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Criteria for Amendment of Notice of Claim and Serving a Late Notice of Claim Explained (Not Met Here)

The Second Department determined plaintiff’s motion to amend his notice of claim and has motion to serve a late notice of claim were properly denied.  The criteria for both motions were explained:

A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim ,,, . The proposed amendments to the notice of claim added events that were not described in the original notice of claim and asserted a new claim relating to the operator of the bus … . Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . …

Among the factors to be considered in determining whether to extend the time to serve a notice of claim are (1), in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose or a reasonable time thereafter, (2) whether the claimant demonstrated a reasonable excuse for the delay in serving the notice of claim, (3) whether the claimant was an infant, or mentally or physically incapacitated, and (4) whether the delay substantially prejudiced the public corporation in defending on the merits … .

The plaintiff failed to submit evidence establishing that the Transit Authority had actual knowledge of the new facts within 90 days of the incident or a reasonable time thereafter. Priant v New York City Tr. Auth., 2015 NY Slip Op 01933, 2nd Dept 3-11-15

 

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Questions of Fact Existed Re: Whether Plaintiffs Were Entitled to Rely on Defendant’s Assurances Dog Was Not Aggressive

Plaintiff was seriously injured by a dog procured from defendant after defendant had assured plaintiffs the dog (Brutus) was not aggressive. The Third Department determined plaintiffs were entitled to rely on defendant’s assurances, in spite of three minor biting incidents when the dog was in plaintiffs’ possession:

Defendants argue that because Brutus bit plaintiffs three times prior to the attack that is the subject of the complaint, plaintiffs could not have reasonably relied on defendants’ representations as to the dog’s behavior and cannot state a claim for fraudulent or negligent misrepresentation. Defendants also argue that those causes of action must fail because plaintiffs could have learned of Brutus’ aggressive nature with due diligence. We are not persuaded. In order to establish their claims for negligent and fraudulent misrepresentation, plaintiffs must demonstrate that they justifiably relied on defendants’ misrepresentations … . Here, plaintiffs allege that they would not have adopted Brutus if they had been told the truth regarding his prior owner’s reason for turning him over to the Center. Plaintiffs also allege that, after the three biting incidents, they sought the assistance of trainers to deal with what they perceived as a minor issue. Plaintiffs, who have experience owning and training animals, note that the three prior bites did not break the skin and were far different from the aggressive nature of the later attack. Plaintiffs only learned about Brutus’ prior history when they were able to track down the prior owner by posting flyers and they submitted affidavits from the prior owner and her friend regarding their experiences with Brutus and their intent to have him euthanized when they took him to the Center. Under these circumstances, issues of fact exist as to whether plaintiffs reasonably relied on defendants’ misrepresentation and whether plaintiffs could have discovered Brutus’ dangerous nature with due diligence … . Lawrence v North Country Animal Control Ctr., Inc., 2015 NY Slip Op 01846, 3rd Dept 3-5-15

 

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Negligent Highway Design Not Demonstrated/Plaintiff’s Amnesia Did Not Excuse Submission of Proof of Proximate Cause

The Third Department determined summary judgment was properly awarded to county in case alleging negligent highway design.  Plaintiff’s vehicle left the roadway and went down an embankment, incurring traumatic brain injury resulting in amnesia re: the accident.  The complaint alleged there should have been a guide rail where plaintiff’s vehicle left the road.  However, there was a twenty-foot wide flat area between the edge of the road and the embankment. The court noted that the plaintiff’s amnesia did not excuse her from submitting proof of proximate cause:

“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” … . While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident … . Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident. * * *

Plaintiff’s amnesia as to the cause of the accident does not excuse her from submitting prima facie proof of proximate cause. In a proper case, an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of events … . However, that doctrine is inapplicable where, as here, the defendant has no greater access to the underlying facts than the amnesiac plaintiff … . Moreover, even when the doctrine applies, the burden remains on the amnesiac plaintiff to present prima facie proof of the defendant’s negligence to permit a jury to base its verdict on evidence rather than speculation … . This burden may not be satisfied by “inferences as to causation which are based solely upon speculation” … . As plaintiffs neither made an evidentiary showing that defendant breached its duty to construct and maintain the road in a safe condition nor that such a breach proximately caused the accident, summary judgment was properly granted to defendant on the ground that plaintiffs failed to establish a cause of action for negligent highway design.  Lindquist v County of Schoharie, 2015 NY Slip Op 01852, 3rd Dept 3-5-15

 

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Criteria for Negligent Highway Design Explained—Qualified Immunity Is Part of the Analysis of Liability

The Third Department explained the analytical criteria associated with allegations of negligent highway design, including qualified immunity. Here it was alleged that a rock outcropping obscured on-coming traffic and the measures taken by the state to reduce the hazard were inadequate.  The case was dismissed because the plaintiff was unable to demonstrate the highway-design problems constituted the proximate cause of the collision:

“[I]n the field of traffic design engineering, [defendant] is accorded a qualified immunity from liability arising out of a highway planning decision. . . . Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan. Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . If defendant’s response to an identified hazard is unreasonably delayed, defendant must demonstrate either that the delay “was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding” … .

Although the parties continue to debate whether, consistent with the foregoing principles, defendant’s response to the acknowledged hazard was adequate and, further, whether the documented delay in cutting back the offending outcropping was unreasonable, these issues need not detain us. Assuming, without deciding, that defendant’s efforts in this regard indeed were inadequate and/or unreasonably delayed, thereby establishing that defendant was negligent, claimant failed to demonstrate that such negligence was the proximate cause of decedent’s accident. Graff v State of New York, 2015 NY Slip Op 01847, 3rd Dept 3-5-15

 

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Failure to Provide Personal Ropes to Firefighters Is a Proper Basis for a General Municipal Law 205-a Claim

The First Department determined the alleged violation of Labor Law 27-a(3)(a)(1)  was sufficient to support an action by firefighters against the City pursuant to General Municipal Law 205-a.  Firefighters were injured and killed jumping from a building without personal ropes. The failure to provide personal ropes is the basis of the suit.  Governmental immunity did not bar the suit:

The City unavailingly contends that Labor Law § 27-a(3)(a)(1) cannot provide a valid predicate for any General Municipal Law § 205-a claim. However, the statute, known as the Public Employee Safety and Health Act (PESHA), which imposes a general duty on an employer to provide employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees” (Labor Law § 27-a[3][a][1]), is sufficient since it is ” a well-developed body of law and regulation that imposes clear duties'” … .

Moreover, the City failed to “show that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff’s injuries” … . There is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters. The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes “actually resulted from discretionary decision-making — i.e., the exercise of reasoned judgment which could typically produce different acceptable results” … . Stolowski v 234 E 178th St LLC, 2015 NY Slip Op 01732, 1st Dept 3-3-15

 

Summary-Judgment Proof Requirements for a Defendant in a Slip and Fall Case Explained (Again)–Not Met Here

The Second Department, reversing Supreme Court, again stated the summary-judgment proof requirements for a defendant in a slip and fall case:

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition … . To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it … . To meet its burden on the issue of constructive notice, a defendant “must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice … . Arcabascia v We”re Assoc Inc, 2015 NY Slip Op 01595, 2nd Dept 2-25-15

 

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Speculation About Cause of Fall Required Summary Judgment In Favor of Defendant

The Second Department determined defendant was entitled to summary judgment in a slip and fall case.  The plaintiff testified he did not know what caused him to fall.  The testimony of a witness about tree roots in the area of the fall did not establish that plaintiff tripped on the roots:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” … .

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by establishing, through the submission of the plaintiff’s deposition testimony, that the plaintiff could not identify the cause of his fall without engaging in speculation. …

Contrary to the Supreme Court’s determination, the plaintiff failed to raise a triable issue of fact in opposition. The affidavit of Angelo Mamone, who was walking alongside the plaintiff when he fell, did not raise a triable issue of fact, since Mamone did not aver that he observed the plaintiff trip, but only observed that there were tree roots in the path where the plaintiff fell. His conclusion that tree roots were the cause of the fall was speculative. Moreover, the portion of a police report relied upon by the plaintiff contained inadmissible hearsay and, thus, was insufficient to raise a triable issue of fact … . Goldberg v Village of Mount Kisco, 205 NY Slip Op 01608, 2nd Dept 2-25-15

 

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Proof of the Cause of Plaintiff’s Slip and Fall Need Not Be Based Upon Plaintiff’s Personal Knowledge

Although proof the cause of a slip and fall cannot be based on speculation, the Second Department noted the proof of the cause need not be based upon plaintiff’s personal knowledge:

A defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall … . If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation … . “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff’s inability to establish the cause of his or [her] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence” … .  Pol v Gjonbalaj, 2015 NY Slip Op 01625, 2nd Dept 2-25-15

 

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Circumstances Under Which NYC Residential Property-Owner May Be Liable for a Sidewalk Slip and Fall Based Upon Efforts to Remove Snow Explained (No Liability Here)—No Liability for Incomplete Snow Removal

In finding that the property-owner (Gonzales) was not liable for an ice/snow slip and fall on the sidewalk abutting the partially owner-occupied three-family residence, the Second Department explained the circumstances under which such a property-owner’s snow-removal efforts might lead to liability, noting that there would be no liability for incomplete snow removal:

The plaintiff allegedly slipped and fell on a sidewalk abutting a three-family house owned by the defendant Maria Fe Gonzales. Since the subject premises were partially owner-occupied and used exclusively for residential purposes, Gonzales was exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for negligent failure to remove snow and ice from the sidewalk … . Thus, Gonzales may be held liable for a hazardous snow and ice condition on the sidewalk only if she undertook snow and ice removal efforts that made the naturally occurring condition more hazardous or caused the defect to occur because of a special use … . Unless one of these factors is present, Gonzales, an abutting owner of a three-family residence, may not be held liable for the removal of snow and ice in an incomplete manner … . Mullaney v City of New York, 2015 NY Slip Op 01519, 2nd Dept 2-25-15

 

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School Failed to Demonstrate Assault on Student Was Unforeseeable—Summary Judgment Properly Denied

The Second Department determined the defendant school district was not entitled to summary judgment because it failed to demonstrate the alleged assault on another student was unforeseeable:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated … .

Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident … . Cruz v Brentwood Union Free Sch Dist, 2015 NY Slip Op 01604, 2nd Dept 2-25-15

 

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