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PLAINTIFF ASSUMED THE RISK OF AN ACCIDENT INVOLVING HER GOLF CART AND A MOTOR VEHICLE IN THE COUNTY GOLF COURSE PARKING LOT; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the assumption of the risk doctrine applied to the operation of a golf cart in the parking lot of a golf course. Defendant county, the owner of the golf course, was therefore not liable for an accident involving a motor vehicle in the parking lot:

… [T]he County defendants met their burden of establishing that the risk of being injured while driving a golf cart is “inherent in the sport” of golf and that plaintiff was aware of the risk and assumed it … , and that plaintiff failed to raise an issue of fact with respect thereto … . At the time of the accident, plaintiff was an experienced golfer who played the golf course regularly throughout the season … . Moreover, the County defendants demonstrated that plaintiff had routinely driven a golf cart into the parking lot to retrieve her clubs from her vehicle, and that she was aware of the fact that other people would be operating motor vehicles in the parking lot. The County defendants therefore established as a matter of law that being injured while driving a golf cart in the parking lot of the golf course before a round of golf is “within the known, apparent and foreseeable dangers of the sport” of golf … . Galante v Karlis, 2024 NY Slip Op 04001, Fourth Dept 7-26-24

Practice Point: Here, over a two-justice dissent, plaintiff was deemed to have assumed the risk of a golf-cart/motor vehicle accident in the golf course parking lot.

 

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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​

” ‘As a general rule, when an employee is injured in the course of . . . employment, [the employee’s] sole remedy against [their] employer lies in [their] entitlement to a recovery under the Workers’ Compensation Law’ ” … . “[T]he issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board” … .

“[C]ourts defer to [an] administrative agency where the issue involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . However, “[w]here . . . the question is one of pure statutory interpretation, [courts] need not accord any deference to [an administrative body’s] determination and can undertake its function of statutory construction” … . As relevant here, although a factual determination with respect to the applicability of the Workers’ Compensation Law should be referred to the Board, which has primary jurisdiction over that issue, questions of law remain within the domain of the court … . Here, whether the CVA revives otherwise time-barred claims for workers’ compensation benefits, based on allegations of sexual abuse by a coworker, and whether plaintiffs are limited to benefits under the Workers’ Compensation Law even if their claims are revived, are questions of law to be decided by the court, not the Board. Thus, we agree with the plaintiffs that Supreme Court erred in granting defendant’s motion, staying the actions pending review by the Board, and holding plaintiffs’ cross-motions to amend their complaints in abeyance pending the Board’s decision. Bates v Gannett Co., Inc., 2024 NY Slip Op 03999, Fourth Dept 7-26-24

Practice Point: This decision deals with the questions of law raised by applying the Workers’ Compensation Law to sexual abuse claims revived by the Child Victims Act (CVA).​

 

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PLAINTIFF, IN THIS CHILD VICTIMS ACT SEXUAL ABUSE ACTION, PROPERLY ASSERTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS AN ALTERNATIVE TO THE NEGLIGENCE CLAIMS, CRITERIA EXPLAINED IN DEPTH (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the intentional infliction of emotional distress (IIED) cause of action should not have been dismissed in this Child Victims Act sexual abuse case. Supreme Court held the IIED cause of action duplicated negligence causes of action. It was alleged that an employee of defendant church who coached a basketball team abused plaintiff, one of the players:

… [P]laintiff is asserting the IIED cause of action as an alternative claim to his negligence claims.

Thus … plaintiff is not barred from pursuing a cause of action for IIED.

… [T]he complaint states a cause of action for IIED. … [P]laintiff pleaded that defendant engaged in extreme and outrageous conduct.

… [P]laintiff alleged that defendant knowingly permitted its employee, a child molester, to coach its youth basketball team, and defendant turned a blind eye to the abuse, allowing the employee to repeatedly subject plaintiff to inappropriate sexual contact. In doing so, defendant abused a position of dominance. Defendant, a trusted institution, enjoyed a position of dominance over plaintiff, a then-adolescent, who wanted to play on a prestigious youth basketball program that the church administered. Additionally, plaintiff, an adolescent coached by a church deacon, was especially vulnerable. Plaintiff’s vulnerability is highlighted by the allegations that defendant’s employee was permitted by defendant to be alone with plaintiff in a locker room where the sexual contact occurred. And defendant’s undesirable conduct was continuing; defendant retained and supervised the coach over the two-year period of abuse.

Crediting plaintiff’s allegations, … defendant facilitated manifestly inappropriate physical contact of a sexual nature by a known child molester by allowing him to coach its youth basketball team and providing the coach with ready access to potential child victims. That conduct … goes beyond all possible bounds of decency and is atrocious and utterly intolerable in a civilized society …  We believe that an average member of the community would, upon reading the allegations in the complaint, find them to be outrageous … . Brown v Riverside Church in the City of N.Y., 2024 NY Slip Op 03927, First Dept 7-25-24

Practice Point: Consult this opinion for an explanation of when a cause of action for intentional infliction of emotional distress, in addition to negligence causes of action, is allowed.

Practice Point: Consult this opinion for the criteria for an intentional infliction of emotional distress cause of action.

 

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HERE THE RELATION-BACK DOCTRINE SHOULD HAVE BEEN APPLIED TO ADD DEFENDANT DESIGN, WHICH HAD A UNITY OF INTEREST WITH DEFENDANT EISENBACH, DESIGN’S CEO; THE PLAINTIFF HAD AGREED TO DISCONTINUE THE TIMELY ACTION AGAINST EISENBACH BASED ON MISREPRESENTATIONS MADE ON EISENBACH’S BEHALF (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the relation-back doctrine should have been applied to add a defendant, Design, to the law suit. The CEO of Design, Eisenbach, had been timely sued but the action was discontinued based upon misrepresentations made to plaintiff’s counsel on behalf of Eisenbach. Because of that unusual circumstance, based on the unity of interest between Design and its CEO, Eisenbach, plaintiff should have been allowed to add Design as a defendant after the statute of limitations had run for all parties (including Eisenbach):

These appeals involve the application of the relation-back doctrine to an unusual set of facts. Here, the plaintiffs seek to interpose untimely claims against a proposed corporate defendant by relating those claims back under CPLR 203(c) and (f) to an individual defendant who had been timely sued, discontinued from the action before the statute of limitations had run, and re-added as a defendant after the applicable statute of limitations had expired for all parties. Normally, the relation-back doctrine may only be applied when the party being added relates back to another party which has already been timely sued and which is a continuing defendant in the case. Under the peculiar circumstances of this case, where no party objected to, raised any contentions concerning, or appealed the granting of leave to re-add the previously discontinued individual as a party defendant, the relation-back doctrine may be applied. * * *

… [T]here is a fair reading of the record that had Eisenbach not been discontinued from the action based upon inaccurate representations, Design’s role at the construction site would have been revealed and an action timely commenced against it. Further, with Eisenbach named as an original defendant in the action, Design knew or should have known that but for a mistake as to the identity of the parties, it would have been named as a party defendant as well. Bisono v Mist Enters., Inc., 2024 NY Slip Op 03873, Second Dept 7-24-24

Practice Point: Usually the relation-back doctrine can be applied only to add a party with a unity of interest with a timely sued defendant. Here, although the defendant had been timely sued, the action had been discontinued based upon misrepresentations made by the defendant to the plaintiff. Under that unique circumstance, the relation-back doctrine was deemed available to the plaintiff.

 

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PLAINTIFF BICYCLIST’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; BUT PLAINTIFF’S MOTION TO DISMISS DEFENDANT DRIVER’S CONTRIBUTORY NEGLIGENCE AFFIRMATIVE DEFENSE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist’s motion for summary judgment on liability in this traffic accident case should have been granted. However, plaintiff’s motion to dismiss defendant’s contributory negligence affirmative defense was properly denied. Defendant suddenly backed up in and attempt to parallel park and struck plaintiff. The court noted that Supreme Court properly refused to consider an uncertified police report submitted by defendant in opposition to summary judgment:

The plaintiff … demonstrated that the defendant reversed her vehicle on the roadway “without taking proper precautions” in violation of Vehicle and Traffic Law § 1211(a) … . In opposition, the defendant failed to raise a triable issue of fact. “The defendant did not submit an affidavit describing the events surrounding the accident which rebutted the version of events presented in the plaintiff’s affidavit” … . Further, “[c]ontrary to the defendant[‘s] contention, the [Supreme Court] properly declined to consider a particular uncertified police accident report in determining the motion as it would have provided the sole basis for denying summary judgment” …

“With few exceptions . . . , a person riding a bicycle on a roadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motor vehicle” (… Vehicle and Traffic Law § 1231). Therefore, “[a] bicyclist is required,” inter alia, “to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . Dieubon v Moore, 2024 NY Slip Op 03881, Second Dept 7-24-24

Practice Point: Backing up without taking precautions violates the Vehicle and Traffic Law and constitutes negligence per se.

Practice Point: A bicyclist must use reasonable care for his or her safety and may therefore be contributorily negligent in a car-bicycle collision.

 

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THE IMMUNITY CONFERRED ON HEALTHCARE PROVIDERS DURING THE COVID PANDEMIC CAN BE BASED ON THE OVERALL STRAIN ON THE OVERWHELMED HEALTHCARE SYSTEM; ALTHOUGH THE DEFENDANTS IN THIS MED MAL CASE MAY DEMONSTRATE ENTITLEMENT TO IMMUNITY AS THE CASE PROGRESSES, THEY DID NOT DEMONSTRATE ENTITLEMENT TO IMMUNITY AS A MATTER OF LAW SUCH THAT THE COMPLAINT SHOULD BE DISMISSED (SECOND DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined defendants in this med mal case were not entitled to dismissal of the complaint based upon the immunity conferred by the Emergency or Disaster Treatment Protection Act (EDPTA) during the COVID pandemic. The plaintiff-patient, who did not have COVID, fell near his hospital bed and suffered a brain injury. After he fell, and before he suffered any symptoms of the injury from the fall, he was examined by two doctors. The doctors were not made aware of the fall. The defendants moved to dismiss the complaint at the outset of the case based on the EDPTA, noting that the immunity conferred by the statute was based upon the overall strain placed on the healthcare system by the pandemic. The Second Department determined that, although the defendants may be able to demonstrate their entitlement to immunity as the case progresses, they did not demonstrate entitlement to immunity as a matter of law such that the complaint should be dismissed at the outset:

… [O]f the three conditions imposed by former Public Health Law § 3082(1), there is no question that defendants were arranging for or providing health care services as per the statute, and were doing so in good faith. The parties’ dispute distills to whether defendants established, conclusively, that “the treatment of [plaintiff was] impacted by [defendants’] decisions or activities in response to or as a result of the COVID-19 outbreak” (former Public Health Law § 3082[1][b]). * * *

A statute conferring immunity must be strictly construed … , and a party seeking its protections “must conform strictly with its conditions” … . In this regard, we note that only minimal discovery had been conducted at the time the motion was made, and that the applicability of the defense, itself, requires a fact-intensive inquiry. Whether or not defendants may ultimately be able to demonstrate that they are entitled to immunity, it is premature to deem the analysis completed at this juncture … . Holder v Jacob, 2024 NY Slip Op 03864, First Dept 7-18-24

Practice Point: Healthcare providers may be entitled to statutory immunity during the COVID pandemic. Here the defendants were unable to demonstrate entitlement to immunity as a matter of law such that the med mal complaint should be dismissed. But they may be able demonstrate entitlement to immunity as the case progresses.

 

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AN EXPERT IN A MED MAL CASE NEED NOT BE A SPECIALIST IN THE RELEVANT FIELD; HERE A PRIMARY CARE PHYSICIAN LAID A PROPER FOUNDATION FOR AN OPINION ABOUT PLAINTIFF’S CARE; PLAINTIFF ALLEGED DEFENDANTS NEGLIGENTLY FAILED TO DIAGNOSE HER HEART CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this med mal case should not have been granted summary judgment. Plaintiff alleged a negligent failure to diagnose her heart condition. Plaintiff’s expert was a primary care physician, not a cardiologist. The Second Department noted that an expert need not be a specialist and found plaintiff’s expert had laid a proper foundation for his opinion:

“[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field” … . However, the expert must “be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” … . Here, the expert, who was in the practice of internal medicine and primary care for more than 35 years, demonstrated based on experience and knowledge that he or she was qualified to render an opinion regarding the symptomology and diagnosis of heart disease and as to whether the defendants properly examined the decedent and investigated her symptoms in accordance with accepted medical practices … . Rosenzweig v Hadpawat, 2024 NY Slip Op 03838, Second Dept 7-17-24

Practice Point: An expert in a med mal case need not be a specialist. Here a primary care physician laid a proper foundation for an opinion re: the defendants’ failure to diagnose plaintiff’s heart condition.

 

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DISAGREEING WITH THE FIRST DEPARTMENT, THE SECOND DEPARTMENT HELD THAT DAMAGES FOR “PRE-IMPACT TERROR” ARE NOT APPROPRIATE IN A MED MAL CASE; HERE PLAINTIFF SUFFERED A HEART ATTACK IN 2008 AND DIED IN 2011 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in the med mal case, in a full-fledged opinion by Justice Maltese, determined the damages for “pre-impact terror” were not appropriate. Plaintiff suffered a heart attack in 2008 and died in 2011:

… [P]re-impact terror delineated as emotional pain and suffering as a separate item of damages is inappropriate in this medical malpractice and wrongful death action and would represent an inappropriate extension of the law with respect to this issue. Traditionally, damages for pre-impact terror have been awarded in cases involving motor vehicle accidents and other types of accidents … . Here, where the “impact” was the decedent’s heart attack, the damages for emotional pain and suffering cannot accurately be characterized as damages for pre-impact terror, because they were intended to compensate for the fear the decedent experienced after the heart attack occurred in January 2008 at Westchester Medical Center until his death more than three years later on October 27, 2011, at Yale-New Haven Hospital. Further, unlike a motor vehicle accident where the defendant driver causes the impact, the WMC defendants did not cause the decedent’s heart attack. To the extent that the Appellate Division, First Department, determined otherwise in Small v City of New York (213 AD3d 475), we decline to follow that decision. Molina v Goldberg, 2024 NY Slip Op 03818, Second Dept 7-17-24

Practice Point: Disagreeing with the First Department, the Second Department held damages for “pre-impact terror” are not appropriate in the med mal case.

 

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QUESTIONS OF FACT WHETHER DEFENDANT WAS AN OUT-OF-POSSESSION LANDLORD PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD IN THIS SLIP AND FALL CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there were questions of fact whether the landlord was an out-of-possession landlord:

“A property owner has a duty to maintain its premises in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others” … . “It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property” … . “Thus, a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … .

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground that they were out-of-possession landlords. Although the defendants submitted a lease establishing that a tenant leased the entire office building and was responsible for the maintenance of vestibules and entrances, the defendants’ submissions also demonstrated that they maintained an office in the building and that, each work day, the defendants’ employee used the building entrance where the plaintiff’s slip and fall occurred. The defendants’ submissions further demonstrated that this employee would report any defects in the building to the building’s security, and the tenant would then remedy those defects. Under these circumstances, triable issues of fact exist as to the defendants’ control of the subject property and whether they were out-of-possession landlords … . Grullon v 57-115 Assoc., L.P., 2024 NY Slip Op 03811, Second Dept 7-17-24

Practice Point: Here, even though the lease made the tenant responsible for maintenance, the fact that the landlord had an office in the building raised a question of fact whether the landlord could escape liability for a slip and fall as an out-of-possession landlord.​

 

DEFENDANT PROPERTY-OWNER HAD ACTUAL KNOWLEDGE OF THE RECURRING RAINWATER LEAKS; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this slip and fall case:

… Karen Myers [was] the defendants’ supervisor caretaker assigned to the subject building. At her deposition, the plaintiff testified that, while walking in the hallway of the floor that she resided on, she slipped as a result of rainwater that had leaked into the building from an outside terrace. She also testified that during periods of rainfall, she had noticed water leaking into the hallway from underneath the terrace door on numerous occasions over the years she had resided in the building and had observed building employees mopping the area “a lot of times.” Myers testified that she had been aware of the recurring leak for at least one year prior to the plaintiff’s accident and that the only remedial measure taken by building employees in response was “spot mopping.” She conceded that the recurring leak caused a “slip and fall” “hazard,” which she expected employees to “mop up.” Based upon this testimony, the plaintiff “established as a matter of law that [the defendants] had actual knowledge of a recurring dangerous and defective condition and, therefore, could be charged with constructive knowledge of each specific recurrence of the condition, which was a proximate cause of the accident” … . Graham v New York City Hous. Auth., 2024 NY Slip Op 03810, Second Dept 7-17-24

Practice Point: A property-owner’s actual knowledge of a recurring dangerous condition which causes a slip and fall entitles plaintiff to summary judgment.

 

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