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FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT.

The Second Department determined the plaintiff did not demonstrate the property owner’s failure to modify a five-inch high threshold in a brightly lit area created a dangerous condition. The building was constructed in 1924 and there was no showing the owner was required to bring the building up to code or to comply with the Americans with Disabilities Act. The court noted that the standards promulgated by the American Society for Testing and Materials were not  mandatory and could not be the basis for liability:

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… [The owner and property manager] demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the threshold to the entrance of the premises was approximately five inches high and located in a brightly lit area, and therefore open and obvious and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defect was actionable … . In his affidavit, the plaintiff’s expert architect did not dispute the fact that the premises were constructed in 1924, prior to the enactment of the building code, and cited no requirement that the premises be renovated to meet the building code enacted subsequent to its construction. Further, the Americans With Disabilities Act … standards, relied upon by the plaintiff’s expert, generally do not require renovation of buildings constructed prior to 1991 … , and the expert cited no evidence that any exceptions to that rule were applicable here. The expert’s reliance on standards promulgated by the American Society for Testing and Materials did not raise a triable issue of fact as to the liability of [the owner and property manager], since those standards are nonmandatory guidelines, a violation of which would not support a finding of liability … . Futter v Hewlett Sta. Yogurt, Inc., 2017 NY Slip Op 02970, 2nd Dept 4-19-17

NEGLIGENCE (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/PREMISES LIABILITY (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/SLIP AND FALL (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/AMERICANS WITH DISABILITIES ACT (PREMISES LIABILITY, FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/OPEN AND OBVIOUS (PREMISES LIABILITY, FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)

WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED.

The Second Department, reversing Supreme Court, determined a wrongful death cause of action brought on behalf of a pharmacist killed by persons addicted to prescription drugs should have been dismissed. The defendant-doctor, who allegedly over-prescribed the drugs, brought the motion to dismiss:

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The defendants David Laffer and Melinda Brady conspired to commit a robbery at Haven Drugs Pharmacy, where Raymond A. Ferguson, Jr. (hereinafter the decedent), was employed as a pharmacist. During the robbery, Laffer shot and killed the decedent. Ultimately, Laffer was convicted of murder in the first degree, and Brady was convicted of robbery in the first degree. In this action, the plaintiff, as the administratrix of the decedent’s estate, and individually, alleges that in the years leading up to these crimes, the defendant physician Stan Xuhui Li prescribed Laffer and Brady excessive amounts of addictive prescription pain medications, that Laffer and Brady became addicted to these medications, and that they committed their crimes as a result of their addictions. …

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The plaintiff does not allege that Li had “the authority or the ability to control Laffer” or Brady … , that Li had any relationship with the plaintiff or the decedent … , or that Li’s treatment of Laffer or Brady “necessarily implicate[d] protection of . . . identified persons foreseeably at risk because of a relationship with [the plaintiff or the decedent]” … . Accordingly, the complaint fails to state a cause of action sounding in negligence against Li … . Ferguson v Laffer, 2017 NY Slip Op 02967, 2nd Dept 4-19-17

 

NEGLIGENCE (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)/PRESCRIPTION DRUGS (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)/PHARMACISTS (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)/FORESEEABILITY (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)

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LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM FOR CONSCIOUS PAIN AND SUFFERING.

The Second Department determined a petition for leave to file a late notice of claim against the NYC Health and Hospitals Corporation for conscious pain and suffering was properly denied. The court determined the hospital was not timely put on notice of the claim simply by its possession of the decedent’s hospital records:

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Contrary to the petitioner’s contention, the respondent did not acquire actual knowledge of the essential facts constituting the claim to recover damages for conscious pain and suffering within the requisite 90-day period or a reasonable time thereafter by virtue of its possession of hospital records relating to the decedent’s death … . A medical provider’s mere possession or creation of medical records does not establish that it had “actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on” the claimant … . Furthermore, the petitioner failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the lengthy delay in filing the petition … . Even assuming that the petitioner met its initial burden to show that the late notice will not substantially prejudice the respondent, and that the respondent failed to make “a particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” in response … , upon consideration of the balance of the relevant factors (see General Municipal Law § 50-e[5]), the Supreme Court providently exercised its discretion in denying leave to serve a late notice of claim with respect to the cause of action alleging conscious pain and suffering … . Matter of Rosenblatt v New York City Health & Hosps. Corp., 2017 NY Slip Op 03004. 1st Dept 4-19-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)

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PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER.

The Second Department determined a wedding photographer (Kataiev) was an independent contractor and the company which hired him (HR) could not be vicariously liable for injuries to plaintiff allegedly caused by the photographer:

“The general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts” … . “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration” … . “Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” … . ” [I]ncidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship'”… .

Here, HR demonstrated, prima facie, that Kataiev was hired as an independent contractor. The transcripts of the deposition testimony submitted in support of HR’s motion established that HR hired Kataiev only for the wedding, that HR did not provide Kataiev with health insurance, that HR did not provide Kataiev with a W-2 form, that Kataiev used his own equipment at the wedding, that HR paid Kataiev in cash, and that HR did not withhold Social Security taxes or employment taxes from the money paid to Kataiev … . Additionally, the evidence submitted by HR demonstrated, prima facie, that HR exercised only minimal or incidental control over Kataiev’s work … . Weinfeld v HR Photography, Inc., 2017 NY Slip Op 03038, 2nd Dept 4-19-17

EMPLOYMENT LAW (VICARIOUS LIABILITY, PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER)/NEGLIGENCE (EMPLOYMENT LAW, PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER)/VICARIOUS LIABILITY (EMPLOYMENT LAW, PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER)

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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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