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FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED DENIAL OF DEFENDANT-VILLAGE’S SUMMARY JUDGMENT MOTION.

The Second Department, in this slip and fall case, determined that the village’s failure to address plaintiff’s allegation that the village created the dangerous condition (a one-inch higher portion of a sidewalk) required the denial of the village’s motion for summary judgment. [Another example of a defense summary judgment motion which did not affirmatively address every possible theory of recovery.] The court explained the relevant law:

 

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The bill of particulars alleged that the Village affirmatively created the dangerous condition which caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. McManus v Klein, 2016 NY Slip Op 00704, 2nd Dept 2-3-16

 

NEGLIGENCE (LIABILITY ALLEGED UNDER COMMON-LAW NEGLIGENCE  AND RES IPSA LOQUITUR, DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT OF THOSE THEORIES REQUIRED DENIAL OF SUMMARY JUDGMENT)/RES IPSA LOQUITUR (DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT RES IPSA LOQUITUR THEORY OF RECOVERY RREQUIRED DENIAL OF SUMMARY JUDGMENT)

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EXPERT AFFIDAVITS, SUBMITTED SOLELY ON THE ISSUE OF PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, SHOULD HAVE BEEN ACCEPTED BY THE COURT, EVEN THOUGH THE EXPERTS WERE NOT QUALIFIED TO ASSESS WHETHER THE DEFENDANT CHIROPRACTOR DEVIATED FROM THE APPROPRIATE STANDARD OF CARE.

The Second Department, in a full-fledged opinion by Justice Dillon, determined affidavits by an orthopedist and a radiologist (Dr. Meyer and Dr. Coyne) submitted in support of defendant’s motion for summary judgment should have been accepted by Supreme Court as admissible evidence of proximate cause of plaintiff’s back injury, even though the orthopedist and radiologist were not qualified to offer an opinion on whether defendant chiropractor deviated from the appropriate standard of care. Supreme Court had rejected the affidavits on the ground the orthopedist and radiologist were not qualified to assess the level of care provided by the defendant chiropractor. However, the affidavits addressed only the issue of proximate cause, stating that plaintiff’s injuries pre-dated the alleged negligent treatment by the chiropractor. Because the assessment of proximate cause was within the orthopedist’s and radiologist’s areas of expertise, the affidavits were admissible. However, the denial of the defendant’s motion for summary judgment was affirmed because the defendant’s affidavit stating he did not deviate from the proper standard of chiropractic care was conclusory:

 

Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable … . Thus, when a physician offers an expert opinion outside of his or her specialization, a foundation must be laid tending to support the reliability of the opinion rendered … .

Here, the opinions of Dr. Meyer and Dr. Coyne would not be admissible on the issue of the defendant’s alleged deviation or departure from the standard of chiropractic care, as neither physician indicated any familiarity with the standards of chiropractic practice. However, the opinions of Dr. Meyer and Dr. Coyne were not proffered to address the issue of whether the defendant deviated or departed from the relevant chiropractic standard of care. Rather, the affirmations of both physicians were clearly and narrowly drawn to address only the separate element of proximate cause. Bongiovanni v Cavagnuolo, 2016 NY Slip Op 00638, 2nd Dept 2-3-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON NARROW ISSUE OF PROXIMATE CAUSE)/MEDICAL MALPRACTICE (EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)

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DEFENDANT DID NOT DEMONSTRATE NON-PARTY SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined defendant was not entitled to summary judgment in a slip and fall case because defendant did not demonstrate the non-party sublessee was responsible for maintaining the premises:

 

“[A]n out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs'” … . However, “where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the out-of-possession landlord and the out-of-possession lessee/sublessor will be free from liability for injuries to a third party caused by the negligence of the subtenant in possession” … .

Here, viewing the evidence in the light most favorable to the plaintiff, the defendant failed to establish, prima facie, that the nonparty sublessee assumed the exclusive obligation to maintain the premises, and that the defendant, as the lessee/sublessor, had no duty to maintain the premises … . Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff’s opposition papers … . Iturrino v Brisbane S. Setauket, LLC, 2016 NY Slip Op 00480, 2nd Dept 1-27-16

 

NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)/LANDLORD-TENANT (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)/SLIP AND FALL (LANDLORD-TENANT, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)

ANALYTICAL CRITERIA FOR DETERMINING LIABILITY IN A REAR-END COLLISION CASE CLEARLY EXPLAINED.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. The court offered a clear, succinct explanation of the analytical criteria:

 

“When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle” (… see Vehicle and Traffic Law § 1129[a]…). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … . A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause … .

Here, on his motion for summary judgment on the issue of liability, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting an affidavit in which he stated that his vehicle was stopped when it was struck in the rear… . In opposition, the defendant failed to submit evidence either denying the plaintiff’s allegations or offering a nonnegligent explanation for the collision … . Binkowitz v Kolb, 2016 NY Slip Op 00462, 2nd Dept 1-27-16

 

NEGLIGENCE (REAR-END COLLISIONS, ANALYTICAL CRITERIA)/REAR-END COLLISIONS (ANALYTICAL CRITERIA FOR LIABILITY)

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REQUESTS FOR RECORDS OF SURGICAL PROCEDURES PERFORMED ON NON-PARTIES AND RECORDS OF COMPLAINTS AGAINST DEFENDANT SURGEON SHOULD NOT HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined certain discovery requests made by plaintiff in a medical malpractice action should not have been denied. Plaintiff alleged defendant surgeon’s (Panos’) and defendant hospital’s (Vassar’s) negligence were related to the unprecedented number of surgeries performed by defendant surgeon. Plaintiff sought all the records re: surgeries performed by defendant surgeon on the days plaintiff was operated on. The Second Department held that those records, with non-party names redacted, should be turned over but should not be disclosed beyond the parties and experts. With respect to requests for disclosure of complaints against defendant surgeon, the Second Department held that the documents should be turned over for in camera review to see if they are immune from discovery under the Public Health Law (quality assurance immunity):

 

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, to compel Vassar to produce intraoperative records pertaining to all surgical procedures performed by Panos on any nonparty patients on the three dates that he performed surgery on the plaintiff, reflecting every medical procedure performed during those surgical procedures, and should have denied that branch of Vassar’s cross motion which was for a protective order striking the plaintiff’s demand for those records … .

… [T]he plaintiff demanded that Vassar produce copies of any written complaints made to Vassar regarding Panos and any written responses thereto. Contrary to Vassar’s contention, these demands specified the documents to be disclosed with reasonable particularity (see CPLR 3120[2]…). Vassar further contends that these documents are immune from discovery pursuant to the quality assurance privilege (see Education Law § 6527[3], Public Health Law § 2805-m…). “Records generated at the behest of a quality assurance committee for quality assurance purposes . . . should be privileged, whereas records simply duplicated by the committee are not necessarily privileged” … . Since it is impossible on this record to determine whether the subject documents were generated at the behest of a quality assurance committee for quality assurance purposes, we remit the matter for an in camera inspection of the documents requested … .  Gabriels v Vassar Bros. Hosp., 2016 NY Slip Op 00478, 2nd Dept 1-27-16

 

CONVERSION (CAUSE OF ACTION TIME-BARRED)/REPLEVIN (CAUSE OF ACTION TIME-BARRED)/UNJUST ENRICHMENT (CAUSE OF ACTION TIME-BARRED)/CIVIL PROCEDURE (CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED)

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MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED, ANALYTICAL CRITERIA EXPLAINED.

The Second Department, reversing Supreme Court, determined the attorney-defendants’ motion to dismiss the malpractice complaint should have been granted. The allegations of malpractice were deemed insufficient and were “utterly refuted” by the documentary evidence submitted. The court explained the analytical criteria:

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer’s negligence” … . “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” … . “[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … . Janker v Silver, Forrester & Lesser, P.C., 2016 NY Slip Op 00481, 2nd Dept 1-27-16

ATTORNEYS (MALPRACTICE ALLEGATIONS INSUFFICIENT)/NEGLIGENCE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)/LEGAL MALPRACTICE (ALLEGATIONS INSUFFICIENT)/CIVIL PROCEDURE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)

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THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION WERE NOT ACCURATELY STATED IN THE JURY INSTRUCTIONS AND VERDICT SHEET; MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department reversed Supreme Court, in the interest of justice, because the jury instructions and verdict sheet did not accurately state the elements of malpractice based upon a lack of informed consent. Plaintiff’s motion to set aside the verdict should have been granted. The elements of a “lack of informed consent” cause of action were explained:

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … . ” To state it in other terms, the causal connection between a doctor’s failure to perform his [or her] duty to inform and a patient’s right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action in negligent malpractice for failure to inform has been made out and a jury may properly proceed to consider plaintiff’s damages’ ” … . Figueroa-Burgos v Bieniewicz, 2016 NY Slip Op 00329, 2nd Dept 1-20-16

NEGLIGENCE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURIES (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURY INSTRUCTIONS (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/VERDICT SHEET (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/INFORMED CONSENT, LACK OF (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)

GOLFER ASSUMED THE RISK OF SLIPPING ON A WET RAILROAD TIE WHICH LINED A PATH ON THE GOLF COURSE.

The Second Department, reversing Supreme Court, determined plaintiff golfer assumed the risk of slipping on a wet railroad tie which lined a path on the golf course:

 

Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played … .

“[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Moreover, “[i]t is not necessary to the application of assumption of risk that the injured plaintiff [had] foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . While participants are not deemed to have assumed the risks of concealed or unreasonably increased risks … , if “the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be” … . Bryant v Town of Brookhaven, 2016 NY Slip Op 00323, 2nd Dept 1-20-16

 

NEGLIGENCE (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURSE PATH)/ASSUMPTION OF RISK (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURS PATH)

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JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.

The First Department, in three, two-justice concurring opinions, determined plaintiff’s motion to set aside the jury verdict should have granted on “jury confusion” grounds. Plaintiff had a kidney removed for his father’s transplant procedure. A “knot pusher device” was left inside plaintiff, and he underwent a second surgery to remove it. The jury, based on the special verdict sheet, indicated leaving the “knot pusher device” inside plaintiff was not the proximate cause of his injury, but the jury sent out a note stating the plaintiff should be awarded $50,000 for having to undergo the second procedure:

 

An examination of the record reveals that the special verdict sheet was “unclear and confusing” …, because it did not provide for an award of damages caused by the need to undergo a second surgery. The confusing and ambiguous wording of the verdict sheet caused the jurors to experience substantial confusion in reaching their verdict … . While “[t]he ambiguity had been brought to the attention of the trial Justice before the jury was discharged and could have been corrected or at least clarified at that time” …, the court did not do so and a new trial  … is required to prevent a miscarriage of justice. Srikishun v Edye, 2016 NY Slip Op 00315, 1st Dept 1-19-16

 

NEGLIGENCE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/MEDICAL MALPRACTICE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT BECAUSE OF JURY CONFUSION STEMMING FROM THE VERDICT SHEET SHOULD HAVE BEEN GRANTED)/JURIES (NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO CONFUSION STEMMING FROM THE SPECIAL VERDICT SHEET)/VERDICT SHEET (CONFUSING SPECIAL VERDICT SHEET WARRANTED A NEW TRIAL)

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QUESTION OF FACT WHETHER HOTEL DEFENDANTS WERE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF A SNOWMOBILE TOUR GUIDE UNDER AN APPARENT AGENCY THEORY.

The Third Department affirmed the denial of the hotel defendants’ motion for summary judgment. Plaintiff was severely injured and her husband was killed when the snowmobile they were using was struck by a car. The hotel promoted snowmobile tours. All the arrangements for the tour were made by the plaintiffs and hotel personnel. The actual tour was conducted by Adirondack Snowmobile Rental (ASR). The tour guide, driving the lead snowmobile, crossed a road without waiting for plaintiff and plaintiff’s decedent, who were following. Plaintiff and plaintiff’s decedent were struck by a car when they attempted to cross the road. The Third Department determined plaintiff had stated a cause of action in negligence against the hotel defendants, alleging the hotel defendants were vicariously liable for the negligence of ASR under an apparent agency theory:

 

… “[I]t is fundamental to the principal/agent relationship that [a principal] is liable to a third person for the wrongful or negligent acts . . . of its agent when made within the general or apparent scope of the agent’s authority” … . To establish a negligence claim based upon an apparent agency theory, a plaintiff must show evidence of “words or conduct of the principal . . . communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to [act on the principal’s behalf]” … .

Here, the evidence includes a screenshot of the resort’s website that can be read to suggest that snowmobiling is a service provided by defendants’ agents or employees, as it is listed among the winter activities available on the premises. … [P]laintiff stated that she and decedent only dealt with the resort staff in organizing the tour and had never heard of ASR prior to the tour’s commencement. Viewing this evidence in a light most favorable to plaintiff as the nonmoving party, we find that Supreme Court properly denied the portion of defendants’ motion seeking dismissal of plaintiff’s negligence claim based upon the doctrine of apparent agency. In our view, defendants’ promotional materials, together with the testimony regarding the overall experience that defendants and their staff strive to provide for guests of the resort, create a question of fact as to whether plaintiff could have reasonably believed that ASR possessed the authority to conduct the snowmobile tour as defendants’ agent … . Taylor v The Point at Saranac Lake, Inc., 2016 NY Slip Op 00247, 3rd Dept 1-14-16

 

NEGLGENCE (TORT LIABILITY ARISING FROM CONTRACT, AND INTERVENING, SUPERSEDING CAUSE OF INJURY EXPLAINED)/CONTRACT LAW (TORT LIABILITY TO THIRD PERSONS EXPLAINED)/INTERVENING, SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)/SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)

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