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THE APPLICATION TO TREAT THE NOTICE OF INTENTION TO FILE A CLAIM (NOI) AS A TIMELY FILED CLAIM IN THIS PRISON STABBING CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the notice of intention to file a claim (NOI) in this negligent supervision case met the requirements of a claim. Therefore the application to treat the NOI as a timely filed claim should have been granted. Claimant, a prison inmate, was stabbed in the eye:

Court of Claims Act § 10(8)(a) provides that a court may grant an application to treat an NOI as a claim if, among other things, the NOI “was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.” Court of Claims Act § 11(b) requires a claim to specify: (1) the nature of the claim; (2) the time when it arose; (3) the place where the claim arose; (4) the items of damage or injuries claimed; and (5) the total sum claimed … . While section 11(b) does not require “absolute exactness,” the “guiding principle informing” section 11(b) pleading requirements is whether the State is “able to investigate the claim promptly and to ascertain its liability under the circumstances” … . “In describing the general nature of the claim, . . . or a notice of intention to file a claim, . . . [it] ‘should provide an indication of the manner in which the claimant was injured and how the State was negligent, or enough information so that how the State was negligent can be reasonably inferred'” … .

Here … the claimant provided sufficient details to meet the requirements outlined in Court of Claims Act § 11(b), including the nature of the claim and the alleged act of negligence by the State … . Johnson v State of New York, 2024 NY Slip Op 04949, Second Dept 10-9-24

Practice Point: Where a notice of intention to file a claim (NOI) includes sufficient information about the nature of the claim and the alleged negligence by the state, an application to treat the NOI as a timely filed claim should be granted.

 

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DEFENDANT DID NOT PRESENT A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S STATEMENT THAT HIS “BRAKES FAILED” WAS DEEMED SELF-SERVING AND INADMISSIBLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s failure to offer a nonnegligent explanation for the rear-end collision warranted the award of summary judgment to plaintiff. The statement attributed to defendant in a certified police report claiming his “brakes failed” was deemed self-serving and inadmissible:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting their respective affidavits, which demonstrated, inter alia, that the plaintiffs’ vehicle was traveling at a constant speed of 35 miles per hour in the right lane for at least one minute when it was struck in the rear by the defendants’ vehicle … . The plaintiffs also established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ first affirmative defense, alleging comparative negligence, by demonstrating that they were not comparatively at fault in the happening of the accident … . Barr v Canales, 2024 NY Slip Op 04944, Second Dept 10-9-24

Practice Point: Defendant’s statement that his “brakes failed” was deemed self-serving and inadmissible in this rear-end collision case.

 

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THE QUESTION WHETHER THE SEXUAL ASSAULT OF PLAINTIFF IN DEFENDANT GYM’S STEAM ROOM WAS FORESEEABLE SHOULD NOT HAVE BEEN DECIDED AGAINST THE PLAINTIFF AS A MATTER OF LAW; THERE WAS EVIDENCE OF PRIOR SIMILAR ASSAULTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about the foreseeability of the underlying incident, an alleged sexual assault in the steam room at defendant Equinox’s gym, which precluded summary judgment. Although Equinox had no prior notice with respect to the person who allegedly assaulted plaintiff, there was evidence Equinox was aware of other similar incidents in the steam room:

The Court of Appeals has “repeatedly emphasized” that “[o]nly in rare cases” can questions concerning foreseeability be decided as a matter of law … . * * *

Here, the motion court determined that plaintiff’s alleged attack was not foreseeable because “the ‘notice’ plaintiff relies upon concerns other alleged incidents in the steam room, none of which involved plaintiff’s assailant” and that “some of the other incidents]appear to involve consensual behavior.” New York courts, however, have never required prior incidents to have been committed by the same assailant or even be of the same type of conduct to which the plaintiff was subjected … . … [A]t least three of the other gym members reported that they had been sexually harassed, including the member who complained mere weeks before the assault on plaintiff … .

The motion court additionally found that, even if defendants did have a duty to plaintiff to prevent his alleged assault, “they met their duty to implement reasonable policies to decrease the likelihood of such an incident” and plaintiff failed to present a material issue of fact “with respect to these policies and procedures.”  * * *

We find that whether plaintiff’s alleged assault was foreseeable to Equinox and whether Equinox implemented adequate security measures to decrease the likelihood of such incidents are questions of fact and plaintiff’s negligence claim should advance to a jury trial. We cannot say, as a matter of law, that another gym member allegedly assaulting plaintiff against the backdrop of multiple complaints of inappropriate sexual conduct inside the steam room was “extraordinary under the circumstances or not foreseeable in the normal course of events” … . Crandall v Equinox Holdings, Inc., 2024 NY Slip Op 04902, First Dept 10-8-24

Practice Point: Whether an injury to plaintiff was foreseeable from defendant’s perspective can rarely be decided as a matter of law.

 

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THE IDENTITIES OF THE SUBJECTS OF TWO SCHOLARLY ARTICLES LINKING TALCUM-POWDER PRODUCTS WITH MESOTHELIOMA SHOULD BE RELEASED; THE INFORMATION IS NOT PROTECTED BY HIPAA OR THE FEDERAL COMMON RULE; PRODUCTION OF THE INFORMATION WOULD NOT BE UNDULY BURDENSOME AND WOULD NOT DETER FUTURE RESEARCH (FIRST DEPT).

The First Department, reversing Supreme Court’s denial of a petition to enforce an out-of-state subpoena, determined the identities of the subjects of two scholarly articles linking cosmetic talcum powder products with mesothelioma were not protected by HIPAA’s privacy rule or the federal Common Rule:

The information sought by the subpoenas … is clearly relevant to the underlying New Jersey personal injury action. It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew … .

The information sought by the subpoenas is not protected from disclosure by HIPAA’s privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients … .

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens … .The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order … . Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research. The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers. Moreover, the subjects never actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation … . Matter of Johnson & Johnson v Northwell Health Inc., 2024 NY Slip Op 04909, First Dept 10-8-24

Practice Point: The decision outlines the issues involved in seeking the identities of the subjects of two scholarly articles linking talcum-powder products with mesothelioma.

 

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FAILURE TO PRESERVE VIDEO SHOWING THE AREA WHERE PLAINTIFF SLIPPED AND FELL PRIOR TO THE FALL WARRANTED AN ADVERSE INFERENCE CHARGE; UNDER THE FACTS, STRIKING DEFENDANT’S ANSWER WAS TOO SEVERE A SANCTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined striking defendant’s answer for destruction of video evidence in this slip and fall case was not warranted, an adverse inference jury instruction was a sufficient sanction. Defendant provided video of plaintiff’s fall in compliance with plaintiff’s attorney’s request. Nine months later plaintiff’s attorney requested video showing the area prior to the fall, but it had been overwritten by then:

Plaintiffs’ counsel sent defendants a preservation letter approximately seven days following the accident. Defendants responded by producing several minutes of video of the accident itself, which was reasonably compliant with plaintiffs’ request for video surveillance of “the incident.” However, there was no pre-fall video footage provided to aid plaintiffs in establishing defendants’ actual or constructive notice of the alleged hazardous condition on the floor. Defendants’ employee, who culled the video footage provided, was no longer in defendants’ employ and was not available to be deposed as to his or her reasons for selecting particular video footage. Plaintiff’s counsel did not alert defendants of a need for additional video footage depicting the pre-fall circumstances at the accident site until nine months after receipt of the initial video clip, which was well after the software that operated defendants’ surveillance cameras had overwritten the video surveillance from plaintiff’s accident date.

Plaintiff’s proof established that defendants had control over the relevant surveillance and preserved it to the extent requested, but absent deposition testimony from defendant’s former employee who prepared the video clip as to his reasons for selecting the footage he or she did, the culpability issue cannot be definitively resolved. Nevertheless, the destroyed evidence video compromised the fairness of the litigation so as to warrant an adverse inference sanction … . Lev v Eataly USA LLC, 2024 NY Slip Op 04910, First Dept 10-8-24

Practice Point: Plaintiff’s counsel requested video of “the incident” in this slip and fall case, which was provided. Nine months later plaintiff’s counsel requested video showing the area prior to the fall re: the issue of defendant’s notice of the condition. By that time the video had been overwritten. Plaintiff was entitled to an adverse inference jury instruction. Striking the defendant’s answer was deemed too severe a sanction.

 

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INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth Department found that the evidence submitted by the defendants did not demonstrate a lack of notice:

Defendants, as parties moving for summary judgment, had the initial burden of establishing as a matter of law that they lacked actual or constructive notice of “the dangerous conduct which caused injury” … . Here, we conclude that defendants did not meet that burden. In support of their motion, defendants submitted, inter alia, the deposition testimony of the principal of the school at the time of the alleged misconduct. The principal, when asked at his deposition whether he had been aware of any prior “incidents of student sexual assaults” on the bus and whether he had ever had to deal with any student at the school who had been characterized as “sexually violent,” answered both questions in the negative … . That testimony was insufficient to meet defendants’ burden because it failed to address whether the principal knew of incidents within the broader category of sexual misconduct alleged by plaintiffs in their complaints. Plaintiffs alleged that the perpetrator engaged in a wide range of sexual misconduct—some of which was not equivalent to “sexual assault [ ]” and was not “sexually violent.” In short, the principal’s testimony failed to establish that defendants had no actual or constructive notice of any sexual misconduct of the types alleged by plaintiffs … .

Additionally, to the extent that defendants submitted deposition testimony of various other witnesses—including the infant plaintiffs and the bus driver—we conclude that it was insufficient to satisfy defendants’ initial burden with respect to actual or constructive notice. In particular, although the infant plaintiffs and the bus driver testified that they did not report instances of the alleged misconduct to defendants, they were not in a position to know whether there had been prior incidents of sexual misconduct involving the perpetrator and, if so, whether defendants had actual or constructive notice of any of those incidents prior to the sexual misconduct alleged in the complaint … . Their testimony could not establish whether defendants obtained notice by other means … . Porschia C. v Sodus Cent. Sch. Dist., 2024 NY Slip Op 04885, Fourth Dept 10-4-24

Practice Point: Here, on defendant school’s motion for summary judgment in this negligent supervision case, the Fourth Department looked carefully at the school’s evidence of a lack of notice of a student’s sexual misconduct and found the evidence did not address all the possible scenarios which could demonstrate liability and therefore did not support summary judgment.

 

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THE PARTY WHO BROUGHT THE WRONGFUL DEATH ACTION WAS NOT A PERSONAL REPRESENTATIVE OF DECEDENT’S ESTATE AND THEREFORE DID NOT HAVE STANDING; BECAUSE THE PARTY HAD NO RIGHT TO SUE, “SUBSTITUTION” OF THE EXECUTORS FOR THAT PARTY WAS NOT AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) plaintiffs’ cross-motion to substitute the executors of decedent’s estate for plaintiffs should not have been granted, and (2) defendants’ motion to dismiss the complaint for lack of standing should have been granted. The plaintiff who purportedly brought the wrongful death action (a “proposed” executor) was not a “personal representative” under the Estates, Powers and Trusts Law (EPTL). Therefore, “substitution” of the executors for the plaintiff was not possible:

… [A]s a “[p]roposed” executor who had not obtained letters to administer decedent’s estate, plaintiff was not a personal representative within the meaning of the Estates, Powers and Trusts Law at the time the action was commenced and thus did not have standing to commence an action on behalf of decedent’s estate … . Thus, we agree with defendants that Supreme Court erred in granting plaintiff’s cross-motion to substitute as plaintiffs the executors of decedent’s estate inasmuch as “[s]ubstitution . . . is not an available mechanism for replacing a party . . . who had no right to sue with one who has such a right” … .

We … agree with defendants that the court erred in denying that part of their motion seeking to dismiss the complaint on the ground that the action was brought by a party without standing … . Cappola v Tennyson Ct., 2024 NY Slip Op 04672, Fourth Dept 9-27-24

Practice Point: Only a “personal representative” of a decedent’s estate has standing to sue on behalf of the decedent  Here the suit was brought by a party who had not obtained letters to administer the estate and therefore did not have standing. “Substitution” of the executors for a party without standing is not possible.

 

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A SAFE ON A HIGH SHELF IN A HOTEL ROOM FELL ON PLAINTIFF; DEFENDANT HOTEL DID NOT ADDRESS WHEN THE SAFE WAS LAST INSPECTED; THEREFORE THE HOTEL DID NOT SHOW IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SAFE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant did not sufficiently demonstrate a lack of constructive notice of the allegedly dangerous condition—a 40-t0-60-pound safe which fell from a high shelf in a hotel-room closet, apparently because it was not securely attached to the wall:

Plaintiff commenced this personal injury action after a 40-to-60-pound safe fell on him while he was staying at defendant hotel in January 2022. In moving for summary judgment, defendant failed to meet its prima facie burden that it neither created nor had actual or constructive notice of the dangerous condition by submitting evidence that the room was inspected two years earlier. The inspection report did not have probative value because it was performed two years before plaintiff’s accident, and failed to provide any specific details as to the inspection so as to establish defendant’s lack of notice … . Defendant did not address how often the hotel safes were inspected, and what, if any, steps were taken to ensure that a safe, which in this case was placed on a high closet shelf, remained securely affixed to the wall … . Here, a physical inspection of the in-room safe would have been reasonable and revealed whether the safe was firmly secured to the wall … . Swallows v W N.Y. Times Sq., 2024 NY Slip Op 04629, First Dept 9-26-24

Practice Point: A defendant’s motion for summary judgment in a premises liability case must demonstrate when the area or object in question was last inspected and found safe. A motion that does not address that issue fails to show a lack of constructive notice of the condition and will be denied.

 

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IN THIS CHILD VICTIMS ACT CASE, LONG-ARM JURISDICTION WAS PROPERLY EXERCISED OVER AN OUT-OF-STATE CATHOLIC DIOCESE WHICH EMPLOYED DEFENDANT PRIEST WHO WAS ASSIGNED TO A NEW YORK PARISH (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the Diocese of Burlington (apparently an out-of-state party) has sufficient contact with New York to warrant the exercise of long-arm jurisdiction in this Child Victims Act case. It was alleged the Diocese of Burlington employed the defendant priest and assigned him to a parish in New York with actual knowledge of the priest’s history of sexually abusing children:

Accepting as true the facts alleged … , plaintiff has made a prima facie showing that Diocese of Burlington is subject to personal jurisdiction under CPLR 302(a)(1) … . Plaintiff alleges that Diocese of Burlington exercised supervision and control over the Priest, placing him on an indefinite, long-term assignment in New York to provide Catholic clergy services to parishioners in New York, including plaintiff even though it knew that he was a sexual predator. Plaintiff also alleges that during this period and in connection with those priestly duties, the Priest sexually assaulted plaintiff on multiple occasions. Therefore, plaintiff adequately alleges that Diocese of Burlington engaged in “purposeful activity” in New York, and that there is a “substantial relationship between the transaction and the claim asserted” …… .

Further, “the exercise of long-arm jurisdiction over defendants per CPLR 302(a)(1) comports with due process, as it must” … . For the reasons stated, “plaintiff adequately alleged Diocese of Burlington’s ‘minimum contacts’ with New York, in the form of their purposeful availment of the privilege of conducting activities here, thus invoking the protections and benefits of New York’s laws” … . Diocese of Burlington “failed to present a compelling case that some other consideration would render jurisdiction unreasonable” … .  V.Z. v Roman Catholic Diocese of Burlington, 2024 NY Slip Op 04631, First Dept 9-26-24

Practice Point: Here in this Child Victim’s Act case, an out-of-state Catholic Diocese employed a priest who was assigned to a New York parish. It was alleged the Diocese had actual knowledge of the priest’s history of sexually abusing children. The Diocese was subject to New York’s long-arm jurisdiction.

 

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OBJECTIVE MEASUREMENTS ARE NOT NECESSARY TO PROVE A SIDEWALK HEIGHT DIFFERENTIAL DEFECT IS TRIVIAL; HOWEVER, HERE THE DEPOSITION TESTIMONY, THE PHOTOGRAPHS AND THE OPINION OF A HUMAN FACTORS EXPERT (WHICH WAS NOT BASED ON OBJECTIVE MEASUREMENTS) DID NOT SUPPORT SUPREME COURT’S FINDING THE DEFECT IS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court’s finding that the sidewalk defect was trivial as a matter of law, determined (1) objective measurements of a sidewalk defect in a slip and fall case are not required for a defendant to make out a prima facie case that the defect is trivial (2) photographs can be examined to determine triviality and (3) the opinion of a human factors expert about a sidewalk elevation differential is inadmissible if it is not based on an objective measurement or a “fairly inferable estimate of the differential:”

In this trip-and-fall case, the defendants moved for summary judgment dismissing the complaint on the ground that the alleged defect on which the injured plaintiff tripped was trivial as a matter of law and, thus, not actionable. In support of their motion, the defendants submitted photographs of the alleged defect, along with other evidence, but they did not submit an objective measurement of the dimensions of the alleged defect. On the plaintiffs’ appeal from the order granting the defendants’ motion, we address three specific questions relating to the trivial defect doctrine: (1) To establish, prima facie, that an alleged sidewalk defect was trivial as a matter of law and, thus, not actionable, must a defendant moving for summary judgment present an objective measurement of the alleged defect’s dimensions? (2) If not, how are courts to examine photographic evidence in order to determine whether the alleged defect is trivial? (3) Is the opinion of a human factors expert conclusory and speculative, and therefore inadmissible, if the opinion is not based upon objective measurements of the defect? For reasons set forth below, we hold that an objective measurement of a defect is not a per se requirement for a party to meet the prima facie burden of proving an entitlement to summary judgment. We use this occasion to discuss how photographs in such instances should be examined to render a determination on triviality. Further, we hold, as an issue of first impression, that the opinion of a human factors expert about an elevation differential is conclusory and inadmissible if it is not based upon an objective measurement or at least a fairly inferable estimate of the differential. * * *

In all, the defendants’ submissions, including the photographs, even when considered in combination with the deposition testimony and other evidence, did not support the Supreme Court’s conclusion of triviality as a matter of law … . Snyder v AFCO Avports Mgt., LLC, 2024 NY Slip Op 04584, Second Dept 9-25-24

​Practice Point: Consult this opinion for guidance on the proof required to find a sidewalk height differential trivial as a matter of law, including the role of objective measurements, interpretation of photographs and the sufficiency of a human-factors expert’s opinion.

 

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