You are here: / Negligence

PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT.

The Second Department determined plaintiff’s reckless actions severed any connection between any alleged negligence and the accident. Plaintiff was hit by a train while walking in an area to which she was not allowed access:

… [T]he defendants … demonstrated, as a matter of law, that the plaintiff’s conduct, under the circumstances of this case, constituted an intervening and superseding cause which absolved the defendants of liability … . The defendants’ submissions demonstrated that the then-17-year-old plaintiff circumvented various barriers to access an elevated track area, proceeded to walk alongside the track area, and then attempted to cross a train bridge that had limited clearance and no protective railings or fencing. In doing so, she acted with reckless and extraordinary conduct, which, as a matter of law, constituted an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants … . Weimar v Metropolitan Transp. Auth., 2017 NY Slip Op 01403, 2nd Dept 2-22-17

NEGLIGENCE (PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)/PROXIMATE CAUSE (NEGLIGENCE, PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)/INTERVENING AND SUPERSEDING CAUSE (NEGLIGENCE, PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)

KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate, as a matter of law, the low table over which plaintiff tripped and fell was an open and obvious condition:

The plaintiff Concetta Dalton (hereinafter the plaintiff) was attending a wedding reception at the defendants’ catering hall and allegedly was injured when she tripped over a knee-high table in the lobby of the catering hall and fell. The plaintiff was walking through the lobby area, where there was a crowd of people, to reach the main dining area when the accident occurred. The plaintiff testified at her deposition that she did not see the table before she fell. …

Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury … . A condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The determination of “whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances” … . Dalton v North Ritz Club, 2017 NY Slip Op 01333, 2nd Dept 2-22-17

 

NEGLIGENCE (KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)/SLIP AND FALL (KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)/OPEN AND OBVIOUS CONDITION (SLIP AND FALL, KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)

,

REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff’s request for leave to file a late notice of claim should have been denied. Plaintiff student was allegedly injured at school in a collision with another student at recess. The Second Department held that plaintiff (1) did not demonstrate the school’s timely awareness of the negligent supervision allegations (knowledge of plaintiff’s injury not enough), (2) did not present a reasonable excuse for the failure to timely file, and (3) did not demonstrate the school was not prejudiced by the delay (therefore the burden did not shift to the school to demonstrate prejudice):

… [A]s to the issue of substantial prejudice, the petitioners presented no “evidence or plausible argument” that their delay in serving a notice of claim did not substantially prejudice the appellant in defending on the merits … . The petitioners contend that the appellant has not been substantially prejudiced in its defense because the condition of the accident location has not changed. The condition of the accident location is irrelevant, however, to the petitioners’ claim of negligence—that the appellant was negligent in its supervision of students during a noon recess— and, thus, to the issue of substantial prejudice as well. The petitioners also assert that there were no known witnesses to the incident and, therefore, their delay in filing a notice of claim did not substantially prejudice the appellant in its ability to investigate. This contention runs counter to the petitioners’ allegation that the incident, a collision between the infant petitioner and another student, occurred during a group activity. Lastly, the petitioners contend that the availability of records as to the infant petitioner’s injuries establishes a lack of substantial prejudice. The medical records, however relevant to the issue of damages, have little, if anything, to do with the appellant’s ability to conduct an investigation as to its liability … . Thus, their availability does not support the petitioners’ argument that the appellant has not been substantially prejudiced. Inasmuch as the petitioners failed to present any evidence or plausible argument that the appellant has not been substantially prejudiced by the delay, the appellant never became required to make “a particularized evidentiary showing” that they were substantially prejudiced … . Matter of A.C. v West Babylon Union Free School Dist., 2017 NY Slip Op 01351, 2nd Dept 2-22-17

EDUCATION-SCHOOL LAW (REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED) /NEGLIGENCE (EDUCATION-SCHOOL LAW, REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

,

EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE.

The Second Department ordered a new trial (in the interest of justice) in this elevator accident case because the trial judge excluded a witness representing the elevator company from the courtroom and prohibited any communication between the witness and defense counsel:

… [A] new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial … . Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense … . Perry v Kone, Inc., 2017 NY Slip Op 01395, 2nd Dept 2-22-17

CIVIL PROCEDURE (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/NEGLIGENCE (TRIALS, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/TRIALS (CIVIL, NEGLIGENCE, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/ELEVATORS (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE

,

PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE.

The Second Department, reversing Supreme Court, determined defendants’ motion to strike the note of issue and certificate of readiness should have been granted on the ground discovery was incomplete:

The Supreme Court should have granted the defendants’ motion to strike the note of issue and certificate of readiness and to compel the plaintiff to appear for an independent medical examination … . “While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court” … . Under the circumstances of this case, including the defendants’ prompt motion to strike the note of issue and certificate of readiness on the ground that discovery was incomplete, and the plaintiff’s failure to demonstrate any prejudice in opposition, the note of issue and certificate of readiness should be stricken, and the plaintiff compelled to appear for an independent medical examination so that discovery may be completed. Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01349, 2nd Dept 2-22-17

CIVIL PROCEDURE (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/NOTE OF ISSUE (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/CERTIFICATE OF READINESS (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/STRIKE, MOTION TO (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/DISCOVERY (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)

, ,

PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION.

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined Supreme Court properly denied the defendants’ motion for summary judgment in this medical malpractice action. The dissent found the plaintiffs’ experts’ opinions too speculative to raise a question of fact. The opinion is fact-specific and cannot be fairly summarized here:

In sum, defendants submitted expert affirmations that established prima facie that they did not depart from good and accepted medical practice or that any such departure was not a proximate cause of [plaintiff’s]  injuries … . In opposition, plaintiffs submitted expert opinions that raised issues of fact as to the following alleged departures: the premature release of [plaintiff] from postanesthesia care unit, the failure to identify and treat his overdose or adverse reaction to morphine, and the failure to timely respond to his cardiorespiratory arrest … . Severino v Weller, 2017 NY Slip Op 01325, 1st Dept 2-21-17

NEGLIGENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EVIDENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)

REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE.

The First Department determined plaintiff’s motion for summary judgment in this rear-end collision case was properly granted. The driver of the rear vehicle must take weather conditions into account when following another car. The emergency doctrine is not available because the driver was aware of the weather conditions. An allegation that the plaintiff’s car stopped suddenly is not enough to rebut the presumption of negligence:

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 the operator of the moving vehicle to come forward with an adequate, nonnegligent explanation for the accident … . Plaintiff made a prima facie showing of his entitlement to partial summary judgment on the issue of liability by establishing that defendant Angel Sanchez, the driver of defendant Basics Development Group’s vehicle, was negligent.

Although plaintiff came to a sudden stop and defendants contend that icy road conditions that day provide a valid, non-negligent explanation for why the accident occurred (i.e., that Sanchez’s car skidded), a driver is expected to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account weather and road conditions … . Furthermore, defendants’ reliance on the emergency doctrine is misplaced, since that defense is unavailable where, as here, defendant driver was aware of inclement weather conditions and should have properly accounted for them … .

Defendants’ alternative argument, that plaintiff stopped suddenly, is insufficient to rebut the presumption of Sanchez’s negligence … . Matos v Sanchez, 2017 NY Slip Op 01306, 1st Dept 2-21-17

 

NEGLIGENCE (REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE)/REAR-END COLLISIONS (REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE)

, , ,

MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE.

The First Department, over a two-justice dissent, determined the defendants in this personal injury case did not demonstrate a need for plaintiff’s mental health, alcohol abuse, substance abuse and HIV-related medical records. Supreme Court properly issued a protective order to that effect:

Defendants did not meet their burden of showing a “compelling need” for medical records concerning HIV; they failed to submit evidence that would establish a connection between plaintiff’s claimed HIV status and her future enjoyment of life (Public Health Law § 2785[2][a]…). Similarly, defendants failed to meet their burden of showing that “the interests of justice significantly outweigh the need for confidentiality” such to permit discovery of mental health, alcohol abuse, or substance abuse records (Mental Hygiene Law § 33.13[c][1]; Mental Hygiene Law § 22.05 [b] …).

As the dissent notes, as a rule, “all matter material and necessary in the prosecution or defense of an action” should be fully disclosed (CPLR 3101[a] …). However, plaintiff’s alleged general anxiety and mental anguish from back and leg injuries do not place her entire mental and physical health into contention … . She has not, as argued by the dissent, waived any protection applicable to such records. James v 1620 Westchester Ave. LLC, 2017 NY Slip Op 01303, 1st Dept 2-21-17

 

CIVIL PROCEDURE (MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/NEGLIGENCE (CIVIL PROCEDURE, (MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/DISCOVERY (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/MEDICAL RECORDS (MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/HIV (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/MENTAL HEALTH (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/SUBSTANCE ABUSE (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/ALCOHOL ABUSE (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/PRIVILEGE (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)

SUBSTANCE ABUSE TREATMENT FACILITY OWED NO DUTY TO PLAINTIFF WHO WAS ASSAULTED BY A RESIDENT SHORTLY AFTER THE RESIDENT WAS DISMISSED FROM THE TREATMENT PROGRAM.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing the Appellate Division, determined a mental health and substance abuse treatment facility, JCAP, owed no duty of care to plaintiff who was assaulted by Velentzas, who had just been dismissed from the treatment program for violation of the program’s rules. The facility’s  motion for summary judgment, therefore, should have been granted:

JCAP had some control or authority over its residents while they remained participants of the program. But, JCAP residents could leave the facility and terminate their participation in the program against medical advice. Although voluntary departure from the program would trigger adverse legal consequences — namely, dismissal from the TASC program and potential prosecution in criminal court for the charges against them — residents could leave at any time. In short, facilities like JCAP cannot force a participant to remain on the premises. These facilities are not prisons; JCAP’s control over Velentzas was, “in fact entirely dependent upon [his] willingness to comply with and carry out” its directives … . In the absence of the authority to prevent a participant from leaving, it follows that, when a participant is discharged from JCAP for violating facility rules, or withdraws from the program, he or she is no longer under the facility’s control. Oddo v Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 2017 NY Slip Op 01256, CtApp 2-16-17

NEGLGENCE (SUBSTANCE ABUSE TREATMENT FACILITY OWED NO DUTY TO PLAINTIFF WHO WAS ASSAULTED BY A RESIDENT SHORTLY AFTER THE RESIDENT WAS DISMISSED FROM THE TREATMENT PROGRAM)/ASSAULT (NEGLIGENCE, SUBSTANCE ABUSE TREATMENT FACILITY OWED NO DUTY TO PLAINTIFF WHO WAS ASSAULTED BY A RESIDENT SHORTLY AFTER THE RESIDENT WAS DISMISSED FROM THE TREATMENT PROGRAM)/DUTY (NEGLIGENCE, SUBSTANCE ABUSE TREATMENT FACILITY OWED NO DUTY TO PLAINTIFF WHO WAS ASSAULTED BY A RESIDENT SHORTLY AFTER THE RESIDENT WAS DISMISSED FROM THE TREATMENT PROGRAM)/DRUG TREATMENT FACILITY (NEGLIGENCE, SUBSTANCE ABUSE TREATMENT FACILITY OWED NO DUTY TO PLAINTIFF WHO WAS ASSAULTED BY A RESIDENT SHORTLY AFTER THE RESIDENT WAS DISMISSED FROM THE TREATMENT PROGRAM)

, ,

STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE.

The First Department determined the striking of defendants’ answers was the proper remedy for spoliation of evidence. Plaintiff was injured on a staircase. The staircase was removed and destroyed days before a scheduled inspection:

Plaintiffs’ pre-action service of preservation letters on the daycare, the initiation of this action, and the issuance of the preliminary conference order, placed defendants on notice of the need to preserve the staircase. The staircase was removed and destroyed in November 2013, days before the scheduled court-ordered inspection. As found by the motion court, “[I]t is clear that the individual defendants destroyed the stairs in question in violation of the order of th[e] court, knowing that plaintiff’s inspection was to take place a few days later.”

The intentional destruction of the staircase, key physical evidence, severely prejudices plaintiffs’ ability to prove their case, and warrants the extreme sanction of striking defendants’ answers … . The record contains no evidence that photographs depicting the staircase exist. Nor is this a case where plaintiffs sat on their rights … . Rookwood v Busy B’s Child Care Daycare Inc., 2017 NY Slip Op 01281, 1st Dept 2-16-17

 

CIVIL PROCEDURE (SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/EVIDENCE (SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/SPOLIATION (STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/NEGLIGENCE (EVIDENCE, SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)

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