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Verdict Properly Set Aside—Theory of Liability Alleged at Trial Altered the Theory of Liability Alleged in Notice of Claim

The First Department determined a plaintiff’s verdict was properly set aside because the theory of liability advanced at trial differed from that described in the Notice of Claim:

The trial court correctly set aside the jury’s verdict because the evidence presented at trial substantially altered the theory of liability set forth in the notice of claim. While the change of location of the accident was not itself substantive, we find the additional testimony, i.e., that the decedent’s injuries were caused by Lewis’ failure to stop at a stop sign or a blinking red light, was not alleged in the notice of claim, and thereby substantially altered the nature of the claim. Further, plaintiff’s time to amend the notice of claim to assert that theory has expired (see General Municipal Law § 50-i[1]…). Contrary to plaintiff’s contention, defendants were not required to demonstrate that their investigation was prejudiced, because plaintiff never sought to amend her notice of claim pursuant to General Municipal Law § 50-e(6)… . Davis v New York City Tr Auth, 2014 NY Slip Op 03743, 1st Dept 5-22-14

 

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Security Guard and College Had No Duty to Protect Taxi Driver from Attack by Students on Campus—Plaintiff Was Not a Third Party Beneficiary of Contract Between Security Company and College

The Second Department determined defendants security company (Secuitas), security guard (Jarrett) and college (Manhattanville) did not owe any duty to a taxi driver who was allegedly attacked and injured by students on a college campus.  The complaint alleged a security guard (Jarrett) was nearby and did nothing to intervene in the attack:

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … . Before an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him or her from physical injury … .

The plaintiff here was not a third-party beneficiary of the contract between Securitas and Manhattanville, as the contract did not contain any express provision that it would protect individuals on the campus from physical injury or attack … . Securitas and Jarrett did not assume a duty to exercise reasonable care to prevent harm to the plaintiff by virtue of its contractual duty to provide an unarmed security guard … . Securitas did not assume a duty pursuant to the contract to prevent assaults, or to protect the plaintiff from physical injury inflicted by intervening third-party assailants … . As such, Securitas and Jarrett established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact. Ramirez v Genovese, 2014 NY Slip Op 03673, 2nd Dept 5-21-14

 

Defendants Failed to Make Allegations Sufficient to Demonstrate a Lack of Constructive Notice of the Condition of a Floor Mat (Slip and Fall)—Summary Judgment Should Not Have Been Granted in Favor of Defendants

The Second Department determined the defendants’ motion for summary judgment in a slip and fall case should have been denied.  The defendants failed to make sufficient allegations demonstrating a lack of constructive notice of the condition of a floor mat:

To impose liability upon the laundromat defendants for the plaintiff’s fall, there must be evidence tending to show that those defendants either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time … . To meet their initial burden on the issue of lack of constructive notice, the laundromat defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … .

Here, the laundromat defendants did not meet their initial burden of establishing their [*2]entitlement to judgment as a matter of law. The laundromat defendants failed to submit evidence sufficient to establish that they inspected the mat within a reasonable time prior to the accident. Thus, they failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous condition of the mat … . Francis v Super Clean Laundromat Inc, 2014 NY Slip Op 03650, 2nd Dept 5-21-14

Same issue and result in Maloney v Farris, 2014 NY Slip Op 03663, 2nd Dept 5-21-14

Same issue and result in Rogers v Bloomingdale’s Inc, 2014 NY Slip Op 03675, 2nd Dept 5-21-14,  noting that evidence of the store’s general cleaning procedures without any specifics about when the area where the fall occurred was last inspected or cleaned does not raise a question of fact about a lack of constructive notice.

 

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Question of Fact About Whether Order Given by Private Attending Physician and Carried Out by Hospital Employee Was Contraindicated—Therefore Hospital’s Motion to Dismiss Properly Denied

The Second Department noted that a hospital generally may not be held liable for the actions of a private attending physician (Simoncic) where the hospital employees merely carry out the orders of the private physician.  Here, however, there was evidence the attending physician’s order was contraindicated.  Therefore the hospital’s motion to dismiss was properly denied:

With regard to the Hospital’s potential liability, a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits “independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” (Cerny v Williams, 32 AD3d 881, 883; see Cham v St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004).

Here, the Hospital established, prima facie, that Simoncic was a private attending physician, and that its employees did not commit independent acts of negligence and that Simoncic’s discharge order that [the patient] be given a prescription for Levaquin was not contraindicated by normal practice. However, in opposition, the plaintiff, through her opposing medical expert’s affirmation, raised a triable issue of fact as to whether the prescribing of Levaquin was contraindicated by normal practice … .

Accordingly, the Supreme Court correctly denied the Hospital’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Fink v DeAngelis, 2014 NY Slip Op 03648, 2nd Dept 5-21-14

 

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No Basis for Liability of Snow-Removal Contractor Re: Slip and Fall

The Second Department determined a snow-removal contractor was properly granted summary judgment in a slip and fall case.  The plaintiff did not raise a question of fact about any of the three “Espinal” [98 NY2d 136] situations (which would allow recovery against a contractor with whom plaintiff does not have a contractual relationship):

The Court of Appeals has recognized three situations in which a party such as the defendant may be said to have assumed a duty of care, and thus potentially may be liable in tort to third persons such as the plaintiff: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty to maintain the premises safely … . * * *

…[T]he plaintiff offered only speculation and conjecture in support of her contention that the defendant launched a force or instrument of harm by creating or exacerbating the ice patch that allegedly caused the plaintiff’s fall …, or that the subject snow removal contract was a comprehensive and exclusive agreement which displaced Communicar’s duty to maintain the premises in a safe condition … . Javid v Sclafmore Constr, 2014 NY Slip Op 03656, 2nd Dept 5-21-14

 

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Question of Fact Raised Re: Negligent Supervision of Student by School in an Indoor Floor Hockey Game—Student Injured by Gym Teacher Who Was Participating in the Game

The Second Department determined plaintiff, a student playing supervised indoor floor hockey in school, stated a cause of action for negligent supervision:

“A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent” … . A school is under a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “Whether a student is properly supervised depends largely on the circumstances attending the event'” … . * * *

The defendants’ submissions raised questions of fact as to whether the conduct of [the gym teacher], who was participating in the game during gym class and was involved in the contact which allegedly injured the plaintiff, constituted proper supervision, as well as whether the alleged negligent supervision was a proximate cause of the plaintiff’s injuries … . Godoy v Central Islip Union Free Sch Dist, 2014 NY Slip Op 03652, 2nd Dept 5-21-14

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No Liability for Out-of-Possession Landlord—No “Significant Structural Defect” and No Code Violation

The First Department determined the out-of-possession landlord could not be held liable for an accident which occurred on a spiral staircase in a restaurant which connected a basement prep kitchen to the main-floor kitchen.  The staircase was not a “significant structural defect” and did not violation any provision of the NYC Administrative Code:

Liability does not lie against defendant out-of-possession landlord because the claimed riser, tread and handrail violations were not significant structural defects … . The staircase was not an “interior stair” as defined in § 27-132 of the NYC Administrative Code …. . Nor were the claimed violations of former §§ 27-127 and 27-128 specific statutory safety provisions that may serve as predicates for defendant landlord’s liability … . It is therefore immaterial whether landlord had notice of the allegedly dangerous condition or retained a right to reenter … . Podel v Glimmer Five LLC, 2014 NY Slip Op 03635, 1st Dept 5-20-14

 

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Party Who Was Both a Plaintiff and a Defendant in a Joint Trial of Two Actions Was Properly Allowed to Have Two Attorneys

The First Department determined a party who was a plaintiff in one case and a defendant in another was properly allowed to have two attorneys in the joint trial.  Pimentel was involved in an automobile accident with Wong.  Wong’s car jumped the curb and crashed into a store, injuring plaintiff Newark. Newark sued Wong and Pimentel and Pimentel sued Wong.  Pimentel was represented in each action by separate attorneys:

The trial court did not abuse its discretion in allowing Pimentel’s interests as a plaintiff in his own action and as a defendant in this action to be represented by separate attorneys (see CPLR 4011…). The court promised to and did exert control over the nature of the dual representation, as necessary, and Pimentel’s defense counsel, whose opening statement, summation, and questioning of witnesses were brief, played a limited role. In any event, in the absence of any evidence of an unfair advantage or prejudice, any error would be harmless. Newark v Hector R. Pimentel, 2014 NY Slip Op 03636, 1st Dept 5-20-14

 

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Out-of-Possession Landlord Not Liable for Injury Caused by Trash Compactor on Property

The First Department determined an out-of-possession landlord had no liability for an injury caused by a trash compactor located on the property:

[Defendant] demonstrated that as an out-of-possession owner it had no responsibility for the complained-of defect, because the defect was not a significant structural or design defect that was contrary to a specific statutory safety provision … . In support of his position that the trash compactor is a structural component of the building, plaintiff cited Administrative Code of City of NY § 27-232 (defining “Service Equipment” to include “refuse disposal”). However, that provision is not a safety provision. Plaintiff’s argument that as an out-of-possession owner [defendant] remained liable for any dangerous condition that existed at the time it net leased the building—four years before the accident—is unavailing, since the net lessee “had reasonable time to discover and remedy the defect” after the conveyance of the property interests … . Humareda v 550A E 87th St LLC, 2014 NY Slip Op 03584, 1st Dept 5-15-14

 

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City Administrative Code Provision Requiring a Building Owner to Maintain and Be Responsible for the Safe Condition of a Building Is Not Specific Enough to Form the Basis of Negligence Cause of Action

The Second Department determined plaintiffs did not raise a question of fact on a premises liability cause of action based upon alleged city administrative code violations, but did raise a question of fact concerning the building owner’s common law negligence.  Infant plaintiff fell over a railing on a landing to a set of stairs outside of the apartment building:

Administrative Code §§ 27-375 and 27-376 do not apply to the subject exterior stairs because the stairs were not [*2]”used as exits in lieu of interior stairs” (Administrative Code § 27-376…). “Exit” is defined by the Administrative Code as a “means of egress from the interior of a building to an open exterior space” (Administrative Code of City of NY § 27-232). The stairway was outside the parameters of the building and did not provide a means of egress from the interior of the building to an open exterior space … . Moreover, the plaintiffs’ contention that the stairs violated Administrative Code §§ 27-127 and 27-128 is without merit. Those sections “merely require that the owner of a building maintain and be responsible for its safe condition,” and do not constitute a sufficiently specific statutory predicate for liability … . In addition, Administrative Code § 17-123, which concerns window guards, is inapplicable to the facts of this case. Friedman v 1953 Realty Co, 2014 NY Slip Op 03480, 2nd Dept 5-14-14

 

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