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REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court and ordering a new trial, determined the trial judge should have instructed the jury on res ipsa loquitur and Multiple Dwelling Law 78 in this elevator accident case. Plaintiff alleged the elevator door closed on her causing her to fall to the floor. There was evidence the door had malfunctioned the day before and a building representative was made aware of the malfunction. There was evidence the door would not have struck plaintiff absent a malfunction, and there was a log of incidents with the elevator which was erroneously excluded from evidence:

Res ipsa loquitur is an evidentiary doctrine which “permits the inference of negligence to be drawn from the circumstances of the occurrence” when a plaintiff can establish that (1) the event is of a kind that ordinarily does not occur in the absence of negligence; (2) the event was caused by an agency or instrumentality within the exclusive control of defendant; and (3) the event was not caused by the plaintiff’s actions … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not’ that the injury was caused by the defendant’s negligence” … .

The doctrine of res ipsa loquitur has frequently been applied in cases involving elevator malfunctions, including those involving doors which unexpectedly closed upon and injured plaintiffs while attempting to enter and exit an elevator … . * * *

The trial court erred in refusing to instruct the jury regarding the owner’s nondelegable duty under Multiple Dwelling Law § 78. A building owner’s duty under the statute extends to elevator maintenance and repair … . The court’s refusal to charge section 78 erroneously led the jury to believe that the owner’s negligence could only be predicated on its actual or constructive notice of an elevator problem. Barkley v Plaza Realty Invs. Inc., 2017 NY Slip Op 01664, 1st Dept 3-7-17

NEGLIGENCE (ELEVATORS, REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE)/EVIDENCE (RES IPSA LOQUITUR, MULTIPLE DWELLING LAW, (ELEVATORS, REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE)/ELEVATORS (REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE)/RES IPSA LOQUITUR (ELEVATORS, REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE)/MULTIPLE DWELLING LAW (ELEVATORS, REVERSIBLE ERROR TO REFUSE TO INSTRUCT THE JURY ON RES IPSA LOQUITUR AND MULTIPLE DWELLING LAW LIABILITY IN THIS ELEVATOR ACCIDENT CASE)

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LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED.

The Third Department determined an action by a 28-year-old woman alleging lead paint poisoning was time-barred. Plaintiff was first diagnosed with high levels of lead in 1990. The statute of limitations runs from when the symptoms are first discovered, not when the cause of the symptoms is learned:

… [D]efendants’ submissions were sufficient to demonstrate that plaintiff was cognizant of her claimed injuries, or, at a minimum, reasonably should have been, such that the action is barred by the statute of limitations. Although CPLR 214-c (2) permits an action to proceed within three years from the “discovery of the injury,” this means the “discover[y of] the primary condition on which the claim is based” … , or, put differently, “the discovery of the manifestations or symptoms of the latent disease that the harmful substance produced” … . Here, accepting that lead was the causative harmful substance, plaintiff was aware of her injuries, which first manifested when she started public education in 1990 and, according to plaintiff, continued throughout her school years. Although plaintiff argues that her action is timely because she first discovered that she suffered lead poisoning when her attorney sent a solicitation letter to her mother in 2012, we disagree. Where, as here, a plaintiff is seeking the benefit of the discovery rule applicable to toxic torts, the statute runs from the date the condition or symptom is discovered or reasonably should have been discovered, not the discovery of the specific cause of the condition or symptom … . Vasilatos v Dzamba, 2017 NY Slip Op 01615, 3rd Dept 3-2-17

NEGLIGENCE (LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED)/TOXIC TORTS (LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED/LEAD POISONING (STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED)

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CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED.

The Third Department determined the certificate of merit filed in this medical malpractice action was inadequate. The complaint alleged malpractice by a surgeon. The certificate was based on the affidavit of plaintiff’s (Calcagno’s) physical therapist:

A certificate of merit “merely ensures that counsel has satisfied himself or herself that there is a reasonable basis for the commencement of an action” … . The statute requires counsel to submit a certificate of merit declaring that he or she has consulted with at least one licensed physician who is knowledgeable regarding the relevant issues in the action, has reviewed the facts of the case, and has thus concluded that such a reasonable basis exists … .

We agree with Supreme Court that the certificate proffered by plaintiffs is inadequate. The allegations of malpractice arise from defendants’ diagnosis and surgical treatment, and the certificate of merit is based upon an affidavit of Calcagno’s physical therapist, who opined, “as a physical therapist,” that defendants’ actions were “departures from good and accepted medical practice.” However, by definition, a physical therapist cannot diagnose and is incompetent to attest to the standard of care applicable to physicians and surgeons … . Moreover, we find no merit in plaintiffs’ contention that the certificate of merit should be deemed adequate, as it was also based on certain medical reports, Calcagno’s testimony, and the pleadings. Review of these documents, standing alone, cannot suffice. Expert analysis is required to establish whether there was any departure from established standards of care, and whether any such departure was the proximate cause of injury to Calcagno … . Calcagno v Orthopedic Assoc. of Dutchess County, PC, 2017 NY Slip Op 01616, 3rd Dept 3-2-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)/MEDICAL MALPRACTICE (CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)/CERTIFICATE OF MERIT (MEDICAL MALPRACTICE, CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)

PLAINTIFF’S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER SHOE AS SHE FELL WAS SUFFICIENT TO DEFEAT DEFENDANT’S SUMMARY JUDGMENT MOTION, SUPREME COURT REVERSED.

The First Department, reversing Supreme Court, over a two-justice dissent, determined defendant should not have been granted summary judgment in this slip and fall case. Plaintiff alleged she slipped on a waxy substance on a marble floor and alleged she saw a “dent” in the substance made by her shoe when she fell. Defendant submitted evidence that the floor was never waxed:

Here, there is a triable issue of fact as to whether there was a slippery substance on the bathroom floor that caused plaintiff to fall notwithstanding defendant’s assertion that it never used wax in that particular bathroom. Contrary to the motion court’s findings, plaintiff’s proof was not speculative and was sufficient to defeat the motion, because she set forth a specific reason for the slippery condition on the floor, namely a build-up of wax … . Indeed, as noted above, she “saw a big line, the dent of my shoe in the wax all the way that I fell,” suggesting that her shoe gouged out some of the waxy substance where she fell. This was more than just leaving a streak … , which would happen regardless of the condition of the floor. Villa v Property Resources Corp. (137 AD3d 454 [1st Dept 2016]), recently decided by this Court, is also not dispositive. There, plaintiff merely felt a wetness on her pants and hands that smelled like wax or ammonia, while here, plaintiff saw the dent of her shoe in the waxy substance … . De Paris v Women’s Natl. Republican Club, Inc., 2017 NY Slip Op 01625, 1st Dept 3-2-17

NEGLIGENCE (PLAINTIFF’S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER SHOE AS SHE FELL WAS SUFFICIENT TO DEFEAT DEFENDANT’S SUMMARY JUDGMENT MOTION, SUPREME COURT REVERSED)/SLIP AND FALL (PLAINTIFF’S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER SHOE AS SHE FELL WAS SUFFICIENT TO DEFEAT DEFENDANT’S SUMMARY JUDGMENT MOTION, SUPREME COURT REVERSED)

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COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM.

The First Department, reversing Supreme Court, determined defendant transit authority’s motion for summary judgment should have been granted. Plaintiff slipped on snow on a step as she got off a bus:

Plaintiff testified that she slipped and fell as she was exiting a bus owned and operated by defendants because the step was covered with a slushy condition. She and the bus driver both stated that there was snow all over the ground from a storm that had ended earlier that day, and certified meteorological records submitted by defendants demonstrated that a snow storm that started the previous night and ended earlier in the day of the accident had left about six inches of snow on the ground. The bus driver also testified that passengers tracked snow onto the bus on their shoes and boots as they boarded.

Common carriers are not obligated to provide a “constant remedy” for the tracking of water onto a bus during an ongoing storm or for a reasonable time thereafter … . Similarly, when the ground is covered with snow left by a recent storm, “it would be unreasonable to expect the [defendants] to constantly clean the front steps of the subject bus” … . Plaintiff’s argument that defendants failed to show lack of notice of the slushy condition is irrelevant, since they did not breach any duty of care under the existing weather conditions. Harbison v New York City Tr. Auth., 2017 NY Slip Op 01503, 1st Dept 2-28-17

 

NEGLIGENCE (COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)/BUSES (SLIP AND FALL, COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)/SLIP AND FALL (BUSES, COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)

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PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this psychiatric malpractice case should not have been granted. Plaintiffs’ expert found fault in, inter alia, defendants’ failure to document suicide assessments. Plaintiffs’ decedent committed suicide shortly after the defendant psychiatrists, Roberts and Decker, saw her:

Plaintiffs submitted the factually specific affidavit of a psychiatrist who, relying upon the foregoing, opined that Roberts deviated from the minimum standard of care in failing to document a proper suicide risk assessment and then discharging decedent without ensuring that she obtain psychotherapy and medication management within two days … . * * *

Plaintiffs’ expert psychiatrist opined that Decker fell short of the minimum standard of care by failing to properly conduct and document a suicide risk assessment of decedent, who was experiencing triggering anxiety and untreated depression. The psychiatrist further opined that Decker departed from the minimum standard of care in placing medication adjustment and psychotherapy on hold in the expectation that a “severely compromised” person would provide more information on an inpatient treatment facility that she was curious about. Tkacheff v Roberts, 2017 NY Slip Op 01429, 3rd Dept 2-23-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/MEDICAL MALPRACTICE (PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/PSYCHIATRISTS (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/SUICIDE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)

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JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB.

The First Department, reversing Supreme Court, determined plaintiff janitor could not sue for a slip and fall because the fall was caused by the condition he attempting to remedy as part of his job:

Dismissal of the complaint as against defendants is warranted in this action where plaintiff janitor alleges that he was injured when he slipped on pebbles on the bathroom floor of the building he was hired to clean. It is well established that a maintenance or cleaning worker has no claim at law for injury suffered from a dangerous condition that he was hired to remedy … , and here, plaintiff stated that as part of his job cleaning the bathroom, he frequently removed the pebbles from the floor. Black v Wallace Church Assoc., 2017 NY Slip Op 01480, 1st Dept 2-23-17

NEGLIGENCE (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/SLIP AND FALL (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/EMPLOYMENT LAW (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/JANITORS (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)

THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the owner of the lead car struck from behind was entitled to summary judgment. The allegation the lead car stopped suddenly was not sufficient to raise a question of fact:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of that driver to “come forward with an adequate nonnegligent explanation for the accident” … . A claim by the rear driver that “the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Bajrami v Twinkle Cab Corp., 2017 NY Slip Op 01458, 1st Dept 2-23-17

NEGLIGENCE (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/REAR-END COLLISIONS  (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)

PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR; ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Third Department, reversing Supreme Court, determined questions of fact precluded summary judgment in favor of defendant restaurant. Plaintiff’s decedent fell down a flight of stairs leading from an unmarked door to the basement of the restaurant. Although no one witnessed the accident, circumstantial evidence supported the view that the stairway and unmarked door presented a dangerous condition which caused plaintiff’s fall:

The evidence established numerous questions of fact as to whether the staircase presented a dangerous condition to those using it, the most obvious being that the door opened over descending stairs … . [The owner’s] regular use of the stairs and his personal installation of the handrail established a question of fact as to notice or creation of the dangerous condition … . Finally, although the fall was unwitnessed, a jury could logically infer from the evidence regarding the risks that the staircase posed, the evidence of previous falls on the staircase and the evidence that decedent was healthy, agile and not visibly intoxicated at the time of the accident that the dangerous condition of the staircase caused her fall … . Acton v 1906 Rest. Corp., 2017 NY Slip Op 01431, 3rd Dept 2-23-17

NEGLIGENCE (PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR, ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/STAIRWAYS (PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR, ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)

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DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it was the alter ego of plaintiff’s employer (which would trigger the Worker’s Compensation Law as plaintiff’s sole remedy). Defendant’s summary judgment motion on that ground should have been denied. Plaintiff was injured by a defective floor condition where he worked. He sued the owner of the building and the holder of the lease, Clean Rite Cleaners – Flatbush Avenue, LLC:

At the time of the accident, the plaintiff was employed by nonparty CRC-Management Co., LLC (hereinafter CRC-Management), and, after the accident, he sought Workers’ Compensation benefits from CRC-Management. CRC-Flatbush moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff’s causes of action were barred by the exclusive remedy provisions of the Workers’ Compensation Law. Among other things, CRC-Flatbush argued that it was “part of a single integrated entity” along with CRC-Management since they were both subsidiaries of nonparty Clean Rite Centers, LLC. …

… “[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … . Here, CRC-Flatbush failed to make a prima facie showing either that it and the plaintiff’s employer, CRC-Management, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other … . Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01350, 2nd Dept 2-22-17

 

WORKER’S COMPENSATION LAW (DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/CORPORATION LAW (WORKER’S COMPENSATION LAE, NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/ALTER EGO (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)

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