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Catheter, Although Deliberately Inserted During Surgery for Temporary Monitoring Purposes, Was a “Foreign Object” Within the Meaning of CPLR 214-a—Action Brought Within One Year of the Discovery of the Catheter (22 Years after Insertion) Was Timely

The Court of Appeals, in a comprehensive opinion by Judge Read, determined a catheter left in plaintiff’s heart after surgery in 1986 (when plaintiff was three years old) was a “foreign object.”  Therefore the statute of limitations did not start to run until the presence of the catheter was “discovered” in 2008.  Plaintiff’s complaint, brought within one year of discovery, was therefore timely.  The issue was whether the catheter could be considered a “fixation device” because it was intentionally inserted. If so, the one-year-from-discovery “foreign object” statute of limitations (see CPLR 214-a) would not have applied and the complaint would have been untimely. The Court of Appeals held that the catheter (which was to temporarily monitor heart function after surgery) was not a “fixation device” because, although it was intentionally inserted, it was not inserted to serve a “postsurgery healing function” and it was to be removed a few days after insertion. Thus the catheter was different in kind from a “fixation device,” such as a “stent” or a “suture,” deliberately inserted to serve a “healing function:”

Here, the catheter inserted in the left atrium of plaintiff’s heart performed no securing or supporting role during or after surgery. As explained by plaintiff’s expert, and uncontroverted by defendants, the catheters functioned like a sentinel, allowing medical personnel to monitor atrial pressure so that they might take corrective measures as required; the catheters were, in the words of plaintiff’s expert, “a conduit for information from [plaintiff’s] cardiovascular system.” Because the catheters under the facts of this case are therefore not fixation devices (or chemical compounds or prosthetic aids or devices), they are not categorically excluded from the foreign object exception in CPLR 214-a.

The question then becomes whether the catheters are analogous to tangible items like … clamps … or other surgical paraphernalia (e.g., scalpels, sponges, drains) likewise introduced into a patient’s body solely to carry out or facilitate a surgical procedure. We conclude that they are … .  Walton v Strong Mem. Hosp., 2015 NY Slip Op 04786, CtApp 6-10-15

 

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Late Notice of Claim Should Not Have Been Deemed Timely (Sua Sponte, Nunc Pro Tunc)—the 90 Days Started Running When Plaintiff’s Asthma Symptoms Worsened, Not When a Doctor Connected the Symptoms to Mold in the Apartment—the Plaintiff Did Not Make a Motion for Permission to File a Late Notice of Claim

The First Department determined Supreme Court should not have, sua sponte (in the absence of a motion by the plaintiff), deemed plaintiff’s late notice of claim timely filed nunc pro tunc. The claim alleged mold resulting from a leak in plaintiff’s New York City Housing Authority (NYCHA) apartment exacerbated plaintiff’s asthma.  The First Department found that the cause of action accrued when plaintiff’s symptoms worsened, no later than February, 2011, not when a connection between the mold and plaintiff’s symptoms was suggested by a doctor in March 2011:

[Plaintiff] was required to file a notice of claim within 90 days after “the date of [her] discovery of the injury” or the date on which “through the exercise of reasonable diligence the injury should have been discovered” (CPLR 214-c[3]; see General Municipal Law § 50-e[1][a]…). NYCHA established that plaintiff’s claim accrued no later than February 2011, by relying on plaintiff’s testimony that her asthma symptoms worsened, resulting in more frequent attacks and hospital visits, starting in September or December of 2010, or January or February of 2011, when she was prescribed additional medications, as reflected in her hospital records. Thus, the notice of claim, filed over 90 days later in June 2011, without leave of court, was late and without effect … .

Plaintiff argues that her claim did not accrue until March 2011, when a doctor noted a connection between her symptoms and the mold in her apartment. However, a “cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e.[,] when the injury is apparent, not when the specific cause of the injury is identified” … .

The court lacked authority to deem the late notice of claim timely filed nunc pro tunc, since plaintiff never moved for such relief and the statutory time limitation for bringing the claim had already expired when NYCHA moved for summary judgment … . Vincent v New York City Hous. Auth., 2015 NY Slip Op 04767, 1st Dept 6-9-15

 

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The Town’s Actual or Constructive Notice of a Sidewalk Defect Does Not Obviate the Written Notice Requirement

The Second Department determined summary judgment was properly awarded to the town (re: an allegedly defective sidewalk where plaintiff fell) because the “written notice manually transcribed by the complainant” requirement was not met. The fact that there existed writings and email generated by the town concerning the defect, and the fact that the town may have had constructive or actual notice of the defect, did not obviate the written notice requirement:

“A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies” … . ” The only two recognized exceptions to a prior written notice requirement are the municipality’s affirmative creation of a defect or where the defect is created by the municipality’s special use of the property'” … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … . Here, the Town has adopted a prior written notice law stating that written notices must be “manually subscribed by the complainant” and submitted to the Town Superintendent of Highways or the Town Clerk (Code of the Town of North Hempstead § 26-1). Wolin v Town of N. Hempstead, 2015 NY Slip Op 04846,, 2nd Dept 6-9-15

 

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Dismantling, Salvaging or Demolishing a Product Is Not a Foreseeable Use of the Product

The First Department determined the dismantling, salvaging and demolishing of valves containing asbestos did not constitute a foreseeable use of the valves.  The complaint against the manufacturer of the valves, sounding in strict products liability and negligence, was dismissed.

“A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose” (Lugo v LJN Toys, 75 NY2d 850, 852 1990] [citations omitted]; see also New Holland at 53-54). The issue, which has not been squarely addressed by the courts of this State, is whether dismantling constitutes a reasonably foreseeable use of a product.  * * *

“To recover for injuries caused by a defective product, the defect must have been a substantial factor in causing the injury, and the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable'” … . As plaintiff did not use [defendant’s] manufactured product in a reasonably foreseeable manner and his salvage work was not an intended use of the product, the complaint should have been dismissed. Hockler v William Powell Co., 2015 NY Slip Op 04765, 1st Dept 6-9-15

 

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“Reckless Disregard” Standard of Care Applies to Operators of Street Sweepers in New York City—Standard Explained

The Court of Appeals determined the “reckless disregard” standard in Vehicle and Traffic Law 1103, not the ordinary negligence standard, applied to the operator of a New York City street sweeper who was in the process of cleaning the street when the sweeper struck plaintiff’s car.  A question of fact had been raised whether the applicable standard of care was violated:

… [U]nder VTL § 1642, the City of New York is authorized to establish additional rules, including rules that supercede those of the State (see VTL § 1642 [a] [“the legislative body of any city having a population in excess of one million, may by local law . . . restrict or regulate traffic on or pedestrian use of any highway . . .]). At the time of the accident, 34 RCNY [Rules of the City of New York] § 4-02 (d) (1)(v) provided that VTL § 1103 applies “to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” and that “such persons are not relieved from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions of this subparagraph protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others” (34 RCNY § 4-02 [d] [1] [iv]).

In Riley [95 NY2d 455], this Court held that the unambiguous language of VTL § 1103 (b), as further supported by its legislative history, made clear that the statute exempts from the rules of the road all vehicles, including sanitation sweepers, which are “actually engaged in work on a highway” (95 NY2d at 460), and imposes on such vehicles a recklessness standard of care (see id. at 466). The Court further concluded that liability under that standard is established upon a showing that the covered vehicle’s operator “‘has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id. at 466… ). Deleon v New York City Sanitation Dept., 2015 NY Slip Op 04788, CtApp 6-9-15

 

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County Was Not Responsible for the Day to Day Operation of Community College and Did Not Own the Dormitory Where Plaintiff’s Decedent Suffered Cardiac Arrest and Died—County Owed No Duty of Care to Plaintiff’s Decedent

Plaintiff’s decedent died of cardiac arrest in a Sullivan County Community College (SCCC) dormitory.  Plaintiff sued the county, alleging the dormitory should have been equipped with a defibrillator and/or should have had an emergency medical response plan in effect.  The Court of Appeals determined the complaint against the county was properly dismissed.  Although the county was the “sponsor” of the community college, it did not own the dormitory and did not manage the day-to-day operation of the community college, which was handled by the board of trustees (Education Law 6306):

While the County exercises significant influence and control over SCCC’s finances, only the College’s board of trustees is authorized to manage SCCC’s facilities; therefore, it alone is charged with the duty of care … . And here, the County additionally established that it did not even own the dormitory where decedent’s accident occurred … . Branch v County of Sullivan, 2015 NY Slip Op 04756, CtApp 6-9-15

 

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There Is No Cause of Action for “Negligent Handling” of a Dog in New York

The Court of Appeals, in a memorandum decision addressing two dog-related personal injury cases, with two concurring opinions, and over three dissenting opinions, kept New York law as it was with respect to the available causes of action for injuries caused by dogs. Negligence theories are not available, and a strict liability theory requires proof the dog-owners were aware of the dog’s propensity to cause injury. In one case (Doerr v Goldsmith) the dog was called by one of its owners and ran across a bike path where plaintiff, a bicyclist, struck the dog and was injured.  In the other case (Dobinski v Lockhart), dogs were let out of the owners’ house and ran into the road where plaintiff-bicyclist struck one of the dogs and was injured. The court kept the existing distinction between domestic pets and farm animals.  The owner of a farm animal which wanders off the farm and causes injury may be liable for negligently allowing the farm animal to escape.  The same theory of owner-negligence was not extended to domestic animals (dogs here). The dog owners who allowed their dog to run across a bike path in response to a command could not be held liable for negligence in handling the dog.  And the dog owners whose dogs ran into the road after being let outside could not be liable for negligently handling the dogs and could not held strictly liable in the absence of proof they were aware of the dogs’ relevant propensity:

Under the circumstances of these cases and in light of the arguments advanced by the parties, Bard v Jahnke (6 NY3d 592 [2006]) constrains us to reject plaintiffs’ negligence causes of action against defendants arising from injuries caused by defendants’ dogs … . We decline to overrule our recently reaffirmed precedent (see Bloomer, 21 NY3d at 918; Petrone, 12 NY3d at 547-555). Furthermore, our holding in Hastings v Sauve (21 NY3d 122 [2013]) does not allow plaintiffs to recover based on defendants’ purported negligence in the handling of their dogs, which were not domestic farm animals subject to an owner’s duty to prevent such animals from wandering unsupervised off the farm (see Hastings, 21 NY3d at 124-126).

[In Dobinski v Lockhart] the Appellate Division properly granted summary judgment to defendants with respect to plaintiff’s strict liability cause of action. Defendants carried their initial burden on summary judgment of establishing that they did not know of any vicious propensities on the part of their dogs. In response, plaintiff failed to demonstrate the existence of a triable issue of fact as to whether defendants had notice of the animals’ harmful proclivities, and consequently, defendants were entitled to summary judgment on plaintiff’s strict liability claim … . Doerr v Goldsmith, 2015 NY Slip Op 04752, CtApp 6-9-15

 

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Allegations Supported the Existence of an “Implied Physician-Patient Relationship” Giving Rise to a Duty Owed to Plaintiff by the On-Call Surgeon—The On-Call Surgeon Was Notified of Plaintiff’s Facial Lacerations But Told Hospital Personnel (by Phone) His Services Were Not Required to Treat the Plaintiff—Plaintiff Alleged Suturing by a Physician’s Assistant Resulted in Excess Pain and Scarring

Plaintiff alleged that the defendant on-call plastic surgeon should have treated infant plaintiff whose facial lacerations were sutured by a physician’s assistant (resulting in excess pain and scarring). The defendant on-call plastic surgeon, after being notified of plaintiff’s condition by phone, informed hospital personnel his services were not needed to treat the plaintiff. The surgeon brought a motion to dismiss for failure to state a cause of action, and a motion for summary judgment, on the ground that he did not treat the plaintiff and, therefore, there existed no physician-patient relationship giving rise to a duty on his part.  The Second Department, after explaining the criteria for both types of motions, determined the motions were properly denied. Although the surgeon did not treat the plaintiff, a question was raised whether an “implied physician-patient relationship” existed by virtue of the surgeon’s communication with hospital personnel indicating his services were not needed for the plaintiff’s wounds:

“In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . ” A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)'” … . “If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'” … . In a case where a defendant has submitted evidentiary material in support of a motion to dismiss pursuant to CPLR 3211(a)(7), the motion must be denied ” unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'” … .

Summary judgment, in contrast to a motion to dismiss, is designed to expedite civil cases by eliminating claims which can properly be resolved as a matter of law … . It is a drastic remedy which “should only be employed when there is no doubt as to the absence of triable issues” … . On a motion for summary judgment, the party seeking judgment as a matter of law has the burden of tendering evidentiary proof in a form admissible at trial to show the absence of triable issues of fact … . The failure to eliminate all material issues of fact results in the denial of the motion, regardless of the sufficiency of the opposing papers … .

In support of his motion, the defendant argued that no physician-patient relationship existed that gave rise to any duty, as he did not examine or treat the infant plaintiff and did not dispense any medical advice on which anyone relied. Certainly, for there to be a cause of action sounding in medical malpractice, a physician-patient relationship must exist that gives rise to a duty of care …, and the absence of such a relationship precludes the cause of action … .

The physician-patient relationship is typically created when “professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment” … . However, the law also recognizes circumstances where the existence of a physician-patient relationship is implied by circumstances. “An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional” … .

The Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him. The defendant, in his role as the on-call plastic surgeon for Southside Hospital, allegedly made a medical determination over the phone that the infant plaintiff’s facial laceration was not an emergency requiring his expertise as a board-certified plastic surgeon. The defendant’s determination allegedly resulted in the suturing of the wound, without sedation, by a physician’s assistant, beyond the time frame that was medically advisable and which resulted in scarring. Pizzo-Juliano v Southside Hosp., 2015 NY Slip Op 04626, 2nd Dept 6-5-3-15

 

Knowledge that Water Will Be Tracked In Is Not Constructive Knowledge of a Dangerous Condition—Property Owner Is Not Required to Cover All of the Floor with Mats or Continuously Mop Up Tracked-In Rain

In reversing Supreme Court and granting summary judgment to the defendant, the Second Department noted that knowledge that water might be tracked in when it rains was not sufficient to demonstrate constructive knowledge of a dangerous condition:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the allegedly dangerous condition of accumulated water on the floor upon which the plaintiff slipped and fell, or have actual or constructive notice of the condition … . In opposition, the plaintiff failed to raise a triable issue of fact. The defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from tracked-in rain … . Moreover, “[a]; general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition” … . Sarandrea v St Charles School, 2014 NY Slip Op 03999, 2nd Dept 6-4-14

 

School Not Liable for Three-Year-Old’s Failure to Get Off the Bus After Arrival at the School—Child Had Not Yet Entered the Orbit of the School’s Authority—Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It

The Second Department reversed Supreme Court and dismissed the complaint against a private school.  The infant plaintiff, a three-year-old with special needs, was left on the bus which transported him to school for six hours.  The Second Department determined the child had not yet entered the “orbit of” the school’s authority.  In addition, although the school voluntarily undertook to determine the whereabouts of absent children, there was no showing the child’s parents were aware of the policy:

A school’s duty to its students is dependent on its physical custody of those students (see Stephenson v City of New York, 19 NY3d 1031, 1033). Custody ceases when the student has passed out of the “orbit of” the school’s “authority” … . Here, it is undisputed that Nicholas never passed into the physical custody of the school, as he never left the bus. * * *

Voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if “the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably”… . In order for a party to be negligent in the performance of an assumed duty, however, the plaintiff must have known of and detrimentally relied upon the defendant’s performance, or the defendant’s actions must have increased the risk of harm to the plaintiff … . Arroyo v We Transp Inc, 2014 NY Slip Op 03965, 2nd Dept 6-4-14

 

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