You are here: / Negligence
,

Suit Against Municipality Based Upon Exercise of a Governmental Function Properly Dismissed—No Special Duty to Plaintiff

The Second Department, in affirming the dismissal of a lawsuit against a municipality based upon the exercise of a governmental function, explained the relevant law:

A municipal entity “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'” … . The plaintiff must first establish the existence of a special duty owed to it by the entity before it becomes necessary to address whether the entity can rely upon the defense of governmental immunity … . A special duty arises when there is a duty to exercise reasonable care toward the plaintiff as a result of a special relationship between the plaintiff and the governmental entity … . When a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies to its detriment on the direct assurances of the municipality’s agents, a special duty arises … .

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not owe a special duty to the plaintiff. In opposition, the plaintiff failed to raise a triable issue of fact … . Richline Group Inc v City of Mount Vernon, 2014 NY Slip Op 04184, 2nd Dept 6-11-14

 

,

Application to File Late Notice of Claim Against School District Properly Denied—School District Did Not Have Timely Actual Notice and Plaintiff Had No Reasonable Excuse

The Second Department determined the application to file a late notice of claim on behalf of an infant plaintiff was properly denied where the school district did not have timely actual notice of the claim and there was no reasonable excuse for the delay.  Iglesias v Brentwood Union Free School Dist, 2014 NY Slip Op 04194, 2nd Dept 6-11-14

 

, ,

Application to File Late Notice of Claim Against School District Properly Granted in Absence of Reasonable Excuse—School District Had Timely Actual Notice and Could Not Demonstrate Prejudice

The Second Department determined Supreme Court properly granted the application to file a late notice of claim against a school district, in the absence of a reasonable excuse for the lateness:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the court must consider whether (1) the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … .

Here, the City School District of the City of Long Beach (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. … Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice … . The District’s conclusory assertions of prejudice, based solely on the petitioner’s six-week delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … .

While the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the further delay in commencing this proceeding … , the absence of a reasonable excuse is not fatal to a petition where, as here, there was actual notice and an absence of prejudice … . Matter of Fennell v City School Dist of city of Long Beach, 2014 NY Slip Op 04192, 2nd Dept 6-11-14

 

, ,

City Employee Blocking Roadway to Facilitate Repairs Was Engaged in a Proprietary, Not a Governmental, Function–Ordinary Rules of Negligence Applied

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the trial court and the appellate division, finding that a city employee was acting in a proprietary, not a governmental, capacity when he told the plaintiff she could proceed on a roadway that he was closing for repairs but did not warn her of the depression in the roadway which caused her to fall.  The question came down to whether the employee was performing a road repair (proprietary) or a traffic control (governmental) function.  Because the employee was deemed to be performing a proprietary function, the ordinary rules of negligence applied to the city:

We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (id. at 425). If the municipality's actions fall on the proprietary side, “it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties”… . A governmental entity undertakes a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” … . “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal question marks and citation omitted]). Generally, “the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector” … . In deciding whether a function is proprietary or governmental, a court examines “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” … .

Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence… . Wittorf v City of New York, 2014 NY Slip Op 04037, CtApp 6-5-14

 

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

 

,

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

 

,

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

 

,

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

, ,

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.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy