You are here: / Negligence
, ,

The Breach of Contract Cause of Action Which Was Based Upon Clauses Which Merely Stated the Common Law Standard of Care for Professionals Was Duplicative of the Professional Malpractice Cause of Action and Should Have Been Dismissed/Proper Measure of Damages for Negligent/Defective Building Design Is the Cost of Remediation

Plaintiff hospital alleged that the seismic retrofit of one of the hospital buildings would not operate as intended and sued the architectural firm which designed the retrofit under breach of contract and professional malpractice theories.  Plaintiff prevailed on both causes of action in a non-jury trial. The Third Department determined Supreme Court should have dismissed the breach of contract cause of action because it was duplicative of the professional malpractice cause of action. The only relevant clauses in the contract held the architectural firm to the common law standard for professionals.  Breach of those clauses, therefore, duplicated the professional malpractice cause of action. The Third Department affirmed the professional malpractice verdict and the award of damages, 1.7 million, which reflected the cost of remediation:

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . ., nor can it convert a malpractice action into a breach of contract action” … . Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action. * * *

We reject defendant’s contention that plaintiff’s proposed amount of damages constitutes economic waste. The proper measure of damages due to the defective design of a building is the cost to remedy the defect, unless such amount is “grossly and unfairly out of proportion to the good to be attained” by fixing the building … . The defects here were not trivial, but were substantial as to the seismic function of the building, such that plaintiff was entitled to damages in the amount necessary to remediate the defects … . Mary Imogene Bassett Hosp. v Cannon Design, Inc., 2015 NY Slip Op 03016, 3rd Dept 4-9-15

 

, ,

City’s Possession of Property Seized Upon Arrest, But Which Was No Longer Needed by the People in Connection with the Case, Was Held by the City as a Bailee—the Bailment Did Not Originate in a Contractual Relationship—Therefore the One-Year-Ninety-Days General Municipal Law Statute of Limitations, Not the Six-Year Contract Statute of Limitations, Applied—Action Was Time-Barred

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the City was a bailee with respect to its possession of defendant’s computers seized upon defendant’s arrest.  When the district attorney determined the computers were no longer needed in connection with defendant’s case, defendant was told he could pick them up.  When the defendant attempted to do so, he was told the computers had been destroyed.  The defendant then sued the city under a bailment theory.  The suit was timely if the six-year statute of limitations for contract actions applied, but untimely if the one-year-90-days statute of limitations in the General Municipal Law applied.  The court determined that the bailment did not result from a contractual relationship (seizure upon arrest).  Therefore the General Municipal Law statute of limitations for actions against the city alleging negligent damage to property applied and the action was time-barred:

Here, the evidence submitted by the City in support of its motion established, prima facie, that the claim between the parties did not originate by virtue of a contractual relationship. The City took control of the plaintiff’s property only in connection with his arrest. Hence, … it cannot be said that the liability alleged by the plaintiff in the complaint “had its genesis in [a] contractual relationship of the parties” … . “A contract cannot be implied in fact where the facts are inconsistent with its existence” … . While the City’s act of taking possession of the plaintiff’s personal property created a bailment, it has been recognized that a bailment does not necessarily and always arise from a contractual relationship … . Thus, as General Municipal Law § 50-i(1) applies to all causes of action against the City seeking to recover damages for injury to property because of negligence or a wrongful act, and the complaint asserts that the City destroyed the plaintiff’s property, the 1-year-and-90-day statute of limitations, not the 6-year limitations period, applies to this action. Wikiert v City of New York, 2015 NY Slip Op 02960, 2nd Dept 4-8-14

 

, ,

Plaintiff Was Properly Allowed to File a Late Notice of Claim—Criteria Explained

The Second Department determined plaintiff was properly allowed to file a late notice of claim in a medical malpractice action.  Plaintiff’s baby died in utero days after the plaintiff had gone to the hospital complaining of decreased fetal movement and was assured all was well. Plaintiff asked the hospital repeatedly for the autopsy report, beginning shortly after the baby died. The autopsy report was finally provided many months later.  Within a few days of receiving the autopsy report, the plaintiff sought permission to file a late notice of claim. The Second Department noted that the hospital had acquired actual notice of the substance of the claim within 90 days (demonstrated by the medical records), plaintiff’s inability to gain access to the autopsy report was a reasonable excuse for the delay, and the hospital was not prejudiced by the six-month delay because witnesses remained available and there was no showing memories had faded:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e[5]..). “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” … . “A petition for leave to serve a late notice of claim is addressed to the sound discretion of the court” … . * * *

…[T]he petitioner made a sufficient showing that HHC had actual knowledge of the essential facts constituting her claims within 90 days of accrual or within a reasonable time thereafter. “In medical malpractice cases, when the medical records themselves contain facts that detail both the procedures used and the claimant’s injuries, and suggest that the relevant public corporation may be responsible for those injuries, the public corporation will be held to have had actual knowledge of the essential facts constituting the claim” … . The Supreme Court noted that the petition would have been stronger had she submitted an expert affirmation in support of it, but the court nonetheless concluded that the basic facts underlying the malpractice claims could be gleaned from the petitioner’s medical records. We agree. Matter of Rojas v New York City Health & Hosps. Corp., 2015 NY Slip Op 02975, 2nd Dept 4-8-15

 

, ,

Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs’ son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor’s propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs’ son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a “respondeat superior” theory would be possible:

Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable … .

Contrary to the Supreme Court’s determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor’s] propensity to engage in the misconduct alleged. ***

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs’ second cause of action insofar as it alleged negligent supervision and training of [the monitor]. A necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury … . * * *

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training”.  … [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

, ,

Cause of Action Based Upon Limited Sight Condition (Line of Sight Blocked by Tree) Should Have Been Dismissed—No Written Notice of the Condition/Cause of Action Based Upon Allegations the Town Created the Dangerous Intersection by the Painting of Roadway Lines and the Absence of a Traffic Control Device Not Subject to the Written Notice Requirement/Because There Was No Study of the Intersection, the Town Could Not Demonstrate Its Entitlement to Qualified Immunity

The plaintiff was injured in a motor vehicle accident at an intersection.  The plaintiff sued the town alleging that an evergreen tree created a limited sight condition, and further alleging the painting of roadway lines and the absence of a traffic control device created a dangerous condition.  The Second Department determined the “limited sight condition” cause of action against the town should have been dismissed because there was no showing the town had written notice of the problem.  The cause of action based upon the roadway lines and the absence of a traffic control device properly survived dismissal because the written notice requirement does not apply to dangerous conditions alleged to have been created by the municipality.  The court further held that the town’s “qualified immunity” defense was not demonstrated because there was no showing the town relied upon the results of a study addressing the conditions at the intersection… :

Supreme Court properly denied that branch of the Town’s motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection. The prior written notice provision of the Town Code does not apply to a claim that a municipality allegedly created a defect or hazard through an affirmative act of negligence …, such as the Town’s allegedly negligent act of painting certain street lines, or to a claim that the municipality failed to provide appropriate traffic control devices at an intersection … .

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision” … . “However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which entertained and passed on the very same question of risk” … . Here, the evidence presented by the Town failed to establish that it undertook a study which entertained and passed on the question of risk that is at issue in this case … . Poveromo v Town of Cortlandt, 2015 NY Slip Op 02950, 2nd Dept 4-8-15

 

Pre-Discovery Motion for Summary Judgment Should Have Been Granted—Defendant Bus Driver’s Affidavit Explained the Collision Was the Result of His Reaction to an Emergency and Plaintiff Submitted No Alternate Factual Account

The First Department, over a dissent, determined that pre-discovery summary judgment dismissing the complaint against the Metropolitan Transportation Authority (MTA) (stemming from a bus-car collision) should have been granted.  The bus driver’s affidavit stated that when a van suddenly jumped a guard rail and entered his lane of travel, he veered to the left to avoid the van and collided with the vehicle in which plaintiff, who was asleep, was riding. Even though the MTA’s motion was made before the bus driver had been deposed, summary judgment, applying the emergency doctrine, was deemed appropriate because plaintiff submitted no alternate factual account:

The emergency doctrine applies in situations where an actor is confronted with a sudden or unexpected circumstance, not of the actor’s own making, that leaves little or no time for thought, deliberation, or consideration to weigh alternative courses of conduct … . The existence of an emergency and the reasonableness of a party’s response to it ordinarily present questions of fact warranting the denial of summary judgment … . Where, however, a driver presents sufficient evidence that he or she did not contribute to the creation of the emergency situation, that his or her actions were reasonable under the circumstances, and that there is otherwise no opposing evidentiary showing sufficient to raise a legitimate question of fact, summary judgment may be granted … . Speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency is not sufficient to defeat summary judgment … . Green v Metropolitan Transp. Auth. Bus Co., 2015 NY Slip Op 02897, 1st Dept 4-7-15

 

,

Summary Judgment Properly Granted to Hospital—Criteria for Hospital Liability for Treatment by a Non-Employee Explained

The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor’s orders:

…[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency … . Put differently, a hospital may be liable “where the hospital’s words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital” … . As the proponent of summary judgment, AOMC “bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally” … . Here, AOMC’s Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart’s care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC’s employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency … .

We further find no basis for the infant’s claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability “when its professional staff follows the orders of private physicians selected by the patient” … . An exception to this general rule exists “where the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Here, AOMC met its burden through the submission of an affirmation by … an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15

 

, ,

Plaintiff Properly Relied on the Doctrine of Res Ipsa Loquitur to Survive Summary Judgment

The Third Department determined plaintiff had raised a question of fact under the doctrine of res ipsa loquitur.  After shoulder surgery plaintiff experienced numbness and was unable to flex his index finger and thumb.  There was general agreement the injury was the result of specified nerve damage but either the anesthesia-procedure or the surgery could have caused it. The Third Department noted that plaintiff’s expert could not be deemed unqualified as to one of treating physicians simply because he was not a specialist in the same field as that treating physician:

“Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” … . “Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitor a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . Elements of res ipsa loquitur are: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Frank v Smith, 2015 NY Slip Op 02827, 3rd Dept 4-2-15

 

,

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

 

,

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

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy