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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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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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