You are here: / Negligence
,

QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED, PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Second Department determined, re: plaintiff’s common law negligence cause of action, there was a question of fact whether defendants had constructive notice of a cracking concrete slap which collapsed. However plaintiff’s Labor Law 241 (6) cause of action should have been dismissed because no applicable provision of the Industrial Code was identified by the plaintiff:

… [T]he defendants submitted, inter alia, the deposition testimony of the plaintiff, in which he stated that for up to 10 days prior to the accident, he observed that the place where the concrete eventually collapsed had “lines . . . indicating the breaking points.” Thus, by their own submissions, the defendants raised an issue of fact as to whether the allegedly dangerous condition was visible and apparent and existed for a sufficient length of time prior to the plaintiff’s fall to permit them to discover and remedy it … . …

In order to establish a Labor Law § 241(6) claim, a plaintiff must allege a violation of a specific and applicable provision of the Industrial Code … . Here, although the plaintiff’s bill of particulars alleged a violation of Labor Law § 241(6), it failed to identify any specific provision of the Industrial Code that the defendants allegedly violated … . Furthermore, in opposition to summary judgment, the plaintiff failed to allege a violation of any specific provision of the Industrial Code, and did not address the issue … . Grabowski v Board of Mgrs. of Avonova Condominium, 2017 NY Slip Op 01185, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/NJEGLIGENCE (CONSTRUCTIVE NOTICE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)/CONSTRUCTIVE NOTICE (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)

, , ,

FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

,

PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED.

The Second Department, reversing Supreme Court, determined a protective order prohibiting any non-attorney from accompanying plaintiff to a physical examination should not have been issued:

A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” … . Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination … . Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination. Henderson v Ross, 2017 NY Slip Op 01186, 2nd Dept 2-15-17

CIVIL PROCEDURE (PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/NEGLIGENCE (PHYSICAL EXAMINATION, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/PHYSICAL EXAMINATION (NEGLIGENCE, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/DISCOVERY (NEGLIGENCE, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)

, ,

CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined damages could not be apportioned against the (non-party) state in a negligence action in Supreme Court. The plaintiffs alleged a tree branch fell on plaintiffs’ car as plaintiffs were driving on a public street. The plaintiffs sued the property owner, but also filed a claim against the state alleging the state was negligent. The state can only be sued in the Court of Claims. Although, by statute (CPLR 1601], damages can be apportioned against a non-party defendant in the Court of Claims, the Court of Appeals held the statute does not allow damages to be apportioned against the non-party state in Supreme Court:

The statutory language permitting the State to seek apportionment in the Court of Claims against a private defendant if the claimant could have sued that defendant in any court of this State was specifically requested by the office of the Attorney General … . Pursuant to that language, as long as a claimant in the Court of Claims could have commenced an action against a private tortfeasor in any court in the State of New York, then the tortfeasor’s culpable conduct can be considered by the Court of Claims in determining the State’s equitable share of the total liability … . The statute does not, however, contain similar, express enabling language to allow apportionment against the state in a Supreme Court action … .

Plaintiffs, along with the State, argue that the inclusion of unambiguous language permitting the Court of Claims to consider the liability of a nonparty tortfeasor — while, at the same time, omitting language to allow the factfinder in Supreme Court to consider the liability of the State — demonstrates the Legislature’s intent not to allow apportionment of the State’s liability in Supreme Court. Moreover, even apart from the absence of language permitting apportionment against the State in Supreme Court, CPLR 1601 (1) provides that a nonparty tortfeasor’s relative culpability must not be considered in apportioning fault “if the claimant . . . with due diligence . . . was unable to obtain jurisdiction over such person in said action” … . Artibee v Home Place Corp., 2017 NY Slip Op 01145, CtApp 2-14-17

 

CIVIL PROCEDURE (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/NEGLIGENCE (DAMAGES,  CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/DAMAGES (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/IMMUNITY (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)

NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF. 

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert had raised a question of fact about whether the actions of defendant truck driver (negligent application of the brakes) contributed to the accident:

… [A] tractor-trailer … driven by Mark C. Shaw … collided with a car driven by defendant Robin F. Lewis … , after Lewis made a sudden left turn in front of the tractor-trailer. After that initial collision, the tractor-trailer jackknifed, collided with plaintiff’s car, and ended up in a ditch on the opposite side of the road, on top of plaintiff’s car.

We agree with plaintiff that Supreme Court erred in granting defendants’ motion insofar as it sought summary judgment dismissing the complaint against them on the ground that Lewis’s conduct was the sole proximate cause of the collision. Even assuming, arguendo, that defendants met their initial burden of establishing their entitlement to judgment as a matter of law, we conclude that plaintiff raised triable issues of fact by submitting the affidavit of an expert forensic examiner … . Plaintiff’s expert opined within a reasonable degree of professional certainty that Shaw’s conduct was a proximate cause of the collision with plaintiff’s vehicle because he inappropriately and negligently applied the brakes, which caused the tractor-trailer to jackknife after the initial impact with Lewis’s vehicle. The expert’s opinion was not based on speculation, but was supported by voluminous deposition testimony, police reports, and the New York State Commercial Driver’s Manual … . Pacino v Lewis, 2017 NY Slip Op 01099, 4th Dept 2-10-17

 

NEGLIGENCE (NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)/TRAFFIC ACCIDENTS (NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)/TRUCKS (TRAFFIC ACCIDENTS, NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)

TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS.

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted in this slip and fall case. Although plaintiff’s foot apparently “picked up” the corner of a rug, there was no showing the rug was defective or dangerous:

Although the rug may not have been designed to be placed over another rug or the recessed mat system, the video of the incident, which was submitted in opposition to the motion, shows that decedent tripped over the front edge of the rug. There is no indication that the rug slipped, and there is no record evidence that the rug constituted a defective or dangerous condition at the time of the fall. We conclude that “the mere placement of the [rug] by the front door of the defendant’s premises was not an inherently dangerous condition” … . Slattery v Tops Mkts., LLC, 2017 NY Slip Op 01078, 4th Dept 2-10-17

NEGLIGENCE (TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)/SLIP AND FALL (TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)/RUGS (SLIP AND FALL, TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)

,

WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED.

The First Department determined the city’s summary judgment motion was properly granted in this bicycle accident case. Plaintiff was injured when his bicycle struck a pile of gravel near a manhole that was being accessed for sewer maintenance. Because sewer maintenance is a governmental function, the written notice requirement applies. Without written notice of the condition, the city cannot be held liable:

This action seeks recovery for injuries allegedly sustained by plaintiff Daniel Chambers when the front wheel of the bicycle he was riding came into contact with gravel located around a large hole, near a manhole cover. …

The court properly dismissed the action as plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7-201(c)(2) is at issue here … . The City’s ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with “a special benefit from that property unrelated to the public use” … . Accordingly, it does not fall within the “special use” exception … . Chambers v City of New York, 2017 NY Slip Op 01120, 1st Dept 2-10-17

 

MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/BICYCLE ACCIDENTS (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)

,

SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT.

The Second Department determined the school’s motion for summary judgment was properly granted. Plaintiff and her father were allegedly assaulted 30 to 100 feet beyond the entrance to the infant plaintiff’s school by students from the school:

With respect to the contention that the defendants may be liable for the infant plaintiff’s injuries, a school’s duty is coextensive with, and concomitant with, its physical custody and control over a child …. “When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly  free to reassume control over the child’s protection, the school’s custodial duty also ceases” … . “As a result, where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries of school property” … . Here, the defendants established, prima facie, that they may not be held liable for the infant plaintiff’s injuries since, at the time of the subject incident, the infant plaintiff was no longer in their custody or under their control and was, thus, outside the orbit of their authority … .

Nor is there a basis to impose liability upon the defendants for the injuries sustained by the infant plaintiff or her father for failure to provide adequate security, since the defendants demonstrated that they did not affirmatively assume a duty to protect either plaintiff from criminal activity which occurred off the school premises … . Hernandez v City of New York, 2017 NY Slip Op 00962, 2nd Dept 2-8-17

 

EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)/NEGLIGENCE (SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)/ASSAULT (NEGLIGENCE, SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)

, ,

NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE.

The First Department, reversing Supreme Court, determined plaintiff’s notice of claim in this medical malpractice action was timely served as a matter of law under the continuous treatment doctrine. Two justices, in a concurring decision, agreed that the action should not have been dismissed, but argued there was a question of fact whether the continuous treatment doctrine applied:

On January 25, 2006, plaintiff served a notice of claim on defendant HHC. At the 50-h hearing in June 2006, plaintiff testified that while her last actual medical treatment at Lincoln Hospital occurred on October 19, 2005, when hospital personnel removed the sutures from her leg, she received a follow-up appointment to return to Lincoln Hospital on October 24, 2005. Plaintiff stated that she arrived at Lincoln Hospital for treatment on that date, but was informed that the staff could not locate her medical records and that she should return to the Hospital in one week, on October 31, 2005. Plaintiff testified that she did, in fact, return on October 31, only to have the staff inform her that they did not accept her insurance and that she should seek treatment elsewhere.

… [P]laintiff argued, her last treatment date was October 31, 2005 and thus, she had timely served her notice of claim on January 25, 2006. Hill v New York City Health & Hosps. Corp., 2017 NY Slip Op 00914, 1st Dept 2-7-17

 

MUNICIPAL LAW (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)

, ,

ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT.

The Fourth Department determined only the failure to warn causes of action in this lawsuit against a pesticide manufacturer were preempted by federal law. Supreme Court should not have dismissed the negligence, defective design/manufacture and breach of warranty causes of action. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted only those causes of action that could result in state labelling requirements:

The preemption provision of FIFRA provides that, “[i]n general[,] . . . a State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter” (7 USC § 136v [a]). On the other hand, FIFRA provides that, in the interest of “[u]niformity[,] . . . [s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter” … . * * *

… [W]e conclude that the court erred in dismissing the third, fifth, and sixth causes of action of plaintiff’s amended complaint, as well as those parts of the fourth cause of action that do not allege a failure to warn. Plaintiff’s causes of action and claims alleging defendant’s breach of warranty, ordinary negligence, and defective design and manufacture of its product, i.e., theories unrelated to labeling or packaging, are not preempted by FIFRA … . Esposito v Contec, Inc., 2017 NY Slip Op 00842, 4th Dept 2-3-17

 

PRODUCTS LIABILITY (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/TOXIC TORTS (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/NEGLIGENCE (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/PREEMPTION (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA) (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/PESTICIDES (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/TOXIC TORTS (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy