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Obstruction of View of Stop Sign by Vegetation Not Actionable Against the Town Without Allegation Town Had Prior Written Notice of the Obstruction

The Second Department determined Supreme Court should have dismissed the cause of action against the Town of Oyster Bay which alleged vegetation had been allowed to obstruct a stop sign (leading to a collision).  The prior written notice requirement applied and the plaintiffs did not allege the Town had prior written notice of the obstruction:

The Town correctly argues that any claim that vegetation obstructed a driver’s view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute … . Since the plaintiffs did not allege that the Town had received prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town’s motion which was to dismiss that claim … . Dutka v Odierno, 2014 NY Slip Op 02558, 2nd Dept 4-16-14

 

Defect Properly Found Trivial As a Matter of Law

The Second Department determined Supreme Court properly determined a defect in a metal sidewalk door was trivial as a matter of law.  The court explained the applicable principles:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury” … . However, a property owner (and tenants) may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . There is no ” minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable … . Nunez v Morwood Dry Cleaners, 2014 NY Slip Op 02564, 2nd Dept 4-16-14

 

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Expert Opinion About Link Between Trauma and a Stroke Erroneously Precluded/Frye Hearing Erroneously Ordered/The Opinion Evidence Was Not Controversial and Was Sufficiently Supported by the Relevant Literature to Obviate the Need for a Frye Hearing

The First Department, in a full-fledged opinion by Justice Saxe, with a concurring and a dissenting opinion, found that the trial court erred in precluding plaintiff’s experts from testifying about a causal link between an automobile accident and a subsequent embolic stroke.  The First Department further concluded that the opinion testimony about the causal link was supported by enough relevant literature to obviate the need for the Frye hearing which was (erroneously) ordered by the trial court.  The First Department went on to criticize the defense’s submission of motions in limine on the eve of trial, which, when erroneously granted, led to the plaintiff’s inability to make a prima facie case.  With respect to the criteria for a Frye hearing, the court wrote:

We reject the trial court’s determination that a Frye hearing was necessary. In the first place, defendants’ moving papers failed to justify the need for a Frye hearing at all. The affidavit by defendants’ expert in support of the motion merely asserted that the expert had “conducted a search of the relevant medical literature” and had found no support for plaintiff’s theory that the trauma from a motor vehicle collision caused the embolic stroke. Notably, defendants’ expert did not even point to literature or studies disproving such a link. Therefore, when, in response, plaintiff’s expert provided proof that literature supporting the theory existed and had been published in reputable professional journals and cited or discussed in others, the basis for defendants’ claim was negated; no factual issue was presented. At that point, it was up to the jury to decide whether to accept the assertion that the physical impact experienced by plaintiff in this accident was a competent producing cause of the embolic stroke.

Contrary to the dissent’s assertion, the opinion of plaintiff’s expert that the impact of the collision was a competent producing cause of the dislodgement of a clot, resulting in his stroke, is not the type of novel theory of causation that necessitates a Frye hearing; it was merely an opinion explaining the physiological process that caused the stroke plaintiff suffered.

Even assuming that the assertion by defendants’ expert warranted an evidentiary hearing to assess the reliability of plaintiff’s expert’s causation claims, the evidence presented at the Frye hearing sufficiently established the reliability of those claims.

Frye hearings are used “to determine whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable” … . The test is particularly useful for newly minted or experimental processes or newly posited psychological theories, in order to weed out baseless and unreliable theories; a Frye hearing “should be held only if the basis for the expert’s conclusion is novel” … . “[W]here the proposed expert testimony concerns a claim that the plaintiff’s injury was caused by the actions taken by the defendants, the whole concept of the Frye analysis is of limited applicability” ….

As the [2nd] Department observed in Zito v Zabarsky (28 AD3d 42, 44…), “general acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” There is no need here for the consensus the dissent claims is necessary. Sadek v Wesley, 2014 NY Slip Op 02551, 1st Dept 4-15-14

 

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Where Defendant Abutting Property Owner Has Cleared a Snow-Free Path on the Abutting Sidewalk There Will Be No Liability for a Fall in “Non-Cleared” Area

The First Department determined the clearance of a snow-free path on a sidewalk by the defendant abutting property owner created a reasonably safe condition and defendant could not be held liable for plaintiff’s fall in a non-cleared area:

A property owner … has a duty to keep a sidewalk abutting its property sufficiently clear of snow and ice so that the sidewalk is maintained in a “reasonably safe condition” (see Administrative Code of City of NY § 7-210). The property owner will have discharged its duty if a snow-free path is cleared between the street and the sidewalk within a reasonable walking distance of the property, since it is not reasonably foreseeable that a person would attempt to climb over a significantly obstructive curbside mound of snow rather than walk to a nearby unobstructed path … . Since plaintiff’s accident resulted, by his own account, from his unforeseeable decision to climb over the knee-high heap of snow, it is of no moment whether he lost his footing before or after he planted his foot on the sidewalk. McKenzie v City of New York, 2014 NY Slip Op 02533, 1st Dept 4-15-14

 

Question of Fact About Whether Golfer, Who Was Injured When the Golf Cart He Was Driving Tipped Over, Was Subject to More than the Normal Hazards Associated with Golfing

The Third Department determined there were triable issues of fact about whether the occupants of a golf cart were exposed to more than the usual hazards associated with golf.  The cart tipped over on an incline.  There was (disputed) evidence indicating wet leaves were on the ground and the tires of the cart were “bald:”

A person who chooses to participate in an athletic or recreational activity “‘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'” … . “[G]olfers are deemed to assume the risks of open topographical features of a golf course” …and they are “held to a common appreciation of the fact that there is a risk of injury from improperly used carts” … . Nevertheless, liability may be found where the participant proves “a dangerous condition over and above the usual dangers that are inherent in the sport” … .

Although plaintiff was an experienced golfer, he had not previously played on this particular course. He claimed that he was driving slowly and cautiously when the car simply slid out of control on wet leaves. Defendant acknowledged that the golf course path where the accident occurred was steep and winding. While defendant disputes the amount of wet leaves that plaintiff contends were on the path, it is uncontested that there were leaves present and that defendant’s employees had inspected the area earlier in the day. Significantly, plaintiff produced proof via the testimony of the person with whom he was golfing that, after the accident, he observed that the tires on the golf cart were “bald.” Rose v Tee-Bird Golf Club Inc, 2014 NY Slip Op 02481, 3rd Dept 4-10-14

 

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No Negligence Cause of Action Against Commissioner of Mental Health (Based Upon Alleged Statutory Violations)

The Third Department determined claimant, an insanity acquittee, could not bring a negligence cause of action against the Commissioner of Mental Health based upon alleged violations of Criminal Procedure Law 330.20.  The court explained the applicable law re: the liability of a governmental agency (special duty/special relationship):

The rule is well established “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . A special duty will only arise from a special relationship, which can be formed in three ways: “(1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Inasmuch as claimant asserts that CPL 330.20 creates a statutory duty for the benefit of the class of which he is a member, i.e., insanity acquittees, only the first of these categories is potentially applicable.

Significantly, “[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … . Because CPL 330.20 does not expressly confer upon insanity acquittees the right to seek civil damages for any failure by the Commissioner to follow the statute’s provisions, “recovery may be had only if a private right of action can be implied” … . A private right of action may be fairly implied when all of the prerequisites are fulfilled, namely: “(1) the [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . In our view, the legislative history supports the finding of the Court of Claims that CPL 330.20 was primarily enacted to benefit the public, rather than insanity acquittees … . Justice v State of New York, 2014 NY Slip Op 02483, 3rd Dept 4-10-14

 

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Service of a Notice of Claim on the City Did Not Constitute the Service of a Notice of Claim on the New York City Transit Authority

The First Department determined the service of a notice of claim on the City did not constituted the service of a notice of claim on the New York City Transit Authority:

It is well settled that service of a notice of claim on the City through the Comptroller’s Office is not service upon a separate public authority … . Since plaintiff did not comply with the condition precedent of service of a notice of claim upon the Transit Authority defendants, and they deny having received the notice of claim from the Comptroller’s Office, dismissal is required.  Glasheen v Valera, 2014 NY Slip Op 02512, 1st Dept 4-10-14

 

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Breach of Contract Allegations Did Not Give Rise to Tort Causes of Action—No Duty Independent of the Contract Itself

The First Department determined that the negligence causes of action were subsumed in the breach of contract allegations and could not be separately pled:

Breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated … . Allegations of negligence based on defects in construction of a condominium sound in breach of contract rather than tort … . A claim for negligent misrepresentation is not separate from a breach of contract claim where the plaintiff fails to allege a breach of any duty independent from contractual obligations … . Here, plaintiff failed to allege any legal duty that would give rise to an independent tort cause of action. Neither General Business Law art 23-A nor its regulations create a special duty or support a private right of action. Thus, the negligence and negligent misrepresentation claims were duplicative of the breach of contract claim and did not state a cause of action. Board of Mgrs of Soho N 267 W 124th St Condominium v NW 124 LLC, 2014 NY Slip Op 02513, 1st Dept 4-10-14

 

Plaintiff’s Allegation of Inadequate Lighting Was a Sufficient Indication She Was Aware of the Cause of Her Fall

The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case.  The court found that plaintiff had presented evidence of the cause of the fall (inadequate lighting) and the defendants did not demonstrate that they neither created the dangerous condition nor had constructive notice of it:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation

Here, the respondents failed to establish, prima facie, that the injured plaintiff did not know what had caused her to fall. The injured plaintiff testified during her deposition that the lighting in the hallway was so poor that she could hardly see her surroundings and that she kept her hand on the wall to guide her down the hallway. This testimony, which the respondents submitted with their motion, itself demonstrated the existence of a triable issue of fact as to whether the alleged lack of adequate lighting was a proximate cause of the accident … . Additionally, the respondents failed to establish that they neither created the allegedly dangerous condition nor had actual or constructive notice of it … . Since the respondents failed to satisfy their initial burden of establishing their prima facie entitlement to judgment as a matter of law, their motion should have been denied without regard to the papers submitted in opposition … .  Palahnuk v Tiro Rest Corp, 2014 NY Slip Op 02418, 2nd Dept 4-9-14

 

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Failure to Allege a Favorable Result Would Have Obtained “But For” the Attorney’s Alleged Malpractice Required Dismissal of the Complaint

The Second Department determined a legal malpractice action was properly dismissed because the plaintiff failed to adequately allege that but for the malpractice the result would have been favorable to the plaintiff.  The court explained the elements of a legal malpractice action:

To recover damages in a legal malpractice action, a plaintiff must establish “that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . ” A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel'” … . Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Benishai v Epstein, 2014 NY Slip Op 02404, 2nd Dept 4-9-14

 

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