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Request to File Late Notice of Claim Against School District Stemming from Alleged Sexual Abuse of the Plaintiff by a Teacher Should Not Have Been Granted—School Did Not Have Actual Notice—No Good Reason for Delay in Filing

The Third Department determined the request to file a late notice of claim against a school district should have been denied.  The underlying action relates to alleged sexual abuse of a student (plaintiff) by a teacher.  The plaintiff and the teacher had initially both denied the existence of relationship.  Therefore, the court determined the school did not have actual knowledge of it.  The lack of actual knowledge coupled with the delay in filing the notice of claim after the plaintiff turned 18 required denial of the application:

…”[I]n determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the [plaintiff] was an infant at the time the claim arose and, if so, whether there was a nexus between the [plaintiff’s] infancy and the failure to serve a timely notice of claim, (3) the [plaintiff] demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits” … . Although no one factor is determinative … , the case law makes clear that actual knowledge “is a factor which should be accorded great weight” … . Notably, actual knowledge of the essential facts underlying the claim requires more than “mere notice of the underlying occurrence” … and the fact that some sort of injury occurred… . Babcock v Walton Cent School Dist, 2014 NY Slip Op 05013, 3rd Dept 7-3-14

 

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Proof Vehicle Was Stolen at the Time of the Accident Defeated Action Based Upon Vehicle-Owner’s Vicarious Liability

The Second Department determined defendant’s evidence that her vehicle had been stolen at the time of the accident entitled her to summary judgment in an action based upon the vehicle-owner’s vicarious liability:

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law …, the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner’s express or implied consent … . This statute creates a presumption that the driver was using the vehicle with the owner’s express or implied permission …, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent … . Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use … . Fuentes v Virgil, 2014 NY Slip Op 04899, 2nd Dept 7-2-14

 

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Lack of Notice of Alleged Dangerous Condition Established by Custodian’s Testimony

The Second Department determined that the testimony of the school custodian that he had inspected the floor shortly before plaintiff allegedly slipped and fell on accumulated water entitled the defendant school to summary judgment:

” To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time'” … . ” A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected'” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant 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 Board of Education established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the custodian engineer assigned to clean the school. He testified that he inspects the school, including the bathrooms, every morning to make sure that it is safe and clean. He further testified that he had last inspected the subject bathroom approximately two to two and one-half hours before the infant plaintiff allegedly was injured, and that there was no liquid on the floor at that time. The Board of Education also submitted the affidavit of a school administrator who averred that the school had not received any complaints regarding water on the floor of the subject bathroom between the time of the inspection and the time of the alleged accident. Additionally, the Board of Education submitted the deposition testimony of the infant plaintiff’s mother, who admitted that, prior to the accident, the infant plaintiff never complained to her about water accumulation on the bathroom floors … . Farren v Board of Educ of City of NY, 2014 NY Slip Op 04896, 2nd Dept 7-2-14

 

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Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed—Original Notice of Claim Inadequate

The Second Department reversed Supreme Court finding that plaintiff’s motion to amend the notice of claim should have been denied and the complaint dismissed:

Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial “technical mistakes, defects, or omissions, not substantive changes in the theory of liability” … . Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s cross motion for leave to serve and file an amended notice of claim. The proposed amendments to the notice of claim included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Granting leave to serve and file the proposed amended notice of claim would prejudice the Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Moreover, the Supreme Court should have granted the Housing Authority’s motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was inadequate. A notice of claim must provide timely notice of the essential facts and legal theories supporting the claims alleged in the complaint … . The test of the sufficiency of a notice of claim is whether it includes enough information to enable the defendant to promptly investigate the allegations at issue … . The plaintiff’s original notice of claim did not sufficiently apprise the Housing Authority of the relevant facts or legal theories supporting the plaintiff’s claims to enable the Housing Authority to promptly and adequately investigate the allegations at issue in the complaint, resulting in prejudice to the Housing Department … . Ahmed v New York City Hous Auth, 2014 NY Slip Op 04883, 2nd Dept 7-2-14

 

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Statement Made Before Any Possible Motive to Falsify Should Have Been Admitted to Rebut Assertion of Recent Fabrication

The Second Department determined the trial court committed reversible error by excluding a statement made to medical personnel by the infant plaintiff.  It was crucial to the plaintiff’s case to demonstrate that she was injured falling from the monkey bars at the school’s playground.  The case sounded in negligent supervision and students plaintiff’s age were not permitted on the monkey bars. When receiving medical treatment plaintiff said she fell from the monkey bars and her statement was included in the medical records. The Second Department deemed the statement admissible to rebut the assertion of recent fabrication and, in addition, because the statement was germane to her treatment:

The Supreme Court erred in precluding the plaintiffs from admitting the proffered medical record into evidence and in denying their renewed request to introduce the medical record. Ordinarily, “[t]he testimony of an impeached or discredited witness may not be supported or bolstered by proving that he [or she] has made similar declarations out of court” … . However, an out-of-court statement “made at a time before a motive to falsify exists may be received in evidence after the testimony of the witness is attacked as a recent fabrication” … . Here, the focus of the defense was not merely that the infant plaintiff was mistaken or that she was confused or could not recall her accident, but that she was coached to tell a “false story well after the event” and, as such, it was a recent fabrication … . Moreover, the statement fell within another exception to the hearsay rule, as it was germane to the infant plaintiff’s medical treatment on the date of the incident …. Nelson v Friends of Associated Beth Rivka School for Girls, 2014 NY Slip Op 04908, 2nd Dept 7-2-14

 

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Village’s Actual Notice of a Sidewalk Defect Does Not Override Written Notice Requirement

The Second Department determined that actual notice of a defect in a sidewalk does not override the requirement of written notice. The abutting landowner had notified Village personnel of the defect orally and the Village architect had indicated the defect would be repaired:

The Village established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of its Village Clerk, who averred that her search of the Village’s records revealed no prior written notice of any hazardous condition on the sidewalk where the accident occurred … . In opposition, the plaintiff and the homeowners failed to raise a triable issue of fact. Their submissions failed to show that the Village affirmatively created the alleged hazardous condition …, or caused the alleged hazardous condition to occur by its special use of the sidewalk …. Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect … . Velho v Village of Sleepy Hollow, 2014 NY Slip Op 04916, 2nd Dept 7-2-14

 

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Pedestrian’s Action, In Violation of City Pedestrian Rules, Was the Proximate Cause of Pedestrian’s Injuries (Pedestrian Was Struck by a Car)

The Second Department determined Supreme Court properly refused to set aside the verdict in favor of the defendant.  Plaintiff, a pedestrian, had been struck by a car just as he stepped off the curb in violation of city rules for pedestrians:

Here, a fair interpretation of the evidence supported the jury’s finding that an unknown operator of a motor vehicle involved in an accident with the plaintiff, a pedestrian, was not negligent. Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(1), entitled “Operators to yield to pedestrians in crosswalk,” provides that “[w]hen traffic control signals or pedestrian control signals are not in place or not in operation, the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger.” Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(2), entitled “Right of way in crosswalks,” provides that “[p]edestrians shall not cross in front of oncoming vehicles. Notwithstanding the provisions of (1) of this subdivision (b), no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield.” Rules of City of New York Department of Transportation (34 RCNY) § 4-04(c)(2) provides that “[n]o pedestrian shall cross any roadway at an intersection except within a cross-walk.” According to the plaintiff, he stepped off a sidewalk approximately one car length away from the corner in an attempt to cross Rockaway Beach Boulevard at Beach 96th Street in Queens. The plaintiff conceded that there was no designated crosswalk at that intersection. Almost immediately after the plaintiff had stepped off the curb, his leg came into contact with the right side of the unidentified motor vehicle after he had walked approximately two feet into the roadway. Thus, there was ample evidence adduced at trial from which the jury could have reasonably found that the plaintiff violated Rules of City of New York Department of Transportation (34 RCNY) §§ 4-04(b)(2) and (c)(2), and that those violations, rather than any conduct on the part of the unknown motorist, proximately caused the accident … . Rivera v Motor Veh Acc Indem Corp, 2014 NY Slip Op 04911, 2nd Dept 7-2-14

 

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Reversible Error to Give a Modified Malpractice Jury Instruction in a Negligent/Defective Design Case

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, reversed a $10 million judgment against Volvo, finding that one of the jury instructions, which was a modified version of the jury instruction for a malpractice case, should not have been given.  The plaintiff lost a leg when the ignition of the manual transmission car was switched on and the car lurched forward, pinning the plaintiff.  A central issue in the trial was whether the car should have been equipped with a device which would have prevented the car from starting when it was in gear.  In addition to the jury instruction issue, the court discussed the redundancy of instructions for negligent design and defective design, the appeal as of right and by permission pursuant to CPLR 5601 and 5602, and the inconsistency of the verdict.  With respect to the malpractice jury instruction, the court wrote:

[PJI 2:15] should not have been given in this case. It was designed for malpractice cases. As the Committee on Pattern Jury Instructions says: “The principle stated in the pattern charge is the underlying basis of malpractice actions” (1A NY PJI3d 2:15 at 259 [2014]). The Committee goes on to say that “[t]he principle extends to skilled trades and to professions not generally thought of in connection with malpractice” (id.), but we know of no basis for including automobile manufacturers in that category. This is not a malpractice case, but a negligent design or (what amounts to the same thing) a design defect case.

PJI 2:15 is reserved for malpractice cases because the standards of care applicable to malpractice cases and to other negligence cases are different. In a malpractice case against, for example, a doctor or a lawyer, the defendant is generally held to the level of skill and care used by others in the community who practice the same profession … . In negligence cases generally, by contrast, the jury must compare the defendant's conduct to that of a reasonable person under like circumstances (Restatement [Second] of Torts § 283…). In negligent design/design defect cases, the reasonable-person standard has been given more specific form: the question is whether the product is one as to which “if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” … .  Reis v Volvo Cars of N Am, 2014 NY Slip Op 04880, CtApp 7-1-14

 

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Statute of Limitations Starts When the Alleged Malpractice Occurred, Not When Plaintiff Becomes Aware of It/Continuous Representation Doctrine Can Not Be Invoked to Toll Statute of Limitations When Plaintiff Was Notified Representation Was Formally Closed

In affirming the dismissal of an attorney malpractice cause of action, the First Department noted that the cause of action accrued when an appeal was dismissed for lack of prosecution, irrespective of whether the plaintiff was aware of the dismissal.  In addition, the court noted that a letter to the plaintiff which indicated the defendants’ represented of plaintiff was formally closed precluded the plaintiff from relying on the continuous representation doctrine to toll the statute of limitations:

The first cause of action, alleging legal malpractice, accrued at the time that plaintiff’s appeal of the order that granted summary judgment dismissing his underlying Labor Law claims was dismissed for want of prosecution, in July 2006, notwithstanding his lack of knowledge of the dismissal … . Plaintiff then had three years to commence a malpractice action against defendants (see CPLR 214[6]), absent an applicable ground for tolling the limitations period. He did not commence this action until March 2012.

Plaintiff relies on the continuous representation doctrine. However, in June 2008, defendants sent him a letter enclosing the 2nd Department’s affirmance of the underlying judgment and formally closing their representation of him. The letter, which plaintiff did not object to, demonstrates that the parties lacked “a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” … . Even accepting that defendants concealed from plaintiff the fact that his appeal was dismissed as abandoned, their letter placed him on notice that his attorney-client relationship with them had ended… . McDonald v Edelman & Edelman, PC, 2014 NY Slip Op 04560, 1st Dept 6-19-14

 

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Plaintiffs Granted Summary Judgment In Action Against Golf Course Re: Incursion of Golf Balls on Plaintiffs’ Property

The Second  Department reversed Supreme Court and found that plaintiffs were entitled to summary judgment on liability. Plaintiffs sued defendant golf course (Quaker Ridge) complaining of the incursion of golf balls on their property.  The plaintiffs sued in nuisance, trespass and negligence:

“The elements of a private nuisance cause of action are an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . Here, the plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging private nuisance by demonstrating that Quaker Ridge has operated its golf course in a manner that has failed to sufficiently reduce the number of golf balls landing on the plaintiffs’ property, producing a tangible and appreciable injury to the property that renders its enjoyment especially uncomfortable and inconvenient … .

Likewise, the plaintiffs’ submissions were sufficient to establish their prima facie entitlement to judgment as a matter of law with respect to the cause of action alleging trespass. “The essence of trespass is the invasion of a person’s interest in the exclusive possession of land” … . The invasion of, or intrusion upon, the property interest “must at least be the immediate or inevitable consequence of what [the defendant] willfully does, or which he does so negligently” … . Here, the plaintiffs’ submissions demonstrate that golf balls have invaded their property with such frequency and over such a long period of time, without Quaker Ridge taking steps to sufficiently abate the situation, so as to amount to willfulness … .

Furthermore, the plaintiffs established, prima facie, that Quaker Ridge breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location, in the form of play, or in the erection of protective devices as a safeguard against injury to the plaintiffs’ property … .  Behar v Quaker Ridge Golf Club Inc, 2014 NY Slip Op 04456, 2nd Dept 6-18-14

 

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