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QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN; QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM.

The Third Depatment, in a full-fledged opinion by Justice Garry, determined questions of fact had been raised about governmental immunity and tort liability arising from contract in a property-damage case arising from road renovation work. Village officials and the contractor hired to do the road work (Merritt) decided to allow what was thought to be a small water leak to remain unaddressed temporarily. The leak was apparently created when a fire hydrant was removed to accommodate the road work. At some point the water main burst, causing flooding and a mudslide which damaged plaintiffs' property. The questions before the court were whether the village should be allowed to amend its answer with a governmental-immunity affirmative defense, and whether an indemnification cross-claim against the contractor (Merritt) by the village should have been allowed. The Third Department answered both questions in the affirmative. Although maintenance of a water system for fire protection is a governmental function to which immunity applies, maintenance of the water system generally is a proprietary function, to which immunity would not apply. With respect to Merritt, although tort liability does not usually arise from a contract, here there was a question of fact whether Merritt “launched an instrument of harm” which would trigger liability in tort. With respect to whether governmental immunity applied, the court explained:

A threshold inquiry in determining if a municipality is entitled to immunity in a negligence action is “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” … . Where the alleged negligence arose out of proprietary, rather than governmental acts, no immunity will attach and a municipality will generally be liable to the same extent as a private actor … . The maintenance of a municipal water system to provide water for the private use of residents has been deemed to be a proprietary function … . However, where the alleged negligence stems from municipal efforts to protect the safety of the public by “aggregating and supplying water for the extinguishment of fires,” it is engaged in a government function entitled to immunity … . These established rules can present challenges as applied to modern municipal water systems that are used to provide water to both homes and hydrants … . In such cases, where a municipality can be seen to be serving dual governmental and proprietary roles, we must look to “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” … . Billera v Merritt Constr., Inc., 2016 NY Slip Op 02503, 3rd Dept 3-31-16

MUNCIPAL LAW (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/GOVERNMENTAL IMMUNITY (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/PROPRIETARY FUNCTION (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/NEGLIGENCE (MUNICIPAL LAW, QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/TORT LIABILITY ARISING FROM CONTRACT (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/CONTRACT LAW (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/NEGLIGENCE  (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)

FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE.

The Second Department determined defendant's motion for summary judgment in a slip and fall case was properly denied. The defendant failed to demonstrate when the area was last cleaned and inspected. Evidence of routine maintenance is not enough:

Here, although the defendant's evening maintenance employee testified at his deposition about his regular cleaning routine for the building, he had no independent recollection of having cleaned the floor in question on the date of the plaintiff's accident. Furthermore, no deposition testimony was provided describing the condition of the floor in question on the date of the accident, including whether the maintenance employee had observed a water condition upon it. Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition … . The defendant's submissions also failed to eliminate all triable issues of fact as to whether it created the alleged dangerous condition … . Ansari v MB Hamptons, LLC, 2016 NY Slip Op 02305, 2nd Dept 3-30-16

NEGLIGENCE (SLIP AND FALL, FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)/SLIP AND FALL (FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)/CONSTRUCTIVE NOTICE (SLIP AND FALL, FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)

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STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE.

The Fourth Department concluded sanctions for spoliation of evidence were appropriate, but striking defendant's pleadings was too severe a sanction. Plaintiff alleged injury from glass which fell out of defendant's (IGT's) video slot machine. Although the complaint was filed in 2008, the request to maintain the condition of the machine was not made until 2010 and the request to examine the machine was not made until 2011. The machine had been scrapped in the regular course of business in 2008:

… [W]e conclude that plaintiffs established that some sanction is warranted because IGT negligently failed to preserve the machine, but plaintiffs failed to show that the destruction of the machine was intentional or contumacious, to warrant the sanctions imposed by the court. To the contrary, the only evidence in the record concerning this issue is that IGT scrapped the machine in the normal course of business, as part of the removal and destruction of a large number of machines to create additional space in the casino. In addition, IGT established that the machine was removed from the casino at the request of the casino's owners, who were no longer parties to this action, which belies plaintiffs' contention that IGT removed and destroyed the machine for litigation purposes.

Contrary to plaintiffs' further contention, they failed to establish that the machine was destroyed before they had an opportunity to inspect it, and thus plaintiffs failed to establish that the extreme sanctions of striking IGT's answer and granting plaintiffs partial summary judgment on liability against IGT were warranted … . Mahiques v County of Niagara, 2016 NY Slip Op 02190, 4th Dept 3-25-16

NEGLIGENCE (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)/EVIDENCE (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)/SPOLIATION (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)

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PLAINTIFF’S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT.

The Fourth Department determined Supreme Court should not have considered allegations of a serious injury in a car-accident case which were raised for the first time in a “supplemental verified bill of particulars” submitted in opposition to defendant's summary judgment motion:

… [D]efendant filed the instant motion for summary judgment seeking dismissal of plaintiffs' complaint for failure to meet the serious injury threshold and for failure to incur economic loss exceeding basic economic loss. In opposition to the motion, plaintiffs submitted, inter alia, a “supplemental verified bill of particulars” in which they added an allegation that plaintiff had sustained a serious injury under the significant disfigurement category of serious injury (Insurance Law § 5102 [d]). Defendant objected to plaintiffs' attempt to ” supplement' ” their bill of particulars in opposition to the motion.

Supreme Court granted defendant's motion insofar as it concerned plaintiffs' claims for economic loss, but denied the motion “in all other respects.” In its decision supporting the order, the court wrote that the evidence submitted by plaintiffs raised triable issues of fact on all three categories of serious injury. Only defendant appeals.

We agree with defendant that plaintiffs improperly asserted a “new injury” in their “supplemental verified bill of particulars” (CPLR 3043 [b] …), and that the court erred in considering that new category of serious injury inasmuch as it was raised for the first time in opposition to defendant's motion for summary judgment … . We thus conclude that the claim of significant disfigurement was not cognizable by the court … , that it was error for the court to consider the new injury claim … , and that the court should have disregarded evidence related to that category of serious injury … . Stamps v Pudetti, 2016 NY Slip Op 02272, 4th Dept 3-25-16

NEGLIGENCE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)/CIVIL PROCEDURE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)

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FINANCIAL ADVISOR IS NOT A PROFESSIONAL WHO CAN BE HELD LIABLE IN TORT BASED UPON A CONTRACTUAL RELATIONSHIP.

The First Department noted that a “financial advisor” is not a professional who may be liable in tort based upon a contract:

While “[p]rofessionals … may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties” … , a financial advisor … is not a “professional” … . Thus, any duty owed by the … defendants to render financial advisory services to plaintiff in a competent manner must arise out of a contract. Indeed, the complaint alleges that plaintiff “retained” the … defendants and that [defendant] “agreed to act as [his] financial advisor” … . However, “claims based on negligent or grossly negligent performance of a contract are not cognizable” … . Starr v Fuoco Group LLP, 2016 NY Slip Op 02143, 1st Dept 3-24-16

NEGLIGENCE (FINANCIAL ADVISOR IS NOT A PROFESSIONAL WHO CAN BE HELD LIABLE IN TORT BASED UPON A CONTRACTUAL RELATIONSHIP)/CONTRACT LAW (FINANCIAL ADVISOR IS NOT A PROFESSIONAL WHO CAN BE HELD LIABLE IN TORT BASED UPON A CONTRACTUAL RELATIONSHIP)/FINANCIAL ADVISOR (FINANCIAL ADVISOR IS NOT A PROFESSIONAL WHO CAN BE HELD LIABLE IN TORT BASED UPON A CONTRACTUAL RELATIONSHIP)/PROFESSIONAL LIABILITY (FINANCIAL ADVISOR IS NOT A PROFESSIONAL WHO CAN BE HELD LIABLE IN TORT BASED UPON A CONTRACTUAL RELATIONSHIP)

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FIREFIGHTER’S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER.

The Second Department determined a firefighter's General Municipal Law 205-a(1) cause of action was properly dismissed. Plaintiff firefighter was injured when he fell into a pit in defendants' garage while fighting a fire. The General Municipal Law allows a firefighter to sue for injury incurred due to a failure to comply with an applicable regulation. Plaintiff alleged the open pit violated an OSHA regulation. However, OSHA regulations apply only in employer/employee relationships:

General Municipal Law § 205-a(1) provides that a firefighter has a cause of action when he or she sustains an injury in the line of duty “as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments.” The plaintiff contends that he sustained an injury in the line of duty as a result of the defendants' violation of OSHA regulation 29 CFR § 1910.23(a)(1). However, a cause of action predicated on the alleged violation of OSHA regulations can only be maintained against a plaintiff's employer … . This Court has noted that OSHA governs employee/employer relationships, and thus OSHA regulations do not impose a specific statutory duty on parties other than a plaintiff's employer … . Gallagher v 109-02 Dev., LLC, 2016 NY Slip Op 02051, 2nd Dept 3-23-16

NEGLIGENCE (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)/GENERAL MUNICIPAL LAW (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)/FIREFIGHTERS (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)/OSHA REGULATIONS (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)

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WHERE DEFENDANT DOCTOR, IN A MOTION FOR SUMMARY JUDGMENT, DOES NOT ADDRESS THE ALLEGATIONS OF PROXIMATE CAUSE IN THE MEDICAL MALPRACTICE COMPLAINT, THE PLAINTIFF NEED NOT ADDRESS PROXIMATE CAUSE IN OPPOSITION TO THE MOTION.

The Second Department determined defendant surgeon's motion for summary judgment was properly denied. The court noted that the doctor's proof addressed only the alleged departure from good and accepted practice and did not address any of the proximate cause allegations. Therefore, the plaintiff, in opposition to summary judgment, need only address the departure from good and accepted practice to defeat the motion:

Here, the expert affirmation submitted by the defendant established, prima facie, that his treatment of the decedent did not depart from good and accepted medical practice. However, the defendant failed to make a prima facie showing that any alleged departure from the standard of care was not a proximate cause of the decedent's death … . Thus, in order to defeat the defendant's motion, the plaintiffs only had to raise a triable issue of fact regarding the issue of departure from good and accepted medical practice … . The competing expert affirmation submitted by the plaintiffs in opposition was sufficient to do so … . Uchitel v Fleischer, 2016 NY Slip Op 02075, 2nd Dept 3-23-16

NEGLIGENCE (MEDICAL MALPRACTICE, WHERE DEFENDANT DOCTOR, IN A MOTION FOR SUMMARY JUDGMENT, DOES NOT ADDRESS THE ALLEGATIONS OF PROXIMATE CAUSE IN THE MEDICAL MALPRACTICE COMPLAINT, THE PLAINTIFF NEED NOT ADDRESS PROXIMATE CAUSE IN OPPOSITION TO THE MOTION)/MEDICAL MALPRACTICE (WHERE DEFENDANT DOCTOR, IN A MOTION FOR SUMMARY JUDGMENT, DOES NOT ADDRESS THE ALLEGATIONS OF PROXIMATE CAUSE IN THE MEDICAL MALPRACTICE COMPLAINT, THE PLAINTIFF NEED NOT ADDRESS PROXIMATE CAUSE IN OPPOSITION TO THE MOTION)/PROXIMATE CAUSE (MEDICAL MALPRACTICE, WHERE DEFENDANT DOCTOR, IN A MOTION FOR SUMMARY JUDGMENT, DOES NOT ADDRESS THE ALLEGATIONS OF PROXIMATE CAUSE IN THE MEDICAL MALPRACTICE COMPLAINT, THE PLAINTIFF NEED NOT ADDRESS PROXIMATE CAUSE IN OPPOSITION TO THE MOTION)

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SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS.

The Second Department, reversing Supreme Court, determined defendant oncologist, Khulpateea, was entitled to summary judgment dismissing the malpractice complaint on statute of limitations grounds. The court held that the “continuous treatment doctrine” did not apply to extend the statute. Plaintiff's decedent saw Khulpateea several times, after referral from decedent's gynecologist, and Khulpateea performed surgical procedures on decedent. It was only the last procedure which discovered the cancer. Each procedure was deemed to constitute a discrete event which did not anticipate ongoing treatment by Khulpateea:

“To establish that the continuous treatment doctrine applies, a plaintiff is required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” … . “Continuity of treatment is often found to exist when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during th[e] last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past'” … . Here, the plaintiff failed to show that there was a continuous course of treatment. The diagnostic services performed by Khulpateea were discrete and complete, and not part of a course of treatment … . Moreover, the plaintiff failed to submit evidence showing that the decedent and Khulpateea contemplated further treatment after the follow-up visit … . The decedent did not schedule another appointment with Khulpateea until she returned to see him in 2005, and she only did so then because [her gynecologist] referred her to him … . Nisanov v Khulpateea, 2016 NY Slip Op 02062, 2nd Dept 3-23-16

NEGLIGENCE (MEDICAL MALPRACTICE, SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS)/MEDICAL MALPRACTICE (SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, SURGICAL PROCEDURES WERE DEEMED DISCRETE EVENTS WHICH DID NOT ANTICIPATE FURTHER TREATMENT, CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS)

DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the sidewalk defect which allegedly caused plaintiff's fall was trivial as a matter of law. The defendants submitted insufficient or conflicting evidence of the dimensions of the defect and the photographs were not dispositive:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury” … .

In support of its motion, [one of the defendants] failed to submit any measurements of the dimensions of the alleged defective condition.  * * *

… [The other defendant] submitted conflicting evidence as to the dimensions of the alleged defective condition, including the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and measurements performed by its expert, and it is impossible to ascertain from the photographs submitted in support of the motion whether the alleged defective condition was trivial as a matter of law … . Padarat v New York City Tr. Auth., 2016 NY Slip Op 02064, 2nd Dept 3-23-16

NEGLIGENCE (DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED.

The First Department determined defendants, including defendant SSA, had made a prima facie showing of entitlement to summary judgment in this slip and fall case, but the plaintiff raised a question of fact whether an identified defect in the sidewalk caused her fall. The court noted that hearsay evidence supplied in opposition to the motion was properly considered because it was not the only evidence submitted in opposition. The case is a rare example of each side submitting evidence of all the required “slip and fall” elements:

Defendants made a prima showing of their entitlement to summary judgment, by submitting deposition testimony and an affidavit from SSA's managing member stating that SSA never did any work on the sidewalk where plaintiff fell, that he never received complaints about the sidewalk or curb prior to plaintiff's accident, and that he never observed the alleged hazardous curb and sidewalk condition while making his regular, twice-weekly inspections of the strip mall … .

In opposition, plaintiff raised triable issues of fact. Plaintiff testified that she fell when her left foot stepped into a hole-like depression in the curb/sidewalk, and she marked photographs to show where she fell. Plaintiff also submitted her daughter's affidavit, wherein she averred that after receiving a call about her mother's fall, she responded quickly to the scene of the accident and found her mother on the sidewalk. According to the daughter, her mother pointed to a broken and cracked curb/sidewalk condition and stated that the defective condition caused her to fall. This hearsay statement may be relied upon to defeat summary judgment where, as here, it is not the only evidence submitted in opposition to the motion … . The daughter added that the photographs taken of the sidewalk/curb seven months after the accident, and the area of the photographs her mother marked, accurately depicted the broken condition of the curb/sidewalk as it appeared on the date of the accident. The photographs show a broken curb/sidewalk. Taken together, the evidence raises triable issues of fact whether the broken sidewalk/curb caused plaintiff's fall, and whether the defective condition existed for a sufficient period of time prior to the accident for defendants to have discovered and remedied it … . Uncyk v Cedarhurst Prop. Mgt., LLC, 2016 NY Slip Op 02037, 1st Dept 3-22-16

NEGLIGENCE (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED)/EVIDENCE (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED) HEARSAY (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED)/SLIP AND FALL (ALL REQUIRED ELEMENTS OF SLIP AND FALL ADDRESSED BY BOTH SIDES IN SUMMARY JUDGMENT MOTION)

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