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REVERSING THE FOURTH DEPARTMENT WITHOUT OPINION OR MEMORANDUM DECISION, THE COURT OF APPEALS HELD QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR IN THIS MEDICAL MALPRACTICE ACTION (CT APP).

The Court of Appeals, reversing the Fourth Department without an opinion or memorandum decision, determined questions of fact precluded summary judgment in defendants’ favor in this medical malpractice case. ​Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2024 NY Slip Op 02085, CtApp 4-18-24

From the dissent in Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2023 NY Slip Op 04063 [218 AD3d 1344], Fourth Dept 7-28-23:

The medical records proferred by defendants established that, after a failed first intubation attempt with a 3.5 mm ET by defendant Katelyn Johnson-Clark, D.O., a physician with little training in the intubation process, Johnson-Clark attempted intubation using a smaller 3.0 mm ET. It is undisputed that there was no verification of the proper placement of that ET by way of an end-tidal CO2 detector. The medical records further establish that one minute after the placement of the ET, the infant’s heart rate quickly dropped and one minute thereafter, the infant’s belly was distended. Another physician testified at her deposition that both of those signs indicate that there was a potential issue with the intubation. When the specialized transport team arrived, it was determined by way of a CO2 detector that the ET was not in the proper place. Thus, we conclude that defendants’ own submissions raise questions of fact whether Johnson-Clark acted negligently in the intubation of the infant and the motion was properly denied in part without regard to the sufficiency of plaintiff’s opposition papers … . We would therefore affirm that part of the order denying defendants’ motion insofar as it seeks summary judgment dismissing the claim of malpractice related to the intubation of the infant.

 

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BECAUSE A CONTEMPORARY REPORT PROVIDED THE CITY WITH NOTICE OF THE NATURE OF THE SLIP AND FALL, THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE THE LACK OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. The line-of-duty report provided the city with timely knowledge of the nature of the claim and demonstrate the city would not be prejudiced by the delay in filing the notice. Where a defendant has timely knowledge of the incident, the lack of a reasonable explanation for failing to timely file is often overlooked:

The line-of-duty injury report’s specificity regarding the location and circumstances of the incident, permitted the City to readily infer that a potentially actionable wrong had been committed … .

Further, as the petitioner has shown the City’s actual knowledge of the essential facts underlying the claim, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim was not fatal to her claim … .

… [A]s the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response …, the City has failed to provide particularized evidence establishing that the late notice substantially prejudiced its ability to defend the claim on the merits … . Matter of Steward v City of New York, 2024 NY Slip Op 02058, Second Dept 4-17-24

Practice Point: If the municipal defendant has timely notice of the nature of the incident (here by virtue of a contemporary report) and the city cannot demonstrate prejudice, a petition for leave to file a late notice of claim should be granted, even in the absence of a reasonable excuse for failing to timely file.

 

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THE SECOND DEPARTMENT JOINED THE FIRST AND THIRD DEPARTMENTS IN HOLDING THAT THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT APPLIES TO A NEW YORK RESIDENT WHO WAS ABUSED OUT-OF-STATE (SECOND DEPT).

The Second Department, joining the First and Third Departments, determined an action brought under the Child Victims Act by a person who was a resident of New York at the time the cause of action accrued can take advantage of the extended statute of limitations (CPLR 214-g) even where the wrongful conduct occurred out-of-state:

The plaintiff alleges that, when he was a resident of New York, he was the victim of childhood sexual abuse committed against him by Philip Foglietta, a football coach, while attending summer football camp in Vermont in 1972 and in Massachusetts in 1973 and 1975. * * *

… [W]e agree with the Appellate Division, First and Third Departments, that a plaintiff’s residence in New York at the time his or her claims or causes of action accrued is sufficient to bring those claims or causes of action within the purview of CPLR 214-g, even where, as here, the wrongful conduct underlying the New York resident’s causes of action occurred out-of-state … . * * *

The appellants’ focus on the location of the alleged wrongdoing is misplaced in this context, because the subject of CPLR 214-g is not the wrongful conduct itself, but rather the statute of limitations or notice of claim requirements that barred some New Yorkers from recovering damages for the underlying wrongdoing. CPLR 214-g did not criminalize or penalize behavior that was previously lawful, nor did it create a new private right of action. Rather, the statute revived prior claims or causes of action that already existed but were barred either because of the expiration of the applicable statute of limitations or the plaintiff’s failure to file a timely notice of claim (see id. § 214-g). Smith v Pro Camps, Ltd., 2024 NY Slip Op 02074, Second Dept 4-17-24

Practice Point: The Child Victims Act extends the statute of limitations for a plaintiff who was a New York resident at the time the cause of action accrued, even if the abuse took place in another state.

 

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THE THIRD DEPARTMENT JOINS THE OTHER DEPARTMENTS IN HOLDING THAT A PLAINTIFF NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO PRESERVE AN “AGAINST THE WEIGHT OF THE EVIDENCE” ARGUMENT ON APPEAL (THIRD DEPT). ​

The Third Department, affirming the defense verdict in this medical malpractice case, joined the other appellate division departments in finding that a plaintiff may make a “verdict is against the weight of the evidence” argument on appeal without moving to set aside the verdict on that ground:

… [We now join our colleagues in our sister Departments in concluding that plaintiffs were not required to preserve their weight of the evidence contention by moving to set aside the verdict upon that basis … . A trial court has the authority to order a new trial “on its own initiative” when the verdict is contrary to the weight of the evidence (CPLR 4404 [a]), and this Court’s power “is as broad as that of the trial court” … . Although we believe it remains best practice for a party to challenge a verdict upon this basis before the trial court, in light of its superior opportunity to evaluate the proof and credibility of witnesses … , we nonetheless agree that this Court is fully empowered to “order a new trial where the appellant made no motion for that relief in the trial court” … . To the extent that our prior decisions have suggested otherwise, they should no longer be followed … . Fitzpatrick v Tvetenstrand, 2024 NY Slip Op 01956, Third Dept 4-10-24

Practice Point: In this decision, the Third Department joined the other departments in holding that a plaintiff need not make a motion to set aside the verdict to preserve an “against the weight of the evidence” argument on appeal.

 

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A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the property managing agent did not exercise complete and exclusive control of the operation of the property and therefore could not be held liable for plaintiff’s trip and fall over a stub-up pipe protruding from a step:

Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against CBRE [the managing agent] on the ground that CBRE does not own, operate, or control the premises. “Where, as here, a managing agent is accused of nonfeasance which causes injury to a third party, it is subject to liability only where it has complete and exclusive control of the management and operation of the property in question” … . “A managing agent is not in complete and exclusive control of the premises where the owner has reserved to itself a certain amount of control in the written agreement” … .

Here, CBRE established, prima facie, that it was a managing agent of the premises and that the management agreement was not so comprehensive and exclusive as to displace the duty of the owner of the premises to maintain the premises safely … . Quezada v CBRE, Inc., 2024 NY Slip Op 01829, Second Dept 4-3-24

Practice Point: A managing agent is not liable for injury caused by a dangerous condition on the managed property unless the agent exercises complete and exclusive control over the operation of the property.

 

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ALTHOUGH DEFENDANT RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S CONTRIBUTORY NEGLIGENCE IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT RAISE A QUESTION OF FACT ABOUT HIS OWN LIABILTY; THE JUDGE SHOULD NOT HAVE DEEMED PLAINTIFF’S SUMMARY JUDGMENT MOTION PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined that although defendant raised a question of fact about whether plaintiff was contributorily negligent, defendant did not raise a question of fact about the defendant-driver’s liability. In addition, plaintiff’s motion for summary judgment should not have been deemed premature:

… [T]he defendants submitted an affidavit from the defendant driver, in which he stated that he was “not fully responsible” for the accident. The defendant driver also averred that the traffic light had turned green and that the plaintiff had moved forward and then suddenly stopped, causing the defendant driver to strike the rear of the plaintiff’s vehicle despite his efforts to stop his vehicle. This evidence raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident, thereby supporting the denial of that branch of her motion which was for summary judgment dismissing the affirmative defenses alleging comparative negligence … . However, since the defendants’ evidence related only to the plaintiff’s comparative fault, the defendants failed to raise a triable issue of fact in opposition to that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging negligent operation of a motor vehicle … .

Furthermore, the Supreme Court erred in determining that the plaintiff’s motion was premature. “[W]hile a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, [a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … . Here, the defendants had personal knowledge of the relevant facts, and their mere hope or speculation that evidence might be uncovered during discovery was an insufficient basis for denying the plaintiff’s motion …. Martin v Copado-Esquivel, 2024 NY Slip Op 01804, Second Dept 4-3-24

Practice Point: In a rear-end collision case, the fact that defendant raises a question of fact about plaintiff’s contributory negligence does not preclude granting plaintiff summary judgment on the issue of defendant’s liability.

Practice Point: Here, where the facts of the rear-end collision were within defendant’s personal knowledge, plaintiff’s motion for summary judgment should not have been dismissed as premature.

 

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THE POLICE OFFICER WHO STRUCK PLAINTIFF’S CAR WAS ENGAGED IN AN “EMERGENCY OPERATION” AND DID NOT ACT IN “RECKLESS DISREGARD” OF THE SAFETY OF OTHERS; COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city demonstrated the police officer who struck plaintiff’s car was engaged in an “emergency operation” at the time of the accident and did not act in “reckless disregard” for the safety of others:

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104 by submitting evidence that the officer was responding to a radio call about a man with a gun when his police vehicle struck plaintiff’s car … . Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard (Vehicle and Traffic Law § 1104 [e] …).

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104 [e] …). The officer testified that he approached a red light with a vehicle stopped at the intersection, so he had to cross the double yellow lines to avoid it. He also testified that he reduced his speed and looked both ways when approaching the red light at the intersection. The officer attempted to avoid colliding with plaintiff by braking hard and swerving upon realizing that plaintiff’s car had entered the intersection. Seo v City of New York, 2024 NY Slip Op 01785, First Dept 4-2-24

Practice Point: When a police officer engaged in an emergency operation takes steps to avoid colliding with other vehicles the “reckless disregard for the safety of others” standard has not been met.

Similar issues and result in a suit against a private ambulance company in Alonso v Crest Transp. Serv., Inc., 2024 NY Slip Op 01788, Second Dept 4-3-24

 

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THE DEFENDANT SCHOOL DID NOT ELIMINATE TRIABLE QUESTIONS OF FACT ABOUT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S ABUSIVE PROPENSITIES; THE NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CAUSES OF ACTION IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the negligent hiring and negligent supervision causes of action against defendant school stemming from a teacher’s alleged abuse of plaintiff-student should not have been dismissed. There was a question of fact about whether the school district had constructive notice of the teacher’s abusive propensities:

… [G]iven the frequency of the alleged abuse, which occurred over a three-year period, and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher or the plaintiff was not negligent, in light of, among other things, the teacher was on “probationary” status during the relevant period, the special education lessons during which the alleged abuse occurred were one-on-one and behind closed doors, the plaintiff testified at his deposition that the school principal “never came in” or “checked” on him during the lessons, and only a single observation report from Columbus Avenue Elementary School is available in the teacher’s employment file during the relevant period. MCVAWCD-DOE v Columbus Ave. Elementary Sch., 2024 NY Slip Op 01703, Second Dept 3-27-24

Practice Point: Here the defendant school did not eliminate questions of fact about whether it had constructive notice of the teacher’s abusive propensities in this Child Victims Act case. The alleged abuse took place often behind closed doors when the teacher, who was on probation, was alone with the plaintiff.

 

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THE INABILITY TO IDENTIFY THE SLIPPERY SUBSTANCE WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS FATAL TO THE LAWSUIT; ALLEGING THE FLOOR WAS SHINY OR SLIPPERY IS NOT ENOUGH, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s inability to identify the cause of her slip and fall was fatal to the lawsuit. Evidence that the floor was shiny or slippery was not enough to survive a summary judgment motion:

The plaintiff expressly testified that she did not know what caused her to fall … , nor did she recall observing garbage or liquid on the floor, either before or after her fall … .

… The plaintiff’s affidavit and additional portions of her deposition testimony submitted in opposition to the [summary judgment] motion merely confirmed that she fell as a result of a slippery substance that she could not identify. To the extent that the plaintiff’s two witnesses identified the cause of the fall in their affidavits without engaging in speculation … , this evidence was insufficient to raise a triable issue of fact. Although each witness averred that the plaintiff’s fall may have been caused by the “shiny” and “slippery” nature of the floor, “the mere fact that a smooth floor may be shiny or slippery,” without more, “does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Alvarez v Staten Is. R.T. Operating Auth., 2024 NY Slip Op 01695, Second Dept 3-27-24

Practice Point: Here plaintiff’s inability to identify the slippery substance which caused the fall required summary judgment in defendant’s favor. The fact that a floor is shiny or slippery is not enough. The relevant proof requirements are laid out in detail.

 

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PLAINTIFF STUDENT WAS INJURED WHEN SHE COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME; THE GAME WAS DEEMED AGE-APPROPRIATE AND THE SUPERVISION WAS DEEMED ADEQUATE; THE SCHOOL DISTRICT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant school district was entitled to summary judgment in this negligent supervision case. Plaintiff student was injured when she collided with another student during a supervised game which required running to pick up an object and running back to the finish line. The game was deemed to be age-appropriate and the supervision was deemed adequate:

… [T]he defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that it provided adequate supervision and instruction during the infant plaintiff’s gym class … . The infant plaintiff and her classmates were instructed “that there was to be no . . . tackling involved” in the game … . Since the inadvertent collision occurred quickly and without warning, the defendant demonstrated that “more intense supervision would not have prevented the spontaneous and accidental collision of the two children” … . S.T. v Island Park Union Free Sch. Dist., 2024 NY Slip Op 01743, Second Dept 3-27-24

Practice Point: Where a game is age-appropriate, the supervision is adequate, and the student’s injury was inadvertent and occurred suddenly without warning, the school will not be liable under a negligent supervision theory.

 

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