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Contractual-Indemnification Cross Claim by Building Owners Against the Elevator Maintenance Company Should Not Have Been Dismissed—Relevant Criteria Explained

The Second Department determined the building owners failed to demonstrate they did not have constructive notice of the defect in the elevator door which caused plaintiff’s injury. The denial of the owners’ motion for summary judgment was therefore proper.  Supreme Court erred, however, when it denied defendants’ motion for summary judgment on the owners’ contractual-indemnification cross claim.  The contract with the elevator maintenance company, Dunwell, provided the company would indemnify the building owners for damages that did not arise solely and directly out of the owners’ negligence. Dunwell failed to raise a question of fact about whether the owners had actual knowledge of the defect and whether the injury arose “solely and directly” from the owners’ negligence. With regard to indemnification, the court wrote:

A party’s right to contractual indemnification depends upon the specific language of the relevant contract … . The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances … . Under the full-service elevator maintenance contract at issue here, Dunwell assumed responsibility for the maintenance, repair, inspection, and servicing of the elevators, including the electrical systems or devices that operated the opening and closing of the elevator doors. Dunwell also agreed to indemnify the building defendants for any claim arising out of the performance of its work, regardless of whether it was negligent in its performance, unless the claim arose “solely and directly out of” the building defendants’ negligence. Goodlow v 724 Fifth Ave. Realty, LLC, 2015 NY Slip Op 03501, 1st Dept 4-29-15

 

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Questions of Fact Whether Hospital Liable for Independent Actions of Its Employees Under Respondeat Superior and Negligent Hiring/Retention Theories

In finding that the hospital’s motion for summary judgment in a medical malpractice case was properly denied, the Second Department explained that the hospital can be liable for the independent actions of its own employees, despite the involvement of a non-employee attending physician, under the doctrine of respondeat superior, as well as under a negligent hiring/retention theory.  The court explained the relevant law:

In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for negligent treatment provided by an independent physician, as when the physician is retained by the patient himself … . Thus, “a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” … . A hospital may also be liable on a negligent hiring and/or retention theory to the extent that its employee committed an independent act of negligence outside the scope of employment, where the hospital was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act… .  Seiden v Sonstein, 2015 NY Slip Op 03517, Second Dept 4-29-15

 

 

 

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Labor Law 200/Common-Law Negligence Cause of Action Properly Dismissed—City Demonstrated It Did Not Have the Authority to Supervise and Control the Work—Labor Law 241(6) Cause of Action, However, Should Not Have Been Dismissed—Nondelegable Duty to Provide a Safe Workplace

Plaintiff’s hand was crushed by an excavator as he was in a trench directing the operation of the excavator.  The Second Department determined the city’s motion for summary judgment on the Labor Law 200/common-law negligence, and Labor Law 240(1) causes of action was properly granted.  But the Labor Law 241(6) cause of action, based upon an Industrial Code provision (12 NYCRR 23-9.5(c)) prohibiting close proximity to an excavator, should not have been dismissed. Labor Law 241(6) imposes a nondelegable duty to provide a safe workplace and requires compliance with the Industrial Code. The Labor Law 200/common-law negligence causes of action were defeated by the city’s demonstration that it did not have the authority to control, direct or supervise the method or manner in which the relevant work was performed.  The Labor Law 240(1) cause of action was properly dismissed because the injury was not the result of an elevation-related incident. The court explained the operative principles re: Labor Law 200 and Labor Law 241(6) causes of action:

Labor Law § 200 is a codification of the common-law duty to exercise due care in providing a safe place to work … . Cases involving Labor Law § 200 fall into two broad categories, namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed … .

The instant case did not involve a dangerous or defective premises condition. “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work'” … . However, ” [t]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'” … .

Here, the City defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, asserted against them, by demonstrating that they did not have the authority to control, direct, or supervise the method or manner in which the work was performed. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide a safe workplace to workers, and applies to “all areas in which construction, excavation or demolition work is being performed.” Pursuant to that duty, owners, contractors, and their agents must comply with those provisions of the Industrial Code that set forth specific requirements or standards … . The City defendants contend that, since the injured plaintiff was a member of the “excavating crew,” as that term is employed in 12 NYCRR 23-9.5(c), he was authorized to be within range of the moving excavator bucket … , and they submitted an expert’s affidavit in support of that contention. However, a person authorized pursuant to 12 NYCRR 23-9.5 to operate or be within the range of an excavator’s bucket may, contrary to the City defendants’ contention, still claim the protections provided by 12 NYCRR 23-4.2(k) … . Torres v City of New York, 2015 NY Slip Op 03519, 2nd Dept 4-29-15

 

Evidence of General Cleaning Practices, As Opposed to Evidence When the Area of the Slip and Fall Was Last Inspected and Cleaned, Is Not Sufficient to Demonstrate the Absence of Constructive Notice of the Dangerous Condition

The Second Department determined the lessee’s motion for summary judgment in a slip and fall case was properly denied.  The lessee, Ban Do, was responsible for snow and ice removal in the area of the fall.  In support of its motion for summary judgment, Ban Do presented only evidence of its general cleaning practices and did not specifically demonstrate when the area was last inspected and cleaned. Therefore Ban Do was unable to demonstrate the absence of constructive notice of the icy condition:

Ban Do failed to make a prima facie showing that it lacked constructive notice of the ice condition alleged by the plaintiff. Ban Do failed to present evidence establishing when it had last cleaned or inspected the area of the walkway where the plaintiff slipped and fell, relative to the time of the accident … . The affidavit of Ban Do’s principal established nothing more than Ban Do’s general cleaning practices in relation to the walkway at the rear entrance to its store, which was insufficient to demonstrate that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell … . Sartori v JP Morgan Chase Bank, N.A., 2015 NY Slip Op 03516, 2nd Dept 4-29-15

 

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Despite Absence of Written Notice of the Dangerous Condition, There Was a Question of Fact Whether the Village Created the Dangerous Condition by Its Snow-Removal/Whether the Condition Was Open and Obvious Speaks Only to Comparative Negligence

The Second Department determined there was a question of fact whether the municipality created the dangerous sidewalk-condition by its snow-removal efforts.  The fact that the condition was open and obvious raised only a comparative-fault issue. So, despite the absence of written notice (to the village) of the dangerous condition, Supreme Court properly denied the village’s motion for summary judgment:

Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect or a dangerous condition which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition prior to the occurrence of the subject accident, or an exception to the written notice requirement applies … . “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the snow and ice upon which the infant plaintiff slipped and fell, as required by section 116-1(D) of the Code of the Village of Hempstead. However, the defendant raised a triable issue of fact as to whether the snow and ice condition upon which the infant plaintiff slipped was created by the Village’s snow removal efforts … . Lopez-Calderone v Lang-Viscogliosi, 2015 NY Slip Op 03505, 1st Dept 4-29-15

 

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Although the Town Code Imposes a Duty on Abutting Property Owners to Keep Sidewalks in Good Repair, It Does Not Impose Tort Liability On Abutting Property Owners for a Violation of that Duty

The Second Department determined summary judgment in favor of the town and the abutting property owners in a sidewalk slip and fall case was properly granted.  The property owners, the Schoenfelds, demonstrated they did not create the dangerous condition (a raised sidewalk flag) and did not subject the sidewalk to a “special use.”  The town demonstrated it did not have written notice of the defect. With respect to the potential liability of an abutting property owner, the court explained that, although the town code imposed a duty on property owners to keep abutting sidewalks in good repair, it did not impose tort liability on property owners for a violation of that duty:

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” … . “An abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when the owner or lessee either created the condition or caused the condition to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee and expressly makes the owner or the lessee liable for injuries caused by a breach of that duty” … . Here, in support of their motion, the Schoenfelds demonstrated, prima facie, that they did not make special use of the sidewalk adjacent to their home. The Schoenfelds also demonstrated, prima facie, that they did not negligently create the condition of the raised sidewalk flag through negligent sidewalk repair. Further, while the Code of the Town of Hempstead imposes a duty on, among others, landowners to keep contiguous sidewalks in good and safe repair, it does not impose tort liability upon such parties for injuries caused by a violation of that duty … . Maya v Town of Hempstead, 2015 NY Slip Op 03507, 1st Dept 4-29-15

 

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Plaintiff Was Injured at Work and Again When the Ambulance Taking Him to the Hospital Was Involved in an Accident—Exclusive-Remedy Aspect of Workers’ Compensation Did Not Preclude a Negligence Suit Stemming from the Ambulance Accident

Plaintiff was injured on the job, and was injured again when the ambulance taking him to the hospital was involved in an accident.  The Second Department determined the exclusive-remedy aspect of workers’ compensation did not preclude a negligence action arising out of the ambulance accident:

“In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment” (… see Workers Compensation Law §§ 11, 29[6]). However, even where a plaintiff received workers’ compensation benefits, he or she is not precluded from commencing a separate action based on subsequent negligent conduct to recover damages for injuries causally related to the initial on-the-job injury, but which did not arise out of or in the course of the plaintiff’s employment … .

Here, notwithstanding the plaintiff’s claim for workers’ compensation benefits for the injuries he sustained [at work], he is not precluded from commencing a separate action to recover damages caused by separate injuries that occurred outside the scope of his employment … . Matias v City of New York, 2015 NY Slip Op 03506, 1st Dept 4-29-15

 

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Special Proceedings, Here a Motion to File a Late Notice of Claim, Are Subject to the Same Standards and Rules as Motions for Summary Judgment—Supreme Court Should Not Have Considered New Evidence Presented for the First Time in Reply Papers

In finding that plaintiff’s motion to file a late notice of claim should not have been granted (inadequate excuse for delay, misrepresentations made to the court), the First Department explained that Supreme Court should not have considered matters raised for the first time in petitioner’s reply papers.  The court noted that special proceedings are subject to the same standards and rules as those applied to summary judgment motions:

As a matter of procedure, the motion court erred in entertaining arguments advanced for the first time in petitioners’ reply papers and in accepting their offer of new proof, unnecessarily protracting summary proceedings. As succinctly stated by this Court:

“It is settled that a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment, requiring the court to decide the matter upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'” … .

We further held that where, as here, a petition is unsupported by sufficient evidentiary proof, the petitioning party will not be entitled to remedy those deficiencies …, thereby extending a procedure providing for summary disposition through “unnecessary and unauthorized elaboration” … . We have consistently stated that in proceedings subject to summary determination, no consideration is to be accorded to novel arguments raised in reply papers … . That this Court may, in the exercise of discretion, entertain such arguments upon review … does not endorse the unnecessary extension of summary proceedings. Under these circumstances, it was improvident to excuse petitioners’ deceit and grant their application to serve a late notice of claim. Matter of Gonzalez v City of New York, 2015 NY Slip Op 03467, 1st Dept 4-28-15

 

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All Causes of Action Against a Provider of Clinical Laboratory Services, Which Were Based Upon the Alleged Misreading of a Tissue Sample, Governed by the 2 1/2-Year Medical Malpractice Statute of Limitations

The First Department determined that all the causes of action against Quest, a clinical laboratory which analyzed a Pap smear tissue sample, were subject to the two-and-one-half-year statute of limitations for medical malpractice actions (as opposed to the three-year statute for negligence actions generally).  The complaint alleged Quest negligently misread the tissue sample.  In addition, the complaint alleged regulatory infractions, i.e., no plan for error reduction and failure to adequately implement, maintain or supervise quality assurance.  The court explained the relevant law:

It is settled that a negligent act or omission “that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice” … . Laboratory services, such as Quest’s, performed at the direction of a physician are an integral part of the process of rendering medical treatment … . Accordingly, a claim stemming from the rendition of such services is a medical malpractice claim … .

Plaintiffs however make additional claims that Quest failed to properly employ a plan for error reduction and failed to adequately implement, maintain or supervise quality assurance. These claims cannot be distinguished from allegations of medical malpractice. In applying the statute of limitations, courts must look to the reality or essence of a claim rather than its form … . The critical factor in distinguishing whether conduct may be deemed malpractice or ordinary negligence is the nature of the duty owed to the plaintiff that the defendant allegedly breached … . The additional claims put forth in this case would not be actionable in the absence of the misreading of the tissue sample, the basis of the malpractice claim. All of the regulatory infractions alleged by plaintiffs bear a substantial relationship to the rendition of medical treatment … . Annunziata v Quest Diagnostics Inc., 2015 NY Slip Op 03466, 1st Dept 4-28-15

 

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Failure to Give the “Missing Witness” Jury Instruction Required Reversal of Defense Verdict—Criteria Explained

The Second Department reversed a defense verdict in a slip and fall case. Chinsamy, the owner and operator of the defendant business which abutted the sidewalk where plaintiff slipped and fell, did not testify at trial.  He had given a deposition about his knowledge of the condition of the sidewalk, which was read to the jury by plaintiff’s counsel.  Plaintiff’s request for the missing witness jury instruction should not have been denied.  Plaintiff was entitled to the instruction even though Chinsamy’s deposition testimony was placed in evidence. The court explained the relevant “missing witness charge” criteria:

A missing witness charge “instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. . . The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control’ of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party” … .

Under the circumstances, and considering Chinsamy’s unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff’s request for a missing witness charge … . In this regard, we note that the plaintiff’s use of Chinsamy’s deposition testimony does not constitute a waiver of her right to request a missing witness charge… . Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308, 2nd Dept 4-22-15

 

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