit by a licensed engineer and motor vehicle inspector who opined that the alleged defects developed over the course of months as a result of wear and tear and improper maintenance. Contrary to defendants’ contention, plaintiff’s expert’s opinions are based on evidence in the record, namely, plaintiff’s description of the alleged gap …  and the photographs that he testified accurately depicted the alleged slope at the time of his accident … , and are not inadmissible merely because the expert examined the truck more than a year after the accident occurred … . Rosada v Mendon Truck Rentals, Inc., 2017 NY Slip Op 05314, 1st Dept 6-29-17

 

,

JUDGE’S INADEQUATE AND IMPROPER RESPONSE TO JURY QUESTIONS REQUIRED A NEW TRIAL IN THIS MEDICAL MALPRACTICE CASE, DEFENSE VERDICT REVERSED.

The Third Department, reversing the defense verdict in this medical malpractice trial, determined the judge’s response to jury questions was inadequate and improper. The judge did not respond at all to one question. And the judge’s response was different from the response discussed with counsel:

… [I]n addition to Supreme Court’s failure to respond in the manner it had discussed with counsel, the response given did not fully or adequately answer the multiple questions asked by the jury. Indeed, the jury note requested “a clear explanation of ‘care and treatment,'” and also asked whether “‘care and treatment’ include[d] paperwork/documentation & policy? Or only the physical ‘care & tx’ given?” Importantly, the question of whether “‘care and treatment’ include[d] paperwork/documentation & policy?” was written by the jury as a stand alone question. The jury’s multiple questions clearly demonstrated that the jurors were confused as to whether, and in what manner, they were permitted to consider the alleged lack of documentation in determining whether defendant deviated from the standard of care. By failing to provide clarification on this point and by stating, matter-of-factly, that care and treatment included only the physical treatment and care given, Supreme Court precluded the jury from fairly considering a critical issue presented at trial … . Meyer v Saint Francis Hosp., Poughkeepsie, N.Y., 2017 NY Slip Op 05286, 3rd Dept 6-28-17

 

,

DOCTRINE OF RES IPSA LOQUITUR RAISED A QUESTION OF FACT IN THIS ESCALATOR ACCIDENT CASE.

The Second Department, reversing Supreme Court, determined defendant Port Authority was not entitled to summary judgment in this slip and fall case. Plaintiff alleged she was walking up a stopped escalator when it suddenly started moving downward, causing her to fall. The doctrine of res ipsa loquitur raised a question of fact:

“Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . In order to rely on the doctrine of res ipsa loquitur, a plaintiff must show that the event was of a kind that ordinarily does not occur in the absence of someone’s negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and that it was not due to any voluntary act or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not’ that the injury was caused by defendant’s negligence” … .

Here, the plaintiffs pointed to evidence that, once this particular escalator is stopped, it will not reset itself or otherwise restart on its own. Someone has to restart the escalator by physically using a specific key at the top or bottom of the escalator in order for the escalator to start moving again. Similarly, there was evidence that the only possible way to reverse the direction of the escalator was to use that specific key. Only Port Authority employees had access to the key, which was kept in a locked cabinet in the office of a unit maintenance supervisor. The fact that the escalator was open to the public does not remove it from the exclusive control of the Port Authority because the mechanism for controlling the escalator was locked and accessible only by a specific key … . Ramjohn v Port Auth. of N.Y. & N.J., 2017 NY Slip Op 05254, 2nd Dept 6-28-17

 

,

PLAINTIFF BICYCLIST STRUCK FROM BEHIND, NO EVIDENCE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the plaintiff bicyclist was entitled to summary judgment in this traffic accident case. Plaintiff was in the bicycle lane when he was struck from behind by defendant’s (Reyes’) car. There was no evidence plaintiff was comparatively negligent:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide… . Where the movant has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … .

Here, the evidence submitted on the plaintiff’s motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a)… . The deposition testimony showed that Reyes struck the rear of the plaintiff’s bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants’ vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes’s negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff’s part. In opposition, the defendants failed to raise a triable issue of fact. Harth v Reyes, 2017 NY Slip Op 05204, 2nd Dept 6-28-17

 

EXPOSED TREE ROOT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS. ​

The Second Department determined an exposed tree root was an open and obvious condition. Plaintiffs’ slip and fall complaint was properly dismissed:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property”… . However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the tree root was an open and obvious condition and inherent or incidental to the nature of the property, and was known to the injured plaintiff prior to the accident … . . In opposition, the plaintiffs failed to raise a triable issue of fact. Commender v Strathmore Ct. Home Owners Assn., 2017 NY Slip Op 0519, 2nd Dept 6-28-17

 

, ,

MOTION TO SET ASIDE THE VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, PHOTOGRAPHS TAKEN TWO WEEKS AFTER THE ACCIDENT SHOULD NOT HAVE BEEN EXCLUDED, CONTRACT SPECIFICATIONS FOR WORK ON THE AREA OF THE FALL SHOULD NOT HAVE BEEN EXCLUDED, SUBPOENAS FOR WITNESSES WHO HAD NOT BEEN DEPOSED SHOULD NOT HAVE BEEN QUASHED.

The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been excluded from evidence. In addition plaintiff’s subpoenas for a city inspector and a principal of the contractor (Halcyon) which repaired the sinkhole should not have been quashed. The fact that those witnesses were not deposed did not preclude plaintiff’s calling them at trial:

… [T]he trial court erred in precluding pictures of the accident site … . Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident … . Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.

Nor should the court have precluded the City’s specifications incorporated into its contract with Halcyon. The specifications were expressly incorporated into the contract between Halcyon and the City; thus, they applied not only to the City itself, but also to third parties. Therefore, they were admissible as potential evidence of defendants’ negligence… , and indeed, the City failed to show how the specifications transcended the duty of reasonable care. The trial court’s exclusion of this evidence regarding the specifications hobbled plaintiff’s ability to prove that the City had engaged in affirmative negligence — the very basis upon which the trial court granted the directed verdict.

Likewise, the court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon … . Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so … . Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial. Gonzalez v City of New York, 2017 NY Slip Op 05180, 1st Dept 6-27-17

 

, ,

PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION.

The Third Department determined plaintiff’s expert did not raise a question of fact in this medical malpractice action.  Plaintiff injured her shoulder when she caught a patient (Lisa Clark) who started to fall as she was being transferred from a sideboard to a physical therapy bed. The action was deemed to sound in medical malpractice:

​

The gravamen of plaintiff’s claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark’s fall and plaintiff’s injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark’s records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions … . Thus, “the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care” … .

In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures … , we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark’s physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her … . Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff’s injury … . Therefore, even if considered, Nofziger’s affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care … . Webb v Albany Med. Ctr., 2017 NY Slip Op 05146, 3rd Dept 6-22-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (EVIDENCE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, LAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)

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