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Guilty Plea Precluded Litigation on Liability

The Second Department noted that a guilty plea in a criminal matter (in which plaintiff was injured by the defendant) can bar the convicted defendant from litigating liability in the related civil matter under the doctrine of collateral estoppel:

…[L]iability was established in accordance with the legal principle that ” [w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of . . . liability'” … . Abdelzaher v Sallustio, 2014 NY Slip Op 06040, 2nd Dept 9-10-14

 

Driver of Lead Vehicle Entitled to Summary Judgment in Rear-End Collision Case

The Second Department determined that the defendant driver who was struck from behind was entitled to summary judgment.  The court explained the relevant law, noting that the bare allegation the lead vehicle stopped short is not enough to raise a question of fact about the negligence of the lead driver:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . “As a general rule, a rear-end collision 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'” … . This is true whether the lead vehicle is stopped or stopping … .

Where 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 … . Billis v Tunjian, 2014 NY Slip Op 06044, 2nd Dept 9-10-14

 

Defendants Entitled to Summary Judgment in Slip and Fall Case Under the Storm in Progress Rule

The Second Department determined defendants demonstrated they were entitled to summary judgment in a slip and fall case pursuant to the “storm in progress” rule:

A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow and ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition … . “Under the storm in progress’ rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . “However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … .

Here, the evidence submitted by the defendants in support of their motion for summary judgment, including certified climatological data and transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the accident … . Furthermore, the defendants established, prima facie, that their efforts to remove snow and ice from the platform did not create a hazardous condition or exacerbate the natural hazard created by the storm … . Talamas v Metropolitan Transp Auth, 2014 NY Slip Op 06196, 2nd Dept 9-17-14

 

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Continuous Treatment Doctrine (Tolling the Statute of Limitations) Explained In Depth

The First Department, over a dissent, determined that the jury’s conclusion the statute of limitations was tolled under the continuous treatment doctrine should not be disturbed.  Plaintiff underwent Lasik surgery and complained of blurry vision and other complications in several follow up visits which ended in 2004.  Plaintiff commenced the lawsuit after a subsequent visit in 2007.  The question was whether the 2007 visit was related to the 2004 visits such that the continuous treatment doctrine applied.  The court discussed the doctrine in depth.  The court noted that the doctrine did not apply to plaintiff-wife’s derivative claims:

Plaintiff … asserts that the 2007 visit satisfied CPLR 214-a, because it was for the “same” condition as the 2004 visits, which was blurry vision in his left eye. He further argues that whether he and defendant agreed that he would seek further treatment after the May 2004 visit is irrelevant, because defendant “guaranteed” that the Lasik procedure would correct the blurry condition, and stated that he was plaintiff’s “doctor for life” for that purpose.

Although the CPLR defines “continuous” treatment as treatment “for the same illness, injury or condition” out of which the malpractice arose (CPLR 214-a [emphasis added]), the controlling case law holds only that the subsequent medical visits must “relate” to the original condition … . Here, plaintiff initially engaged defendant to correct his blurry vision, and the 2007 visit was motivated by continued blurriness in plaintiff’s eye, thus making the two visits “related” … . Devadas v Niksarli, 2014 NY Slip Op 06032, 1st Dept 9-4-14

 

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Plaintiff Entitled to Summary Judgment Pursuant to Res Ipsa Loquitur Doctrine—Doctrine Explained In Depth

The First Department, over a dissent, determined summary judgement should have been granted to the plaintiff pursuant to the doctrine of res ipsa loquitur.  Plaintiff, a passenger on defendant’s train, was struck when a ceiling panel (used to access the ventilation system) swung open.  The decision includes an extensive discussion of the res ipsa loquitur doctrine:

While summary judgment is rarely granted in res ipsa loquitur cases, it is appropriate in “exceptional case[s],” such as this one, where “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … .

To demonstrate a claim under the doctrine, a plaintiff must establish three elements: (1) the accident is of a kind that ordinarily does not occur in the absence of defendant’s negligence; (2) the instrumentality causing the accident was within defendant’s exclusive control; and (3) the accident was not due to any voluntary action or contribution by plaintiff … .

Plaintiff met all three elements with her submission of witness testimony and the testimony of defendant’s foreman. The foreman testified that the train’s HVAC and ventilation system was accessible through the ceiling panel that hit plaintiff. He also testified that to his knowledge, no one but defendant’s personnel accessed the ceiling panels and that he had no explanation for how the accident occurred. The foreman described the panel as being fastened to the ceiling with four screws outside and two safety latches and a safety chain inside.

Defendant concedes the first and third elements but argues that it did not have exclusive control over the ceiling panels. However, defendant offers no evidence to support its argument. Rather, defendant simply offers its attorney’s affirmation, in which counsel opines that “the only logical conclusion,” considering the foreman’s testimony, was that the accident occurred because [*2]of tampering by unauthorized individuals. This statement, which amounts to no more than counsel’s speculation about what might have happened, is insufficient to defeat plaintiff’s motion … . Barney-Yeboah v Metro-North Commuter RR, 2014 NY Slip Op 06036, 1st Dept 9-4-14

 

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Firefighter Injured in Apartment Fire Which Stemmed from the Use of a Cooking Stove to Provide Heat Can Sue the Owner of the Apartment House Based Upon the Owner’s Failure to Provide Adequate Heat

The Second Department determined that an injured firefighter had stated a cause of action pursuant to General Municipal Law 205-a against the owner of an apartment building based upon owner’s failure to provide adequate heat in the apartments.  The fire in which the firefighter was injured was started when a child put paper in the open flame of a stove burner which the child’s mother had turned on to provide heat:

… Multiple Dwelling Law § 79 …and Administrative Code of the City of New York § 27-2029, …require …that, between October 1 and May 31, a landlord provide heat sufficient to maintain a temperature of 68 degrees Fahrenheit between the hours of 6 a.m. and 10 p.m. * * *

General Municipal Law § 205-a affords firefighters and their survivors a statutory cause of action for line-of-duty injuries resulting from negligent noncompliance with the requirements of any governmental statutes, ordinances, rules, orders, and requirements … . “To establish a defendant’s liability under General Municipal Law § 205-a, a plaintiff firefighter must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter'” … . The statute or ordinance identified must be part of a “well-developed body of law and regulation” that imposes “clear legal duties” or mandates the “performance or nonperformance of specific acts” … .

* * * … [T]he plaintiff made the requisite showing that Multiple Dwelling Law § 79 and Administrative Code of City of N.Y. § 27-2029 are part of well-developed bodies of law and regulation that impose clear legal duties, or mandate the performance or nonperformance of specific acts … . Both provisions mandate the performance of specific acts. Moreover, failure to comply with the provisions can result in criminal sanctions (see Multiple Dwelling Law § 304; Administrative Code City of N.Y. § 27-2118[a]). “Where criminal liability may be imposed, we would be hard put to find a more well-developed body of law and regulation that imposes clear duties” … . Thus, Multiple Dwelling Law § 79 and Administrative Code § 27-2029 can properly serve as predicates for liability under General Municipal Law § 205-a. Paolicelli v Fieldbridge Assoc LLC, 2014 NY Slip Op 05849, 2nd Dept 8-20-14

 

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Seriousness of Injuries Warranted Allowing Service of Late Notice of Claim

The Second Department determined that the seriousness of plaintiff’s injuries justify granting leave to serve a late notice of claim:

In this case, the extremely serious and incapacitating injuries that the claimant suffered in the underlying car accident reasonably excused the minimal delay in seeking leave to serve a late notice of claim against the County of Nassau (see General Municipal Law § 50-e[5]…). The record further demonstrates that the County acquired actual knowledge of the facts underlying the claim within the 90-day statutory period or within a reasonable time thereafter …. Finally, under the circumstances of this case, the County was not prejudiced by the delay in serving the notice of claim … . Matter of Lopez v County of Nassau, 2014 NY Slip Op 05879, 2nd Dept 8-20-14

 

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Disposing of Key Evidence Warranted Striking of Answer

The Second Department determined Supreme Court properly struck the defendant’s answer and awarded summary judgment to plaintiffs on liability because the defendant disposed of crucial evidence after having been asked to preserve it.  Students were directed to stand on a grate to pose for a class picture.  The grate collapsed and the students fell eleven feet.  The defendant disposed of the grate:

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126 … . Since the Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence …, it may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation … .

Here, the Supreme Court providently exercised its discretion in striking the defendant’s answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff’s attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant’s conduct in disposing of the grate. Biniachvili v Yeshivat Shaare Torah Inc, 2014 NY Slip Op 05826, 2nd Dept 8-20-14

 

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Criteria for Granting Leave to Serve a Late Notice of Claim Explained

The Second Department determined Supreme Court had properly granted plaintiff’s motion for leave to serve a late notice of claim. The infant plaintiff was injured at school and there was no doubt the school was aware of the injury, and the background of the injury, at the time it occurred.  The court included a succinct summary of the applicable analytical criteria:

General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim … . “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … .

Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5]…). The presence or absence of any one of these factors is not necessarily determinative … .  Kellman v Hauppauge Union Free School Dist, 2014 NY Slip Op 05844, 2nd Dept 8-20-14

 

Golfer Assumed the Risk of Tripping on Grate in Golf-Cart Path

The Second Department determined the doctrine of primary assumption of the risk precluded a suit by a golfer who tripped on a grate in a golf-cart path:

Under the doctrine of primary assumption of the risk, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . Those risks include risks associated with the construction of the playing surface and any open and obvious condition on it … . Here, contrary to the plaintiffs’ contention, the defendants established their prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied … . Simon  v Hamlet Windwatch Dev LLC, 2014 NY Slip Op 05855, 2nd Dept 8-20-14

 

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