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CLAIMANT INITIALLY BELIEVED THE ROAD WHERE HE STEPPED IN A POTHOLE AND FELL WAS OWNED BY THE VILLAGE, BUT IN FACT IT WAS OWNED BY THE STATE; CLAIMANT’S LATE NOTICE OF CLAIM SHOULD HAVE BEEN ACCEPTED BY THE COURT OF CLAIMS (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined claimant’s late notice of claim in this roadway defect case should not have been rejected. Plaintiff alleged he stepped in a depression in the road and fell. Plaintiff initially believed the road was owned by the village, when, in fact, it was owned by the state. The defect in the road was patched within a week of plaintiff’s fall:

The delay here was minimal, with defendant having received notice approximately three weeks after the 90-day deadline lapsed … . It is significant that when [claimant] returned to the accident scene … , he discovered that the pothole had been patched with blacktop, as shown in the photographs taken that day. Claimant further averred that the depression was “almost a foot wide and around ten feet long,” specifying that it was “about three to four inches deep where [his] foot ended up.” Given this postaccident development, claimant’s attorney argued that “[w]hile [defendant] may not have obtained notice of the . . . accident within 90 days of its occurrence, it is highly likely that it had notice of the condition of the pavement that caused the accident as it patched it within a week of when the accident happened,” emphasizing that defendant’s “records should indicate precisely when it was patched as well as when the decision to patch it occurred and why.” * * *

“A claim has the appearance of merit so long as it is not patently groundless, frivolous or legally defective, and the record as a whole gives reasonable cause to believe that a valid cause of action exists” … . To hold defendant liable for his injuries, claimant will need to prove that defendant either created the condition itself by affirmative acts of negligence, or had actual or constructive notice of a dangerous condition and failed to remedy such condition, thereby causing claimant’s injuries … . Constructive notice exists where a depression in the roadway was “visible and apparent and existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . Grasse v State of New York, 2024 NY Slip Op 03110, Third Dept 6-6-24

Practice Point: The criteria for acceptance or rejection of a late notice of claim in the Court of Claims is explained.

 

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HERE IN THIS CHILD VICTIMS ACT (CVA) CASE, THE ALLEGATIONS OF ABUSE OF PLAINTIFF BY A TEACHER WERE BASED ON HER INABILITY TO CONSENT UNDER THE PENAL LAW; THEREFORE THE SCHOOL COULD ONLY BE LIABLE FOR NEGLIGENT SUPERVISION UNTIL PLAINTIFF TURNED 17; ALTHOUGH THE ABUSE WAS ALLEGED TO HAVE TAKEN PLACE OFF SCHOOL GROUNDS, THE TEACHER, DURING SCHOOL HOURS, ALLEGEDLY MADE PUBLIC COMMENTS ABOUT PLAINTIFF’S APPEARANCE AND MADE ARRANGEMENTS TO MEET HER AFTER SCHOOL; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent supervision cause of action against the school based upon alleged conduct by a teacher should not have been dismissed, despite the fact the abuse allegedly took place off school grounds: The abuse was alleged to be conduct which would violate article 130 of the Penal Law. Plaintiff was legally incapable of consent until she turned 17. The school was deemed responsible for supervision only until plaintiff turned 17:

The allegations of criminal conduct against the teacher were based on the plaintiff’s inability to consent to sexual conduct due to the plaintiff’s age, which ended when the plaintiff turned 17 years old (see Penal Law § 130.05[3][a]). Accordingly, the court properly determined that the CVA did not revive so much of the cause of action alleging negligent supervision of the plaintiff as was related to alleged conduct that occurred after the plaintiff turned 17 years old … .

… The defendants’ submissions included … the transcript of the plaintiff’s deposition testimony, wherein the plaintiff testified that all of the sexual abuse occurred off school property and outside of school hours … . In opposition, however, the plaintiff … averred that the teacher singled her out for attention, made extended eye contact with her, winked at her, and complimented her appearance in front of other staff in school. According to the plaintiff, the teacher made comments directly to other staff and in the presence of other students about the plaintiff’s appearance, and the teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school where the alleged abuse took place … . Fain v Berry, 2024 NY Slip Op 03032, Second Dept 6-5-24

Practice Point: Allegations of violations of Penal Law article 130 based upon the legal incapacity to consent apply only until the victim turns 17.

Practice Point: Although the alleged abuse by a teacher took place off school grounds, the teacher, during school hours, made public comments about plaintiff’s appearance and arranged to meet her after school. There the negligent supervision cause of action against the school should not have been dismissed.

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DEFENDANT WAS NOT AN OWNER OR A GENERAL CONTRACTOR AND EXERCISED NO SUPERVISORY AUTHORITY OVER THE INJURED PLAINTIFF’S WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED; HOWEVER DEFENDANT MAY HAVE BEEN RESPONSIBLE FOR CREATING THE ALLEGEDLY DANGEROUS CONDITION DURING PRIOR WORK ON THE PROPERTY; THEREFORE THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that, although the Labor Law causes of action were properly dismissed, the common-law negligence cause of action should not have been dismissed. Defendant BHI was not an owner of the property or a general contractor and was not present on site when plaintiff was injured. The injured plaintiff worked for another prime contractor. But BHI had previously done the work which allegedly caused plaintiff’s injury. Because BHI was not an owner or a general contractor and had no supervisory authority on the day of the accident, the Labor Law causes of action did not apply. But the common-law negligence cause of action was applicable:

A defendant that is not an owner, general contractor, or agent pursuant to the Labor Law with regard to a plaintiff’s work may nonetheless be held liable to the plaintiff under a theory of common-law negligence “where the work” the defendant “performed created the condition that caused the plaintiff’s injury” … . “An award of summary judgment in favor of a subcontractor [or prime contractor] dismissing a negligence cause of action is improper where the evidence raises a triable issue of fact as to whether [it] created an unreasonable risk of harm that was the proximate cause of the . . . plaintiff’s injuries” … . Delaluz v Walsh, 2024 NY Slip Op 03030, Second Dept 6-5-24

Practice Point: This case illustrates why it is a good idea to allege a common-law negligence cause of action in addition to a Labor Law 200 cause of action.

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ALTHOUGH THE FORMER “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA)” PROVIDED IMMUNITY TO HEALTHCARE PROVIDERS RE: COVID-19, HERE DEFENDANT NURSING HOME DID NOT DEMONSTRATE THE THREE REQUIREMENTS FOR IMMUNITY WERE MET (SECOND DEPT).

The Second Department reversing Supreme Court, determined defendant nursing home did not demonstrate the three statutory requirements for immunity for COVID-related treatment were met. Plaintiff alleged plaintiff’s decedent, during his admission to defendant’s facility in March 2020, was infected with SARS-CoV-2 and COVID-19:

… [T]he EDTPA [Emergency or Disaster Treatment Protection Act] initially provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” as long as three requirements were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith (Public Health Law former § 3082[1] …).

* * * [W]hile the EDTPA “immunized healthcare facilities from civil liability for certain acts or omissions in the treatment of patients for COVID-19 during the period of the COVID-19 emergency declaration” … , the defendant’s submissions did not establish that the three requirements for immunity were satisfied … . Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 2024 NY Slip Op 03029, Second Dept 6-5-24

Practice Point: The repeal of the former Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively.

Practice Point: A healthcare provider asserting immunity from COVID-related injury under the former EDTPA must demonstrate the three statutory requirements for immunity have been met.

 

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PLANTIFF HAD NOT INFORMED THE BANKRUPTCY COURT OF THIS PERSONAL INJURY CAUSE OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT PURSUANT TO THE DOCTRINE OF JUDICIAL ESTOPPEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to inform the Bankruptcy Court of this personal injury action triggered the doctrine of judicial estoppel entitling defendants to summary judgment dismissing the complaint:

While a chapter 13 bankruptcy debtor has standing to litigate cases that belong to the estate … , here the “[p]laintiff’s prolonged failure to disclose this lawsuit to the [b]ankruptcy [c]ourt renders him judicially estopped from pursuing it” … . The plaintiff took an inconsistent position in the bankruptcy proceeding by, in effect, representing that he did not have the instant legal claim. The characterization of his assets was accepted and endorsed by the bankruptcy court throughout the duration of the bankruptcy proceeding, which included, among other things, confirmation of the plaintiff’s plan … .

Based on the defense of judicial estoppel, [defendants] established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them … . Cussick v R.L. Baxter Bldg. Corp., 2024 NY Slip Op 03028, Second Dept 6-5-24

Practice Point: Failure to inform the Bankruptcy Court of a cause of action (here a personal-injury suit) triggers the doctrine of judicial estoppel, prohibiting the plaintiff from bringing the suit.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A TEACHER DURING THE SCHOOL DAY OVER THE COURSE OF A YEAR, PLAINTIFF RAISED QUESTIONS OF FACT UNDER BOTH RESPONDEAT SUPERIOR AND NEGLIGENT SUPERVISION CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act action, determined the respondeat superior and negligent supervision causes of action against the school alleging sexual abuse of the plaintiff by a teacher should not have been dismissed. Essentially the complaint alleged negligent supervision of both the teacher and the child. The defendant school did not demonstrate a lack of constructive notice of the abuse which allegedly took place over the course of a year in the same classroom during the school day:

“The employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring, . . . retention, or supervision of the employee” … .

… “[A] school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … . * * *

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . “In particular, given the frequency of the alleged abuse, which occurred over” the entirety of a school year, “and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse” … .. The defendants similarly failed to demonstrate, prima facie, that their supervision of both the teacher and the plaintiff was not negligent … . Sayegh v City of Yonkers, 2024 NY Slip Op 03065, Second Dept 6-5-24

Practice Point: Here it was alleged plaintiff was sexually abused by a teacher repeatedly over a year during the school day. There were questions of fact whether the school had constructive notice of the abuse which supported causes of action under a respondeat superior theory (negligent supervision of the teacher) and a negligent supervision theory (negligent supervision of the child).

 

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A LOOSE DOOR HANDLE CAUSED THE GLASS DOOR TO SHATTER; DEFENDANTS PRESENTED INSUFFICIENT EVIDENCE OF WHEN THE DOOR HANDLE WAS LAST INSPECTED AND THEREFORE DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants did not demonstrate the glass door which shattered had been inspected close in time to the incident. Therefore a question of fact remained whether defendants had constructive knowledge of the loose handle which caused the door to shatter when plaintiff attempted to open it:

Although 730-Gen’s urban portfolio manager testified that he inspected the interior vestibule doors following an incident that involved the exterior doors in the weeks prior to plaintiff’s accident, his testimony only provided a vague description of the inspection performed. Importantly, he could not identify exactly when the inspection occurred, and he did not indicate that any steps were taken to examine the door’s metal handle.

The urban portfolio manager further testified that defendants had a daily inspection protocol in place to inspect the vestibule doors. However, he admitted that he had never seen anyone perform a daily inspection and he could not identify when the last inspection occurred prior to plaintiff’s accident. …

730-Gen also asserts that the doors received cursory inspections, in that they were used on a daily basis. Yet, there is no record of these cursory inspections taking place … , or any indication that they involved a reasonable inspection of the door handle … .

… 730-Gen’s reliance on the urban portfolio manager’s inspection, which occurred almost two weeks prior to plaintiff’s accident, failed to establish, prima facie, that inspecting the door handle on a biweekly basis is reasonable, especially in light of the daily inspection protocol defendant contends was in place to ensure the handles were tightly secured … . Doherty v 730 Fifth Upper, LLC, 2024 NY Slip Op 02979, First Dept 5-30-24

Practice Point: Unless the defendant can show the instrumentality which caused plaintiff’s injury was inspected and found safe close in time to the injury, a defendant’s motion for summary judgment will not be granted.

 

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ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not demonstrate plaintiff could not identify the cause of her stairway fall and defendant did not demonstrate the nonlevel and sloping condition of the steps was latent and could not have been discovered:

… [T]he plaintiff testified that her fall was caused by the fact that the “stairs were not level . . . not straight.” Although the plaintiff testified that she might have lost her balance on either the fourth step from the top of the staircase or the fourth step from the bottom of the staircase, the report of the plaintiff’s expert witness … stated that the treads on the staircase were “uneven and pitched forward,” creating an “inherent walking hazard,” and that the “out-of-level and sloping condition” affected “the entire staircase.”

* * * “In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection”…..  Here, the evidence proffered in support of the defendant’s motion failed to establish, prima facie, that the nonlevel and sloping condition that allegedly caused the plaintiff to fall amounted to a latent condition and could not have been discovered upon a reasonable inspection. Toro v McComish, 2024 NY Slip Op 02945, Second Dept 5-29-24

Practice Point: Here the unlevel and sloping condition of the steps in the stairway where plaintiff fell was not shown to be latent and undiscoverable upon inspection.

 

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PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM, BUT THE PERIOD OF DISABILITY DOES NOT TOLL THE ONE YEAR AND 90 DAY PERIOD FOR FILING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for leave to file a late notice claim against the NYC Transit Authority should not have been granted because the motion was made more than one year and 90 days after the cause of action accrued. Although physical incapacity can be a reasonable excuse for failing to file a notice of claim withing 90 days, it does not toll the period for making a timely motion for leave to file a late notice of claim:

The court erred … in concluding that plaintiff’s hospitalization from the February 12, 2020 accident until April 11, 2020 rendered timely plaintiff’s January 25, 2021 notice of claim upon defendant NYC Transit Authority … . Although physical incapacity may be properly considered as a reasonable excuse under General Municipal Law § 50-e (5) for the failure to timely file a notice of claim … , it is relevant only upon timely motion for leave to file a late notice of claim “made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued” … . Melgarejo v City of New York, 2024 NY Slip Op 02892, First Dept 5-28-24

Practice Point: A period of physical incapacity may be a reasonable excuse for failing to file a timely notice of claim, but it does not toll the one year and 90 day statute of limitations for filing a motion for leave to file a late notice of claim.

 

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THE “SHEPPARD-MOBLEY” BAR TO A MOTHER’S RECOVERY FOR EMOTIONAL HARM IF HER BABY IS BORN ALIVE DOES NOT APPLY TO A LACK-OF-INFORMED CONSENT, AS OPPOSED TO A MEDICAL MALPRACTICE, CAUSE OF ACTION; HERE MOTHER ALLEGED SHE DID NOT CONSENT TO TWO UNSUCCESSFUL VACUUM EXTRACTION ATTEMPTS WHICH PRECEDED THE C-SECTION; HER BABY DIED EIGHT DAYS AFTER BIRTH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Rodriguez, over a partial dissent, determined plaintiff’s lack-of-informed-consent cause of action properly survived defendant doctor’s (Grimaldi’s) motion for summary judgment. Plaintiff mother alleged she did not consent to the two unsuccessful vacuum extraction attempts which preceded the C-section delivery of her baby. The baby died eight days after birth. The First Department questioned the continued relevance of Sheppard-Mobley v King, 4 NY3d 627 (2005) which held, in an action for medical malpractice, mother cannot recover for emotional harm if the baby is born alive. The First Department distinguished Sheppard-Mobley on the ground that the instant action alleges a lack of informed consent, not ordinary medical malpractice:

This appeal concerns, among other issues, whether Sheppard-Mobley v King (4 NY3d 627 [2005]) (Sheppard-Mobley) and related cases bar a plaintiff mother’s claim for emotional harm resulting from lack of informed consent for certain prenatal procedures. We hold that they do not.

Sheppard-Mobley held that a mother’s damages for emotional harm could not be recovered on a cause of action for ordinary medical malpractice where the child was born alive and in the absence of independent physical injury to the mother. Accordingly, plaintiff’s claim based on lack of informed consent—a separate theory of recovery that, under the circumstances, implicates different interests than the ordinary medical malpractice claim at issue in Sheppard-Mobley—is distinguishable.

In addition, assuming [for the sake of argument] the rule of Sheppard-Mobley applies to claims for ordinary medical malpractice and lack of informed consent alike, we are of the opinion that the rule should be revisited. * * * Now almost 20 years after Sheppard-Mobley, further consideration is warranted with respect to whether a mother may recover for emotional damages resulting from physical injuries to her fetus or infant during pregnancy, labor, or delivery caused by medical malpractice or lack of informed consent. SanMiguel v Grimaldi, 2024 NY Slip Op 02881, First Dept 5-23-24

Practice Point: Here the First Department held that the bar to mother’s recovery for emotional harm if her baby is born alive does not apply to a lack-of-informed consent, as opposed to a medical malpractice, cause of action.

 

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