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HEARSAY STATEMENTS IN AN UNCERTIFIED, UNAUTHENTICATED REPORT FOR WHICH NO FOUNDATION WAS PROVIDED DID NOT CREATE AN ISSUE OF FACT (FIRST DEPT).

The Frist Department, reversing Supreme Court in this hit and run traffic accident case, noted that hearsay statements in the Prehospital Care Report, which was not certified or authenticated, did not create an issue of fact:

The court improperly denied petitioner’s motion based on hearsay statements in the Prehospital Care Report, as the report was not certified or authenticated and no proper foundation was provided for it … . Therefore, the statements in the Prehospital Care Report cannot create an issue of fact. Even if it were appropriate to consider the report, it would “merely present[] an issue of fact to be resolved in the plenary action” since it is contradicted by the allegations in the petition, petitioner’s affidavit, the Household Affidavit, the motor vehicle accident report, and petitioner’s deposition testimony concerning whether there was contact between his bicycle and the hit and run vehicle … . Matter of Luna v Motor Veh. Acc. Indem. Corp., 2024 NY Slip Op 04521, First Dept 9-24-24

Practice Point: Hearsay statements in an uncertified, unauthenticated report for which no foundation was provided did not create an issue of fact.

 

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HERE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE MOUND OF SNOW AND ICE WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL, WHICH ORDINARILY WOULD SUPPORT SUMMARY JUDGMENT IN FAVOR OF THE CITY; HOWEVER PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION BY PLOWING, AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ice and snow slip and fall case raised a question of fact whether the city created the dangerous condition by creating a mound of ice and snow when plowing. The defendant city’s “written notice” requirement for liability in slip and fall cases did not apply because plaintiff alleged the dangerous condition was created by the city:

“When a municipality has adopted a prior written notice law, the municipality ‘cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies'” … . Where the municipality makes a prima facie showing that it lacked prior written notice of the alleged defect, “‘the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality'” … .

… [T]he City established … that it did not receive prior written notice of the snow/ice mound, thereby shifting the burden to the plaintiffs to demonstrate either that a triable issue of fact existed in that regard or that one of the … exceptions applied … . … [T]he plaintiffs’ submissions, including photos of the snow/ice mound and an affidavit of an expert, were sufficient to raise a triable issue of fact as to whether the City’s snow plowing operations affirmatively created the snow/ice mound that allegedly caused the injured plaintiff to slip and fall … . Reynolds v City of Poughkeepsie, 2024 NY Slip Op 04472, Second Dept 9-18-24

Practice Point: A city can require written notice of a dangerous condition as a condition precedent to suing the city for a slip and fall. However, where the plaintiff raises a question of fact about whether the city created the dangerous condition, here by plowing snow, the written notice requirement does not apply.​

 

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PLAINTIFF’S MOTION FOR LEAVE TO SERVE A SUPPLEMENTAL BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED BECAUSE IT MERELY AMPLIFIED THE ALLEGATIONS IN THE COMPLAINT AND BILL OF PARTICULARS; HOWEVER, THE NEW CAUSES OF ACTION IN THE AMENDED BILLS OF PARTICULARS WERE PROPERLY STRUCK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this medical malpractice action should have been allowed to serve a supplemental bill of particulars which amplified the allegations in the complaint and noted that plaintiff’s mislabeling an amended bill of particulars as a supplemental bill of particulars could be overlooked:

A party is entitled to amend their bill of particulars “once as of right at any time prior to filing the note of issue” … . A bill of particulars “may be used to amplify the allegations in a complaint [but] may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint” … . Nor can a bill of particulars “add or substitute a new theory or cause of action” not asserted in the complaint … .

Although the second amended bill was denominated as a “Supplemental Bill of Particulars,” we may disregard the plaintiff’s mistake in labeling her bill of particulars where, as here, a substantial right of a party will not be prejudiced (see CPLR 2001 …).

The Supreme Court properly granted that branch of [defendant’s] motion … to strike the first amended bill, as the plaintiff alleged a new cause of action alleging malpractice and negligence in performing the knee replacement surgery, which was not previously set forth in the complaint or original bill of particulars … . Further, the court properly granted that branch of [defendant’s] motion … to strike that portion of the second amended bill that alleged malpractice and negligence in the plaintiff’s preoperative care, as well as malpractice and negligence in performing the knee replacement surgery, as these causes of action were not previously set forth in the complaint or original bill of particulars … . However, the court should have granted the plaintiff leave to serve a supplemental bill of particulars with respect to the allegations included in the second amended bill related to postoperative physical therapy and care, as they only served to amplify the allegations in the complaint … , and should have denied that branch of [defendant’s] motion which was to preclude the plaintiff from offering evidence at trial relating to her postoperative physical therapy and care. Quinones v Long Is. Jewish Med. Ctr., 2024 NY Slip Op 04471, Second Dept 9-18-24

Practice Point: Here a motion for leave to serve a supplemental bill of particulars which only amplified the allegations in the complaint and bill of particulars should have been granted. But new causes of action included in the amended bills of particulars were properly struck.

 

 

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THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to serve a late notice of claim in this bus accident case should have been granted. The COVID-19 tolls, and the court’s delay in signing the order to show cause, provided a reasonable excuse and the police report timely notified the city of the relevant facts:

In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether “(1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits” … .

Here the petitioner demonstrated a reasonable excuse for the delay, i.e., the COVID-19 pandemic, the tolls resulting therefrom, and the delay by the Supreme Court in signing the petitioner’s order to show cause.

Further, the petitioners met their burden of providing a plausible argument supporting a finding of no substantial prejudice. The happening of the accident and relevant facts were documented in a police report, and any prejudice was the result of delays resulting from the COVID-19 pandemic, not the petitioner’s conduct. Matter of Ortiz v New York City Tr. Auth., 2024 NY Slip Op 04464, Second Dept 9-18-24

Practice Point: The COVID-19 tolls and the judge’s delay in signing the order to show cause provided a reasonable excuse for failure to timely file a notice of claim in this bus accident case.

Practice Point: The police report provided the city with timely notice of the relevant facts. Therefore the city was not prejudiced by the late notice.

 

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THE MALPRACTICE ACTION WAS AGAINST EMERGENCY-ROOM PHYSICIANS WHO TREATED PLAINTIFF’S DECEDENT’S GUNSHOT WOUNDS; PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE ANY FAMILIARITY WITH EMERGENCY MEDICINE AND THEREFORE DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment in this medical malpractice action should have been granted because the expert affidavit offered in opposition was deemed “conclusory” and insufficient to raise a question of fact. Plaintiff’s decedent died from three gunshot wounds. Plaintiff’s expert did not demonstrate any familiarity with the practice of emergency medicine:

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” … . “‘Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … .

Here, the plaintiff submitted an affirmation of a physician who engaged in the private practice of internal medicine and cardiology. However, the affirmation did not indicate that the physician had training in emergency medicine or what, if anything, the physician did to become familiar with the standard of care for this specialty … . Furthermore, the affirmation was conclusory, speculative, and unsupported by the evidence … . Thus, the plaintiff failed to raise a triable issue of fact. Quinones v Winthrop Univ. Hosp., 2024 NY Slip Op 04406, Second Dept 9-11-24

Practice Point: Here plaintiff’s expert did not demonstrate any familiarity with emergency medicine. Plaintiff’s decedent died from gunshot wounds. Plaintiff’s expert’s affidavit was deemed “conclusory” and insufficient to raise a question of fact.

 

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HERE PLAINTIFF DID NOT IDENTIFY AN EXPERT WITNESS AS REQUIRED BY CPLR 3101 AND THE MEDICAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; HOWEVER PLAINTIFF ALLEGED SCARRING AND BURNING DURING LASER HAIR REMOVAL AND MAY STILL BE ABLE TO PROVE ORDINARY NEGLIGENCE THROUGH THE TESTIMONY OF HIS TREATING PHYSICIAN AND OTHER EVIDENCE; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although plaintiff was precluded from offering expert evidence and therefore could not prove medical malpractice, the negligence cause of action should not have been dismissed. Plaintiff alleged scarring and burns caused by laser hair removal:

The Supreme Court erred in dismissing the negligence cause of action on the ground that the plaintiff could not establish a prima facie case in the absence of the testimony of an expert witness. At trial, the plaintiff may, through the testimony of his treating physician, records, or “other evidence,” be able to establish “the standard of care in performing laser hair removal and the known risks of the procedure” … . Therefore, contrary to the court’s determination, although the plaintiff is precluded from offering the testimony of an expert witness whose identity must be disclosed pursuant to CPLR 3101(d)(1)(i), at this juncture, it cannot be determined that the plaintiff will be unable to establish a prima facie case of negligence … . Mishli v Advanced Dermatology Laser & Cosmetic Surgery, P.C., 2024 NY Slip Op 04386, Second Dept 9-11-24

Practice Point: In this case alleging scarring and burning during laser hair removal, the dismissal of a medical malpractice cause of action because the identity of an expert witness has not been disclosed did not necessarily preclude a negligence cause of action proven by the testimony of plaintiff’s treating physician.

 

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DEFENDANT IN THIS SLIP AND FALL CASE PROVED THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS INSPECTED (AT MOST) AN HOUR AND TEN MINUTES BEFORE THE FALL; THAT PROOF WAS SUFFICIENT TO AWARD DEFENDANT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case proved it did not have actual or constructive notice of the food on the floor where plaintiff slipped and fell. Defendant’s motion for summary judgment should have been granted:

… [T]he defendant established, prima facie, that it did not create or have actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant submitted, inter alia, the deposition testimony of its employee, as well as the “Daily Floor-walk / Safety Inspection” record for the day of the incident, which demonstrated that the area in question was last inspected between 2:47 p.m. and 3:40 p.m. on the date of the accident and that no hazardous condition was found in that location … . The employee testified that if he had observed any hazardous condition on the floor, he would have immediately cleaned it … . In opposition, the plaintiff failed to raise a triable issue of fact. Arbit v Costco Wholesale Corp., 2024 NY Slip Op 04366, Second Dept 9-11-24

Practice Point: This is a rare decision which gives some insight into how a defendant can prove a lack of constructive notice of a dangerous condition, here food on the floor, which is alleged to have caused a slip and fall. Defendant produced a “Daily Floor-walk/Safety Inspection” record and employee testimony showing the area was inspected, at most, an hour and ten minutes before the alleged slip and fall.

 

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THE RELATION-BACK DOCTRINE APPLIES EVEN WHERE A NEW ACTION HAS BEEN COMMENCED AND CONSOLIDATED WITH A PRIOR ACTION (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rosado, determined the relation-back doctrine applied to the wrongful death action against Dr. Ozcan and reinstated that cause of action. The court noted that the relation-back doctrine applies where, as here, a new action has been commenced and consolidated with a prior action:

Dr. Ozcan does not substantively dispute that the claims in the prior and instant actions arose out of the same conduct or that she is united in interest with Montefiore [Medical Center]. Therefore, the only question to be decided, is whether the third prong of the relation-back doctrine has been established.

Dr. Ozcan, who was named as a defendant in the First Action, should have known that, but for a mistake, the wrongful death claim would have been brought against her as well … .

Application of the relation-back doctrine is proper even where, as here, a new action has been commenced and consolidated with a prior action … . Picchioni v Sabur, 2024 NY Slip Op 04362, First Dept 9–5-24

Practice Point: The relation-back doctrine applies to render an action timely brought even where a new action has been commenced and consolidated with a prior action.

 

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A DANGEROUS CONDITION, A DOOR WHICH SWUNG CLOSED ABRUPTLY, IS ALLEGED TO HAVE INJURED PLAINTIFF; TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DOOR, THE DEFENDANT MUST SUBMIT EVIDENCE THE DOOR WAS INSPECTED OR MAINTAINED AND FOUND SAFE CLOSE IN TIME TO THE INJURY; THE FAILURE TO SUBMIT SUCH EVIDENCE REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants in this premises liability case should not have been granted summary judgment. Plaintiff alleged a door closed abruptly, striking her and causing her to fall. The defendants presented no evidence when the door was last inspected or maintained. Therefore the defendants did not demonstrate a lack of constructive notice of the condition:

… [T]he defendants failed to establish, prima facie, that the condition of the door on the date of the accident did not constitute a dangerous condition … . … [T]he defendants failed to establish, prima facie, that they lacked actual or constructive notice of the alleged dangerous condition, as the defendants failed to submit any inspection or maintenance records or any other evidence showing when, if ever, the door was last inspected or maintained prior to the accident … . Ogletree v Long Is. Univ., 2024 NY Slip Op 04329, Second Dept 8-28-24

Practice Point: To warrant summary judgment where plaintiff alleges a defective condition on defendant’s property caused injury, the defendant must present proof the specific area or object alleged to be defective was inspected or maintained and found safe close in time to the incident. Over the past few years, hundreds of reversals have been based on defendant’s failure to submit such proof in support of summary judgment. The proof is essential to demonstrating defendant did not have constructive notice of the allegedly dangerous condition.

 

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DEFENDANT, AS AN OUT-OF-POSSESSION LANDLORD, WAS NOT LIABLE FOR AN ALLEGED DANGEROUS CONDITION ON THE PROPERTY; PLAINTIFF’S REFERENCES TO UNPLEADED CAUSES OF ACTION (LABOR LAW 240(1) AND LABOR LAW 241(6)) IN THE BILL OF PARTICULARS WERE UNSUPPORTED; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing plaintiff’s complaint, determined defendant was an out-of-possession landlord who was not responsible for the alleged dangerous condition on the property and the Labor Law 240(1) and 241(6) causes of action, although mentioned in the bill of particulars, were not pleaded. Plaintiff was doing work on cabinets when she was struck by a piece of wood that flew off a table saw operated by another worker. She sued under a negligence theory (dangerous condition) and under Labor Law section 200 (which codifies common law negligence):

“[A] landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . “‘An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct'” … .

… [T]he evidence … , including … the written lease … and transcripts of the deposition testimony … established … that the defendant was an out-of-possession landlord that had relinquished control of the subject property to Tobin and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct … . Although the defendant reserved a right of entry under the lease, this did not provide a sufficient basis on which to impose liability upon the defendant for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect … .

Modern practice permits a plaintiff, in some circumstances, to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action that is supported by the plaintiff’s submissions, where the plaintiff has not engaged in unexcused protracted delay in presenting the new theory of liability… . … Here … the plaintiff’s unpleaded causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not supported by the plaintiff’s submissions, as the record demonstrates that the plaintiff’s work at the time of her injury did not involve “construction, excavation or demolition work” within the meaning of Labor Law § 241(6), or “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” within the meaning of Labor Law § 240(1) … . Miranda v 1320 Entertainment, Inc., 2024 NY Slip Op 04313, Second Dept 8-28-24

Practice Point: Here the defendant demonstrated out-of-possession landlord status and was therefore not liable for an alleged dangerous condition on the property.​

Practice Point: Although unpleaded causes of action mentioned for the first time in the bill of particulars can be considered in opposition to a summary judgment motion, here the unpleaded Labor Law 240(1) and 241(6) causes of action were unsupported by the plaintiff’s submissions. The complaint should have been dismissed.

 

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