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Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement

The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:

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 … . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … .

Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition … . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15

 

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Written Notice Prerequisite to Suit Against County Did Not Apply to Plaintiff’s Being Struck by a Traffic Signal Cable While Walking on a Sidewalk

The Second Department determined the written notice requirement for liability did not apply.  Plaintiff alleged she felt an electric shock and was struck by an cable as a nearby traffic signal was being worked on:

…[T]he plaintiff was not required to show that they received prior written notice of the alleged condition pursuant to Nassau County Administrative Code § 12-4.0(e). This provision requires prior written notice of any defective or dangerous “sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter.” Here, the condition that allegedly caused the injury is an electrical condition involving a traffic signal, or a traffic signal box and related cable. The subject Nassau County Administrative Code provision does not require prior written notice of that condition … . Moreno v County of Nassau, 2015 NY Slip Op 02736, 2nd Dept 4-1-15

 

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City Properly Held Liable for Failure to Address Excessive Speeding on Road Where Infant Plaintiff Was Struck—A Proprietary, Not a Governmental, Function Was Involved—The Doctrine of Qualified Immunity Did Not Apply Under the Facts

In upholding the jury’s finding the city liable for not addressing excessive speeding on the road where infant plaintiff was struck by a car and seriously injured, the Second Department explained the city’s liability for proprietary versus governmental functions and the inapplicability of the qualified immunity doctrine:

When a negligence cause of action is asserted against a municipality, the court must first decide whether the municipal entity was engaged in a proprietary function or was acting in a governmental capacity at the time the claim arose … . If the municipality’s activities are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties … . By contrast, if the municipality was exercising a nondiscretionary governmental function, it will not be held liable unless it owed a “special duty” to the injured party … .

Here, the plaintiffs alleged, among other things, that the City was negligent in that it received numerous complaints that vehicles were speeding and racing along the entire length of Gerritsen Avenue, but completely failed to conduct a proper and adequate study of this speeding problem, and failed to implement a reasonable plan to control or resolve the dangerous condition presented on the roadway. Since a municipality’s duty to keep its roads and highways in a reasonably safe condition is proprietary in nature …, the City’s contention that it cannot be held liable under the plaintiffs’ theory absent the existence of a “special duty” to the infant plaintiff must be rejected … .

The City’s argument that the causes of action asserted against it must be dismissed because it is entitled to immunity is also without merit. In the field of traffic design engineering, a municipality is accorded qualified immunity from liability arising out of its highway planning decisions … . The doctrine of qualified immunity, however, will only apply where the municipality has conducted a study which ” entertained and passed on the very same question of risk'” … as was alleged by the plaintiff. Indeed, a municipality may be held liable if, “after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition” … . Moreover, after a municipality implements a traffic plan, “it is under a continuing duty to review its plan in the light of its actual operation'” … . * * *

Considering the testimony and documentary evidence presented, there was a rational process by which the jury could have found that the City had notice that excessive speeding along the length of Gerritsen Avenue created a dangerous condition and that the City failed, in response to the complaints it received, to conduct a study which ” entertained and passed on [this] very same question of risk'” … posed by excessive speeding along Gerritsen Avenue. As such, the doctrine of qualified immunity does not apply … . Turturro v City of New York, 2015 NY Slip Op 02754, 2nd Dept 4-1-15

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Defect Properly Deemed Trivial as a Matter of Law

The Second Department determined a 1/2 inch depression was properly deemed trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial as a matter of law, 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” … .

* * * The evidence submitted by the moving parties—including the plaintiff’s testimony describing the depression in the asphalt abutting the metal plate as being one-half inch deep—established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable… . Palladino v City of New York, 2015 NY Slip Op 02737, 2nd Dept 4-1-15

 

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Town Failed to Show Routine Inspection of Sewer System—Summary Judgment in Sewer-Backup Case Properly Denied

The Second Department determined the town was not entitled to summary judgment in a case alleging the failure to maintain the town’s sewer system.  The court explained the relevant analytical criteria:

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” … . However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature”… . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no ” notice of a dangerous condition,'” and that “it regularly inspected and maintained the subject sewer line” … .

Here, the defendant Town …, failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines … . The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs’ residence … . Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 2015 NY Slip Op 02719, 2nd Dept 4-1-15

 

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Plaintiff’s Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff’s Entire Medical History

The Fourth Department determined plaintiff’s allegations of injuries in the bill of particulars was not so broad as to place plaintiff’s entire medical history in controversy:

In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy” … . Indeed, that waiver ” does not permit wholesale discovery of information regarding [plaintiff’s] physical and mental condition’ ” … . Contrary to defendants’ contention, the allegations in the bill of particulars that plaintiff sustained “serious and permanent injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants; loss of enjoyment of life; disability; and pain and suffering” “do not constitute such broad allegations of injury’ that they place plaintiff’s entire medical history in controversy” … . The court properly conducted an in camera review to redact irrelevant information …, and properly limited disclosure to the “conditions affirmatively placed in controversy” … . Reading v Fabiano, 2015 NY Slip Op 02634, 4th Dept 3-27-15

 

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Plaintiff, a Pedestrian, Was Injured When a Traffic Sign Struck by a Car Broke Off and Hit Her—County Owed Plaintiff a Duty to Properly Install the Sign—Question of Fact Raised Whether Improper Installation of a “Break Away” Sign Was a Proximate Cause of the Plaintiff’s Injuries

The Fourth Department determined the County had a duty to properly install traffic signs and that duty extended to plaintiff, a pedestrian severely injured when a traffic sign broke off and hit her after the sign post was struck by a car. The court further determined that a question of fact had been raised about whether any negligence in installing the sign was a proximate cause of plaintiff’s injuries:

“The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors” … . “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract … . An exception applies where the contracting party has ” entirely displaced the other party’s duty to maintain the premises safely’ ” … . Here, we conclude that the County’s duty to plaintiff arose from its comprehensive agreement with the City inasmuch as, pursuant to that agreement, the County has entirely displaced the City in fulfilling the City’s duty to be responsible for traffic signs … . Specifically, the County had a duty to properly reinstall the sign in October 1999, including using proper materials, installing the sign’s post at the appropriate depth in the ground on a proper base, and placing the sign at the required distance from the roadway. Moreover, that duty “extend[ed] to noncontracting individuals[, such as nearby pedestrians,] reasonably within the zone and contemplation of the intended [traffic engineering] services” encompassed by the County’s agreement with the City … .

…”[I]t is well settled that there may be more than one proximate cause of [an] accident” … . …[P]laintiff’s … expert raised an issue of fact … . Plaintiff’s expert opined in his opposing affidavit that the County improperly installed a breakaway signpost and that the accident would not have occurred but for that improper installation. Plaintiff’s expert also opined that the County’s negligence in installing the sign was a substantial factor in causing plaintiff’s injuries. Specifically, he opined that, had the sign been properly placed, it would not have struck plaintiff because its placement one foot above the ground created a risk that the sign would become a high-flying projectile if hit, rather than bending or projecting closer to the ground. We conclude that the court properly denied the County’s motion because the submission of conflicting expert opinions “present[ed] issues of credibility to be determined by the trier of fact” … . Honer v McComb, 2015 NY Slip Op 02662, 4th Dept 3-27-15

 

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Despite Broad General Language, the Release Applied Solely to the Property-Damage Claim Referenced In It and Not to Plaintiff’s Personal Injury Action

The Fourth Department determined Supreme Court should not have dismissed a complaint based upon a release signed by the plaintiff. The release related only to the particular property damage claims referenced in the document—despite broad prefatory language:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained in a motor vehicle accident. She had previously commenced an action in Rochester City Court seeking $4,741.04 for property damage to her vehicle. In consideration of that sum, plaintiff signed a release in favor of, inter alia, defendant Zacharey A. Taylor (defendant), releasing him from “all actions, causes of action . . . claims and demands whatsoever” that plaintiff “ever had” against defendant “from the beginning of the world to the day of the date of this RELEASE. And more particularly for any and all property damage claims as a result of [the subject] motor vehicle accident.”

We conclude that Supreme Court erred in granting defendant’s motion to dismiss the complaint against him in the instant action pursuant to CPLR 3211 (a) (5) based upon the release. “The meaning and scope of a release must be determined within the context of the controversy being settled” … , and “a release may not be read to cover matters which the parties did not desire or intend to dispose of” … . “Moreover, it has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . Here, viewing the release in the context of the controversy being settled and in light of the specific reference to plaintiff’s property damage claims, we conclude that the parties intended that plaintiff release only such property damage claims … . Corzatt v Taylor, 2015 NY Slip Op 02621, 4th Dept 3-27-15

 

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Questions of Fact Raised Whether Plaintiff’s Infant-Daughter’s Physical and Mental Deficiencies Were Caused by Inadequate Medical Treatment Prior to and During Birth, Despite Indications Plaintiff’s Daughter Was Born Healthy

The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court and denied defendant’s motion for summary judgment in a medical malpractice case.  The First Department laid out in great detail the plaintiff-mother’s experts’ opinions about the causes of the her infant-daughter’s (Kailen’s) mental and physical deficiencies and determined questions of fact had been raised about the adequacy of medical treatment prior to and during Kailen’s birth, in spite of indications of Kailen’s good health at the time of birth:

A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff’s alleged injuries … . Once a defendant meets that burden, the plaintiff must rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged … .

Generally, “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants” … . To defeat summary judgment, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … .

Here, in opposition to defendant’s motion for summary judgment, plaintiff raised triable issues of fact as to both departure from good and accepted medical practice and causation. * * *

Contrary to defendant’s assertion, plaintiff’s medical evidence was sufficient to defeat summary dismissal of the complaint. Defendant’s argument that plaintiff’s experts failed to rebut its contention that, in the absence of any signs or symptoms of permanent neurological injury at or near the time of Kailen’s birth, there is no medical basis for connecting her current condition with the “circumstances of the labor and delivery,” is unavailing. Dr. Adler’s assertions that brain injuries at the time of birth can be diagnosed based on observations over time contradict defendant’s contention. In addition, a report prepared by Dr. Joseph Carfi, dated March 21, 2012, based on his physical examination of Kailen, and medical records, including those from defendant and the Center for Congenital Disorders, notes that Kailen was diagnosed at the Center for Congenital Disorders on May 23, 1996, when she was five months old, with microcephaly, and mild developmental delay. By 2012, she suffered significant mental retardation with developmental delays and lack of age appropriate personal independence. Her impairments are permanent and preclude her from living alone as an adult. Thus, although Kailen had excellent Apgar scores and otherwise appeared normal at birth, plaintiff nonetheless raised triable issues of fact as to causation … . Anyie B. v Bronx Lebanon Hosp., 2015 NY Slip Op 02576. 1st Dept 3-26-15

 

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Plaintiff’s Motion to Appoint a Temporary Administrator after Defendant’s Death Properly Denied—Relevant Law Explained

In affirming the denial of plaintiff’s motion to appoint a temporary administrator after the defendant in a lead-paint action had died, the Second Department explained the relevant law:

“If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties” (CPLR 1015[a]…). “A motion for substitution may be made by the successors or representatives of a party or by any party” (CPLR 1021…). “Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent” … .

In most instances a personal representative appointed by the Surrogate’s Court should be substituted in the action to represent the decedent’s estate … . However, in the event no such representative exists, an appropriate appointment may be made by the Supreme Court and that individual may be substituted in place of the decedent … . Indeed, “[t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action” … . The determination of whether to exercise its authority to appoint a temporary administrator is committed to the sound discretion of the Supreme Court, and will not be disturbed by this Court so long as the determination does not constitute an improvident exercise of discretion … .

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion, inter alia, to appoint a temporary administrator (see CPLR 1015[a]…). Although in most instances the personal representative of the decedent’s estate should be substituted, here, the plaintiff failed to demonstrate what steps she had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible … . Furthermore, the plaintiff did not contend that this action, which is based on events occurring nearly 20 years ago, was trial-ready … . Under the circumstances presented here, the plaintiff failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice. Lambert v Estren, 2015 NY Slip Op 02454, 2nd Dept 3-25-15

 

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