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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)

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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)

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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)

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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)

SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE.

The Fourth Department determined the complaint against the snow removal contractor (JB Landscaping) in this slip and fall case should have been dismissed. The fact that the property was inspected three hours before the incident did not warrant dismissal of the constructive notice cause of action against the property manager (Ciminelli) and the property owner (205 Park):

We conclude that the contract between JB Landscaping and Ciminelli was not so comprehensive and exclusive that it entirely displaced Ciminelli’s and 205 Park’s duty to maintain the premises safely, such that JB Landscaping assumed a duty to plaintiff. Although the contract in the case at bar delegated all of the snow and ice removal to JB Landscaping, along with responsibility for monitoring the property 24 hours per day, seven days per week, the contract also provided that 205 Park and the tenant of the property could request additional services from JB Landscaping, including snow and ice removal. In addition, the contract reserved Ciminelli’s rights “to determine the depth of snow at locations where JB Landscaping performs snowplowing” and to direct JB Landscaping to reposition or remove accumulated snow piles. The contract also required weekly submission of maintenance logs to Ciminelli and preapproval from Ciminelli to engage a subcontractor to assist with snow and ice removal. * * *

The weather records … recited … that from 3:01 a.m. until 6:24 a.m. the short term forecasts called for falling temperatures, and that any wet or untreated pavement could result in patchy black ice. Plaintiff testified that she fell at 7:45 a.m. In our view, the inspection of the area approximately three hours before the plaintiff fell does not establish ” that the ice formed so close in time to the accident that [defendant(s)] could not reasonably have been expected to notice and remedy the condition’ ” … . Waters v Ciminelli Dev. Co., Inc., 2017 NY Slip Op 00854, 4th Dept 2-3-17

 

NEGLIGENCE (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE)

DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR.

The Fourth Department, over a two-justice dissent, determined defendant’s motion for summary judgment in this negligent entrustment case was properly denied. Plaintiff alleged the defendant car rental company (BAR) knew or should have known that an unlicensed driver (Kirksey) would drive the car (which was rented to defendant Jones). The dissent argued that knowledge an unlicensed driver would use the car does not amount to knowledge the car would be driven by an incompetent driver:

The fact that Kirksey did not possess a driver’s license is a factor to consider in determining whether BAR knew that Kirksey was incompetent to operate the vehicle … . While we agree with the dissent that “the absence or possession of a driver’s license is not relevant to the issue of negligence” in the operation of a motor vehicle … , this is a negligent entrustment cause of action, where the issue does not concern the manner in which the accident occurred. Rather, the issue is whether BAR should have entrusted the vehicle to Kirksey in the first instance. Graham v Jones, 2017 NY Slip Op 00835, 4th Dept 2-3-17

NEGLIGENCE (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)/NEGLIGENT ENTRUSTMENT (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)/TRAFFIC ACCIDENTS (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)

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LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY.

The Fourth Department determined Supreme Court properly granted claimants leave to file a late notice of claim against the water authority which allegedly created a depression in the roadway (the cause of the injury). Claimants had filed a timely notice of claim against the city and only later learned the water authority was the general contractor:

An “[e]rror concerning the identity of the governmental entity to be served” can constitute a reasonable excuse for the delay “provided that a prompt application for relief is made after discovery of the error” … . …

Here, claimants demonstrated a reasonable excuse for the delay inasmuch as they served a timely notice of claim upon the City, and then promptly applied for leave to serve a late notice of claim upon respondents after discovering respondents’ alleged involvement in causing claimant’s injuries … . Furthermore, although respondents lacked actual knowledge of claimant’s injuries, respondents have ” made no particularized or persuasive showing that the delay caused [them] substantial prejudice’ ” … . Indeed, we note that the Water Board was the general contractor for the construction project that allegedly created the defect in the roadway, and thus respondents’ ability to investigate the facts underlying the claim is furthered by their possession of documents and other information related to the construction project. King v Niagara Falls Water Auth., 2017 NY Slip Op 00855, 4th Dept 2-3-17

 

MUNICIPAL LAW (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NOTICE OF CLAIM (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NEGLIGENCE (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)

CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE.

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the transit defendants in this bicycle-bus accident case. Plaintiff’s decedent was riding her bicycle when a car door opened in front of her. She struck the door and fell over into the path of a bus, which ran over her. Summary judgment was granted to the transit defendants under the emergency doctrine. However, the First Department held that evidence the bus driver’s vision to the side may have been blocked by standing passengers raised a question of fact about the applicability of the emergency doctrine:

Given the conflicting testimony in the record, including that there may have been passengers standing in front of the white line, which partially blocked the bus driver’s view as he passed the red light, it was error for the motion court to have determined the reasonableness of the bus driver’s response to the emergency situation presented, as a matter of law. This is an issue of fact that should be decided by a jury. Powers v Kyong Kwan Min, 2017 NY Slip Op 00716, 1st Dept 2-2-17

NEGLIGENCE (CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/BICYCLISTS (TRAFFIC ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/TRAFFIC ACCIDENTS (BUS-BICYCLE ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/EMERGENCY DOCTRINE (NEGLIGENCE, BUS-BICYCLE ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)

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WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION.

The Second Department, reversing Supreme Court, determined the negligent hiring and retention cause of action against a nursing home (Sunrise Manor) alleging improper care of a resident should have been dismissed. When it is alleged an employee acted within the scope of employment, the respondeat superior theory applies and a negligent hiring and retention cause of action will not lie:

Supreme Court should have granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the fourth cause of action, which was to recover damages for negligent hiring and retention, insofar as asserted against it. “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training” … . Here, in opposition to Sunrise Manor’s prima facie showing that its employees were acting within the scope of their employment, the plaintiff failed to raise a triable issue of fact. While an exception exists to the above general principle where the plaintiff seeks punitive damages from the employer “based on alleged gross negligence in the hiring or retention of the employee” … , here, that exception is inapplicable because the Supreme Court granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the cause of action seeking punitive damages. Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 2017 NY Slip Op 00634, 2nd Dept 2-1-17

NEGLIGENCE (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/EMPLOYMENT LAW (NEGLIGENCE, WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/NEGLIGENT HIRING AND RETENTION (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)

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STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined summary judgment should not have been granted to the school in this negligent supervision case. Plaintiff was injured while horsing around during gym class:

At the beginning of gym class, prior to attendance being taken, the infant plaintiff ran toward a fellow classmate, placed his hands on his shoulders, and jumped over him. The classmate asked the infant plaintiff to do it again, and the infant plaintiff jumped over the classmate again, without incident. The classmate then asked the infant plaintiff to jump over him once again, and when the infant plaintiff attempted to do so, “something popped” in his knee, which caused him to fall to the gym floor and allegedly sustain an injury. At the time of the incident, two teachers were nearby; however, neither saw the incident occur. The infant plaintiff stated that about four to five minutes elapsed between the first and third time he jumped over his classmate. A teacher, however, stated that class began at 1:11 p.m., and that the incident occurred at approximately 1:20 p.m. * * *

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Contrary to the defendant’s contention, it failed to establish, prima facie, that it adequately supervised the plaintiff or that, even if it had, the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision … . Cruz-Martinez v Brentwood Union Free Sch. Dist., 2017 NY Slip Op 00626, 2nd Dept 2-1-17

 

NEGLIGENCE (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SUPERVISION (EDUCATION-SCHOOL LAW, STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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