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THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence submitted by plaintiff’s expert, a registered nurse, should not have been rejected because she was not a physician. Plaintiff’s decedent was a nursing-home patient with dementia who fell. The registered nurse was qualified to offer opinion evidence about measures to prevent elderly patients from falling:

Supreme Court disregarded plaintiff’s nursing expert’s opinion because she is not a medical doctor. However, the standard of care at issue clearly falls within the duties and expertise of a registered nurse. At the defendant nursing home, patient assessments were performed by registered nurses and evaluated by a team which included registered nurses. The nursing expert’s curriculum vitae demonstrates that she has a Bachelor of Science in nursing from the University of the State of New York, is licensed as a registered nurse in New York, and has worked in nursing since 1980. In particular, she has over fifteen years of experience conducting plan of care assessments for high-risk nursing home patients. Therefore, plaintiff’s nursing expert demonstrated that she has the requisite experience and expertise to opine as to the proper medical standard for preventing falls in elderly patients with dementia residing in skilled nursing facilities and whether defendant deviated from that standard … .

Furthermore, challenges regarding an expert witness’s qualifications affect the weight to be accorded the expert’s views, not their admissibility … . Rodriguez v Isabella Geriatric Ctr. Inc., 2024 NY Slip Op 02608, First Dept 5-9-24

Practice Point: Here the registered nurse was qualified to offer an opinion on the measures necessary to prevent geriatric patients from falling.

Practice Point: An expert’s qualifications speak to the weight of the opinion evidence, not its admissibility. Here the registered nurses opinion should not have been rejected because she was not a physician.

 

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PLAINTIFF’S ALLOWING HIS ATTACKER INTO HIS APARTMENT WAS AN INTERVENING ACT AND A SUPERSEDING PROXIMATE CAUSE WHICH RELIEVED THE BUILDING DEFENDANTS OF ANY LIABILITY FOR LAPSES IN SECURITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that there was evidence building security was lax, but plaintiff’s allowing the attacker, whom plaintiff knew, into to plaintiff’s apartment was an intervening act relieving the building defendants from liability:

Plaintiff, a psychiatrist, was conducting a patient session in his home office when Jacob Nolan, the cousin of his estranged former partner barged unannounced into the office. He was carrying a large black duffel bag and demanded that plaintiff give him certain financial documents required for the child shared by plaintiff and the former partner.… Plaintiff reproached Nolan, successfully expelled him from the apartment and locked the door. After the session, the patient departed but quickly returned to advise the plaintiff that the man who barged in was loitering in a common area of the building. Plaintiff then escorted his patient to the elevator and again engaged Nolan in dialogue. Nolan again communicated that his purported purpose was to retrieve some financial documents for the former partner and asked to use the bathroom in plaintiff’s apartment (which plaintiff made available to patients). Plaintiff then permitted Nolan into his locked apartment to use the bathroom, while plaintiff printed the form Nolan had requested. Nolan then suddenly emerged from the bathroom and attacked plaintiff, hitting him with a sledgehammer and stabbing him multiple times with a knife. Nolan and the former partner were both arrested and convicted for felony assaults upon the plaintiff.

… Supreme Court should have granted defendant’s motion for summary judgment dismissing the complaint. … [P]laintiff raised legitimate issues regarding lapses in the defendants’ security protocols, such as defendants’ allowing Nolan to enter and wander around the building for over twenty minutes before exiting, only to re-enter the building minutes later without being challenged by the building staff about his continued presence. Plaintiff’s conduct in re-admitting Nolan into the apartment after earlier expelling him, however, constituted an intervening act and a superseding proximate cause … . Weiss v Park Towers S. Co., LLC, 2024 NY Slip Op 02612, First Dept 5-9-24

Practice Point: Here plaintiff knew his attacker and allowed the attacker into his apartment. That was an intervening act and a superseding proximate cause of plaintiff’s injuries which insulated the building defendants from liability for lapses in security.

 

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IN THIS BUS-PASSENGER INJURY CASE, THE BUS DRIVER RAISED A QUESTION OF FACT WHETHER THE EMERGENCY DOCTRINE APPLIED; THE BUS STRUCK A VEHICLE WHICH STOPPED SUDDENLY AFTER IT WAS CUT OFF BY A THIRD VEHICLE; THE BUS DRIVER’S AFFIDAVIT WAS SUPPORTED BY SURVEILLANCE VIDEO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant bus driver raised a question of fact about the applicability of the emergency doctrine in this bus-passenger injury case. The bus driver’s affidavit, together with video evidence, indicated that the vehicle struck by the bus stopped suddenly after being cut off by a third vehicle:

… [T]he defendants raised a triable issue of fact as to whether there was a nonnegligent explanation for the collision through the submission of an affidavit from Mendes [the bus driver] and a surveillance video of the accident … . In Mendes’ affidavit, she attested, among other things, that she collided with the vehicle owned by Paratransit when that vehicle made a sudden stop after being “cut off” by another vehicle. Moreover, the surveillance video was consistent with the assertions in Mendes’ affidavit. Yearwood v New York City Tr. Auth., 2024 NY Slip Op 02555, Second Dept 5-8-24

Practice Point: Although most rear-end collisions are deemed the fault of the rear driver, here it was alleged the front vehicle stopped suddenly after being cut off by a third vehicle, raising a question of fact about the applicability of the emergency doctrine as a defense.

Practice Point: Here is this rear-end collision case, the availability of surveillance video supported the applicability of the emergency doctrine as a defense.

 

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PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM A LEDGE OUTSIDE HIS HOTEL ROOM; HOTEL STAFF DID NOT ASSUME A DUTY OF CARE FOR PLAINTIFF’S DECEDENT; A DELAY AFTER A FAMILY MEMBER’S REQUEST THAT HOTEL STAFF CALL THE POLICE WAS NOT DEMONSTRATED BY EXPERT OPINION TO HAVE CAUSED THE SUICIDE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Pitt-Burke, over an extensive dissenting opinion, determined the defendant hotel did not assume a duty of care for a hotel guest who committed suicide and did not proximately cause plaintiff-decedent’s suicide. Hotel staff had been made aware of decedent’s family’s fear that decedent, who was in a room at the hotel, was suicidal. Hotel staff checked on the decedent, who indicated he was “fine.” Subsequently a family member, who had been communicating with decedent, asked hotel staff to call the police. The crux of the lawsuit is the allegation that a delay in calling the police caused decedent to commit suicide. After breaking into decedent’s locked room, the police found decedent on a ledge outside the window and unsuccessfully tried to talk him back into the room:

An entity in control of a premises, “whether [it] be a landowner or a leaseholder, is not an insurer of the visitor’s safety” … . Absent a duty of care, there is no breach and no liability, regardless of how careless the conduct … . * * *

Plaintiffs … contend that defendants breached an assumed duty of care when they agreed to check on the decedent after being informed of his suicidal ideations and failed to act carefully or reasonably in contacting the police.

While “one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully” … , a defendant can only be held “liable for a breach of an assumed duty where the plaintiff shows reliance on the defendant’s course of conduct, such that the defendant’s conduct placed him or her in a more vulnerable position than he or she would otherwise have been in had the defendant done nothing” … . * * *

… [T]he record on appeal clearly shows … that despite defendants’ delay in calling the police, a period of at least thirty minutes elapsed from the time the police entered the hotel and decedent jumped from the ledge in the police officer’s presence. Beadell v Eros Mgt. Reality, LLC, 2024 NY Slip Op 02496, First De[t 5-7-24

Practice Point: A landowner or leaseholder in control of a hotel is not an insurer of a hotel guest’s safety and does not owe a duty of care to hotel guests absent the assumption of a duty to act (not the case here where a hotel guest committed suicide).

Practice Point: The expert opinion evidence here fell short of demonstrating that hotel staff’s delay in calling the police at the request of decedent’s family was the proximate cause of plaintiff’s decedent’s suicide.

 

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PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged component. Supreme Court had granted the motion:

A party “seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested” … . Even assuming, arguendo, that the additional testing proposed by PSE is non-destructive, we conclude that PSE failed to establish in the first instance that the additional testing is “material and necessary” to its defense of the action (CPLR 3101 [a] …). PSE’s expert made only a conclusory statement that re-stringing the bow with an undamaged component “should better represent the condition it was in prior to the” accident … . Therefore, even in the absence of an abuse of the court’s discretion, we substitute our own discretion for that of the motion court and deny the motion … . Roche v Precision Shooting Equip., Inc., 2024 NY Slip Op 02419, Fourth Dept 5-3-24

Practice Point: There are standards which must be met in a products liability case before a court will allow testing, either nondestructive of destructive testing, of the product. Those standards were not met by the motion papers in this case.

 

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EVEN THOUGH PLAINTIFF BICYCLIST ADMITTED ROLLING THROUGH A BIKE-PATH STOP SIGN BEFORE ENTERING THE INTERSECTION, THERE REMAINED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT DRIVER FAILED TO SEE WHAT WAS TO BE SEEN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant-driver’s motion for summary judgment in this intersection bicycle-car collision case should not have been granted. Although plaintiff-bicyclist acknowledged he did not completely stop at the bike-path stop sign before entering the intersection, there were questions of fact whether defendant driver (Butler) failed to see what was to be seen:

… [P]laintiff’s admission that he came to a “rolling stop” at the stop sign, which amounts to a violation of Vehicle and Traffic Law § 1172 (a) and establishes some degree of fault on his part. Nevertheless, that fact is not dispositive as to whether he was the sole proximate cause of the accident … . To this point, Butler’s testimony suggests that no other vehicles were at the intersection prior to her turning left and that her visibility down the bike path was limited to approximately 20 feet, due in part to a building, trees and bushes obstructing her view. However, our review of the photographs of the intersection contained in the record casts doubt on that account, as a lengthy portion of the bike trail both preceding and after the stop sign located on said trail appears visible from Butler’s vantage point both at the light and after she commenced the left turn. Whether plaintiff should have been visible to Butler is further unresolved by the time frames relative to Butler commencing the turn and the time to impact as well as the varying accounts from plaintiff, Butler and the police report specific as to how far Butler had traveled into the intersection before the collision took place … . Ruberti v Butler, 2024 NY Slip Op 02358, Third Dept 5-2-24

Practice Point: In this intersection bicycle-car collision case, plaintiff-bicyclist’s failure to come to a complete stop at the bike-path stop sign did not establish he was the sole proximate cause of the accident.. There were questions of fact about whether defendant driver failed to see what was there to be seen.

 

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DEFENDANT’S ALLEGATION PLAINTIFF CAME TO A SUDDEN STOP IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT’S LIABILITY; HOWEVER A QUESTION OF FACT REMAINED CONCERNING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this rear-end collision case should have been awarded summary judgment on liability, but defendant’s comparative negligence affirmative defense properly survived dismissal. Defendant alleged that plaintiff made a sudden stop, which was not enough to raise a question of fact on defendant’s liability:

… [P]laintiff established her entitlement to judgment as a matter of law on the issue of liability through her own affidavit, which demonstrated, prima facie, that the defendant’s vehicle struck the plaintiff’s vehicle in the rear while the plaintiff’s vehicle was stopped on the LIE due to traffic conditions … . In opposition, the defendant failed to raise a triable issue of fact. The defendant’s averments in his affidavit that the plaintiff’s vehicle made a sudden stop and that the plaintiff had told the defendant after the accident that she had stopped her vehicle to allow another car merge into the lane ahead of her, do not provide a nonnegligent explanation for striking the plaintiff’s vehicle …

However, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law dismissing the defendant’s affirmative defense alleging comparative negligence on the ground that the defendant’s negligence was the sole proximate cause of the accident. The plaintiff’s affidavit failed to provide sufficient details to demonstrate, prima facie, that she was not comparatively at fault in causing the accident … . Fischetti v Simonovsky, 2024 NY Slip Op 02302, Second Dept 5-1-24

Practice Point: A defendant in a rear-end collision case will not escape summary judgment on liability by alleging plaintiff came to a sudden stop.

 

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DEFENDANT NYC DEPARTMENT OF EDUCATION DID NOT OWE A DUTY TO A SCHOOL ADMINISTRATOR WHO WAS ATTACKED BY A STUDENT IN A SCHOOL HALLWAY; THERE WAS NO “SPECIAL RELATIONSHIP” BETWEEN DEFENDANTS AND PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the absence of a special relationship between plaintiff high school administrator and defendant NYC Department of Education precluded recovery for an attack on the administrator by a student in the school’s hallway:

“Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public” … . To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care … .

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality “voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty,” or that “the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation” … . A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: “‘(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'” … .

… The defendants’ submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions … . Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation … . Villa-Lefler v Department of Educ. of the City of N.Y., 2024 NY Slip Op 02343, Second Dept 5-1-24

Practice Point: Absent a “special relationship’ between plaintiff school administrator and defendant NYC Department of Education, defendant is not liable for an attack on the administrator by a student in a school hallway.

 

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THE NEARLY $10 MILLION VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS SUPPORTED BY SUFFICIENT EVIDENCE OF PROXIMATE CAUSE; IT WAS ALLEGED DEFENDANT DOCTOR SHOULD HAVE SENT PLAINTIFF’S DECEDENT TO THE EMERGENCY ROOM AND THE FAILURE TO DO SO PLAYED A ROLE IN PLAINTIFF’S DECEDENT’S SUICIDE THE NEXT DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nearly $10 million verdict should not have been set aside on the ground the evidence of proximate cause was insufficient. Plaintiff alleged defendant doctor (Strange) should have sent plaintiff’s decedent to the emergency room the day before plaintiff’s decedent committed suicide. The matter was remitted for consideration of other grounds for setting aside verdict:

… Supreme Court erred in granting that branch of Strange’s motion which was to set aside the verdict on the issue of proximate cause and for judgment as a matter of law dismissing the complaint insofar as asserted against him, since the jury reasonably concluded, based on the evidence presented at trial, that Strange’s alleged departures were a proximate cause of the decedent’s death. The plaintiff’s expert witness testified that the decedent’s suicide was preventable and that a referral to the emergency room would have allowed the decedent to be admitted to the hospital. Such testimony was sufficient to allow a reasonable person to conclude that it was more probable than not that Strange’s conduct, under these circumstances, diminished the decedent’s chance of a better outcome … . Shouldis v Strange, 2024 NY Slip Op 02340, Second Dept 5-2-24

Practice Point: Proximate cause in a medical malpractice case is demonstrated if the doctor’s conduct “diminished the … chance of a better outcome.”

 

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DEFENDANT CARPET AND FLOORING SUBCONTRACTOR’S REQUEST TO INSPECT THE AREA OF THE FLOOR WHERE PLAINTIFF ALLEGEDLY STEPPED INTO AN UNGUARDED VENT HOLE SHOULD HAVE BEEN GRANTED; ALTHOUGH THE VENT COVER HAD BEEN REPLACED, IT CAN NOT BE SAID THE INSPECTION WOULD BE FRUITLESS, OR THAT THE INSPECTION WOULD CAUSE UNREASONABLE ANNOYANCE, EXPENSE, EMBARRASSMENT OR OTHER PREJUDICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant carpet and flooring subcontractor’s (S&’s) request to inspect the area of the building where plaintiff stepped into a vent hole from which a cover had been dislodged should not have been denied. Although the vent cover had been replaced, it could not be said for certain that an inspection would be fruitless:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The Court of Appeals has directed that the phrase “material and necessary” in this statute should be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” … . Under this standard, S&F is entitled to inspect the site of the incident giving rise to plaintiff’s allegedly serious injuries.

While the replacement of the … cover might reduce the likelihood that a site inspection will produce evidence useful to S&S’s defense, it does not make it certain that an inspection will be useless. … It is for S&F, not its adversary, to determine whether the inspection of the site of the accident is sufficiently likely to produce relevant information to be worth S&F’s time and effort. … . …

… [A] court’s power to limit otherwise proper use of a disclosure device should be exercised only for the purpose of avoiding “unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.”

We fail to see how an inspection of the site of the accident giving rise to this lawsuit would impose on plaintiff, or on anyone else, any of the burdens enumerated by CPLR 3103(a) to an “unreasonable” extent. Balsamello v Structure Tone, Inc., 2024 NY Slip Op 02251, First Dept 4-25-24

Practice Point: An inspection by defendant of the area where plaintiff was injured should be allowed absent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.

 

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