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Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

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Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants

The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action.  The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require “good tissue support:”

Plaintiff … failed to rebut defendants’ showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information … disclosed to her … .

There is no basis in the law for the dissent’s conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer’s representative in response to her general query. The dissent mistakenly equates that representative’s conclusory email with a product’s written manufacturer warning or a consulting doctor’s opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14

 

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Res Ipsa Locquitur Doctrine Not Available Where Multiple Defendants Did Not Have Concurrent Control Over the Alleged Malpractice, i.e., Leaving Surgical Packing in the Wound

The Second Department determined the hospital defendants and the defendant rehabilitation facility (Parker) were entitled to summary judgment in a case where surgical packing was left in the wound.  The surgeon was not an employee of the hospital and there were no allegations hospital staff negligently followed the surgeons instructions.  The court explained why the doctrine of res ipsa loquitur did not apply to the hospital defendants and the defendant rehabilitation facility:

The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden of proving which defendant had been negligent and when. Although res ipsa loquitur may be utilized where more than one defendant may have been in control …, the responsible defendants must share exclusive control of the instrumentality causing injury. Here, neither the hospital defendants nor Parker were acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment here was performed by different entities at different times in different locations. This is not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to “explain their actions and conduct in the operating room wherein plaintiff was injured” … . Accordingly, under these circumstances, the plaintiff’s reliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine … . Buesko v Gordon, 2014 NY Slip Op 03969, 2nd Dept 6-4-14

 

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The Amount of Alcohol Consumed by Defendant and the Extent of His Intoxication at the Time of the Vehicle-Accident Evinced “Wanton and Reckless” Conduct Which Supported a Punitive-Damages Award

The Second Department determined the award of punitive damages by the jury was supported by clear and convincing evidence.  Defendant was intoxicated at the time of the vehicle accident.  The fact that defendant was driving while intoxicated would not, standing alone, warrant punitive damages. However, other factors, including defendant’s high blood-alcohol level and his “incoherence” at the time of the accident evinced the requisite “wanton and reckless” conduct:

Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages … . However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others … . Chiara v Dernago, 2015 NY Slip Op 04444, 2nd Dept 5-27-15

 

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Driver of Street Sweeper Which Struck Plaintiff’s Car Entitled to Statutory Immunity

The Third Department determined the driver of a street sweeper was engaged in highway work (re: Vehicle and Traffic Law 1103) at the time the sweeper collided with plaintiff’s vehicle.  Therefore the “reckless disregard for the safety of others” standard of care applied to the sweeper driver. The driver was working on a highway and had to make several passes to clean up spilled gravel.  Because it was a divided highway, the sweeper driver had to make a u-turn and return on the opposite side of highway to make another pass.  The immunity afforded by Vehicle and Traffic Law 1103 applies only when actual work on the highway is being done, not when a worker is driving to or from the work site. The Third Department held that the statutory immunity was available here, even though the accident did not occur as the sweeper was engaged, because the driver was forced to use a circuitous route to complete the assigned task:

With exceptions not applicable here, the safety rules and regulations set forth in the Vehicle and Traffic Law do “not apply to persons . . . while actually engaged in work on a highway nor . . . to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation” (Vehicle and Traffic Law § 1103 [b]…). If the person is “actually engaged” in work or a hazardous operation, the applicable standard of care is “reckless disregard for the safety of others,” but the exception does not apply where the person is traveling to or from the hazardous operation … . Matsch v Chemung County Dept. of Pub. Works, 2015 NY Slip Op 04374, 3rd Dept 5-21-15

 

Question of Fact Whether Movie Theater Breached Its Duty to Protect Patrons from Assault

The Second Department determined defendant movie theater’s motion for summary judgment was properly denied.  Plaintiffs were assaulted at the theater.  Depositions revealed there had been four or five similar incidents at the theater and one of the plaintiffs screamed for help throughout the 15-to-20-minute assault:

A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so … . However, “the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … . Solomon v National Amusements, Inc., 2015 NY Slip Op 04306, 2nd Dept 5-20-15

 

Tractor-Trailer Veered Into Oncoming Lane Striking Bus/Emergency Doctrine Required Dismissal of Complaint Against Bus Company and Driver as a Matter of Law/Lessor of Trailer Protected Against Vicarious Liability by Graves Amendment/Negligent Entrustment Cause of Action Against Lessor of Trailer Dismissed as a Matter of Law (No Special Knowledge Use of Trailer by Lessee Would Render It Unreasonably Dangerous)

A tractor trailer suddenly veered into oncoming traffic and struck a bus owned by one of the defendants, Schoolman.  The Second Department determined the emergency doctrine precluded, as a matter of law, the suit against the bus company and the driver of the bus (Zimmardi). The court also determined the company which leased the trailer, EMH,  was protected from vicarious liability by the Graves Amendment, and was not liable, as a matter of law, under a negligent entrustment theory. The leasing company had no special knowledge of a use of the trailer by the lessee that would render the use of the trailer unreasonably dangerous:

Here, Schoolman established its prima facie entitlement to judgment as a matter of law dismissing the complaints … by demonstrating that its driver, Zimmardi, was faced with an emergency situation not of his own making when the truck suddenly veered into his lane of traffic, and that he acted reasonably in the context of that emergency … . * * *

EMH established its prima facie entitlement to judgment as a matter of law in connection with the vicarious liability causes of action by demonstrating, prima facie, that the Graves Amendment (49 USC § 30106) applied to shield it from liability for the plaintiffs’ injuries by virtue of its status as a commercial lessor of motor vehicles that was free from negligence in maintaining the subject vehicle (see Castillo v Amjack Leasing Corp., 84 AD3d 1297, 1297-1298; Graham v Dunkley, 50 AD3d 55, 57-58). Further, EMH established its prima facie entitlement to judgment as a matter of law dismissing the negligent entrustment causes of action insofar as asserted against it by demonstrating that it did not possess special knowledge concerning a characteristic or condition … that rendered the use of the leased vehicle … unreasonably dangerous … . Pacelli v Intruck Leasing Corp, 2015 NY Slip Op 04292, 2nd Dept 5-20-15

 

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Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained

In finding the legal malpractice complaint properly survived motions to dismiss, the Second Department explained the criteria for a motion to dismiss for failure to state a cause of action where documentary evidence is submitted (question is whether plaintiff has a cause of action, not whether one has been stated, affidavits considered to remedy defects in complaint), the criteria for a motion to dismiss founded on documentary evidence (documents must utterly refute allegations in complaint), the elements of legal malpractice, and the adequacy of damages allegations in a legal malpractice complaint (cannot be conclusory or speculative but plaintiff not obligated to show it actually sustained damages) :

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026…). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … .

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law… .

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained … . A plaintiff must plead “actual[,] ascertainable damages” resulting from the attorney’s negligence … . Conclusory or speculative allegations of damages are insufficient… . However, “[a] plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred” … . Randazzo v Nelson, 2015 NY Slip Op 04299, 2nd Dept 5-20-15

 

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A Police Report of a Vehicle Accident Involving Respondent’s Employee Was Not Sufficient to Alert Respondent to the Facts Underlying Petitioner’s Claim—Petition to File Late Notice of Claim Properly Denied

The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay.  The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent’s employee was involved in the accident, which was not sufficient to establish respondent’s knowledge of the facts of plaintiff’s claim:

For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been “able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation” … . A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim … . The petitioners’ contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit … . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15

 

Question of Fact Whether Embankment Near a Stream Was an “Open and Obvious” Dangerous Condition at 3 a.m.

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants (property owners).  Plaintiff, who had been invited onto the property, fell off an embankment near a stream and fractured his ankle.  Plaintiff was among a group who had gathered around a bonfire in an area which had been used for that purpose by defendants.  The fall took place at 3 a.m.  The Second Department determined there was a question of fact whether the dangerous condition was open and obvious (because it was dark):

“A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . “The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff’s presence on the property” …. “Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain” … .

However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Moreover, the question “of whether a condition is hidden or open and obvious is generally for the finder of fact to determine” …, although, in a proper case, a condition may be found open and obvious as a matter of law. Nonetheless, whether a condition is open and obvious “cannot be divorced from the surrounding circumstances,” and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured … . Barone v Risi, 2015 NY Slip Op 04265, 2nd Dept 5-20-15

 

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