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MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend his bill of particulars to reflect a different date for the injury allegedly caused by defendant’s employees during a carpet delivery should not have been granted. The motion was made on the eve of trial more than four years after the action was commenced and after plaintiff had repeatedly asserted the date during discovery. It turned out that no delivery was made by defendant on the date alleged in the pleadings:

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“Generally, [i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'”… . Where, however, the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discreet, circumspect, prudent, and cautious… . “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” … .

Here, the plaintiff moved for leave to amend his bill of particulars more than four years after the action was commenced, and almost a year after the matter was stricken from the trial calendar. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was for leave to amend the bill of particulars, as the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay … . Tabak v Shaw Indus., Inc., 2017 NY Slip Op 03213, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE  (MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)/BILL OF PARTICULARS, MOTION TO AMEND  (NEGLIGENCE, MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)

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MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED.

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The Second Department, reversing Supreme Court, determined defendant’s motion to renew in this rear-end collision case should not have been deemed a motion to reargue and denied. Plaintiff presented new evidence which was not available at the time the original motion was heard. The new evidence was sufficient to defeat the summary judgment motion:

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The new evidence included a transcript of the plaintiff’s deposition testimony, which had not been submitted to the court on the prior motion, as her deposition had not been completed until after the prior motion had been decided. Therefore, the motion was correctly denominated by the defendant as one for leave to renew his opposition to the plaintiff’s motion for summary judgment. Furthermore, this new evidence raised triable issues of fact as to the plaintiff’s comparative fault. Accordingly, the evidence was sufficient to change the court’s prior determination, and should have resulted in the court, upon renewal, denying the plaintiff’s motion for summary judgment on the issue of liability. Donovan v Rizzo, 2017 NY Slip Op 03154, 2nd Dept 4-26-17

CIVIL PROCEDURE (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/RENEW, MOTION TO MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/REARGUE, MOTION TO  (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)

INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE.

The First Department determined defendant bus company’s motion for summary judgment in this slip and fall case was properly granted. Plaintiff alleged she slipped on an oily substance on the step of a bus. Plaintiff’s expert argued the handrails were inadequate, but the statutes and regulations cited related to buildings, not buses. Although the internal rules of defendant bus company required the driver to assist passengers off the bus, that rule exceeded the ordinary care standard and could not be the basis for liability. Ziman-Scheuer v Golden Touch Transp. of NY, Inc., 2017 NY Slip Op 03124, 1st Dept 4-25-17

 

NEGLIGENCE (INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/SLIP AND FALL (BUSES, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/BUSES (SLIP AND FALL, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/STANDARD OF CARE (INTERNAL RULES, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/INTERNAL RULES (NEGLIGENCE, STANDARD OF CARE, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)

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PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert (Dr. Befeler) was a general surgeon and did not assert any knowledge of gastroenterology. His affidavit was not sufficient to raise a question of fact in the face of plaintiff’s gastroenterology experts:

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Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology … . While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, [his] education, years of training, and [his] forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040, 1st Dept 4-20-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)

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NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff raised a new theory in response to the summary judgment motion. The First Department held that the new theory could not be entertained by searching the record and therefore could not support the denial of summary judgment or an amended bill of particulars:

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Once the defendants met their burden for summary judgment, plaintiff was obligated to rebut defendant’s prima facie showing with medical evidence demonstrating that the defendants departed from accepted medical practice … . Here, plaintiff failed to address the opinions of defendants’ experts or defendants’ prima facie showing that the result from the complicated, extensive double jaw surgery was anything but a reasonable result. Thus, there was no basis to preclude a grant of summary judgment in favor of defendants … . Instead, plaintiff proffered a new theory, based on the report of an expert otolaryngologist, who opined that Dr. Behrman had failed to take into account plaintiff’s primary immune deficiency in planning the surgery, that he should have initially consulted with an immunologist who would have performed testing before surgery, and that he failed to refer plaintiff after surgery to an ENT doctor, who would have consulted with an immunologist. Plaintiff’s expert asserted that these failures led to the development of an infection, which caused plaintiff’s hearing loss, numbness, and teeth misalignment.

It is axiomatic that a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers … . Since plaintiff’s opposition papers were insufficient absent this new theory of recovery, defendants’ summary judgment motion should have been granted … . Biondi v Behrman, 2017 NY Slip Op 03039, 1st Dept 4-20-17

NEGLIGENCE (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (SUMMARY JUDGMENT,  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/SUMMARY JUDGMENT (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)

MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT.

The Second Department, in this slip and fall case, determined the misleveled sidewalk was an non-actionable trivial defect:

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“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Here, the defendant established, prima facie, that the alleged defect that caused the injured plaintiff to fall was trivial and therefore not actionable. In support of its motion, the defendant relied upon, inter alia, the injured plaintiff’s deposition transcript, as well as photos identified and marked by the injured plaintiff showing in detail the alleged defect as it existed at the time of the subject accident. Considering the photographs, which showed the height and extent of the alleged defect, along with the injured plaintiff’s description of the time, place, and circumstance of the injury, the defendant established, prima facie, that the alleged defect was trivial as a matter of law and, therefore, not actionable … . Fasone v Northside Props. Mgt. Corp., 2017 NY Slip Op 02966, 2nd Dept 4-19-17

NEGLIGENCE (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)/SLIP AND FALL (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)/SLIP AND FALL (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)/TRIVIAL DEFECT (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)

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COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT.

The Second Department determined defendant county was not entitled to summary judgment in this bicycle accident case. Plaintiffs alleged the county left loose gravel in the bike path after patching a hole (the loose gravel allegedly caused the accident). The written notice requirement did not apply because it was alleged the county created the dangerous condition. The primary assumption of the risk doctrine did not apply, The defect was not demonstrated to be trivial. The open and obvious defense applies only to the duty to warn, not the duty to make the property safe:

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The plaintiffs alleged, inter alia, that the County defendants affirmatively created the dangerous condition by leaving excess patching material at the scene of the repair. Affirmative creation is an exception to the County’s prior written notice ordinance  … . Thus, in order to establish their prima facie entitlement to judgment as a matter of law, the County defendants were required to submit evidence that they did not affirmatively create the defect as the plaintiffs alleged … . The County defendants failed to meet this burden … . Fornuto v County of Nassau. 2017 NY Slip Op 02969, 2nd Dept 4-19-17

NEGLIGENCE (COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)/MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT DID NOT APPLY, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)/OPEN AND OBVIOUS DEFENSE (APPLIES ONLY TO DUTY TO WARN, NOT DUTY TO KEEP PROPERTY SAFE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)

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NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY.

The Second Department determined the plaintiff’s motion to amend the notice of claim against the NYC Health and Hospitals Corporation was properly denied. A notice of claim cannot be amended by adding a new injury theory of liability:

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A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability … . Here, the proposed amendments to the notice of claim asserted a new injury and added a new theory of liability … . These amendments were not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Castillo v Kings County Hosp. Ctr., 2017 NY Slip Op 02962, 2nd Dept 4-19-17

NEGLIGENCE (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)/MEDICAL MALPRACTICE (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)/MUNICIPAL LAW (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)

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DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant (Chase) was not entitled to summary judgment in this abutting sidewalk slip and fall case. Although there was no statute or ordinance which imposed tort liability for failure to remove ice and snow on Chase as the abutting lessee, Chase did not affirmatively demonstrate that it did not exacerbate the ice-snow condition with its snow removal efforts:

The defendant J.P. Morgan Chase Bank, N.A. (hereinafter Chase), leased from [the owner] that portion of the building abutting the sidewalk. Under the terms of the lease and riders in effect at the relevant time, Chase was required to, inter alia, keep the sidewalks and curb in front of its premises clean and free from ice and snow. * * *

Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision … . In slip-and-fall cases on snow or ice, the general rule is that ” [t]he owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so'” … . “In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous” …

Here, there was no statute or ordinance which imposed tort liability on Chase for the failure to maintain the sidewalk abutting its leased portion of the premises. However, Chase failed to make a prima facie showing that it was free from negligence. Chase failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts to clear the sidewalk on the date of the subject accident, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition which allegedly caused the plaintiff to fall … . Ramjohn v Yahoo Green, LLC. 2017 NY Slip Op 03028, 2nd Dept 4-19-17

NEGLIGENCE (DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (SIDEWALK SLIP AND FALL, DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)/SIDEWALKS (SLIP AND FALL, DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)

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AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED FOR THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACOTRS IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant auto repair shop (Auto Excellence) did not owe a duty to plaintiff who was injured driving a borrowed car. Plaintiff, who alleged the car was negligently repaired (causing injury), did not have a contractual relationship with the repair shop and did not allege any Espinal factors which could give rise to tort liability based on a contract. Because no Espinal factors were alleged there was no need for defendant to negate those factors in its motion papers:

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A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … , the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty, in Espinal, to maintain the premises safely.

Here, Auto Excellence made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the repair contract and, thus, Auto Excellence owed her no duty of care … . Contrary to the plaintiff’s contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, Auto Excellence was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Koslosky v Malmut, 2017 NY Slip Op 02977, 2nd Dept 4-19-17

NEGLIGENCE (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTY, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (ESPINAL FACTORS, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)

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