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CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED.

The Second Department determined a capsule camera swallowed by plaintiff to facilitate an intestinal examination was not a foreign object for purposes of the statute of limitations. The statute runs from discovery of a foreign object which has been left in the body during surgery. However, the capsule camera was not part of a surgical procedure and it was designed to pass out of the body normally. The plaintiff alleged that the failure to call plaintiff’s attention to a 2009 CT scan on which the capsule camera was visible constituted negligence. The Second Department found that the cause of action was really “misdiagnosis” for which the foreign-object toll of the statute of limitations is not available. The action was therefore time-barred:

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Generally, “[a]n action for medical . . . malpractice must be commenced within two years and six months of the act, omission or failure complained of” (CPLR 214-a). However, “where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier” (CPLR 214-a). The statute provides that a “fixation device” is not a “foreign object” (CPLR 214-a).

” [I]n determining whether an object which remains in the patient constitutes a “foreign object,” [courts] should consider the nature of the materials implanted in a patient, as well as their intended function'” … . “In short, every fixation device is intentionally placed for a continuing (even if temporary) treatment purpose, but it does not follow that everything that is intentionally placed for a continuing treatment purpose is a fixation device”… . Thus, in determining whether objects are foreign objects pursuant to CPLR 214-a, “[t]he question then becomes whether . . . [the objects] are analogous to tangible items like . . . [surgical] clamps . . . or other surgical paraphernalia (e.g., scalpels, sponges, drains) likewise introduced into a patient’s body solely to carry out or facilitate a surgical procedure” … .

The capsule camera at issue herein was used diagnostically to visualize the condition of the plaintiff’s intestines. It was not used or even introduced into the plaintiff’s body in the course of a surgical procedure. Rather, the capsule camera was knowingly and intentionally swallowed by the plaintiff with the expectation that it would travel through her digestive system until eliminated in the regular course of digestion. Thus, the malpractice alleged against the moving defendants, the failure to recognize from the 2009 CT scan that the observed metallic object was a retained endoscopic capsule camera, and to advise the plaintiff of such, ” is most logically classified as one involving misdiagnosis—a category for which the benefits of the “foreign object” discovery rule have routinely been denied'”  … . Leace v Kohlroser, 2017 NY Slip Op 04429, 2nd Dept 6-7-17

NEGLIGENCE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/MEDICAL MALPRACTICE (STATUTE OF LIMITATIONS, FOREIGN OBJECTS, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE, FOREIGN OBJECT, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/CAPSULE CAMERA (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, FOREIGN OBJECT, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)

THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM.

The Second Department, in affirming defendants’ motions for summary judgment in this slip and fall case, noted, with respect to the snow removal contractor, the failure to salt an icy area is not a ground for liability to a third party, failure to salt does not “launch an instrument of harm:”

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A snow removal contractor cannot be held liable for personal injuries “on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition” … . For example, “a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving” … . Moreover, the exception for launching a force or instrument of harm “cannot be triggered where . . . there is only speculation and conjecture regarding whether the contractor created or exacerbated an icy condition” … .

Here, the plaintiff alleged that [the contractor] should have cleared snow and ice from the bank’s roof and awnings to prevent melting and refreezing such as that which allegedly caused his fall. However, such service was not encompassed by its contract. In any event, in failing to provide services beyond those included in its contract, [the contractor] at most failed to guard against a future possibility of ice formation. This is insufficient to support liability … . Somekh v Valley Natl. Bank, 2017 NY Slip Op 04487, 2nd Dept 6-7-17

 

NEGLIGENCE (SLIP AND FALL SNOW REMOVAL CONTRACTOR, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/LAUNCH AN INSTRUMENT OF HARM (SLIP AND FALL, SNOW REMOVAL CONTRACTOR, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)

DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff (Ebner) alleged she did not see the single step down which caused her to fall. The Second Department found that defendant did not prove the step was open and obvious. The handrail was not demonstrated to be a sufficient visual cue:

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Here, in support of its motion for summary judgment, the defendant submitted, among other things, Ebner’s deposition testimony, deposition testimony of certain of the defendant’s employees, and an expert affidavit. Contrary to the defendant’s contention, Ebner identified the cause of her fall as her inability to see the single step on the walkway she was traversing … . The defendant’s submissions failed to eliminate triable issues of fact as to whether the step constituted a dangerous condition or whether the subject step was open and obvious, and not inherently dangerous as a matter of law … . The affidavit of the defendant’s expert failed to establish, as a matter of law, that a handrail that the defendant contends was adjacent to the walkway on the date of the subject accident provided a sufficient visual cue to alert pedestrians to the presence of the step. Furthermore, contrary to the defendant’s assertion, it failed to demonstrate that it did not have constructive notice of the dangerous condition prior to the subject accident … . Ross v Bretton Woods Home Owners Assn., Inc., 2017 NY Slip Op 04482, 2nd Dept 6-7-17

NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE)/SLIP AND FALL ( DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE)

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WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, over a dissent, determined the defendant City’s motion to set aside the verdict in this slip and fall case should not have been set aside. The court held that whether the Big Apple map sufficiently identified the defective curb where plaintiff fell was a jury question and the verdict should stand:

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“Although [t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident,’ where there are factual issues as to the precise location of the defect that caused a plaintiff’s fall and whether the defect is designated on the map, the question should be resolved by the jury” … . The trial court improperly set aside the verdict against the City for lack of legally sufficient evidence that the City had prior written notice of the alleged defect in the curb at the corner where plaintiff indicated she fell … . A jury verdict may not be set aside for legal insufficiency unless there is “no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial” … . Here, it cannot be said that it was “utterly irrational for [the] jury to reach the result it has determined upon” … .

At trial, plaintiff testified that she tripped and fell, due to a defect at the corner of Madison Street and Rutgers Street. Plaintiff testified that she stepped off the curb with her left foot into the crosswalk on to Madison Street and that the tip of her right foot got caught on something on the ground, which caused her to fall and fracture her ankle. Plaintiff further testified that the curb where she tripped and fell was “separated from the sidewalk and raised.” Plaintiff also entered into evidence photographs of the street corner where she fell that depicted a broken, cracked and defective curb in front of 197 Madison Street. Another photograph entered into evidence showed that the address of “197 Madison St.” was clearly reflected on the H and M Deli storefront awning, located at the corner of the intersection where plaintiff fell. Counsel for the City further highlighted this point during re-cross-examination of plaintiff regarding the precise location of her fall, when counsel inquired, “In front of that H and M Deli?… The deli that is addressed 197 Madison, right?” To which plaintiff replied, “Yes.” Additionally, the Big Apple Map, which the City stipulated to receiving, denoted an “X” in front of 197-199 Madison Street, and, according to the Big Apple Map Legend, an “X” indicates a “broken, misaligned or uneven curb.”

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… [W]hile it is true that the Big Apple Map did not have an “X” at the precise corner where plaintiff fell, the map did depict an “X” in front of the address of 197 Madison Street, which encompasses multiple storefronts within one building, stretching from the building on the corner towards the middle of the block. Foley v City of New York, 2017 NY Slip Op 04389, 1st Dept 6-6-17

 

NEGLIGENCE (WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT, SLIP AND FALL, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/EVIDENCE (SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE OF DEFECT,WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/VERDICT, MOTION TO SET ASIDE (SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE OF DEFECT,WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, WRITTEN NOTICE, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)

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POLICY LANGUAGE MUST BE INTERPRETED TO MEAN THAT COVERAGE OF ADDITIONAL INSUREDS IS TRIGGERED ONLY WHEN THE INSURED IS NEGLIGENT, NOT MERELY WHEN THE ACTIONS OF THE INSURED HAVE A CAUSAL RELATIONSHIP WITH THE INJURY.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissenting opinion authored by Judge Fahey, reversing the appellate division, determined the language of the personal injury insurance policy did not support coverage of the additional insureds. The New York City Transit Authority (NYCTA) had contracted with BSI for construction work on a subway tunnel. BSI took out an insurance policy from Burlington. NYCTA, the Metropolitan Transit Authority (MTA) and New York City were named as additional insureds. An NYCTA employee was injured when a machine operated by BSI struck a live electric cable buried in concrete. The NYCTA had neglected to mark the location of the cable and turn off the power. The question before the court was whether, pursuant to the policy language, the additional insureds were covered when the insured, BSI, was not negligent, or whether the causal relationship between BSI and the accident triggered coverage of the additional insureds:

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It is well established in our law that “but for” causation, or causation in fact, is “[t]he cause without which the event could not have occurred” … . The term refers to a link in the chain leading to an outcome, and in the abstract does no more than state the obvious, that “any given event, including an injury, is always the result of many causes” … . However, not all “but for” causes result in liability and “[m]ost causes can be ignored in tort litigation” … . In contrast, “proximate cause” refers to a “legal cause” to which the Court has assigned liability … . The dissent suggests that “proximate cause” and “but-for cause” may be equivalent concepts (dissenting op at 14), but the law is clear that the two are not synonymous … . As the Court has explained, “‘because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point'”… .

Here, the Burlington policy endorsement states that the injury must be “caused, in whole or in part” by BSI. These words require proximate causation since “but for” causation cannot be partial. An event may not be wholly or partially connected to a result, it either is or it is not connected. Stated differently, although there may be more than one proximate cause, all “but for” causes bear some connection to the outcome even if all do not lead to legal liability. Thus, these words — “in whole or in part” — can only modify “proximate cause” … . Burlington Ins. Co. v NYC Tr. Auth., 2017 NY Slip Op 04384, CtApp 6-6-17

 

INSURANCE LAW (POLICY LANGUAGE MUST BE INTERPRETED TO MEAN THAT COVERAGE OF ADDITIONAL INSUREDS IS TRIGGERED ONLY WHEN THE INSURED IS NEGLIGENT, NOT MERELY WHEN THE ACTIONS OF THE INSURED HAVE A CAUSAL RELATIONSHIP WITH THE INJURY)/NEGLIGENCE (INSURANCE LAW, POLICY LANGUAGE MUST BE INTERPRETED TO MEAN THAT COVERAGE OF ADDITIONAL INSUREDS IS TRIGGERED ONLY WHEN THE INSURED IS NEGLIGENT, NOT MERELY WHEN THE ACTIONS OF THE INSURED HAVE A CAUSAL RELATIONSHIP WITH THE INJURY)

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AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED.

The First Department determined plaintiff’s motion to amend the notice of claim in this slip and fall case was properly denied. The original notice of claim and the complaint alleged the protruding manhole cover over which plaintiff tripped was the result of improper maintenance. The proposed amendment sought to allege the defendant city created the dangerous condition:

The allegations of negligent maintenance in the notice of claim did not provide notice of plaintiff’s new theory of affirmative negligence … . Thus, General Municipal Law § 50-e(6), which “authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” … , does not apply. Further, General Municipal Law § 50-e(5) does not authorize amendment of the notice of claim to assert a new theory of liability where, as here, the limitations period has expired … .

Even assuming that the “special use” theory is not a new theory of liability, leave to amend to add it would be futile, since the City’s ownership of the manhole cover does not constitute a “special use” of the sidewalk … . Aleksandrova v City of New York, 2017 NY Slip Op 04379, 1st Dept 6-1-17

 

NEGLIGENCE (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/MUNICIPAL LAW (NOTICE OF CLAIM, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/NOTICE OF CLAIM, (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)

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EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE.

The Second Department determined defendants father and son (Daniel) did not submit sufficient evidence that Daniel was driving his father’s car without permission to warrant summary judgment. Daniel had driven the car through a person’s house, causing nearly $190,000 in damage. The insurer sued defendants:

Vehicle and Traffic Law § 388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner'”… . Under this statute, there is a presumption that the operator of a vehicle operates it with the owner’s permission … . The presumption may be rebutted by substantial evidence that the owner did not give the operator consent … . …

“The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use”… . Additionally, ” [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury'” … .

“Although the rule is not absolute or invariable, in most cases uncontradicted disavowals of permission by both the owner of the vehicle and the driver will constitute substantial evidence negating permissive use and entitle the owner to summary judgment” … . However, “disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner” … . Ultimately, “whether summary judgment is warranted depends on the strength and plausibility of the disavowals [of permission], and whether they leave room for doubts that are best left for the jury” … .

Under the circumstances of this case, the Supreme Court properly determined that the appellant failed to sufficiently rebut the strong presumption pursuant to Vehicle and Traffic Law § 388 that Daniel was operating the vehicle with his permission … . Daniel had access to the appellant’s residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant. Accordingly, the Supreme Court properly concluded that the appellant failed to establish his prima facie entitlement to judgment as a matter of law and, as a result, we need not consider the sufficiency of the opposition papers … . State Farm Fire & Cas. Co. v Sajewski, 2017 NY Slip Op 04310, 2nd Dept 5-31-17

NEGLIGENCE (VEHICLE AND TRAFFIC LAW, OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)/VEHICLE AND TRAFFIC LAW (VEHICLE OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)/TRAFFIC ACCIDENTS (VEHICLE AND TRAFFIC LAW, OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)

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EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY.

The Second Department determined defendant was entitled to the small-property exemption for liability for sidewalk defects in this slip and fall case. Although the sidewalk where plaintiff fell abutted an undeveloped lot, defendant (Manley) demonstrated the lot was part of the residential premises:

In 2003, the New York City Council enacted the Sidewalk Law to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability-shifting provision, however, does not apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The exemption was provided in recognition that it was inappropriate to expose “small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair”… .

Here, in support of her motion, Manley established her prima facie entitlement to the small-property owner exemption. Manley established, prima facie, that the lot abutting the sidewalk where the plaintiff allegedly was injured was part of her residential premises for all practical purposes and that her use of her property qualified in all other respects for the small-property owner exemption. As we have recognized, this exemption is concerned with the ownership and use of the relevant property, not its technical designation … . Manley additionally established, prima facie, that she did not create the alleged sidewalk defect or make special use of the sidewalk and thus could not be held liable under common-law principles … . Johnson v Manley, 2017 NY Slip Op 04259, 2nd Dept 5-31-17

 

NEGLIGENCE (EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/MUNICIPAL LAW (NYC) (EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/SIDEWALKS (MUNICIPAL LAW, NEGLIGENCE, EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/SLIP AND FALL (MUNICIPAL LAW, SIDEWALKS, EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)

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CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR.

The Second Department, in an action stemming from a traffic accident, determined the complaint stated a cause of action for negligent hiring, retention and supervision for which punitive damages were sought. The facts were not discussed, but the court explained when a cause of action for negligent hiring seeking punitive damages is not precluded by the doctrine of respondeat superior:

Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently stated a demand for punitive damages insofar as asserted against the defendant driver. At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support the allegation that the defendant driver acted so recklessly or wantonly as to warrant an award of punitive damages … .

” Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training'” … . However, “such a claim is permitted when punitive damages are sought based upon facts evincing gross negligence in the hiring or retention of an employee” … . Gipe v DBT Xpress, LLC, 2017 NY Slip Op 04258, 2nd Dept 5-31-17

 

NEGLIGENCE (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/EMPLOYMENT LAW (NEGLIGENCE, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/CIVIL PROCEDURE (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/PUNITIVE DAMAGES (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/NEGLIGENT HIRING, RETENTION, SUPERVISION (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/TRAFFIC ACCIDENTS  (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)

DEFENDANT, WHO COLLIDED WITH PLAINTIFF AFTER PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE OF TRAFFIC, WAS ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined defendant Daley’s motion for summary judgment in this traffic accident case should have been granted. Plaintiff collided with defendant Bernstein’s car which caused plaintiff’s car to enter Daley’s oncoming lane of traffic:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident”… There can be more than one proximate cause of an accident … , and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … .

In support of his motion, Daley submitted evidence showing that the plaintiff’s vehicle and Bernstein’s vehicle collided in the plaintiff’s lane of travel in the subject intersection, which caused the plaintiff to lose control of his vehicle and cross over into Daley’s lane of travel, i.e., the opposite oncoming lane of traffic, and thereby caused the collision with Daley’s vehicle. While a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision … , a driver such as Daley who has the right-of-way and only seconds to react to a vehicle which has failed to yield, is not negligent for failing to avoid the collision … . The evidence submitted on Daley’s motion established that his actions were not a proximate cause of that collision … . Contrary to the contentions of the plaintiff and Bernstein, there was no evidence submitted on Daley’s motion tending to show that Daley operated his vehicle improperly or engaged in conduct which helped bring about the collision between his vehicle and the plaintiff’s vehicle, or the previous collision between the plaintiff’s vehicle and Bernstein’s vehicle … . Thus, Daley established his prima facie entitlement to judgment as a matter of law by demonstrating that he was not at fault in the happening of the subject accident. Victor v Daley, 2017 NY Slip Op 04315, 2nd Dept 5-31-17

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT, WHO COLLIDED WITH PLAINTIFF AFTER PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE OF TRAFFIC, WAS ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/TRAFFIC ACCIDENTS (DEFENDANT, WHO COLLIDED WITH PLAINTIFF AFTER PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE OF TRAFFIC, WAS ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)

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