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Battery Cause of Action Based Upon the Complete Absence of Consent or Fraudulently Induced Consent Is Not Duplicative of a Dental Malpractice Allegation—Criteria Explained/Questions of Fact Raised Re: the Deceptive Business Practices Cause of Action—Some of the Criteria Explained

The Fourth Department determined the cause of action for battery was not duplicative of the cause of action for dental malpractice because it was based upon the allegations consent to the procedure was completely absent or was fraudulently induced.  In addition, there were questions of fact re: the deceptive business practices cause of action:

…[T]he cause of action asserting the complete absence of consent and/or fraudulently induced consent for treatment is properly treated as one for battery rather than for dental malpractice, and it is not duplicative of the dental malpractice cause of action … . “It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . The court properly denied that part of the … defendants’ motion with respect to the battery cause of action, inasmuch as they failed to meet their initial burden of establishing that they “did not intentionally engage in offensive bodily contact without plaintiff’s consent”… . …

A cause of action for deceptive business practices under section 349 “requires proof that the defendant engaged in consumer-oriented conduct that was materially deceptive or misleading, causing injury” … . Even assuming, arguendo, that the … defendants met their initial burden by establishing that the underlying transaction was private in nature and the allegedly deceptive acts were not aimed at the public at large …, we conclude that plaintiff’s submissions raised issues of fact concerning whether the … defendants engaged in a scheme to place profits before patient care, which allegedly included fraudulent practices that impacted consumers at large beyond a particular dentist’s treatment of an individual patient … . Matter of Smiles, 2015 NY Slip Op 01362, 4th Dept 2-13-15

 

Criteria for Holding Property Owner Liable for an Assault on the Owner’s Property Succinctly Described

In affirming the dismissal of the complaint against the property owner which alleged liability for an assault which occurred during a party on the property, the Second Department explained the criteria for such liability.  Here there was no showing that the assault was foreseeable or that the property owner had the opportunity to control the conduct of the assailant:

“A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others” … . “This duty arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so” … . Morris v Chase Bank, 2015 NY Slip Op 01249, 2nd Dept 2-11-15

 

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One- and Two- Family Homeowners’ Exemption Precluded Labor Law 240 (1) and 246 (1) Causes of Action/Defendant-Owner’s Failure to Demonstrate He Did Not Create or Have Notice of the Alleged Dangerous Condition Precluded Summary Judgment on the Labor Law 200 and Common-Law Negligence Causes of Action

After finding that the Labor Law 240(1) and 246(1) causes of action were properly dismissed (one- and two-family homeowner exemption), the Second Department determined the summary judgment should not have been granted to the homeowner on the Labor Law 200 and common-law negligence causes of action.  The motion for summary judgment failed to address the allegation the owner created or had notice of the dangerous condition:

The plaintiff alleged that his injuries were caused both by a dangerous condition on the premises and the “means and methods” of construction. Accordingly, in order to be entitled to judgment as a matter of law dismissing those causes of action, Elias was required to address both theories … . Since Elias failed to establish, prima facie, that he neither created nor had actual or constructive notice of a dangerous condition on the premises, that branch of his motion which was for summary judgment dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 insofar as asserted against him should have been denied, without regard to the sufficiency of the plaintiff’s papers submitted in opposition… . Pineda v Elias, 2015 NY Slip Op 01254, 2nd Dept 2-11-15

 

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QUESTIONS OF FACT WHETHER DENTIST WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR AND WHETHER PLAINTIFF GAVE INFORMED CONSENT (THIRD DEPT).

After finding there was a question of fact whether the dentist (Weiss) who treated plaintiff was an employee of defendant-Toothsavers or an independent contractor, the Second Department determined there was a question of fact about whether plaintiff gave informed consent to the procedure:

“The Toothsavers defendants contend that because Weiss was an independent contractor, not an employee, they cannot be vicariously liable for Weiss’s malpractice. The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced or, more importantly, the means used to achieve the results” … . …

“To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Chan v Toothsavers Dental Care Inc, 2015 NY Slip Op 01236, 2nd Dept 2-11-15

 

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Order Granting a Motion In Limine Is Appealable If It Effectively Limits the Presentation of a Legal Theory at Trial

The Fourth Department determined the order granting defendant's motion in limine was appealable because the order limited the theories available for use at trial, not merely the admissibility of evidence (which would not be appealable).  The Fourth Department found that the motion in limine should not have been granted because it effectively precluded plaintiffs from introducing evidence of continuous representation which may have tolled the statute of limitations in this legal malpractice action:

In the order on appeal, the court granted defendants' motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.

We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue … . “Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . This Court has noted, however, that “there is a distinction between an order that limits the admissibility of evidence,' which is not appealable . . . , and one that limits the legal theories of liability to be tried' or the scope of the issues at trial, which is appealable” … . Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial … . Dischiavi v Calli, 2015 NY Slip Op 01116, 4th Dept 2-6-15

 

Question of Fact Whether Fight Which Broke Out at a Youth Hockey Game Was Foreseeable

The Fourth Department, over a dissent, determined there was question of fact whether a fight at a youth hockey game, in which plaintiffs were injured, was foreseeable from the perspective of the Rome Youth Hockey Association (RYHA) which leased part of the facility where the fight broke out:

…[T]here is an issue of fact whether the duty of RYHA to plaintiffs included the duty to protect plaintiffs from Ricci's conduct … . “Foreseeability . . . determines the scope of [a] duty once it is determined to exist” … and, given the hostile environment in the arena before the fight, there is an issue of fact whether RYHA knew or should have known of the likelihood of the fight … . Here, the tensions in the stands built throughout the game such that we conclude that a trier of fact should determine whether RYHA had a duty to intercede and protect plaintiff … . Pink v Ricci, 2015 NY Slip Op 01077, 4th Dept 2-6-15


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Proper Way to Handle an Inconsistent Verdict Explained

The Second Department explained the proper procedure when a verdict is inconsistent (either have the jury reconsider the verdict or order a new trial):

“When a jury’s verdict is internally inconsistent, the trial court must direct either reconsideration by the jury or a new trial” … . Here, the jury’s verdict was internally inconsistent, as the jury attributed 10% of the fault for the plaintiff’s accident to both the plaintiff and [one of the two defendants], despite having found that their negligence was not a substantial factor in causing the accident … . The Supreme Court should have resolved the substantial juror confusion, as demonstrated by the internally inconsistent verdict, by either resubmitting the case to the jury for reconsideration or directing a new trial on the issue of liability (see CPLR 4111[c]…). Kumar v PI Assoc LLC, 2015 NY Slip Op 00849, 2nd Dept 2-4-15

 

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Requirements for Prima Facie Case Based Upon Circumstantial Evidence Explained (Re: Existence of Hazardous Condition)

The Second Department, reversing Supreme Court, determined the defendants were not entitled to summary judgment in a slip and fall case.  The court explained the plaintiff's standard of proof when the existence of a hazardous condition (here a slippery substance on stairs) is demonstrated by circumstantial evidence.  The court noted that a defendant's self-serving affidavit (claiming that nothing was spilled on the stairs) was not sufficient to warrant summary judgment in defendant's favor:

“To prove a prima facie case of negligence in a case based on a hazardous condition, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition” … . “To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'” … . “The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence” … . “Rather, [the plaintiff's] proof must render those other causes sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . “A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency” … . Quiroz v 176 N Main LLC, 2015 NY Slip Op 00863, 2nd Dept 2-4-15


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“Big Apple” Map Provided City with Written Notice of a Tree-Well Defect in a Sidewalk/Notice of Claim Was Sufficient Even Though It Did Not Specifically Mention the Tree-Well Defect

The Second Department determined summary judgment should not have been granted to the city in a tree well/sidewalk slip and fall case.  The “Big Apple map” provided the city with notice of the defect alleged to be the cause of plaintiff's fall.  The notice of claim was sufficient to notify the city of the defect in question, even though the tree well was not specifically mentioned in the notice:

“Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects . . . [of] which its officials have been actually notified exist at a specified location” … . Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City … .  * * *

Here, the Big Apple map provided the City with notice that the subject tree well was unprotected and potentially hazardous. Indeed, the key to the Big Apple map, which has been in the City's possession since 2003, is entitled, in relevant part, “Survey Of Pavement Defects Sufficient To Cause A Hazard.” Moreover, it is the failure to “fence” or place a barrier around the tree well, which is shown on the Big Apple map, that formed the basis of the plaintiff's cause of action. Therefore, the City did not meet its burden of demonstrating, prima facie, that it did not have prior written notice of the alleged defective condition … .

Moreover, the Supreme Court erred in concluding that the plaintiff's notice of claim precluded her from asserting a theory of liability based on the absence of a fence or barrier around the tree well. The purpose of the notice of claim is “[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim” … . Here, the plaintiff's notice of claim alleged a defective condition located adjacent to P.S. 146 on 98th Street, between 158th and 159th Avenues, in Queens. The City does not argue that its investigation of the claim was prejudiced based on the description provided by the plaintiff in the notice of claim … . Nor has it articulated how investigating a defective sidewalk would differ from investigating an unsecured tree well at the same location. Moreover, any discrepancy as to the cause of the plaintiff's fall was remedied by the plaintiff's hearing testimony. Bartels v City of New York, 2015 NY Slip Op 00836, 2nd Dept 2-4-15


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School’s Duty to Supervise the Child Had Ended When the Child Was Struck by a Car Just Outside the School Building/City Is Immune from Liability for Alleged Negligent Traffic Control—No “Special Relationship” with the Child

The Second Department determined the school's duty to supervise plaintiff's child had ended at the time the child was struck by a car outside the school building.  Plaintiff had already taken custody of the child at the time.  In addition, the court determined that the city was immune from liability for the alleged negligent traffic control because no special relationship between the city and the child existed:

A school's duty to supervise the students in its charge arises from its physical custody over them … . The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived .. . For this reason, a school's duty to supervise is generally viewed as being “coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases” … . In support of their motion, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the plaintiff's custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.

… A municipal defendant is immune from liability for negligence claims arising from the performance of its governmental functions … . However, there is a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship' between the municipality and the claimant” …. “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Regulation and control of traffic and public transportation “is the exercise of an unquestioned governmental function” … . Here, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they did not owe the infant a special duty and, in response, the plaintiff failed to raise a triable issue of fact. Giresi v City of New York, 2015 NY Slip Op 00844, 2nd Dept 2-4-15


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