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Supervision of Student Could Not Have Prevented Injury

In finding that the school's duty to supervise was not the proximate cause of the student's injuries, the Second Department explained the relevant law.  Here, the student tripped and fell after stepping on the straps of his book bag as he left the school:

Schools are under a duty to supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . ” Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students'” … . Moreover, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury … . Goldschmidt v City of New York, 2014 NY Slip Op 09103, 2nd Dept 12-31-14


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In an Action Stemming from an Automobile Accident, Having Granted a Default Judgment, Supreme Court Should Not Have Directed Plaintiff to Accept a Late Answer and Allowed Discovery Re: Damages–A Defaulting Defendant Is Not Entitled to Discovery

The Second Department determined Supreme Court, having granted plaintiff's motion for a default judgment on liability in an automobile-accident case, should have also granted plaintiff's motion for an inquest on damages.  Supreme Court should not have ordered plaintiff to accept a late answer and allowed discovery on damages:

Having granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability, the Supreme Court should have directed an inquest on damages. Since serious injury “is decidedly an issue of damages, not liability” …, the plaintiff will be required to present prima facie proof at the inquest that she sustained a serious injury. However, while the defendants are “entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages” …, they may not conduct discovery with respect to the issue of damages, since defaulting defendants forfeit the right to discovery … . Rudra v Friedman, 2014 NY Slip Op 09117, 2nd Dept 12-31-14


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Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described

The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action.” However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records …, provides that a police officer's “personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, “and make a determination as to whether the records are relevant and material in the action before” it, and, upon such a finding “the court shall make those parts of the record found to be relevant and material available to the persons so requesting” (Civil Rights Law § 50-a[3]).

Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed “the reports sought . . . and all documentation annexed thereto” before concluding that there was “relevant and material” information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report … . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein … .

“The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'” … . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14


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Once the Jury Found Defendant’s Negligence Was Not a Substantial Factor in Causing Plaintiff’s Injuries, the Jury Should Not Have Continued to Deliberate, Make Findings of Comparative Negligence and Apportion Damages—Jury’s Continued Deliberations Were Superfluous—New Trial Not Necessary

The First Department determined a new trial was not necessary where the jury went on to assess comparative fault and damages after finding defendant's negligence was not a substantial factor in causing the plaintiff's injuries.  The jury should have stopped deliberating at that point:

The verdict sheet in this personal injury action instructed the jurors to determine (1) whether defendant was negligent, and (2) if so, whether defendant's negligence was a substantial factor in causing plaintiff's injuries. The jurors found that defendant was negligent, but that his negligence was not a substantial factor in causing plaintiff's injury. The verdict sheet instructed that if the jurors answered the second question in the negative, they should cease deliberations and report their verdict. The jurors, however, continued deliberating and determined that plaintiff was also negligent; that plaintiff's negligence was a substantial factor in causing his own injury; that plaintiff was 95% at fault, and defendant was 5% at fault; and that plaintiff was entitled to $200,000 in damages.

This case is controlled by Pavlou v City of New York (21 AD3d 74 [1st Dept 2005], affd 8 NY3d 961 [2007]), a Labor Law case in which the plaintiff was injured due to a damaged crane hoist. In Pavlou, the jurors determined that the City (the owner of the construction site) was negligent under the Industrial Code, but that its negligence was not a substantial factor in causing the plaintiff's injury. The jury also found that the crane manufacturer was not negligent (id. at 75). The verdict sheet instructed that upon making these findings, the jurors were to stop deliberations. The Pavlou jury, however, went on to find the third-party defendant-employer negligent for operating a damaged crane; the jury then apportioned the employer's degree of fault and fixed the amount of damages (id. at 81). This Court held that the plaintiff was not entitled to a new trial as against the City, stating, “[T]he jury should not have apportioned [the employer's] liability . . . or fixed the amount of damages, once it determined that the violation of the Industrial Code was not a proximate cause and that the crane manufacturer was not negligent. The fact that the jury attempted such an award was a superfluous act that does not require a new trial” (id. at 76). The Court of Appeals affirmed (8 NY3d 961 [2007]).

The same reasoning as in Pavlou applies here. Once the jurors determined that defendant's negligence was not a substantial factor or proximate cause (see PJI 2:70, Proximate Cause — In General; see also PJI 2:36) of plaintiff's injuries, they should not have attempted to assess plaintiff's own negligence and to fix damages. That they did so was a superfluous act that [*2]does not require a new trial. Alcantara v Knight, 2014 NY Slip OP 09030, 1st Dept 12-30-14


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Survey Without Surveyor’s Affidavit Insufficient to Support Plaintiff’s Summary Judgment Motion/Inadmissible Evidence (Survey) May Be Considered to Defeat Defendant’s Summary Judgment Motion/Nuisance Cause of Action Dismissed Because Duplicative of Negligence Cause of Action

In an action stemming from the collapse of a retaining wall between the plaintiff’s and defendant’s properties, the First Department noted that a survey map without an affidavit from the surveyor is insufficient to support plaintiff’s motion for summary judgment, but was sufficient to support the denial of defendant’s motion for summary judgment.  The court also noted that where negligence and nuisance causes of action are duplicative, the nuisance action should be dismissed:

… [A] survey alone, without an accompanying affidavit from the surveyor, does not constitute competent evidence of the location of property lines and fences or retaining walls … . Plaintiff has therefore failed to tender sufficient evidence to demonstrate entitlement to a declaratory judgment on its claim brought pursuant to Administrative Code of City of NY § 28-305.1.1.

Defendant met its prima facie burden as cross movant by submission of the affidavit of a land surveyor who inspected and measured the property subsequent to the collapse of the retaining wall in June 2013, and concluded that no portion of the wall had been upon defendant’s property. That plaintiff’s two surveys indicate that the wall was “on [the] line” of both properties, is sufficient, however, to raise a question as to the location of the wall relative to the two properties; we have long held that otherwise inadmissible evidence may be considered to defeat an application for summary judgment … .

… [W]e find that the claim of negligence is expressed throughout plaintiff’s papers, and there is a question of fact as to whether defendant owed a duty of care to plaintiff, if the retaining wall is found to rest on both parties’ premises. The claim of nuisance, based on allegations that defendant’s ongoing refusal to participate in the repairs and maintenance of the retaining wall substantially interferes with plaintiff’s ability to use and enjoy its property, arises solely from plaintiff’s claim of negligence. Where nuisance and negligence elements are “so intertwined as to be practically inseparable,” a plaintiff may recover only once for the harm suffered … . Upon a search of the record, we conclude that the third cause of action, nuisance, should be dismissed as duplicative of the negligence cause of action, although this argument was not previously made or considered … . 70 Pinehurst Avenue LLC v RPN Mgt Co Inc, 2014 NY Slip Op 09029, 1st Dept 12-30-14

 

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Requirements for Common Law Indemnification and Contribution Causes of Action Explained

The Second Department, in the context of a legal malpractice action, explained the requirements for common law indemnification and contribution.  The motions to dismiss at issue were brought by the third-party defendant law firm (M & S) against the third-party plaintiff law firm (Danna).  The Second Department determined Danna's common law indemnification cause of action should have been dismissed because Danna's alleged liability was not purely vicarious and Danna's contribution action properly survived dismissal because Danna alleged M & S's legal malpractice contributed to plaintiff's damages:

“The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious” … . “Thus, a party which has actually participated in the wrongdoing is not entitled to indemnification” … . Here, the plaintiffs' claims against the Danna defendants in the instant legal malpractice action are based upon the Danna defendants' representation of the plaintiffs in an accounting proceeding they commenced in the Superior Court of New Jersey (hereinafter the New Jersey proceeding). * * * …[T]he documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.

As to the contribution cause of action, ” [i]n determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff's damages'” … . ” [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors'” … . “A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney's negligence may have contributed to or aggravated the plaintiff's injuries” … . Contrary to M & S's contentions, the Supreme Court properly denied those branches of its motion which were pursuant to CPLR 3211(a) to dismiss the contribution cause of action in the third-party complaint insofar as asserted against it, since the defendants third-party plaintiffs properly stated a cause of action alleging that M & S's legal malpractice contributed to the plaintiff's damages, and documentary evidence did not conclusively establish a complete defense to that cause of action… . Bivona v Damma & Assoc PC, 2014 NY Slip Op 08947, 2nd Dept 12-24-14

 

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Questions of Fact Raised Re: Whether Plaintiff’s Decedent’s Brother and Plaintiff’s Decedent Were Employees of the Defendants (Who Then May Be Liable Under the Doctrine of Respondeat Superior) or Independent Contractors

The Second Department determined a question of fact had been raised about whether the brother of plaintiff's decedent was defendants' employee or an independent contractor.  Defendants are the owners of a single family home who hired plaintiff's decedent's brother and plaintiff's decedent to cut down a tree on the property. Plaintiff's decedent was killed when he was thrown head-first into a tree during the tree-felling process. Plaintiff's decedent sued defendants under negligence, violation of Labor Law sections 200 and 240, and wrongful death theories.  Plaintiff's decedent sought to hold defendants liable under the doctrine of respondeat superior (as the employer of decedent's brother, who negligently performed his work, causing plaintiff's decedent's death). Plaintiff's decedent and his brother were hired by the defendants at the suggestion of a mason, Cano, who worked for the defendants.  Cano relayed defendants' instructions concerning the tree removal to plaintiff's decedent's brother:

“The general rule is that an employer who hires an independent contractor 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 the means used to achieve the results. Control over the means is the more important consideration” … . Whether a party is an independent contractor or an employee is usually a factual issue for a jury … .

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since the evidence they submitted in support of their motion did not demonstrate the absence of any triable issues of fact … . In support of their motion, the defendants submitted the deposition transcript of the decedent's brother, who testified that the defendant Sean Jencik, in addition to specifying which trees were to be removed, provided instructions as to how the work was to be performed so that the trees would not fall on to the roadway, which were conveyed to him in Spanish through Cano. Moreover, the decedent's brother testified that the defendants gave the money to pay him and the other workers involved with the tree removal to Cano, who then paid them. Sirignano v Jencik, 2014 NY Slip Op 08977, 2nd Dept 12-24-14

 

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Evidence of General Cleaning Practices Is Not Sufficient to Demonstrate the Absence of Constructive Notice

The Second Department noted that the absence of construction notice of a dangerous condition in a slip and fall case cannot be demonstrated by evidence of general cleaning procedures, as opposed to specific evidence when the area in question was inspected and cleaned:

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . With respect to the issue of constructive notice, to meet its initial burden, “the 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” … . Sesina v Joy Lea Realty LLC, 2014 NY Slip OP 08976, 2nd Dept 12-24-14

 

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2 1/2 Year Delay In Correcting Location of the Slip and Fall Described in the Notice of Claim Prejudiced the Defendant/Motion for Leave to File an Amended Notice Properly Denied

The Second Department determined plaintiffs' motion to amend the notice of claim to change the location of the accident (slip and fall on ice and snow) was properly denied. Although the error was not made in bad faith, the 2 1/2 year delay in correcting the error prejudiced the defendant town agency:

Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby … . Here, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the “walkway/pathway” in front of 595 Smith Street, East Farmingdale, rather than the correct location, the “roadway/parking lot” at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation … . The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim … . Torres v Town of Babylon, 2014 NY Slip Op 08901, 2nd Dept 12-24-14

 

Emergency Doctrine Does Not Apply Where Party Invoking It Contributed to the Creation of the Emergency

The Second Department affirmed Supreme Court's ruling that the emergency doctrine did not apply to the defendant (Smith). Defendant crossed over the grassy median from the southbound lane striking plaintiff's vehicle in the northbound lane. Defendant argued that the emergency doctrine applied because defendant's vehicle was struck from behind, causing it to leave its lane of traffic.  The Second Department determined the emergency doctrine did not apply because defendant contributed to the rear-end collision by slowing down without signaling at a time when defendant was aware the vehicle behind was tail-gating:

…[T]he defendants failed to raise a triable issue of fact as to whether the emergency doctrine applied … . The emergency doctrine is not a defense available to the defendants because the emergency condition was partially created by Smith's disregard of existing traffic conditions … . Smith had a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision … . At his deposition, Smith admitted that he was aware that the unidentified vehicle had been tailgating him for about 10 to 20 seconds. Despite being aware that he was being tailgated on a highway, he deliberately slowed his vehicle by disengaging the cruise control without proper signaling. Then, the unidentified vehicle hit the rear of his vehicle. Under these circumstances, it was foreseeable that slowing down without proper signaling could result in a rear-end collision. Accordingly, as Smith contributed to the creation of the emergency situation, the emergency doctrine is not applicable. Pearson v Northstar Limousine Inc, 2014 NY Slip Op 08968, 2nd Dept 12-24-14

 

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