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DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE.

The First Department, in a full-fledged opinion by Justice Renwick, with a concurring opinion, determined the trial judge properly granted plaintiff’s motion for a new trial in this personal injury case because of the unacceptable behavior of defense counsel. Plaintiff alleged she was struck by a bus while crossing the street, injuring her back and knee. The jury found the defendant 70% at fault but found that the injuries were not permanent and awarded nothing for future pain and suffering. The First Department concluded the verdict was probably a compromise and the defense attorney’s conduct deprived plaintiff of a fair trial:

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In ordering a new trial, the trial court concluded that defense counsel’s conduct was “so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial.” Also, such conduct “occurred in front of the jury, created a hostile atmosphere and persisted despite the court threatening to impose sanctions and to hold counsel in contempt.”

The court then cited the multiple instances of defense counsel’s misconduct: “frequent assertions of personal knowledge of facts in issue in violation of Rules of Professional Conduct, Rule 3.4(d)(2)”; his many speaking objections, with one of them flagrantly misstating the law; his motion for a mistrial twice in front of a jury; his unfair and false denigration of Dr. Davy as not being a “real surgeon”; his pattern of interrupting and speaking over the court despite the court’s directions to stop; and his interruption of the trial by demanding that plaintiff’s counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat. The court further noted that, although not reflected in the record, defense counsel would use a “sneering, denigrating tone” while cross-examining Dr. Davy and plaintiff’s other witnesses. The court also noted as not reflected in the record the “tone of voice” directed at plaintiff’s counsel, witnesses, and the court, or the “volume of his voice”; the court noted that it had admonished counsel “not to scream” on several occasions. The court continued that not fully reflected in the record was the extent to which defense counsel would continue talking after being directed to stop. Smith v Rudolph, 2017 NY Slip Op 02957, 1st Dept 4-18-17

 

ATTORNEYS (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/CIVIL PROCEDURE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/NEGLIGENCE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)

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CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM.

The Third Department determined defendant contractor owed a duty to plaintiff crane operator over and above any obligation running from a contract between them. The court further found there was a question of fact whether defendant was negligent in finding and setting up a staging area for the crane (the crane sank and fell into the pond):

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In a case such as this one where the parties’ relationship stems from a contract, a “duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … . “In determining the scope of duty, courts examine, among other factors, whether the injury-producing occurrence is one that could have been anticipated” … . Whether a duty exists in the first instance is a question of law for the courts … .

Here, neither the price quote nor the work order — the documents embodying the contractual relationship between plaintiff and defendant — contained terms regarding site safety or the placement of cranes at the site. The record nonetheless reveals that Daniel Morin, defendant’s president, scouted an area by the pond where the dredging would take place in order to construct a “staging area” that was to be used for daily activities and access for construction equipment. Southern Tier Crane Servs., Inc. v Dakksco Pipeline Corp., 2017 NY Slip Op 02859, 3rd Dept 4-13-17

 

NEGLIGENCE (CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM)/CONTRACT LAW (NEGLIGENCE, CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM)

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EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE.

The First Department determined plaintiffs raised sufficient questions about whether defendant Starwood was an apparent or ostensible agent of the property owner, Sheraton, to justify further discovery and denial of defendant’s summary judgment motion as premature. Plaintiff was injured in a slip and fall on a hotel walkway alleged to be defective. Plaintiff sued Starwood. Starwood moved for summary judgment arguing the hotel was owned by Sheraton and the walkway maintenance was under the exclusive control of an independent contractor, ZLC. Plaintiffs demonstrated there was evidence Starwood held itself out as the owner of the property on its website:

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Starwood demonstrated that it did not own or control the hotel, and that, under the terms of the license agreement with Sheraton, ZLC was an independent contractor and was responsible for the day-to-day operations of the hotel. Under these circumstances, even if Starwood were a party to the license (or franchise) agreement, the mere existence of a franchise relationship would not provide a basis for the imposition of vicarious liability against Starwood for the negligence of the franchisee, ZLC … .

However, in opposition, plaintiff submitted evidence that Starwood’s reservations website holds the hotel out to the public as a Starwood property, and that plaintiff relied on the representations on Starwood’s website in choosing to book a room at the hotel. This evidence of public representations and reliance may support a finding of apparent or ostensible agency, which may serve as a basis for imposing vicarious liability against Starwood … . Although the license agreement required ZLC to disclose that it was an “independent legal entity operating under license” from Sheraton and to place “notices of independent ownership” on the premises, Starwood did not provide any evidence that ZLC complied with those requirements.  Stern v Starwood Hotels & Resorts Worldwide, Inc., 2017 NY Slip Op 02882, 1st Dept 4-13-17

 

CIVIL PROCEDURE (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/AGENCY  (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/NEGLIGENCE  (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED.

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to defendant podiatrist in this malpractice action. The defendant’s expert did not address the precise claims of malpractice made in the pleadings and did not demonstrate plaintiffs gave informed consent to the procedure. On the issue of informed consent, the court wrote:

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To succeed on a cause of action to recover damages for podiatric malpractice based on lack of informed consent, a plaintiff must demonstrate (1) the failure of the podiatric practitioner providing the professional treatment or diagnosis to disclose to the patient the alternatives thereto and the reasonably foreseeable risks and benefits involved that a reasonable podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation, and (2) that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought … . Here, the plaintiffs’ deposition testimony indicates that they were not fully advised of the risks, benefits, and alternatives to the surgical procedure. Further, the generic consent form signed by the infant plaintiff’s mother did not establish the defendants’ prima facie entitlement to judgment as a matter of law since it did not disclose the risks specific to the surgical procedure performed, and the defendants’ expert failed to aver that the consent form complied with the prevailing standard for such disclosures applicable to reasonable podiatrists performing the same kind of surgery ,,, , Parrilla v Saphire, 2017 NY Slip Op 02803, 2nd Dept 4-12-17

NEGLIGENCE (MEDICAL MALPRACTICE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED)/MEDICAL MALPRACTICE (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED)/INFORMED CONSENT  (MEDICAL MALPRACTICE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED)

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DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED.

The Second Department, in a lawsuit stemming from the flooding of plaintiffs’ land, explained the differences between contribution and indemnification and noted that corporate officers may be personally liable for torts committed in their performance of corporate duties:

The plaintiffs commenced this action against the Village of East Hills after they experienced flooding on their property from rainwater. The plaintiffs asserted causes of action sounding in tort, alleging that the flooding resulted from the development of land near their property, which was authorized by the Village. The Village commenced a third-party action seeking indemnification and contribution against A to Z Transit Contracting Corp., the project manager that constructed the plaintiffs’ home, as well as its principal, David Ferdinand, architect Carl Majowka, who prepared plans for the construction of the plaintiffs’ home, and Scott Anderson, the principal of Scott Anderson Design, Inc., which performed landscaping work for the plaintiffs’ home. * * *

“[C]ontribution arises automatically when certain factors are present and [does] not requir[e] any kind of agreement between or among the wrongdoers'” … . ” Indemnity, on the other hand, arises out of a contract which may be express or may be implied in law “to prevent a result which is regarded as unjust or unsatisfactory”‘” … . “Further, “[w]here one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent.” . . . Conversely, where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy'”… . “Whether indemnity or contribution applies depends not upon the parties’ designation but upon a careful analysis of the theory of recovery against each tort-feasor'”       * * *

Although “[c]orporate officers may not be held personally liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts” … , “corporate officers may be held personally liable for torts committed in the performance of their corporate duties'” … . Eisman v Village of E. Hills. 2017 NY Slip Op 02775, 2nd Dept 4-12-17

NEGLIGENCE (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)/CONTRACT LAW (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)/CORPORATION LAW  (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)/MUNICIPAL LAW (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)

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APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF ADEQUATE EXCUSE.

The Second Department determined petitioner’s application for leave to file a late notice of claim should have been granted, despite the lack of an adequate excuse. The respondent city’s employees were involved in the accident and the police report alerted the city to a potential lawsuit:

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Here, the City of New York acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident, since its employees were directly involved in the accident, and the police accident report gave reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by the City and that the petitioner was injured as a result thereof … . Furthermore, the City received a late notice of claim 22 days after the expiration of the 90-day period, which it accepted, and informed the petitioner that it would do its best to investigate and, if possible, settle the claim … .

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Moreover, the petitioner made an initial showing that the City was not substantially prejudiced, since the City acquired timely, actual knowledge of the essential facts constituting the claim through the police accident report and became aware of the negligence claim less than one month after the expiration of the 90-day period … . Matter of Cruz v City of New York, 2017 NY Slip Op 02789, 2nd Dept 4-12-17

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MUNICIPAL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF ADEQUATE EXCUSE)/NEGLIGENCE (MUNICIPAL LAW, APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF ADEQUATE EXCUSE)/NOTICE OF CLAIM (MUNICIPAL LAW, APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF ADEQUATE EXCUSE)

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SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION.

The Second Department determined defendant school did not owe a duty of care to a student who was struck by a car one block from the school after leaving the school with permission:

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A school’s duty to supervise the students in its charge arises from its physical custody and control over them … . “When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases”… . “Generally, a school cannot be held liable for injuries that occur off school property and beyond the orbit of its authority” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the infant plaintiff had left school grounds with the permission of his mother and, thus, was no longer in the defendants’ custody or under their control and was outside the orbit of their authority … . The defendants also demonstrated, prima facie, that the infant plaintiff was not released into a foreseeably hazardous setting that the defendants had a hand in creating … . Donofrio v Rockville Ctr. Union Free Sch. Dist., 2017 NY Slip Op 02774, 2nd Dept 4-12-17

 

EDUCATION-SCHOOL LAW (SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION)/NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION)

NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM.

The First Department, reversing Supreme Court, determined that defendant bus company did not have a duty to keep the entry steps free of tracked in water during a rainstorm. Plaintiff slipped and fell on the steps while attempting to board the bus:

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Plaintiff’s claim that Swift River negligently allowed a slippery condition to persist on the stairs leading into the bus was precluded, as a matter of law, by plaintiff’s testimony that it was raining at the time of the accident … . “Defendant is not obligated to provide a constant remedy for the tracking of water onto a bus during an ongoing storm” … , and here, the evidence showed that plaintiff was the last of a group of people to board the bus during the rainstorm … . Collins v Nate Tours Bus Co., 2017 NY Slip Op 02739. 1st Dept 4-6-17

NEGLIGENCE (NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/SLIP AND FALL (NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/BUSES (SLIP AND FALL. NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/WATER, TRACKED IN (BUSES, NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)

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EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined demonstrating that a sidewalk defect developed over time is not sufficient to raise a question of fact whether the defect was there upon installation of the sidewalk:

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Contrary to the plaintiff’s contention, evidence suggesting that the defendant actually knew of the alleged defect did not satisfy the requirement in Village of Scarsdale Local Law § 209-1 that prior written notice of the alleged defect be given to the Village Clerk … . Moreover, the plaintiff failed to raise a triable issue of fact as to the affirmative negligence exception, as she did not identify any evidence demonstrating that the allegedly defective condition arose immediately upon installation … . The plaintiff’s evidence, which includes an expert affidavit and statements by Village officials, at most established that environmental effects created the alleged defect over time, which is not sufficient to establish the defendant’s liability … . Beiner v Village of Scarsdale, 2017 NY Slip Op 02617, 2nd Dept 4-5-17

Same issues and result in Loghry v Village of Scarsdale, 2017 NY Slip Op 02635, 2nd Dept 4-5

 

NEGLIGENCE (EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALKS, EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE.

The Second Department, reversing Supreme Court, determined a surveillance tape which depicted the defendant’s car pulling out into traffic as plaintiff’s (Nesbitt’s) car was closely approaching should have been considered by the motion court and summary judgment should have been awarded to defendant. The tape was sufficiently authenticated by defendant’s statement the tape accurately depicted what happened:

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Here, in support of his motion for summary judgment, the defendant submitted, among other things, a surveillance tape that depicted Nesbitt’s vehicle leaving the gas station and entering Middle Country Road as the defendant’s vehicle approached. The Supreme Court refused to consider this evidence on the ground that it was not properly authenticated. The court improvidently exercised its discretion in declining to consider the surveillance tape, because the defendant adequately authenticated the tape by averring that it accurately depicted what had occurred at the time of the accident … .

The surveillance tape and the additional evidence submitted by the defendant in support of his motion established, prima facie, that he was not at fault in the happening of the accident and that the sole proximate cause was Nesbitt’s conduct in entering the roadway when the defendant’s vehicle was so close … . Nesbitt v Gallant, 2017 NY Slip Op 02665, 2nd Dept 4-5-17

 

NEGLIGENCE (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/EVIDENCE  (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/SURVEILLANCE TAPE (EVIDENCE, CAR ACCIDENT, SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/TRAFFIC ACCIDENTS (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)

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