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New Notice of Claim Did Not Need to Be Filed After Plaintiff’s Decedent’s Death Due to Injuries Described in the Pre-Death Notice of Claim

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that plaintiffs, in an asbestos-exposure action against the Port Authority, did not need to file a new notice of claim after plaintiff’s decedent’s death from injuries described in the notice of claim filed when plaintiff’s decedent was alive.  After plaintiff’s decedent’s death, the original notice of claim was amended to add the administratrix and reference to the wrongful death claim:

A statute requires anyone who brings a lawsuit against the Port Authority of New York and New Jersey first to serve a notice stating the nature of the claim. We hold that under this statute a notice of a claim for personal injuries is a sufficient notice of a claim for wrongful death, where the person injured dies of his injuries between the service of the notice of claim and the beginning of the lawsuit.

The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states’ legislatures in 1950. The New York version of the legislation is found in sections 7101 through 7112 of the Unconsolidated Laws.

The contents of a notice of claim are specified in section 7108:

“The notice of claim required by section [7107] shall be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth (1) the name and post office address of each claimant and of his attorney, if any, (2) the nature of the claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.”

Here, the relevant statutory requirements are that a notice must specify the claimant, the time and place where the claim arose, the nature of the claim, and “so far as then practicable” the items of damage or injuries sustained (see Unconsolidated Laws § 7108 …). Those requirements were sufficiently met by the explanation in [plaintiff’s] notice of claim that he had contracted malignant mesothelioma as a result of his exposure to asbestos on the World Trade Center site in the early 1970s, and suffered physical and emotional injuries and incurred medical expenses as a result. This information was definite enough to fulfill the purpose of the notice of claim requirement: to allow the State to investigate the claim and to estimate its potential liability. It is hard to see how a later notice adding the information that the claimant had died of his disease could have been necessary to an investigation. Matter of New York City Asbestos Litig, 2014 NY Slip Op 08053, CtApp 11-20-14

 

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Plaintiff Failed to Raise a Question of Fact Concerning Whether the Driver of a Police Vehicle Exhibited “Reckless Disregard” for the Safety of Others In Responding to an Urgent Call—Defendant Police Officer Was Driving Against Traffic on a One-Way Street When the Collision Occurred

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that plaintiff did not raise a question of fact concerning whether defendant police officer exhibited reckless disregard for the safety of others when the officer responded to an urgent call by driving against traffic on a one-way street.  While on the one-way street the officer collided with another police vehicle driven by the plaintiff (another police officer) who was responding to the same call.  The court noted that the defendant had activated his emergency lights and was travelling at 15 to 20 miles an hour when the collision occurred:

Vehicle and Traffic Law § 1104 grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law § 1104 [a], [b]). But drivers of emergency vehicles are not relieved of their duty to drive “with due regard for the safety of all persons” and section 1104 does not “protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]).

This “reckless disregard” standard demands “more than a showing of a lack of ‘due care under the circumstances’—–the showing typically associated with ordinary negligence claims” … . Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that “‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id., quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]). This heightened standard is grounded in the Legislature’s recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel “should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities” … . This approach avoids “judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions” and mitigates the risk that possible liability could “deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants” … . Frezzell v City of New York, 2014 NY slip Op 08055, CtApp 11-20-14

 

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In a Lead-Paint-Injury Case, Non-party Medical Records Not Discoverable (Re: Plaintiff’s Mother and Siblings)–Non-party Academic Records Should Be Submitted for In Camera Review–Mother Cannot Be Compelled to Submit to an IQ Test

The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury case.  The defense sought medical and academic records of plaintiff’s mother and siblings, all non-parties, and sought to compel the mother to undergo an IQ test.  The Third Department held that the non-party medical records were not discoverable (except for the mother’s records during pregnancy), the non-party academic records should be submitted to the court for in camera review, and the mother should not be compelled to undergo an IQ test:

A subdivision of the main disclosure statute provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable” (CPLR 3101 [b]). Medical records are protected by a doctor-patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]…). A plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at issue, but nonparties are not subject to having their medical histories made public merely because a relative commences an action … . As plaintiff’s mother and siblings did not consent and have not waived that privilege, Supreme Court should not have ordered disclosure of their medical records … . An exception exists for the mother’s medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already provided an authorization for those records … .

Regarding the mother’s and siblings’ academic records, defendants have submitted an expert affidavit, as noted above, indicating that those records are relevant and necessary to determine whether other factors caused plaintiff’s injuries … . Considering that these records are private but not privileged, Supreme Court reasonably balanced defendants’ need for them and their possible relevance against the burden to these nonparties from disclosure, requiring that the siblings’ records be produced to the court for an in camera review … . The mother’s academic records should similarly be submitted to the court for review and redaction of any privileged material. …

Defendants’ need for her IQ test results, however, are not outweighed by the burden on her to undergo such a test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff’s condition, such as all of the factors contributing to the mother’s IQ … . Considering the private and personal nature of the information sought and the potential delay due to myriad collateral issues, defendants should not be able to compel plaintiff’s mother, a nonparty, to undergo an IQ test … . Perez v Fleischer, 2014 NY Slip Op 008101, 3rd Dept 11-20-14

 

Questions of Fact Raised About Whether a Single Riser Was a Dangerous Condition, Despite the Obviousness of the Condition, the Fact that Plaintiff Had Negotiated the Riser Many Times Before, and the Absence of Any Code Violation

The Third Department reversed Supreme Court finding that there were questions of fact about whether a riser constituted a dangerous condition, despite the absence of a code violation, the submission of an affidavit from an expert, the fact that the plaintiff had negotiated the riser many times before, and the obvious nature of the condition:

To prevail on its motion for summary judgment, defendant was required to show that it maintained the premises in a reasonably safe condition and that it did not create or have notice of any allegedly dangerous condition … . While the existence of a dangerous or defective condition is generally a question for the factfinder …, “summary judgment is appropriate where a plaintiff fails to demonstrate the existence of any dangerous condition” … .

Here, defendant failed to establish as a matter of law that it maintained the premises in a reasonably safe condition … . In support of its argument that the riser did not constitute a dangerous condition, defendant presented an affidavit of Ronald Bova, a professional engineer who inspected the premises. Bova observed that the single-step riser was immediately apparent, as it was located in a doorway and the flooring on either side of the riser was of a contrasting color and material. Although Bova further opined that the riser did not violate the 2002 or 1964 state building codes because the building was constructed prior to their enactment, whether the building code applies to the riser is not dispositive of plaintiff’s claim, which is premised on common-law negligence principles … . Based on his inspection and measurements, Bova asserted that neither the height of the step nor the lack of a handrail made the riser dangerous; however, he failed to definitively state the height of the riser and establish that it comported with generally accepted standards at the time the building was constructed or thereafter … .

Additionally, plaintiff testified that it was difficult for her and her coworkers to traverse the step because it was “very high.” While defendant places great emphasis on plaintiff’s admission that she stepped over the riser many times, as it was the only way to access the women’s restroom, and that she was aware of the drop at the time that she fell, “[t]he germane issue in this case is not a failure to warn, but whether these premises were reasonably safe” … . The fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition … , and plaintiff’s familiarity with the allegedly defective condition may be considered with respect to her comparative negligence … . Viewing the evidence in the light most favorable to plaintiff, as the nonmoving party, we find that defendant failed to demonstrate as a matter of law that the height of the riser was not a dangerous or defective condition. Barley v Robert J Wilkins Inc, 2014 NY Slip Op 08086, 3rd Dept 11-20-14

 

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Slip and Fall Suit Against Out-Of-Possession Landlord Properly Dismissed

The Third Department affirmed the dismissal of the complaint against the out-of-possession landlord (SJM).  The plaintiff slipped and fell because of a loose stairway-tread block.  The stairway was constructed by defendant-company, Stanley, with which SJM had contracted.  However SJM did not supervise or control Stanley’s work. There was evidence the stairway (used only by employees of the tenant, not the general public) did not conform to the tread-width requirements of the building code:

As a general rule, “‘an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'” … . There are exceptions. For example, a landlord has a “‘nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'” … . Liability may attach where the out-of-possession landlord has contracted to repair or maintain the premises, has affirmatively created the condition … or has retained a right to reenter the premises for inspection or repairs and the injury arises from a structural defect or specific statutory violation … . …

SJM’s nondelegable duty to the public is not relevant because plaintiff’s injury did not occur in an area open to the public * * * Although SJM retained a right under the lease to re-enter the premises, this “‘is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord'” … .

….[T]he condition of the stairway was not sufficient to impose liability upon SJM. Assuming, without deciding, that the stairway did not conform to the New York State Building Code provision with regard to the width of stair treads (see 9 NYCRR former 713.1), the condition does not constitute a significant structural defect or statutory violation as would be necessary to find that SJM had constructive notice of the loose concrete block … . Accepting plaintiff’s descriptions of the accident, the stairway and the condition of the step, his fall was not attributable to the width of the tread, but rather its instability. …Supreme Court properly determined that SJM did not create the allegedly dangerous condition. Plaintiff’s expert does not assert that the stairs were negligently designed, but rather that they were not constructed in accordance with the specifications. Although SJM retained Stanley to construct the stairway in accordance with the architectural plans, as a general rule, SJM is not liable for the independent contractor’s alleged negligent construction … . Wayman v Roy Stanley Inc, 2014 NY Slip Op 08087, 3rd Dept 11-20-14

 

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Defendant-Doctor’s Failure to Mention He Was Under a Stayed License-Suspension In His Affidavit In Support of His Motion for Summary Judgment Was One Factor In Finding the Affidavit Insufficient to Meet Defendant’s Burden on the Motion

The Third Department determined defendant’s motion for summary judgment in a medical malpractice action was properly denied on several grounds.  The court noted that it was troubled that the defendant doctor’s (Stanger’s) license was under a stayed suspension at the time he wrote his affidavit in support of the summary judgment motion, and he failed to mention the stayed suspension in his affidavit.  For that reason, among others, the court deemed the affidavit an insufficient basis for summary judgment:

…[W]e nonetheless are … by the fact that Stanger failed to disclose the status of his medical license when he prepared his affidavit in support of defendants’ motions for summary judgment. The very first paragraph of Stanger’s affidavit recites, “I am a physician duly licensed to practice in the State of New York.” Noticeably absent from both that opening paragraph and Stanger’s affidavit as a whole is any mention of the fact that, only two months earlier, a one-year stayed suspension of his medical license had been imposed and that he was practicing medicine subject to certain terms of probation. This glaring omission is entirely inconsistent with Stanger’s ethical obligations as a practicing physician and, in our view, [*4]seriously calls into question the medical opinion he has rendered regarding his diagnosis, care and treatment of decedent. Additionally, further review of Stanger’s affidavit reveals that the opinion set forth therein was “[b]ased on [Stanger’s] review of the [medical] records in this matter, as well as [his] personal recollection of the care and treatment rendered to [decedent].” In this regard, Stanger acknowledged that he did not complete his charting of decedent’s January 29, 2009 hospital visit until after he (1) learned that decedent had returned to the emergency department the following day, (2) was advised that decedent had died, and (3) had been questioned by another physician regarding the care and treatment he had provided to decedent the previous day. Under these circumstances, we do not find Stanger’s affidavit to be sufficient to satisfy defendants’ initial burden on the motions for summary judgment, thereby warranting the denial thereof. Howard v Stanger, 2014 NY Slip Op 08088, 3rd Dept 11-20-14

 

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Pursuant to the NYC Administrative Code, Abutting Property Owners Are Not Responsible for the Maintenance of Tree Wells Within the Sidewalk

The Second Department noted that the abutting property owner’s responsibility for the safety of the sidewalk (under the New York City Administrative Code) does not extend to tree wells within the sidewalk:

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” … . “Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner; however, a tree well is not part of the sidewalk’ for purposes of that section of Administrative Code of the City of New York”… . Avezbakiyev v Champion Commons LLC, 2014 NY Slip Op 07966, 2nd Dept 11-19-14

 

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Defendant Homeowner Demonstrated She Did Not Have Actual or Constructive Notice of the Dangerous Condition and Did Not Create the Dangerous Condition (Deck Collapsed When Plaintiff Was Inspecting the Property Prior to Beginning Work)

The Second Department affirmed the grant of summary judgment to the defendant homeowner.  While inspecting defendant’s property before beginning work, the deck collapsed when plaintiff was walking on it.  The plaintiff sued under Labor Law 200 and common law negligence, alleging a dangerous condition.  Defendant demonstrated she did not have actual or constructive notice of the condition:

Where, as here, a plaintiff’s alleged injury arose from a dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing that he or she neither created the dangerous condition nor had actual or constructive notice of it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the she did not have actual or constructive notice of the defect in the deck, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that she did not create the defect. Nicoletti v Iracane, 2014 NY Slip Op 07991, 2nd Dept 11-19-14

 

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Evidence of General Inspection Practices, As Opposed to the Specific Inspection and Cleaning Practices Re: Where the Plaintiff Slipped and Fell, Insufficient to Entitle Defendant to Summary Judgment

The Second Department affirmed the denial of defendant’s motion for summary judgment in a slip and fall case.  The plaintiff slipped on a wet floor in the ladies room.  The defendant submitted only general information about its inspection practices without any specifics about the inspection or cleaning of the area where plaintiff fell:

“A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which 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” … . “In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” … . “A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case” … . Moreover, a defendant’s reference to general inspection practices, without evidence as to when the area at issue was inspected relative to the plaintiff’s slip-and-fall, will not suffice to establish the lack of constructive notice of the existence of a dangerous condition … .

Here, the Supreme Court properly denied the defendant’s motion for summary judgment, since the defendant failed to submit any evidence regarding particularized or specific inspections or cleaning procedures that were utilized in the subject area relative to the time of the plaintiff’s accident … . Fernandez v Festival Fun Parks LLC, 2014 NY Slip Op 07978, 2nd Dept 11-19-14

 

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Plaintiff’s Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action—the Deposition Testimony Was Not Overcome by a “Feigned Issue” Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall

The Second Department determined that plaintiff’s deposition testimony that she did not look down and did not know the cause of her fall was fatal to the action.  The court determined that plaintiff’s affidavit in opposition to the summary judgment motion stated a “feigned issue” designed to avoid the consequences of her deposition testimony.  In addition, the expert affidavit alleging the cause of the fall was a depression could not overcome the plaintiff’s ignorance of the cause of the fall:

Here, the defendant established its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, in which she admitted to not knowing what her foot had been caught on, or what caused her to fall. Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, looking forward, and did not look down … .

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . The deposition testimony of the plaintiff’s friend, who was present when the accident occurred, also failed to raise a triable issue of fact, as this witness was unable to identify what caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expert who alleged that the proximate cause of the plaintiff’s injuries was a depression of the walkway pavers, which created a one-inch height difference between the pavers and the abutting concrete curb, thereby causing a tripping hazard. However, since the plaintiff did not know what caused her to fall, it would be speculative to assume that this alleged condition proximately caused her fall … . Rivera v J Nazzaro Partnership LP, 2014 NY Slip OP 08001, 2nd Dept 11-19-14

 

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