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Plaintiff’s Double-Parked Vehicle Furnished a Condition for the Accident But Was Not a Proximate Cause of the Acciden

The First Department reversed Supreme Court finding the fact that plaintiff was double-parked furnished the condition for the event but was not one of the causes of the accident.  The defendant driver had pulled around in front of plaintiff’s vehicle and then backed into it:

The fact that a vehicle is double parked “does not automatically establish that such double parking was the proximate cause of the accident” … . Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the location of her vehicle merely furnished the condition or occasion for the occurrence of the event but was not one of its causes … .

The record demonstrates that plaintiff’s vehicle was double parked on a one way street. Defendants’ vehicle, moving in the same direction, successfully passed plaintiff’s vehicle on the left and pulled approximately three to four car lengths in front of it before stopping. One to two seconds later, defendants’ vehicle drove in reverse in an erratic manner and struck the front of plaintiff’s car, which was stationary at all times. Cervera v Moran, 2014 NY Slip Op 07945, 1st Dept 11-18-14

 

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Summary Judgment Properly Granted to Property Owner in Lead-Paint-Injury Case

The Fourth Department determined the property owner was entitled to summary judgment in a lead-paint-injury case.  There was no showing defendant had notice of the presence of lead paint hazard or that defendant was negligent in abating the lead paint hazard:

“In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” … . We conclude that plaintiffs failed to meet their initial burden of establishing that defendants had actual or constructive notice … . Faison v Luong, 2014 NY Slip Op 07794, 4th Dept 11-14-14

 

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School Not Liable for Injury to Student Crossing Street to Enter School–Student Was Not In the Custody or Control of the School When He Was Injured

The Fourth Department determined that plaintiff’s son was not yet in the custody or control of the school when he was injured. Summary judgment dismissing the complaint was therefore required.  Plaintiff had dropped her son off across the street from the school, and told him to stay there while she directed cars to a parking area for an upcoming lacrosse game (in which plaintiff’s son was to participate). A teammate told the plaintiff’s son to go to the school to check in with the coach.  He was injured crossing the street:

…[I]t is well settled that “[t]he duty of a school district to its students is strictly limited by time and space and exists only so long as a student is in its care and custody” … . We reject plaintiff’s contention that defendants owed plaintiff’s son a duty of care under the circumstances here. When plaintiff dropped off her son and told him to “stay there,” she made a parental decision to keep her son across the street because she was concerned about him “crossing over” given that there was “lots of traffic” in the intersection where the accident occurred. Thus, plaintiff had not relinquished control of her son, and defendants had not yet gained the physical custody or control of him that is a prerequisite to imposing a legal duty on them … . The fact that plaintiff’s son disobeyed plaintiff’s directive and crossed the street does not change that legal result.

We reject plaintiff’s further contention that defendants owed plaintiff’s son a duty because the defendants placed plaintiff’s son in a “for[e]seeably dangerous setting that the [defendants] had a hand in creating.” Because the child was never in the physical custody or control of the defendants, however, the defendants were “never in a position to . . . release [plaintiff’s son] into a hazardous setting … . Ritchie v Churchville-Chili Cent School Dist, 2014 NY Slip Op 07792, 4th Dept 11-14-14

 

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Late Motion to Amend Answer Should Not Have Been Granted/Violation of Vehicle and Traffic Law Established Negligence as a Matter of Law/Striking of Affirmative Defense Based on Brake Failure Proper Because Brakes Were Replaced (Spoliation of Evidence)/Fact that Defendant-Driver’s Negligence Was Sole Proximate Cause of the Accident As a Matter of Law Did Not Preclude Comparative Negligence Affirmative Defense

The defendant driver of a payloader struck a school bus and a personal injury action was brought by plaintiff, a school aide who was on the bus.  The Fourth Department determined defendants’ late motion to amend the answer should not have been granted, the striking of an affirmative defense based upon brake failure was properly struck because the original brakes had been replaced (spoliation), defendant-driver’s violation of Vehicle and Traffic Law 1143 established negligence as a matter of law, and the affirmative defense alleging comparative negligence on plaintiff’s part should not have been dismissed:

We agree with plaintiff that Supreme Court abused its discretion in granting defendants’ cross motion [to amend the answer], and we therefore modify the order accordingly. The motion was made seven months after plaintiff had filed the note of issue and more than two years after she commenced the action, yet defendants offered no excuse for their delay in making the motion … . We further conclude that preclusion of the affirmative defenses based on brake failure is warranted as a sanction for spoliation … . After the accident, Cerrone replaced the payloader’s allegedly defective brake calipers and discarded the old calipers. * * *

Vehicle and Traffic Law § 1143 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Here, plaintiff met her initial burden on the motion by establishing as a matter of law that ” the sole proximate cause of the accident was [Freeman]’s failure to yield the right of way’ ” to the school bus in violation of section 1143 … . At the time of the accident, the school bus was lawfully stopped on a public roadway, and the payloader collided with the school bus after entering the roadway from a parking lot … . In opposition to the motion, defendants failed to provide a nonnegligent explanation for the accident … . * * *

…T]he court erred in dismissing their affirmative defense of plaintiff’s culpable conduct, and we therefore further modify the order by reinstating that affirmative defense. CPLR 1411 provides that, “[i]n any action to recover damages for personal injury . . . , the culpable conduct attributable to the [plaintiff] . . . , including contributory negligence . . . , shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [plaintiff] . . . bears to the culpable conduct which caused the damages.” The statute encompasses any culpable conduct that had a “substantial factor in causing the harm for which recovery is sought” … . Here, as the court found, there is no question that the sole proximate cause of the accident was defendants’ negligence. Defendants contend, however, that the injuries plaintiff allegedly sustained in the accident were caused, in whole or in part, by her position on the bus, i.e., the fact that she was kneeling or standing on the bus rather than sitting in a seat, and they submitted an expert affirmation to that effect … . Simoneit v Mark Cerrone Inc, 2014 NY Slip Op 07783, 4th Dept 11-14-14

 

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Plaintiff Entitled to Damages from the City—Plaintiff Had a “Special Relationship” with the City and Was Injured When a City Employee, Performing Ministerial Functions, Directed Plaintiff to Perform a Dangerous Task—“Special Relationship,” Which Gave Rise to a Duty Owed by the City to the Plaintiff, Defined

The Second Department affirmed Supreme Court’s denial of a motion by defendant-city to set aside the verdict.  The city had been held responsible for plaintiff’s injury based upon the jury’s findings that there was a “special relationship” between the city and the plaintiff and the city-employee was performing ministerial, not discretionary, acts when he directed the plaintiff’s work.  Plaintiff was injured when the city’s plumbing inspector directed plaintiff to perform a dangerous air pressure test:

The Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship: “(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” … . Of the three ways that a duty may arise out of a special relationship, only the third is at issue on this appeal—whether the appellants took positive control of a known and dangerous safety condition. Contrary to the appellants’ contention, the jury’s determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence … . Delanoy v City of White Plains, 2914 NY Slip Op 07615, 2nd Dept 11-12-14

 

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Question of Fact Raised About Defendant’s Comparative Negligence in Striking a Bicyclist Travelling the Wrong Way on a One-Way Street

The Second Department reversed Supreme Court’s grant of summary judgment to the defendant in a bicycle-vehicle collision action.  The bicyclist was traveling the wrong way on a one-way street and the collision occurred in an intersection after defendant had stopped at a stop sign before entering the intersection.  Although the bicyclist was negligent as a matter of law, the court determined that a question of fact had been raised about defendant’s failure to see what was there to be seen (comparative negligence):

… [T]he defendant failed to make a prima facie showing that she was free from comparative fault in the happening of the accident … . When asked at her deposition when she first saw the plaintiff’s bicycle, she responded “I saw an object. As I was — I stopped. And then as I proceeded to cross the intersection, I felt something. And I saw an object.” This testimony demonstrated the existence of triable issues of fact exist regarding whether the defendant failed to see what was there to be seen through the proper use of her senses … and whether she failed to exercise reasonable care to avoid the collision with the plaintiff’s bicycle … . Accordingly, since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied her motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . Palmeri v Erricola, 2014 NY Slip Op 07637, 2nd Dept 11-12-14

 

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Plaintiff-Passenger’s Injury In an Illegal Drag-Race Not Actionable—Under the Facts, Public Policy Precluded Plaintiff from Bringing Suit

The First Department, over a dissent, determined that a complaint brought by a passenger, who was a willing participate in illegal drag-racing, against the drivers and other passengers involved, was properly dismissed.  Plaintiff was injured when the car he was in crashed during the race:

“[A]s a matter of public policy, . . . where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation” … . Plaintiff urges that this rule of law is inapplicable because he was merely a passenger and also because some of the defendants indicated during disclosure that they did not consider themselves to be racing. As for the latter argument, plaintiff controls the theory of his case and he has not wavered from his contention that a high-speed drag race was in progress — an allegation made in his complaint, bills of particulars, proposed amended complaint, affidavits submitted in the underlying motions and about which he testified in detail at his deposition. Supreme Court did not err in accepting plaintiff’s admitted conduct in such regard … .

The fact that a plaintiff’s injuries occurred in the course of unlawful conduct does not mandate dismissal …, but instead the violation of law must be “sufficiently serious” to support such an extreme result, and this determination necessarily implicates “due consideration of all the relevant facts and circumstances” … . Here, plaintiff testified that he knew Eastman had been drinking beer all day, plaintiff participated in banter regarding racing and he vouched for Eastman’s truck as the fastest. Plaintiff stated that he entered the truck knowing a race was about to start, the truck and the vehicle driven by Losaw revved engines at a starting point on the road with yelling back and forth, and plaintiff never suggested that Eastman not proceed to race. In fact, once the race started, he even made comments urging Eastman to go faster so as not to be defeated in the race. Shortly thereafter, Eastman lost control of the truck. Estimated speeds during the race exceeded 100 miles per hour. Plaintiff was very familiar with the road, acknowledged racing on it previously and described it as “pretty curvy,” “surface isn’t even,” “potholes, bumps” and “not much shoulder.”

Racing side by side at over 100 miles per hour in the dark on a two-lane rural road under the circumstances of this case constitutes the type of grossly reckless conduct that created a grave risk to the public … . Hathaway v Eastman, 2014 NY Slip Op 07533, 3rd Dept 11-6-14

 

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Damages for “Loss of Fetus” Under Insurance Law 5102 Are Not Available When the Baby Is Born Alive

The Second Department determined that the “loss of fetus” provision of Insurance Law 5102 did not apply to the birth of a live child allegedly induced by a car accident:

[Plaintiff] was pregnant at the time of the accident, and she alleges that she suffered a placental abruption which caused her son, the infant plaintiff, to be born prematurely and delivered by caesarean section. * * *

The defendants subsequently moved, inter alia, for summary judgment dismissing so much of the complaint as alleged that [plaintiff], individually, sustained a serious injury under the “loss of a fetus” category of Insurance Law § 5102(d) as a result of the subject accident * * *. …[T]he Supreme Court concluded, in essence, that the phrase “loss of a fetus” encompassed any termination of a pregnancy caused by an accident, regardless of whether the fetus was born alive.

In cases involving statutory construction, legislative intent is the controlling principle … . “The Court’s threshold inquiry in this regard is how to discern the legislative intent. When an enactment displays a plain meaning, the courts construe the legislatively chosen words so as to give effect to that Branch’s utterance” … . Contrary to the Supreme Court’s determination, the plain meaning of the term “loss of a fetus” does not include the premature birth of a living child. Rather, this category of damages is applicable where, as a result of an automobile accident, a viable pregnancy terminates with loss of the fetus … .

We note that this determination is consistent with legislative history, which reveals that the “loss of a fetus” category was added to Insurance Law § 5102(d) in 1984 in response to Raymond v Bartsch (84 AD2d 60). In that case, the Appellate Division, [3rd] Department, held that Insurance Law § 5102(d), as then constituted, did not permit a woman, who was nine months pregnant at the time of her accident, to recover damages resulting from her delivery of a stillborn baby. The “loss of a fetus” category was added to the statute in recognition that “[a] woman who is involved in an automobile accident that results in the termination of her pregnancy has suffered a serious injury and should have the right to recover from a negligent operator for her non-economic loss” (Sponsor’s Mem, Bill Jacket, L 1984, ch 143). The policy considerations underlying the 1984 amendment of Insurance Law § 5102(d) are not implicated when a child is born alive. Leach v Ocean Black Car Corp, 2014 NY Slip Op 07477, 2nd Dept 11-5-14

 

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Doctrine of Primary Assumption of the Risk Does Not Apply to Game of “Manhunt” Played After Midnight on School Property

The Second Department determined that a game of “Manhunt” played on school premises after midnight was not the type of activity covered by the primary assumption of the risk doctrine:

…[T]he defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the action was barred by the doctrine of primary assumption of risk … , the doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating ” free and vigorous participation in athletic activities'” … . As the Court of Appeals explained in Trupia v Lake George Cent. School Dist. (14 NY3d 392), by placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more participation … . The doctrine of primary assumption of risk is not applicable to the midnight game of manhunt at issue in this case. As with the “horseplay” at issue in Trupia, the game of manhunt at issue in this case is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage … . Therefore, the defendant did not establish that the doctrine of primary assumption of risk applies here … . Wolfe v North Merrick Union Free School Dist, 2014 NY Slip Op 07499, 2nd Dept 11-5-14

 

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Purchase of Property Encumbered by an Unsatisfied Mortgage Gave Rise to Negligence, Negligent Misrepresentation, Fraud, and Civil Conspiracy Causes of Action Against Title Insurance Company

Third-party plaintiff, Drummond, purchased property that was encumbered by an unsatisfied mortgage held by plaintiff bank. Drummond sued the title company, third-party defendant New York Land, as well as the company from which she procured her mortgage, Residential, and the bank to which the mortgage was transferred, Wells Fargo.  The third-party defendants brought CPLR 3211 motions to dismiss. The Second Department determined the causes of action against New York Land for negligence and negligent misrepresentation properly survived a motion to dismiss because the relationship between Drummond and New York Title was “so close as to approach privity,” but no such relationship was demonstrated with Residential and Wells Fargo.  The Second Department further determined the fraud and civil conspiracy causes of action against New York Land should not have been dismissed, explaining the pleading requirements. In addition, the Second Department determined that the suit was not “consumer-related” and therefore the General Business Law 349 cause of action was properly dismissed:

Although there was no contract between Drummond and New York Land, affording the pleadings a liberal construction and accepting all facts alleged as true …, the third-party complaint supports Drummond’s contention that the relationship between these two parties was so close as to approach privity .. . Indeed, the pleading alleges that New York Land was aware that the abstract and title report that it prepared were to be used for the specific purpose of facilitating a sale or mortgage of the property, that New York Land knew that Drummond was a member of a definable class who would rely on the certification in furtherance of that purpose, and that there was conduct between New York Land and Drummond evincing New York Land’s understanding of Drummond’s reliance … . Accordingly, the Supreme Court properly denied those branches of New York Land’s motion which were to dismiss, for failure to state a cause of action, the third-party causes of action alleging negligence and negligent misrepresentation insofar as asserted against it. * * *

“The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” … . “All of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong’ in order to satisfy the pleading requirements of CPLR 3016(b)” … . In certain circumstances, however, it may be “almost impossible to state in detail the circumstances constituting a fraud where those circumstances are peculiarly within the knowledge of [an adverse] party” … . “Under such circumstances, the heightened pleading requirements of CPLR 3016(b) may be met when the material facts alleged in the complaint, in light of the surrounding circumstances, are sufficient to permit a reasonable inference of the alleged conduct’ including the adverse party’s knowledge of, or participation in, the fraudulent scheme” … . Here, accepting all facts alleged as true … , the third-party complaint contains sufficient allegations of fact from which it can be inferred that New York Land was aware of the alleged fraudulent scheme and intended to aid in the commission thereof … . * * *

“Although New York does not recognize civil conspiracy to commit a tort . . . as an independent cause of action, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme” … . Again, affording the third-party complaint a liberal construction, Drummond alleged sufficient facts from which it may be inferred that New York Land knowingly participated, with certain other third-party defendants, in the alleged fraudulent scheme … . * * *

General Business Law § 349 is a broad consumer protection statute, which declares “deceptive acts or practices in the conduct of any business, trade or commerce” to be unlawful (General Business Law § 349[a]…). A party claiming the benefit of General Business Law § 349 must, as a threshold matter, ” charge conduct that is consumer oriented'” … . “The single shot transaction, which is tailored to meet the purchaser’s wishes and requirements, does not, without more, constitute consumer-oriented conduct for the purposes of this statute” … . Rather, the defendant’s acts or practices “must have a broad impact on consumers at large” … . Here, Drummond’s General Business Law § 349 cause of action is predicated upon allegations that the third-party defendants fraudulently induced her to purchase the subject property and finance it with a mortgage loan from [Residential]. As the Supreme Court properly concluded, these factual allegations do not amount to conduct that has an impact on the public at large and, as such, do not state a cause of action for violation of General Business Law § 349 … . JP Morgan Chase Bank NA v Hall, 2014 NY Slip Op 07475, 2nd Dept 11-5-14

 

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