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COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER.

The Second Department determined defendant common carrier (Long Island Railroad) did not have a duty to keep the sidewalk where plaintiff fell free of ice and snow because the sidewalk served as ingress and egress for several common carriers. The duty to keep the sidewalk clear would apply to defendant only if the sidewalk service as ingress and egress solely for defendant:

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In “areas that serve primarily for ingress and egress to a subway or other similar station that is served by a single carrier,” a common carrier must maintain a safe means of ingress and egress for the use of its passengers, even if the area is owned and maintained by another, so long as the area is constantly and notoriously used by its passengers as a means of approach … . This duty of care “has not been extended to common areas in a multi-carrier facility” … . Mashall v Long Is. R.R., 2017 NY Slip Op 02637, 2nd Dept 4-5-17

NEGLIGENCE (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/COMMON CARRIERS (SLIP AND FALL,  (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/SIDEWALKS (SLIP AND FALL, COMMON CARRIERS, (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/SLIP AND FALL (SIDEWALKS, COMMON CARRIERS, COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)

PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiffs were entitled to summary judgment in this pedestrian wrongful death case. Plaintiffs’ decedent was crossing the street with the walk signal when she was struck. There was no evidence of the pedestrian’s comparative negligence:

A pedestrian who has the right of way is entitled to anticipate that motorists will obey the traffic laws that require them to yield … . Here, the plaintiffs established, through admissible evidence, that [defendant driver]  failed to yield the right of way to the decedent, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor … . The plaintiffs’ prima facie showing was buttressed by [defendant driver’s] admission that he did not see the decedent and that he struck her … . As neither the plaintiffs’ submissions nor the defendants’ opposition papers revealed any triable issue of fact regarding the decedent’s comparative negligence … , the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability … . Huang v Franco, 2017 NY Slip Op 02629, 2nd Dept 4-5-17

NEGLIGENCE (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/PEDESTRIANS (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/CROSSWALKS  (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)

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QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY.

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous representation doctrine rendered the legal malpractice cause of action timely. The malpractice allegation stemmed from the alleged failure of the attorneys to recognize that the sale of plaintiff’s business required the creation of a pension fund ($500,000). There was evidence a meeting was held to discuss the pension fund problem at a time which would rendered the malpractice action timely:

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A claim to recover damages for legal malpractice accrues when the malpractice is committed … . “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” … . For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … .

Here, the defendant satisfied its initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in March 2015 … . In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. The plaintiffs submitted Andrew Stein’s affidavit, in which he averred that he met with members of the defendant on July 26, 2012, to determine how to rectify the pension liability issue. Andrew indicated that he was not satisfied with their recommendations concerning how to rectify the issue and directed them to formulate another idea. Andrew’s affidavit was sufficient to raise a question of fact as to whether the defendant engaged in a course of continuous representation intended to rectify or mitigate the initial act of alleged malpractice … . Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP. 2017 NY Slip Op 02688, 2nd Dept 4-5-17

 

ATTORNEYS (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/ATTORNEYS (LEGAL MALPRACTICE, (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/LEGAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CIVIL PROCEDURE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)

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KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS.

The First Department determined the death of plaintiff in her office (caused by nonparty Tarloff) was not foreseeable and the building owners and tenants could not therefore be liable in negligence:

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Even though the building contained a psychiatric suite, defendants had no duty to protect decedent from the violent actions of third parties, including former patients like Tarloff; such actions were not foreseeable, given the absence of prior violent criminal activity by Tarloff or other third parties in the building … .

Even assuming that defendants had a duty to provide “minimal precautions” … , that duty was satisfied by the provision of 24/7 doorman coverage, surveillance cameras, controlled building access, and functioning locks on the doors of the office suite and decedent’s personal office … . It is purely speculative that additional security measures — such as announcing visitors, installing an office intercom or buzzer, or keeping the office doors locked after hours — would have prevented Tarloff from killing decedent.

Any claims that the door man was negligent in failing to recognize Tarloff’s suspicious behavior was not a proximate cause of decedent’s death because it was still not foreseeable that Tarloff was about to engage in a murderous rampage. Tarloff’s conduct was a superceding cause severing the causal chain. Given that the attack was targeted and premeditated, it is “unlikely that any reasonable security measures would have deterred [Tarloff]” … . Faughey v New 56-79 IG Assoc., L.P., 2017 NY Slip Op 02608, 1st Dept 4-4-17

 

NEGLIGENCE (KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)/ASSAULT (NEGLIGENCE, KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)/FORESEEABILITY (KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)

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THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN.

The Court of Appeals, reversing the Appellate Division, over a dissenting memorandum, determined there was sufficient evidence to support the verdict that the New York Transit Authority was negligent and the negligence was the proximate cause of plaintiff’s injuries. The matter was remitted to the Appellate Division. Only the dissent discussed the facts. Plaintiff, who had just left a methadone clinic and had no memory of the accident, alleged he was struck by a subway train after he had fallen off a subway platform:

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FROM THE DISSENT:  Plaintiff — while “high on Xanax and Klonopin” — left a methadone clinic, fell off a subway platform, and was struck by a train. The jury returned a verdict apportioning fault 60% to plaintiff and 40% to defendant New York City Transit Authority (NYCTA), and awarding plaintiff a total of approximately $2 million in damages. Supreme Court set aside the verdict and dismissed the complaint. The Appellate Division affirmed. I agree with both lower courts, and therefore I dissent.

Plaintiff entered the subway station around 11:15 a.m. and was discovered injured on the tracks at 11:58 a.m. During those forty-three minutes, at least two trains passed through the station. Neither train operator saw plaintiff, although the operator of the second train reported observing white sneakers on the train tracks. Plaintiff had no memory of the incident, but contended at trial that the second train caused his injuries, and that the driver of that train had acted negligently. Obey v City of New York, 2017 NY Slip Op 02590, CtApp 4-4-17

 

NEGLIGENCE (THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN)/EVIDENCE (NEGLIGENCE, (THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN)

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RACE TRACK WAIVER OF LIABILITY INVALID, PRIMARY ASSUMPTION OF RISK NOT APPLICABLE, IMPLIED ASSUMPTION OF RISK APPLICABLE, LAW OF THE CASE DID NOT PRECLUDE DIRECTED VERDICT AFTER DENIAL OF SUMMARY JUDGMENT ON THE SAME ISSUES.

The Fourth Department, in a substantive decision dealing with several liability and damages issues not summarized here, determined the trial court properly granted plaintiff’s motion for a directed verdict finding the liability waiver invalid and the doctrine of primary assumption of risk inapplicable. The Fourth Department concluded the doctrine of implied assumption of risk was applicable, however. The Fourth Department further held that the law of the case doctrine did not preclude the court from directing a verdict in plaintiff’s favor after denying plaintiff’s motion for summary judgment on the same issues. Plaintiff’s son was in an auto race at defendant race track. Plaintiff was in the pit area when defendant driver (Holland) backed his car into plaintiff:

Contrary to defendants’ contention, the court properly granted plaintiff’s motion for a directed verdict establishing that the liability waiver was invalid and that the action was not barred by the doctrine of primary assumption of the risk, inasmuch as there was “no rational process” by which the jury could have found in favor of defendants on those issues … . With respect to the waiver, General Obligations Law § 5-326 voids any such agreement entered into in connection with, as relevant here, the payment of a fee by a “user” to enter a place of recreation. Plaintiff testified at trial that he was a mere spectator on the night of the accident, thereby establishing that he was a user entitled to the benefit of section 5-326 … , and there was no evidence from which the jury could have rationally found that plaintiff was a participant in the event whose attendance was “meant to further the speedway venture” … . …

With respect to the doctrine of primary assumption of the risk, we conclude that the risk that a pedestrian will be struck by a driver backing up in the pit area, well before the driver is participating in a race, is not inherent in the activity of automobile racing … , and thus that the doctrine is inapplicable to this case … .

We reject defendants’ further contention that the doctrine of law of the case precluded the court from directing a verdict in plaintiff’s favor after it had denied prior motions by plaintiff directed at the issues of waiver and primary assumption of the risk, including a motion for partial summary judgment. ” A denial of a motion for summary judgment is not necessarily . . . the law of the case that there is an issue of fact in the case that will be established at the trial’ “… . …

We further agree with defendants that a charge on implied assumption of the risk should have been given because there was evidence that plaintiff “disregard[ed] a known risk by voluntarily being in a dangerous area” … . Inasmuch as the jury was properly instructed on comparative negligence and apportioned 20% of the liability for the accident to plaintiff, however, we conclude that this error did not prejudice a substantial right of defendants and thus does not warrant reversal … . Knight v Holland, 2017 NY Slip Op 02525, 4th Dept 3-31-17

 

NO SHOWING RUG OVER WHICH PLAINTIFF TRIPPED WAS NOT FLUSH TO THE FLOOR, HEIGHT DIFFERENTIAL WAS TRIVIAL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Fourth Department, over a dissent, reversing Supreme Court, determined plaintiff’s slip and fall complaint should have been dismissed. Plaintiff alleged he tripped on the corner of a rug. The Fourth Department found, as a matter of law, the rug was in place and plaintiff’s foot went under it. The height of the rug was a trivial, nonactionable defect:

… [W]e conclude that defendant established as a matter of law that the alleged defect created by the placement of a rug in the vestibule and any apparent height differential between the rug and the floor “is too trivial to be actionable” … . “[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Defendant’s submissions established that the accident occurred between approximately 10:00 and 10:30 a.m., when it was “bright enough to see.” Plaintiff was entering defendant’s restaurant behind his son, and there were no other customers in the vicinity. The photograph submitted by defendant depicting the rug does not reveal any defect or irregularity with the rug, and the videotape of the incident shows that the area where plaintiff fell was unobstructed, no other patrons had an issue traversing through the doors and over the rug, and there was no appreciable ripple or other height differential present in the rug to cause a tripping hazard. Thus, after examining the photograph and the video depicting the placement of the rug in the vestibule, and ” in view of the time, place, and circumstances of plaintiff’s injury,’ ” we conclude that defendant established as a matter of law that any defect in the rug was too trivial to be actionable … . Langgood v Carrols, LLC, 2017 NY Slip Op 02528, 4th Dept 3-31-17

 

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DEFENDANT FOUND NOT GUILTY BY REASON OF INSANITY CAN BE SUED FOR WRONGFUL DEATH UNDER THE EPTL, BOTH FOR THE STABBING DEATH OF HIS MOTHER AND THE RELATED SUICIDE OF HIS BROTHER.

The First Department, reversing Supreme Court, determined the fact that defendant was found not guilty by reason of insanity in connection with the stabbing of his mother did not preclude wrongful death claims against him pursuant to EPTL 5-4.1, both for the death of his mother and the related suicide of his brother:

Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5-4.1, since an insane person may be liable in tort for his actions … . A wrongful death claim was also stated on behalf of defendant’s brother, who committed suicide after his mother’s murder. Rosen v Schwartz, 2017 NY Slip Op 02517, 1st Dept 3-30-17

 

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DISMISSAL OF INTENTIONAL TORT CAUSES OF ACTION PRECLUDED SUBSEQUENT ACTION SOUNDING IN NEGLIGENCE, NO NEGLIGENT ASSAULT IN NEW YORK.

The Second Department noted that New York does not recognize an action for negligent assault. Plaintiff’s intentional tort causes stemming from an arrest by a security guard were dismissed as time-barred. Plaintiff then brought suit under a negligence theory:

“[U]nder New York’s transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . Here, the purported negligence cause of action asserted in the plaintiff’s second action arose from the same operative facts as the dismissed intentional tort claims, and could have been raised in the first action. Accordingly, in view of the previous litigation between the parties, the Supreme Court properly directed the dismissal of that cause of action on the ground that it was barred by the doctrine of res judicata … .

Furthermore, the Supreme Court properly dismissed the negligence cause of action on the additional ground that the allegations in support of it failed to state a cause of action. The allegations that Doe physically injured the plaintiff while restraining and arresting him did not transform the plaintiff’s time-barred cause of action alleging assault into a timely cause of action alleging negligence, as New York does not recognize a cause of action to recover for negligent assault … . Johnson v City of New York, 2017 NY Slip Op 02410, 2nd Dept 3-29-17

 

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FAILURE TO PRESERVE SURVEILLANCE VIDEO WHICH ALLEGEDLY SHOWED HOW PLAINTIFF WAS INJURED WARRANTED A SANCTION, EVEN THOUGH PLAINTIFF DID NOT DEMAND THE TAPE OR ASK THAT IT BE PRESERVED.

The Second Department determined defendants should have been sanctioned for not preserving a videotape which allegedly showed plaintiff deliberately allowing a car to run over her toes. Plaintiff had not asked that the videotape be preserved. The Second Department determined the appropriate sanction is to prohibit the defendants from introducing any evidence of the contents of the tape. The Second Department further held that plaintiff was not entitled to summary judgment because her conclusory affidavit was not sufficient to demonstrate the absence of comparative fault:

Here, the Supreme Court improvidently exercised its discretion in failing to impose any sanction. The plaintiff sustained her burden of establishing that spoliation occurred, given that the defendants failed to preserve the surveillance video despite their knowledge of a reasonable likelihood of litigation regarding the incident, and the highly relevant nature of the video evidence to that litigation … . However, since the destruction of the evidence did not deprive the plaintiff of her ability to prove her claim so as to warrant the drastic sanction of striking the defendants’ answer, the appropriate sanction for the spoliation herein is to preclude the defendants from offering any evidence in this action regarding the alleged contents of the erased surveillance video … . Rokach v Taback, 2017 NY Slip Op 02456, 2nd Dept 3-29-17

 

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