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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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MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined petitioner’s motion to renew the petition for leave to file a late notice of claim was erroneously deemed a motion to reargue (by Supreme Court) and was erroneously denied. Leave to file a late notice of claim should have been granted. The wrongful death action was brought on behalf of a county worker who was killed when he fell off the back of a dump truck after the truck allegedly struck a bump in the road. The Second Department noted: (1) the 90-day period for filing a notice of claim runs from the appointment of the administrator of decedent’s estate; (2) the motion presented new evidence which was not previously available and was therefore a motion to renew, not reargue; (3) the county had notice of the facts of the action within the 90-day period; (4) the county did not demonstrate prejudice related to the delay in filing the notice of claim (even though the road defect had been repaired):

The County acquired actual knowledge of the essential facts constituting the claim before a representative of the estate was appointed. The [police department] conducted an investigation, took photographs of, inter alia, the subject roadway condition, obtained a statement from the driver of the truck, and prepared a case report that detailed the nature and the alleged cause of the accident. In addition, … Inasmuch as the County acquired timely, actual knowledge of the essential facts of the claim and actually conducted an investigation, the petitioner made an initial showing that the County was not prejudiced by his delay in serving a notice of claim … . The County claims that it will nonetheless be prejudiced by the delay because the roadway where the accident occurred has been repaved and because it will be unable to locate witnesses. The County, however, had recognized the need for repairs of the roadway before the petitioner was appointed as administrator, and it issued work orders to repair the roadway only a few days after the petitioner was appointed. Thus, any prejudice resulting from the changed condition of the road was not caused by the petitioner’s delay in serving a notice of claim … . In any event, the County took photographs of the defect and inspected the location after the accident … . The County also failed to make a showing that any of the witnesses are unavailable. Thus, the County failed to respond to the petitioner’s initial showing as to lack of prejudice with a particularized showing that the petitioner’s delay in serving a notice of claim will prejudice it in its defense on the merits … . Matter of Kerner v County of Nassau, 2017 NY Slip Op 04277, 2nd Dept 5-31-17

MUNICIPAL LAW (MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRUSTS AND ESTATES (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (MOTION TO RENEW, MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS  (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the alleged sidewalk defect in this slip and fall case was trivial and not actionable as a matter of law:

Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed … . Defendant submitted photographs and measurements, which showed that the height differential between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiff’s testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff’s testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect … . McCullough v Riverbay Corp., 2017 NY Slip Op 04231, 1st Dept 5-30-17

NEGLIGENCE (SIDEWALKS, SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SLIP AND FALL (SIDEWALKS, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)

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PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE, COMPLAINT PROPERLY DISMISSED.

The First Department determined plaintiff’s action against the city in this slip and fall case was properly dismissed. Plaintiff did not allege the city had prior written notice of the sign post stump in the sidewalk, and the 15-day grace period for the notice which the city did receive had not expired at the time of plaintiff’s fall:

Plaintiff alleges that, as she was exiting a bus, she tripped and fell over the stump of a pole sign protruding about three to four inches from the sidewalk near the bus stop. The City met its prima facie burden by showing that plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2) … .

The City also submitted evidence showing the absence of prior written notice; that the sign was in good condition two years before the accident; that the City received a citizen complaint through 311 less than 15 days before plaintiff’s accident; and that it repaired the condition a few days after her accident. The complaint received before the accident, even if it were in writing, could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice … .

… Plaintiff failed to demonstrate either that she pled prior written notice or that the 311 complaint received by the City within the 15-day grace period constitutes such notice. Plaintiff’s contention that the City affirmatively created the condition by removing the sign from the sleeve is unsupported by any evidence. Brown v City of New York, 2017 NY Slip Op 04221, 1st Dept 5-30-17

MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/SIDEWALKS (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/WRITTEN NOTICE REQUIREMENT (MUNICIPAL LAW, SLIP AND FALL, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)

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PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER.

The Third Department determined defendant school district was entitled to summary judgment in this sports injury case. Plaintiff (Legac) was struck in the face by a baseball during tryouts held in the gymnasium (due to weather). The Third Department held that the school district demonstrated plaintiff had assumed the risk of injury. He was an experienced baseball player and was aware of the way the baseball was being hit by the coach and the way the baseball reacted when striking the gymnasium floor:

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While Legac testified that he believed that Potter was hitting the ball “too hard” and that the baseball traveled faster on the gymnasium floor than it would have on a baseball field, such conditions were open and obvious and clearly appreciated by Legac, who had the opportunity to watch the players ahead of him complete the ground ball fielding drill and had observed the ball interact with the flooring over three days of indoor tryouts … . Inasmuch as the conditions inherent in the indoor ground ball fielding drill were readily apparent to Legac and the risk of being struck by a ball was a reasonably foreseeable consequence of engaging in that drill, we find that defendants established their prima facie entitlement to summary judgment dismissing the complaint … . Legac v South Glens Falls Cent. Sch. Dist., 2017 NY Slip Op 04182, 3rd Dept 5-25-17

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/EDUCATION-SCHOOL LAW (SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/BASEBALL (EDUCATION-SCHOOL LAW, SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)

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BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE.

The Third Department, in a lawsuit alleging breach of contract, breach of fiduciary duty and fraud (among other causes of action) stemming from the underfunding of a Workers’ Compensation benefits trust fund, determined the complaint stated a cause of action for legal malpractice. The lawyer, Gosdeck, argued that the complaint failed to allege his actions were the sole proximate cause of the injury. The Third Department reasoned that the “but for” test for legal malpractice was not the same as “sole proximate cause:”

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… [W]e reject Gosdeck’s argument that plaintiff was required to allege that he was the sole proximate cause of alleged damages. Rather, “[i]n an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages”… . “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence the plaintiff . . . would not have sustained actual and ascertainable damages”… . We agree with Supreme Court that, on this motion to dismiss a claim of legal malpractice that is based on negligent legal advice given over a period of time, the “but for” standard is not synonymous with sole proximate cause and that plaintiff’s burden is to prove that Gosdeck’s negligence was a proximate cause of damages … . New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 2017 NY Slip Op 04184, 3rd Dept 5-25-17

ATTORNEYS (LEGAL MALPRACTICE, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/LEGAL MALPRACTICE (BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/WORKERS’ COMPENSATION LAW (LEGAL MALPRACTICE RE MANAGEMENT OF WORKERS’ COMPENSATION TRUST, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/NEGLIGENCE (LEGAL MALPRACTICE, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE

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CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT.

The Second Department determined the last occupant of a campsite (Reinoso), as well as the county which owned the campgrounds, were not entitled to summary judgment in and action brought by an eight-year-old boy who was burned when he stepped into a pit of hot coals:

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… [T]he plaintiffs raised a triable issue of fact as to whether Reinoso was the party who left the hot embers on the ground … .

Further, it has long been the rule in New York that “[l]andowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control”… . Here, the evidence submitted by the County defendants in support of their motion for summary judgment failed to eliminate all triable issues of fact as to whether they exercised “ordinary and reasonable care in maintaining the campgrounds in a reasonably safe condition so as to prevent foreseeable injury” … . Holohan v County of Suffolk, 2017 NY Slip Op 04104, 2nd Dept 5-24-17

 

NEGLIGENCE (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/MUNICIPAL LAW (COUNTY-OWNED CAMPGROUNDS, CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/CAMPGROUNDS (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)

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