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DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.

The Fourth Department, over a dissent, determined defendant’s (Wagner’s) cross-motion for summary judgment was properly denied. A wheel came off defendant’s car and struck plaintiff’s car. The defendant tire shop conceded its liability:

An owner and operator of a vehicle has a duty to inspect his or her vehicle and to discover and rectify any equipment defects … . Moreover, a vehicle operator has a duty to act reasonably to ensure the safe operation and safe stop of her vehicle once it becomes apparent that her vehicle is experiencing a potentially injurious mechanical problem …  Here, we conclude that Wagner failed to carry her burden on the cross motion of demonstrating that she was not negligent as a matter of law in the operation of her vehicle and that there was nothing that she could have done, in the exercise of due care, to avoid the accident … . Wagner testified at her deposition that, despite perceiving that “something was wrong with her car,” she continued to operate her vehicle for a period of time without pulling it over fully onto the shoulder of the highway and bringing it to a stop. We note that the “existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact” … . Michael v Wagner, 2017 NY Slip Op 04578, 4th Dept 6-9-17

NEGLIGENCE (TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (EMERGENCY DOCTRINE, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)

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VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing (modifying) Supreme Court, determined the abutting property owner (Bank of America) was not liable for this public sidewalk slip and fall. The village code placed responsibility for sidewalk maintenance on the abutting property owner, but did not explicitly impose tort liability on an abutting property owner:

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“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner”… . “That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk” … .

We conclude that Bank of America and Jones Lang [the property manager] met their prima facie burden of establishing their entitlement to judgment as a matter of law … . Although the Code of the Village of Williamsville (Code) imposes a duty on landowners to keep public sidewalks “in good order and repair” (Code § 89-3), it is undisputed that the Code does not “clearly subject landowners to . . . liability” for failing to comply with that duty … . It is also undisputed that the public sidewalk was not constructed in a special manner for the property owner’s benefit, and that neither Bank of America nor Jones Lang [the property manager] negligently constructed or repaired the sidewalk or otherwise created the defect. Clauss v Bank of Am., N.A., 2017 NY Slip Op 04606, 4th Dept 6-9-17

 

MUNICIPAL LAW (NEGLIGENCE, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT.

The Fourth Department determined defendants should be sanctioned for spoliation of evidence, but that striking the answer is too severe a sanction. Plaintiff allegedly slipped and fell on stairs which were replaced by defendants at a time when plaintiff’s expert had yet to examine them. Plaintiff, however, had photographs of the stairs and was therefore able to proceed with the suit:

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… [W]e conclude that the court abused its discretion in striking defendants’ answer and granting plaintiff partial summary judgment on liability based on defendants’ destruction of the stairway … . In deciding whether to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . “It is well established that a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense’ ” … . Here, the record does not demonstrate that plaintiff has been left ” prejudicially bereft’ ” of the means of prosecuting her action … , given that plaintiff has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action. Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs … . Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, 4th Dept 6-9-17

CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/NEGLIGENCE (CIVIL PROCEDURE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, SPOLIATION,  ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/SPOLIATION OF EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)

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THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS.

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the exclusion of plaintiff’s representative (a nurse) from the examination of plaintiff by defendant’s physician in this personal injury (traffic accident) action warranted sanctions:

… [A] plaintiff “is entitled to be examined in the presence of [his or] her attorney or other . . . representative . . . so long as [that person does] not interfere with the conduct of the examinations’ . . . , unless [the] defendant makes a positive showing of necessity for the exclusion of’ such an individual” … . Nonetheless … there is no requirement that a representative of plaintiff be present during the examination, and plaintiff may waive the right to have a representative present. Two examples of waiver are set forth by the dissent, the first of which involves the plaintiff’s merely appearing for the examination without a representative. Clearly, that is not the factual situation here. Second, a waiver can occur by the examined party’s unreasonable delay in making a motion to enforce the right … . Here, it was less than two months from the November 16, 2015 examination until the January 5, 2016 motion to preclude, not the 2½ years at issue in Pendergast, the decision relied upon the dissent. Marriott v Cappello, 2017 NY Slip Op 04580, 4th Dept 6-9-17

CIVIL PROCEDURE (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/NEGLIGENCE (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PRECLUDE, MOTION TO (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PHYSICAL EXAMINATION (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/DISCOVERY (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)

REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE.

The First Department, reversing Supreme Court, determined plaintiff’s complaint should have been dismissed. Plaintiff alleged she choked on a fish bone at defendant’s restaurant:

Plaintiff seeks damages for injuries sustained when she choked on a fish bone while eating a fillet of flounder at defendants-appellants’ restaurant. Plaintiff’s negligence claim should have been dismissed pursuant to the “reasonable expectation” doctrine, as the nearly one-inch bone on which plaintiff choked was not a “harmful substance[]” that a consumer “would not ordinarily anticipate” … . Amiano v Greenwich Vil. Fish Co., Inc., 2017 NY Slip Op 04544, 1st Dept 6-8-17

NEGLIGENCE (REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE)/REASONABLE EXPECTATION DOCTRINE (NEGLIGENCE, REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE)

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DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this rear-end collision case. The top of defendant’s truck struck an overhead bridge and came to a sudden stop on a highway. There was evidence the truck driver was negligent for attempting to pass under the bridge in a lane which he had not used before:

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A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima facie case of negligence on the part of the operator of the rear-ending vehicle, which may be rebutted if that driver can provide a non-negligent explanation for the accident … . The … defendants argue that plaintiff’s contention that a sudden, unforeseeable stop by a lead vehicle can provide such a non-negligent explanation “is contrary to this Court’s consistent holding that an allegation that the lead vehicle suddenly stopped is insufficient to rebut the presumption of negligence on the part of the rear-ending vehicle.” However, this is simply not accurate … . * * *

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… [T]he evidence suggests that plaintiff could have “reasonably expect[ed] that traffic would continue unimpeded” … , since traffic was flowing smoothly and he had no reason to foresee that [defendant’s] truck would not clear the overpass. Baez-Pena v MM Truck & Body Repair, Inc., 2017 NY Slip Op 04538, 1st Dept 6-8-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)/TRAFFIC ACCIDENTS (REAR-END COLLISION, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)/REAR-END COLLISIONS (DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)

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PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Third Department determined petitioner’s motion for leave to file a late notice of claim should have been granted. Petitioner injured his knee when he stepped into a depression in the school’s parking lot. The delay in filing the notice was due to his not being aware of the nature of the injury until he underwent an MRI months after the incident. Supreme Court deemed the excuse for the delay adequate but held plaintiff did not demonstrate the school district was not prejudiced by the delay. The Third Department found that petitioner’s proof that the defect in the parking lot was essentially unchanged was sufficient to shift the burden to the school district to show prejudice, which it did not do:

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A finding that respondent “is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record” … . “[T]he burden initially rests on the petitioner to show that the late notice will not substantially prejudice the [respondent]. Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice” … . Here, petitioner identified the precise location of the incident during his General Municipal Law § 50-h examination by marking a map with a box showing where the bus was parked as he stepped off into the depression, and he represented, through his attorney, that the parking lot defect had not changed since the time of the incident. Photographs of the defect, taken within a month of the incident, were not furnished to Supreme Court, although they had been given to the Workers’ Compensation Board in support of petitioner’s workers’ compensation claim. Respondent, despite being “in the best position to know and demonstrate whether it has been substantially prejudiced” … , offered absolutely no response to this contention, although it was required to rebut it “with particularized evidence” … . We note that Supreme Court’s observation that “[s]now plowing, traffic, weather, or even repairs performed in the interim could have altered the condition” is not based on any evidence in the record and, thus, constitutes the kind of unsupported assertion of prejudice that the Court of Appeals would deem “speculation and inference” … . Thus, the record is devoid of any basis to conclude that the 12-week delay in filing the notice of claim caused substantial prejudice to respondent. Matter of Kranick v Niskayuna Cent. Sch. Dist., 2017 NY Slip Op 04529, 3rd Dept 6-8-17

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED/NOTICE OF CLAIM (NEGLIGENCE, EDUCATION-SCHOOL LAW, PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

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UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER.

The Third Department, reversing Supreme Court, determined that documents concerning the investigation into petitioner’s husband’s death at a hospital were discoverable under the Public Health Law as long as the documents did not relate to the quality assurance aspect of the investigation. The court noted the criteria for what is discoverable and what is available under the Freedom of Information Act are not identical:

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Respondents demonstrated that Public Health Law § 2805-m applied through the affidavit of DOH’s [Department of Health’s] Acting Records Access Officer, who detailed the investigative process and explained how the statement of deficiencies and plan of correction, as well as the ACTS [ASPEN Complaints/Incidents Tracking System] complaint/incident investigation report, incorporated information collected by the hospital for quality assurance purposes. Our in camera review of those documents confirms that her explanation was accurate. The redactions were therefore proper insofar as they related to quality assurance information and, “[h]aving found a specific guarantee of confidentiality, the privileged information and material is not subject to release or disclosure no matter how strong the showing of need or relevancy” … .

That being said, the redacted portions of investigative notes contained in the ACTS complaint/accident investigation report also include a summary of petitioner’s complaint and facts referring to hospital records with no obvious connection to quality assurance goals. This purely factual information did not, contrary to respondents’ assertion, fall within an intra-agency exemption designed “to safeguard internal government consultations and deliberations” … .The sections of the investigative notes labeled “Allegation #1” and “Findings” were improperly redacted and must be disclosed. Another redacted portion of the report restated the text of the letter sent to petitioner alerting her to the outcome of the investigation, and there is no apparent reason for those portions to be withheld. Matter of Pasek v New York State Dept. of Health, 2017 NY Slip Op 04526, 3rd Dept 6-8-17

 

CIVIL PROCEDURE (HOSPITAL DEATH, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/NEGLIGENCE (MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/MEDICAL MALPRACTICE (DISCOVERY,  UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/FREEDOM OF INFORMATION LAW (FOIL) (MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/QUALITY ASSURANCE INVESTIGATION (HOSPITALS, MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)

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THIRD DEPT, UNLIKE THE OTHER DEPARTMENTS, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY.

The Third Department, over a two-justice concurrence, determined plaintiff in this slip and fall case was required to supply defendant with the expert-opinion notice required by the CPLR, even though the doctor to be deposed (Cicoria) was a treating physician (the other departments do not so require). The deposition was video-taped. The Third Department fashioned a sanction. The videotaped deposition my be used if the doctor acts as a fact witness. If the doctor is to act as an expert witness, the doctor must testify in person or submit to another deposition:

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Having concluded that plaintiffs failed to provide the required expert disclosure, we turn our attention to the appropriate remedy for such noncompliance. Plaintiffs’ counsel candidly conceded that he was unaware of this Court’s interpretation of CPLR 3101 (d) (1) (i) and the corresponding need to file an expert disclosure for a treating physician, and the record is otherwise devoid of any indication that counsel’s failure to file such disclosure was willful. Hence, we see no need to preclude plaintiffs from calling Cicoria to testify at trial. That said, defendant is correct in noting that the current procedural posture of this matter places defendant at something of a disadvantage in that defense counsel prepared for and cross-examined Cicoria as a fact witness and in the context of preserving such testimony for use at trial, which is appreciably different than deposing and cross-examining someone who has been denominated as an expert witness prior to trial. For that reason, simply permitting plaintiffs to file the required expert disclosure at this point will not suffice.

Plaintiffs need to decide whether they wish to utilize Cicoria as a fact witness or as an expert witness (or both). If plaintiffs wish to utilize Cicoria as a fact witness, they may either introduce his previously videotaped testimony at trial (see CPLR 3117 [a] [4]) — subject to defendant’s objections to the expert opinions expressed therein (see CPLR 3115 [a]) and/or a protective order relative thereto (see CPLR 3103 [a]) — or they may call Cicoria to testify in person at trial, in which case Cicoria’s prior recorded testimony may be used solely for impeachment purposes (see CPLR 3117 [a] [1]).  Plaintiffs cannot, however, as they now propose in their brief, have it both ways, i.e., they cannot utilize Cicoria’s recorded testimony as a fact witness and then call him live as an expert witness. Stated another way, Cicoria may testify only once. If plaintiffs desire to utilize Cicoria as an expert witness (or as both a fact witness and as an expert witness), they must — within 30 days of the date of this Court’s decision — tender an expert disclosure that satisfies all of the requirements of CPLR 3101 (d) (1) (i) and — within 60 days of the date of this Court’s decision — produce Cicoria (at their expense) for the purpose of being deposed as an expert. Schmitt v Oneonta City Sch. Dist., 2017 NY Slip Op 04527, 3rd Dept 6-8-17

 

CIVIL PROCEDURE (EXPERT WITNESS, NOTICE, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/EXPERT WITNESS (CPLR NOTICE,  THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/TREATING PHYSICIAN (CIVIL PROCEDURE, EXPERT WITNESS NOTICE, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/EVIDENCE (CIVIL PROCEDURE, EXPERT WITNESS, NOTICE, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/NEGLIGENCE (CIVIL PROCEDURE, EXPERT NOTICE, TREATING PHYSICIAN, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)

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WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY.

The Second Department, reversing Supreme Court, determined the defendant church’s motion for summary judgment in this slip and fall case should have been granted. The Workers’ Compensation insurance covered volunteers. The Workers’ Compensation Board (WBC), with no participation by plaintiff, determined plaintiff was a covered volunteer and was entitled to benefits. Plaintiff then sued the church. The Second Department noted that the Workers’ Compensation Board’s finding plaintiff was a covered volunteer entitled to benefits was final because it was not appealed. The suit was therefore precluded:

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“[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” … . “[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “[A] plaintiff has no choice but to litigate this issue before the Board” … . Thus, the question of whether a particular person is an employee within the meaning of the Workers’ Compensation Law is for the WCB to determine in the first instance … . The findings of the WCB are final and conclusive unless reversed on direct appeal … , and are not subject to collateral attack in a plenary action … . This is so even where, as here, the employer has filed a compensation claim on the employee’s behalf and the employee did not herself apply for or accept benefits … . …

Here, the church established its prima facie entitlement to judgment as a matter of law by demonstrating that the WCB rendered a final determination that the injured plaintiff was eligible for Workers’ Compensation benefits under the Diocese’s policy, thereby precluding a personal injury action against it … . In opposition, the plaintiffs failed to raise a triable issue of fact. The coverage eligibility issue was necessarily determined by the WCB in a proceeding in which the injured plaintiff had the required notice and opportunity to be heard … . Moreover, a plaintiff cannot elect to waive benefits under the Workers’ Compensation Law and proceed on a tort cause of action … . Aprile-Sci v St. Raymond of Penyafort R.C. Church, 2017 NY Slip Op 04412, 2nd Dept 6-7-17

WORKERS’ COMPENSATION LAW (EXCLUSIVE REMEDY, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)/NEGLIGENCE (WORKERS’ COMPENSATION LAW, SLIP AND FALL, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)/SLIP AND FALL (WORKERS’ COMPENSATION, NEGLIGENCE, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)

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