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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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Town Not Liable for Negligently Picking Up Personal Items from Driveway During Garbage Collection—Garbage Collection Is a Ministerial Function—No Special Relationship with Plaintiff

The Second Department determined the town was not liable for picking up items plaintiff had placed in his driveway to dry out after a storm.  The items were picked up as “bulk garbage” prior to the date bulk-garbage collection was slated to begin:

Garbage collection is considered a governmental function … . A municipality cannot be held liable for negligence in the performance of discretionary acts, but can be held liable for negligence in the performance of ministerial acts, if there is a special relationship between the plaintiff and the defendant … . The difference between ministerial or discretionary acts is described thusly: ” discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'”… . Garbage collection falls within the definition of a ministerial function.

A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following elements: ” (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking'” … . No facts were alleged indicating that the defendants undertook an affirmative duty to act on behalf of the plaintiff. Therefore, no basis was alleged to impose liability upon the defendants, based on the negligent destruction of property. Katz v Town of Clarkstown NY, NY Slip Op 05843, 2nd Dept 8-20-14 

 

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Where the Manufacturer Was Not At Fault in a Products Liability Action, the Retailer Is Not Entitled to Indemnification for the Costs of Defending the Action from the Manufacturer

The Fourth Department determined a downstream retailer (GE) was not entitled to indemnification from and upstream manufacturer (Carrier) when both have been absolved of fault in a products liability action.  The basis of the action was a fire which was alleged to have been caused by an air conditioner manufactured by Carrier and marketed and sold by GE.  It was ultimately determined the fire was not caused by the air conditioner.  GE sought indemnification from Carrier for the costs associated with the lawsuit:

The issue in this case is whether GE, a downstream retailer, is entitled to recoup its costs in defending a products liability action from Carrier, an upstream manufacturer, when they both are ultimately absolved of liability. We conclude that GE is not entitled to recoupment, and we therefore affirm.

Indemnification is grounded in the equitable principle that the party who has committed a wrong should pay for the consequences of that wrong … . Thus, New York courts have consistently held that “common-law indemnification lies only against those who are actually at fault” …, i.e., the “actual wrongdoer” … . In the products liability context, a manufacturer is held accountable as a “wrongdoer” when it releases a defective product into the stream of commerce …, and “innocent” sellers who merely distribute the defective product are entitled to indemnification from the at-fault manufacturer … . That common-law right of indemnification “encompasses the right to recover attorneys’ fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party” … . * * *

Where, as here, it is ultimately determined that the subject product is free from defect, there is no “fault” or “wrongdoing” on the part of the manufacturer… . Bigelow v General Elec Co, 2014 NY Slip Op 05727, 2nd Dept 8-8-14

 

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Sheriff’s (Lack of) Liability Under Respondeat Superior, Elements of Malicious Prosection, Abuse of Process, False Imprisonment and Libel Per Se Explained

In a lengthy and detailed decision the Fourth Department explained the negligence actions against the sheriff based on respondeat superior were properly dismissed, the action for malicious prosecution was properly dismissed (because the underlying criminal action was not dismissed on the merits and could be renewed), but the actions for abuse of process, false imprisonment, and libel per se should not have been dismissed.  The decision is too lengthy to summarize here, but it includes detailed explanations of the sheriff’s immunity from suit under respondeat superior and the elements of malicious prosecution, abuse of process, false imprisonment, and libel per se. The action stemmed from the allegation plaintiff was falsely accused of stealing a computer.  D’Amico v Correctional Med Care Inc, 2014 NY Slip Op -5737, 4th Dept 8-8-14

 

Driver with Right of Way Who Strikes a Vehicle Which Suddenly Enters the Right of Way Is Free from Negligence (No Need to Apply the Emergency Doctrine)/Emergency Doctrine Does Not Automatically Absolve a Driver of Liability

The Fourth Department noted that a driver with the right of way who strikes a vehicle which suddenly enters his or her path is free of negligence absent speeding or some other negligent conduct (no need to apply the emergency doctrine).  The court further noted that the emergency doctrine does not automatically absolve a person of liability.  Here there was a question whether the brakes on the vehicle confronted with the emergency were maintained properly and whether swerving was reasonable:

The existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact” … . We conclude that there are issues of fact whether the Marriotts’ maintenance of their pickup truck was adequate and thus whether the brake failure was truly unexpected and without any fault on their part. Moreover, it cannot be concluded as a matter of law that swerving to the right in order to avoid rear-ending the garbage truck was a reasonable reaction to the emergency created by the loss of brakes on the pickup truck. Colangelo v Marriott, 2014 NY Slip Op 05746, 4th Dept 8-8-14

 

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Negligence and “1983” Causes of Action Against the City and/or City Employees Stemming from the Alleged Failure to Provide Medical Assistance to a Rikers Island Inmate Reinstated

The First Department, reversing Supreme Court, determined there were triable issues of fact concerning whether corrections officers breached a duty to protect the decedent, an inmate at Rikers Island, by failing to respond to decedent’s medical emergency.  The court also determined there were triable issues of fact concerning a 1983 action against one of the city employees based upon her alleged “deliberate indifference” to decedent’s “serious medical needs.”  The court noted that the 1983 action against the city, alleging deliberate indifference, was properly dismissed:

Dozens of eyewitnesses provided conflicting accounts regarding, among other things, the timing of the officers’ calls for medical assistance, and whether resuscitative efforts undertaken before medical personnel arrived were performed by the officers or whether other inmates took such measures in the face of inaction by the officers. Plaintiffs’ expert affirmation raised triable issues of fact as to the adequacy of the officers’ response and the soundness of defendants’ expert’s opinions. The City’s reliance on governmental immunity is unavailing, since there are triable issues of fact as to whether the death was caused in part by a negligent failure to comply with mandatory rules and regulations of the New York City Department of Corrections (DOC), requiring, among other things, that correction officers respond immediately in a medical emergency, and that officers who are trained and certified in CPR administer CPR where appropriate … .

The court correctly dismissed the § 1983 claim against the City. … There is … no evidence of a “policy or custom” evincing deliberate indifference to the rights of inmates … . “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action” … . “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights” … . Luckey v City of New York, 2014 NY Slip Op 05697, 1st Dept 8-7-14

 

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Allegation in Notice of Claim that Defendant Failed to Maintain a Stairway Was Sufficient to Encompass the Allegation the Handrail Was Obstructed and Could Not Be Used

In a slip and fall case, the First Department, over a two-justice dissent, reversing Supreme Court, determined that a notice of claim which generally alleged a failure to maintain a stairway in the vicinity of the second floor landing was sufficient to encompass allegations in the bill of particulars that the handrail was obstructed and could not be used:

Plaintiff’s claim that defendant failed to maintain the handrail along the stairway at or near the second floor may be fairly inferred from the notice of claim, which alleged that defendant was negligent in maintaining the second floor landing area … . The notice of claim alleged generally that defendant failed to maintain stairway “A” in the vicinity of the second floor landing, causing plaintiff’s injury. The bill of particulars merely amplified the allegations of negligence concerning the landing area by further specifying that defendant had failed to maintain the handrail at the landing area… . Thomas v New York City Hous Auth, 2014 NY Slip Op 05696, 1st Dept 8-7-14

 

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Criteria Re: Counties’ and Foster Care Agencies’ Liability for the Acts of Foster Parents Explained

In dismissing a complaint against a foster care agency based upon the alleged failure of the foster parent to seek medical care for the foster child, the Second Department explained the relevant law:

Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers … .

However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home … . In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant’s injuries … . In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated … . Keizer v SCO Family of Servs, 2014 NY Slip Op 06630, 2nd Dept 8-6-14

 

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Prejudice to County Investigation Stemming from Plaintiff’s Describing the Wrong Location of the Slip and Fall in the Notice of Claim Precluded Plaintiff from Amending the Notice

The Second Department determined that the failure to correctly describe the location of the slip and fall in the initial notice of claim prejudiced the investigation of the incident by the county.  Therefore, Supreme Court should not have granted plaintiff’s motion to amend the notice of claim:

A court may, in its discretion, grant a motion for leave to amend a notice of claim which has been served where it determines that two conditions have been met: first, the mistake, omission, irregularity, or defect must have been made in good faith; and second, it must appear that the public corporation has not been prejudiced thereby … . Since bad faith by the plaintiff was not asserted, the only issue presented here is whether service of the amended notice of claim would prejudice the County. The record indicates that the plaintiff’s incorrect information as to the accident location prejudiced the County in its ability to conduct a prompt and meaningful investigation of the accident site … . Murtha v Town of Huntington, 2014 NY Slip Op 05633, 2nd Dept 8-6-14

 

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