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MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new” symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010 were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would be improper to dismiss the claim.  Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17

NEGLIGENCE (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/TOXIC TORTS (MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/MOLD (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)

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MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new” symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010 were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would be improper to dismiss the claim.  Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17

NEGLIGENCE (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/TOXIC TORTS (MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/MOLD (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)

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CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP.

The Second Department determined there was a question of fact whether the continuous treatment doctrine applied to render this medical malpractice action timely. The court noted that the doctrine applies when the allegedly incorrect diagnosis occurred outside the statute of limitations and the continued treatment is not by the original doctor, but by other doctors in the group:

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The continuous treatment doctrine tolls the statute of limitations for medical malpractice actions when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint … .  With respect to failure-to-diagnose cases, a physician “cannot escape liability under the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where [he or she] treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition” … . The continuous treatment doctrine may be applied to a physician who has left a medical practice by imputing to him or her the continued treatment provided by subsequent treating physicians in that practice … . Matthews v Barrau, 2017 NY Slip Op 03738, 2nd Dept 5-10-17

NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)

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PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT.

The Second Department determined defendant doctors’ motion for summary judgment in this orthopedic surgery medical malpractice action was properly granted. Plaintiff’s expert was a radiologist and did not demonstrate familiarity with the standard of care for orthopedic surgeons:

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… [W]here, as here, ” a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … . The plaintiff’s expert, a board-certified radiologist, did not indicate any familiarity with the standards of orthopedic care. Donnelly v Parikh, 2017 NY Slip Op 03731, 2nd pt 5-10-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (EXPERT OPINION, MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)

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WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS.

The Second Department determined the defendants had demonstrated at a collateral source hearing that plaintiff will receive $205 per week in Workers’ Compensation benefits for the rest of her life. Even though the benefits were awarded after an unrelated 2002 accident, the damages awards for past and future lost income were reduced by $205 per week from the time of the 2010 accident (plaintiff was planning to return to work, and thereby lose the benefits, at the time of the 2010 accident):

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In “[a]ctions for personal injury . . . where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source, except for life insurance and those payments as to which there is a statutory right of reimbursement” (CPLR 4545[a]). The legislative intent of CPLR 4545(a) is to “eliminat[e] plaintiffs’ duplicative recoveries” … .. “The moving defendant bears the burden of establishing an entitlement to a collateral source reduction of an award for past or future economic loss” … .

“Reasonable certainty is understood as involving a quantum of proof that is greater than a preponderance of evidence but less than proof beyond a reasonable doubt. Each of the four judicial departments has interpreted reasonable certainty’ as akin to the clear and convincing evidence standard, that the result urged by the defendant be highly probable'” … . In order to determine whether a party has established with “reasonable certainty” a payment by a collateral source, the defendants first “must establish with reasonable certainty that the plaintiff has received, or will receive, payments from a collateral source” … , and, second, “that collateral source payments which have been or will be received by the plaintiff must be shown to specifically correspond to particular items of economic loss awarded by the trier of fact” … . “Each case involving potential future collateral source reductions to awards for economic loss must be judged on its own unique facts and merits” … . McKnight v New York City Tr. Auth., 2017 NY Slip Op 03740, 2nd Dept 5-10-17

 

NEGLIGENCE (WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/CIVIL PROCEDURE (COLLATERAL SOURCE, DAMAGES, NEGLIGENCE, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/WORKERS’ COMPENSATION (NEGLIGENCE, DAMAGES, COLLATERAL SOURCE, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/COLLATERAL SOURCE (CIVIL PROCEDURE, NEGLIGENCE, DAMAGES, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/DAMAGES (CIVIL PROCEDURE, NEGLIGENCE, DAMAGES, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)

EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED.

The Second Department noted that evidence of general cleaning practices was not sufficient to demonstrate a lack of constructive notice of the presence of liquid on the floor (the cause of plaintiff’s fall):

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A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected… . Here, viewing the evidence in the light most favorable to the plaintiff, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition. Contrary to the defendant’s contention, the deposition testimony of the cafeteria supervisor, which only referred to general cleaning practices and did not establish when, prior to the subject accident, the area was last cleaned or inspected, failed to demonstrate that the alleged condition existed for an insufficient amount of time for it to have been remedied … . Valdes v Pepsi-Cola Bottling Co. of N.Y., Inc., 2017 NY Slip Op 03794, 2nd Dept 5-10-17

NEGLIGENCE (SLIP AND FALL, CONSTRUCTIVE NOTICE, EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (CONSTRUCTIVE NOTICE, EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED)/CONSTRUCTIVE NOTICE (SLIP AND FALL, EVIDENCE OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF LIQUID ON THE FLOOR, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED)

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DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Defendants’ failed to demonstrate they did not have actual or constructive notice of or create the icy condition:

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… [T]he defendants failed to establish, prima facie, that they did not create the alleged hazardous condition or have actual or constructive notice of it. The plaintiff testified at her deposition that six or more inches of snow fell the day before the accident, and that the area of the gas station where she fell looked as if it had been plowed. The defendants provided only general information about their snow and ice removal practices, and no evidence was submitted, inter alia, as to when it last snowed prior to the time of the accident, what they actually did to remove snow and ice from the premises prior to the accident, when they last inspected the accident site prior to the accident, or what the accident site looked like within a reasonable time prior to the accident. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff’s opposition papers … .  D’Esposito v Manetto Hill Auto Serv., Inc., 2017 NY Slip Op 03729, 2nd Dept 5-10-17

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF OR CREATE THE ICY CONDITION, THEIR SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)

PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED.

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly granted because plaintiff could not describe the cause of the fall. The expert affidavit citing code violations did not connect the violations to the fall:

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Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff’s deposition testimony, which demonstrated that she could not identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff submitted an expert affidavit from an engineer who asserted that the stairs violated several provisions of the “New York State Building Construction Code,” the plaintiff presented no evidence connecting these alleged violations to her fall. Thus, even assuming that an applicable code provision was violated, it would be speculative to assume that any such violation was a proximate cause of the accident … . Amster v Kromer, 2017 NY Slip Op 03720, 2nd Dept 5-10-17

NEGLIGENCE (PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED)/SLIP AND FALL (PLAINTIFF DID NOT KNOW WHAT CAUSED HER FALL, CODE VIOLATIONS NOT CONNECTED TO THE FALL, DEFENSE SUMMARY JUDGMENT PROPERLY GRANTED)

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MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED.

The Second Department determined plaintiff’s motion for leave to amend the notice of claim was properly granted in this bicycle accident case. The notice of claim stated plaintiff was “lawfully traveling” on a service road when injured by a defect in the road. The amendment sought to indicate plaintiff was riding a bicycle at the time he was injured:

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A court may, in its discretion, grant an application for leave to serve an amended notice of claim if the mistake, omission, irregularity, or defect in the original notice was made in good faith, and the municipality has not been prejudiced … . In making a determination as to whether the municipality has been prejudiced, the court may consider the evidence adduced at a hearing conducted pursuant to General Municipal Law § 50-h, as well as any other evidence that is properly before the court … .

Here, the record does not show any bad faith on the part of the plaintiff, and the County failed to show that it would be prejudiced by the amendment. In particular, the County does not allege that the condition of the roadway changed prior to the service of the summons and complaint, which alleged that the plaintiff was injured while bicycling. Moreover, the record shows that Nassau County Police Department EMS personnel responded to the scene of the accident, and EMS personnel prepared a written report indicating that the plaintiff fell from a bicycle. Fast v County of Nassau, 2017 NY Slip Op 03734, 2nd Dept 5-10-17

 

MUNICIPAL LAW (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NOTICE OF CLAIM (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)

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NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF.

The Second Department determined the negligent supervision action against the school district, stemming from an assault by a student against the infant plaintiff (another student), properly survived summary judgment. The Second Department noted that the school, as opposed to the school district, is not an entity which can be sued. The decision includes a concise but complete explanation of the relevant law. Here the district was aware the infant plaintiff had been harassed by the student before and the student punched the infant plaintiff while a teacher was present in a classroom. The punch was immediately preceded by a couple of minutes of harassment of the infant plaintiff by the assailant:

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… [T]he School District has not shown, prima facie, that the incident “involved the type of unforeseeable, spontaneous acts of violence for which school districts cannot be held liable” … , or that the teacher had no time to prevent the infant plaintiff’s injuries and, therefore, the alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . Moreover, the School District did not demonstrate, prima facie, that the infant plaintiff voluntarily entered into a fight with the classmate; rather, the infant plaintiff’s testimony demonstrated the existence of triable issues of fact as to whether he acted in self-defense … . Because the School District did not meet its prima facie burden, we do not consider the sufficiency of the plaintiffs’ opposition papers … . Guerriero v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 03736, 2nd Dept 5-10-17

EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)/NEGLIGENCE (SCHOOL DISTRICT, NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)/ASSAULT (STUDENT ON STUDENT, NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)

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