You are here: / Negligence
, , ,

Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained

In the context of a legal  malpractice action, in affirming the denial of motions to dismiss, the Second Department explained the criteria for motions to dismiss pursuant to CPLR 3211(a)(1) [defense founded on documentary evidence] and CPLR 3211(a)(7) [failure to state a claim]:

A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that his or her defense is founded upon documentary evidence ” has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . In the instant matter, the documentary evidence submitted by the defendants, consisting of the orders issued by the Supreme Court in the underlying action, failed to utterly refute the plaintiff’s allegations of malpractice or conclusively establish a defense as a matter of law in the instant action … . * * *

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Here, the plaintiff alleged that, but for the defendants’ negligence, including their failure to assert “appropriate claims against the proper parties, . . . the Plaintiff’s medical malpractice claim would have succeeded and resulted in a different, better and/or more positive outcome.” Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action to recover damages for legal malpractice … . Tooma v Grossbarth, 2014 NY Slip Op 07347, 2nd Dept 10-29-14

 

Attack on Plaintiff Upon Leaving Defendant-Lodge’s Premises Not Foreseeable—Landowner Had No Duty to Take Measures to Protect Against the Attack—Evidence Lodge Is Located in a “High Crime” Area Insufficient to Render Such an Attack Foreseeable

The Third Department determined the landowner did not have a duty to take measures to protect plaintiff who was assaulted and stabbed after leaving defendant’s fraternal lodge, even though there was evidence the lodge was located in a “high crime” area.  The evidence of prior crimes at the premises was not sufficient to render the attack on plaintiff foreseeable:

Landowners have a duty of reasonable care to maintain their property in a safe condition; although they “have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor’s safety” … . Notably, “even where there is an extensive history of criminal conduct on the premises, the landowner cannot be held to a duty to take protective measures unless it is shown that he or she either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor” … . “The scope of the duty varies with the foreseeability of the potential harm” … . Stated another way, “no duty is imposed to protect . . . against unforeseeable and unexpected assaults” …, and “landowners have a duty to control third persons only when they have the opportunity to control such persons and are reasonably aware of the need for such control” … . Prior crimes need not be identical to a present crime in order to put a landowner on notice; “the inquiry of foreseeability depends upon the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question” … . Finally, although foreseeability is generally an issue to be resolved by the factfinder, it may be determined as a matter of law where the facts are undisputed and permit only one inference to be drawn therefrom … . Milton v IBPOE The World Forest city Lodge, #180, 2014 NY Slip Op 07242, 3rd Dept 10-23-14

 

In a Slip and Fall Case, Plaintiff Was Unable to Raise a Question of Fact About Whether a Defect in a Concrete Slab Was More than “Trivial”—Criteria Explained

The Third Department determined a slip and fall complaint was properly dismissed because plaintiff failed to raise a question of fact about whether the chip in a concrete slab was more than a trivial, nonactionable, defect:

Generally, whether a condition is dangerous or merely a nonactionable, trivial defect is a factual question for a jury to resolve … . An owner will not be liable, however, for “‘negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance,'” which may cause “‘a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection'” … . Accordingly, it is sometimes appropriate, after “consideration of such relevant factors as the dimensions of the alleged defect . . ., including [its] width, depth, elevation, irregularity, and appearance . . .[,] as well as the time, place, and circumstances of the injury” … to conclude as a matter of law that a defect is too trivial to be actionable … . * * *

Under these circumstances, and upon review of the color photographs of the defect, we conclude that defendants met their initial burden of establishing that the chip in the edge of the curb was a trivial defect … . In response to defendants’ prima facie showing, plaintiffs were obligated to submit “evidence to establish that the alleged defect has the characteristics of a trap, snare or nuisance” … . Given the undisputed circumstances of plaintiff’s fall, her attorney’s affirmation, which was of no probative value, was an insufficient response to defendants’ prima facie showing … . Gillis v Herzog Supply Co Inc, 2014 NY Slip Op 07220, 3rd Dept 10-23-14

 

, ,

Review Criteria Re: Nonjury Trials Explained/Violation of Vehicle and Traffic Law, Including the Provision Requiring the Exercise of Care to Avoid Colliding with Bicyclists, Constituted Negligence Per Se

The Third Department affirmed a verdict in a nonjury trial finding a state trooper 70% responsible for injuries caused when the trooper’s car collided with plaintiff bicyclist.  The court explained its review powers re: a nonjury trial and noted that the trooper’s violations of Vehicle and Traffic Law, including the provision requiring the exercise of care to avoid colliding with a bicyclist, constituted negligence per se:

When reviewing a determination after a nonjury trial, this Court independently considers the weight of the evidence and may grant whatever judgment is warranted by the record, all while deferring to the trial judge’s factual findings, especially where those findings are based on credibility determinations … . * * *

After weighing the eyewitness and expert testimony and considering it along with the physical evidence, the court determined that the collision occurred in claimant’s lane of travel, meaning that the trooper crossed at least somewhat into claimant’s lane in violation of Vehicle and Traffic Law § 1120 (a). “[A]n unexcused violation of the Vehicle and Traffic Law constitutes negligence per se” … . The court also reasonably determined that the trooper was negligent in cutting the corner while making his left turn, in violation of Vehicle and Traffic Law § 1160 (b)… . Considering the trooper’s testimony that he never saw claimant until the moment of impact, along with evidence regarding the ample sight distance at the intersection and the legal concept that every driver has a duty to see what is there to be seen through the proper use of his or her senses …., the court properly found that the trooper was additionally negligent for violating Vehicle and Traffic Law § 1146 (a), which requires drivers to “exercise due care to avoid colliding with any bicyclist” … . Smith v State of New York, 2014 NY Slip Op 07229, 3rd Dept 10-23-14

 

, ,

Plaintiff’s Proof Was Insufficient to Show an Interconnected Attorney-Client Relationship—Continuing Representation Doctrine Did Not Apply to Toll Statute of Limitations

The Third Department determined the “continuing representation doctrine” did not toll the statute of limitations in a legal malpractice action.  Plaintiff could not show an “interconnected” attorney-client relationship:

At all times, it was plaintiff’s burden to prove that the continuous representation doctrine applied here … . During the trial, even plaintiff conceded that while it was his hope that he would receive legal advice and guidance, neither [defendant] ever formally agreed to represent him … . * * * Plaintiff did not provide any written work product, nor was he able to recall the substantive content of any of the conversations he claims he had with [defendant]. In our view, Supreme Court was within its authority to credit the testimony of [defendants] that there was no legal relationship between them. Rather, because it was plaintiff alone who believed that he was being represented by [defendants], Supreme Court properly found that he did not establish the existence of an “interconnected” attorney-client relationship … . Accordingly, Supreme Court properly dismissed the complaint as barred by the statute of limitations. Deep v Boies, 2014 NY Slip Op 07215, 3rd Dept 10-23-14

 

, ,

Release Given By Injured Party to a Tortfeasor Relieves that Tortfeasor of Any Liability for Contribution

The Second Department noted that a release given in good faith by the injured person to a tortfeasor relieves that tortfeasor from liability for contribution:

“A release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules” (General Obligations Law § 15-108[b]).  United States Fire Ins Co v Raia, 2014 NY Slip Op 07146, 2nd Dept 10-22-14

 

Criteria for Common Law Negligence Re: Injury Caused by an Intoxicated Guest Explained

The Second Department determined plaintiff’s common law negligence cause of action was properly dismissed.  Plaintiff, upon leaving a party hosted by the defendants, was assaulted by three unidentified persons. The court explained the relevant common law criteria for finding a host negligent based upon the actions of an intoxicated guest:

Under a theory of common-law negligence, a landowner may have responsibility for injuries caused by an intoxicated guest …, although liability may be imposed only for injuries that occurred on a defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control …. “Without the requisite awareness [of the risk or threat] there is no duty” … . Colon v Pohl, 2014 NY Slip Op 07117, 2nd Dept 10-22-14

 

,

City Provided Adequate Supervision at Beach—Drowning Action Dismissed

The Second Department determined an action against the city stemming from the drowning of plaintiff’s decedent at a protected beach was properly dismissed.  The court explained the relevant law:

Although the City is not an insurer of the safety of the users of its parks, including its beaches, it has the duty to maintain them in a “reasonably safe condition” … . This duty includes the City’s exercise of ordinary care by providing an “adequate degree of general supervision” … . In support of its motion for summary judgment, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence that it had furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent …, that they were adequately trained and properly certified …, and that they reacted to the situation in accordance with proper procedure … . Johnson v City of New York, 2014 NY Slip Op 07126, 2nd Dept 10-22-14

 

,

Rear-End Collision Liability Explained

The Second Department determined the plaintiffs’ motion for summary judgment in a rear-end collision case should have been granted.  The court explained the relevant analysis:

The driver of an automobile is required to maintain a safe distance between his or her own vehicle and the vehicle in front of him or her (see Vehicle and Traffic Law § 1129[a]…). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . Once the movant has established his or her entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … . A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference of negligence on the part of the driver of the following vehicle … . Cheow v Cheng Lin Jin, 2014 NY Slip Op 07337, 2nd Dept 10-214

 

, , ,

Client May Pursue a Legal Malpractice Action Without Appealing the Ruling Upon Which the Malpractice Allegation Is Based Where It Has Not Been Demonstrated the Appeal Is Likely to Succeed

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the plaintiff's failure to appeal a ruling that plaintiff's action was time-barred did not preclude plaintiff from bringing a legal malpractice action against the attorneys who represented the plaintiff in the time-barred action.  The failure to appeal would only act as a bar to the legal malpractice action if the defendants demonstrated the appeal was likely to have succeeded:

Here, the Appellate Division adopted the likely to succeed standard employed by our sister states with a proximate cause element . We agree that this is the proper standard, and that prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.

On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result. Contrary to defendants' assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally … . Grace v Law, 2014 NY Slip Op 07089, CtApp 10-21-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy