You are here: / Negligence
,

QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED.

The Fourth Department, over a dissent, determined plaintiff raised a question of fact whether the 2 1/2 year statute of limitations was tolled by the continuous treatment doctrine, despite gaps in treatment exceeding the statute of limitations:

The determination whether continuous treatment exists “must focus on the patient” … and, “[i]n determining whether plaintiff[] raised an issue of fact concerning the applicability of the continuous treatment doctrine, [her] version of the facts must be accepted as true” … . Based on plaintiff’s version of the facts, there is support in the record for a finding that plaintiff “intended uninterrupted reliance” upon defendant’s observation, directions, concern, and responsibility for overseeing her progress. Notably, during approximately 7 years of treatment with defendant, plaintiff underwent two surgeries, saw no other physician regarding her shoulder, and returned to him for further treatment, i.e., a potential third surgery, but was told that he did not treat or operate on shoulders anymore. Defendant referred plaintiff to another physician in his practice, and plaintiff went to that appointment, but was told that the second physician would not treat her. Furthermore, the fact that plaintiff left the September 5, 2003 appointment with a direction to see defendant “as needed” is not dispositive inasmuch as defendant conceded that “[o]bviously [plaintiff’s] problem is long standing and chronic. She most likely will need further surgery in the future due to her young age and need for revision shoulder replacement vs fusions.” Lohnas v Luzi, 2016 NY Slip Op 04819, 4th Dept 6-17-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/CONTINUOUS TREATMENT DOCTRINE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/STATUTE OF LIMITATIONS (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)

, ,

STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE.

The Fourth Department, over an extensive dissent, determined striking defendant's answer in this slip and fall case was too severe a sanction for failing to preserve evidence, i.e., surveillance tapes:

… [W]e agree with plaintiff that a sanction was warranted inasmuch as defendant “wilfully fail[ed] to disclose information” that the court had ordered to be preserved (CPLR 3126). Nevertheless, we conclude that the court abused its discretion in striking defendant's answer and affirmative defenses. It is well established that “a less drastic sanction than dismissal of the responsible party's pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense” … . Indeed, we note that the record does not demonstrate that the plaintiff has been ” prejudicially bereft' ” of the means of prosecuting his action … . Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to the unavailable surveillance footage … . Sarach v M&T Bank Corp., 2016 NY Slip Op 04820, 4th Dept 6-17-16

NEGLIGENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/CIVIL PROCEDURE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/EVIDENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SLIP AND FALL  (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SURVEILLANCE TAPES (SLIP AND FALL, STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES)

,

IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT.

The Third Department determined the notice of claim, although “bare bones,” was sufficient under the circumstances because defendant Office of Mental Retardation and Developmental Disabilities (OMRDD) had conducted an investigation into the fire at a residential care facility with caused the death of claimant’s decedent:

Court of Claims Act § 11 (b) “places five specific substantive conditions upon [defendant’s] waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed” … . The guiding principle and “purpose of the notice of claim requirement [is] to allow [defendant] to investigate the claim and to estimate its potential liability” … . “‘Absolute exactness'” is not required …, but the claim must enable prompt investigation and be “sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability” … . Moreover, defendant is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . * * *

Where an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant’s ability to investigate a claim … , nor that defendant has been improperly required to “assemble” information regarding a claim … . Davila v State of New York, 2016 NY Slip Op 04752, 3rd Dept 6-16-16

 

NEGLIGENCE (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/COURT OF CLAIMS (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/NOTICE OF CLAIM (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)

,

PHYSICIAN’S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM.

The Second Department determined the actions against two physicians tasked with reading plaintiff's spinal MRI should have been dismissed. There was unrefuted evidence the MRI's were read correctly and the doctors' duties did not extend beyond the interpretation of the MRI:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, both West and Davis established, prima facie, that they discharged their respective duties to the injured plaintiff in accordance with accepted practices. West's expert concluded that West's interpretation of the … MRI film was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, but instead opined that West should have ordered a diffusion MRI to look for evidence of the injured plaintiff's condition. However, as West correctly contends, he had no such duty to do so. West's role was to interpret the MRI film and document his findings. He did not assume a general duty of care to independently diagnose the injured plaintiff's medical condition … .

Similarly, the plaintiffs' argument that Davis had a duty to examine the injured plaintiff in person and to ensure that high-dose steroids were properly administered also is without merit. Davis's duty as a neurosurgical consultant was to determine whether neurosurgery was necessary. He determined that it was not. His expert stated that this conclusion was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, and did not argue that neurosurgery was necessary. Meade v Yland, 2016 NY Slip Op 04697, 2nd Dept 6-15-16

NEGLIGENCE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/MEDICAL MALPRACTICE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/DUTY OF CARE (PHYSICIANS, PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)

, ,

PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT.

The Second Department determined plaintiff created an issue of fact in this rear-end collision case by submitting a police report indicating defendant driver slid on snow and ice. The court noted plaintiff waived any objection to the admissibility of the report by submitting it in support of plaintiff's motion for summary judgment:

In support of the motion, the plaintiff submitted, inter alia, a copy of the police accident report. The police accident report indicated that the defendant driver stated that snow and ice on the road caused him to hit the plaintiff's vehicle, which demonstrated the existence of a triable issue of fact as to whether the defendant driver had a nonnegligent explanation for his actions … . Since the plaintiff submitted the police report in support of his motion, he waived any objection to its admissibility … . Orcel v Haber, 2016 NY Slip Op 04700, 2nd Dept 6-15-16

NEGLIGENCE (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/EVIDENCE (POLICE REPORT, SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/SUMMARY JUDGMENT (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)

,

OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant out-of-possession landlord did not demonstrate it did not cause the alleged radiator-defect which injured plaintiff. Therefore the landlord's motion for summary judgment was properly denied:

“[A]n out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and 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” … . However, ” liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect'” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. Although the defendant demonstrated that it did not owe a duty to provide the plaintiff with a radiator cover …, the defendant failed to establish that it did not cause the radiator to become and remain in a defective, broken, and overheated condition. Gowen v Gabrielle Realty Holdings, LLC, 2016 NY Slip Op 04695, 2nd Dept 6-15-16

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)

,

OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES.

The Second Department determined defendant out-of-possession landlord was entitled to summary judgment in this slip and fall case. Plaintiff, in a bar on leased premises, fell on a bathroom floor alleged to have been wet with cleaning solution and water:

“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” … . Here, [the landlord] established, prima facie, that he was an out-of-possession landlord with no contractual obligation to maintain the premises, and that he neither endeavored to perform such maintenance nor owed any duty to the plaintiff by virtue of any statute upon which the plaintiff relies … . Mendoza v Manila Bar & Rest. Corp., 2016 NY Slip Op 04698, 2nd Dept 6-15-16

 

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)

,

QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY.

The Second Department determined plaintiffs raised a question of fact in this medical malpractice action under the doctrine of res ipsa loquitur. Plaintiff contracted hepatitis C after a colonoscopy. There was evidence the patient defendant performed the procedure upon just before plaintiff’s procedure had hepatitis C, the disease is only transferred by contact with infected blood, and plaintiff was diagnosed after six weeks, the usual incubation period:

… [P]laintiffs relied on the doctrine of res ipsa loquitur, which is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Gonzalez v Arya, 2016 NY Slip Op 04693, 2nd Dept 6-15-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/MEDICAL MALPRACTICE (RES IPSA LOQUITUR, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)

U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED.

The Second Department determined, in a vehicle-accident case, defendant U-Haul did not demonstrate it was free from negligence in maintaining its rental truck. Therefore U-Haul's motion to dismiss was properly denied. The court explained the criteria for liability on the part of companies in the business of renting vehicles:

49 USC § 30106(a), also known as the Graves Amendment, provides that “the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing” … . “The legislative history of the Graves Amendment indicates that it was intended to protect the vehicle rental and leasing industry against claims for vicarious liability where the leasing or rental company's only relation to the claim was that it was the technical owner of the [vehicle]'” … .

With respect to that branch of U-Haul's motion which was pursuant to CPLR 3211(a)(1), although U-Haul submitted documentary evidence establishing that it was engaged in the business of renting vehicles and that the subject vehicle had been rented … at the time of the accident, U-Haul failed to conclusively establish that it was not negligent in the maintenance of the vehicle, as alleged … . Anglero v Hanif, 2016 NY Slip Op 04682, 2nd Dept 6-15-16

NEGLIGENCE (U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED)/RENTAL VEHICLES (U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED)/GRAVES AMENDMENT (U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED)

,

TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND.

The Second Department determined the town did not make the requisite showing for summary judgment in this slip and fall case. The town's motion did not address all of the theories of liability raised in the pleadings:

Here, the plaintiff, in her pleadings, alleged that the Town created the hole in the parking lot that caused her to fall, and that the Town made a special use of the parking lot. Thus, in support of its motion for summary judgment, the Town was required to demonstrate, prima facie, that it did not have prior written notice of the allegedly defective condition, that it did not create the condition, and that it did not make a special use of the parking lot … . Since the Town failed to make this showing, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Breest v Long Is. R.R., 2016 NY Slip Op 04376, 2nd Dept 6-8-16

NEGLIGENCE (TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND)/MUNICIPAL LAW (SLIP AND FALL, TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND)/SLIP AND FALL (TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND)

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