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“At Will” Clause in Employment Contract Precluded Action Based Upon Promissory Estoppel, Fraud and Negligent Representation/Criteria for Tortious Interference With Contract and Prima Facie Tort Not Met

The Third Department affirmed the dismissal of a complaint brought by a doctor against the hospital where he was employed and the doctor who supervised him.  The plaintiff was hired pursuant to an agreement which included an “at will” clause allowing termination without cause upon 60 days notice. Plaintiff was terminated upon 90 days notice. Plaintiff sued the hospital for promissory estoppel, fraud, and negligent representation.  Plaintiff sued his supervisor [Hussain] for tortious interference with contract and prima facie tort:

Plaintiff’s claims against the hospital all required a showing that, among other things, he reasonably relied on any alleged promises or misrepresentations made to him by the hospital … .  In this regard, we note that “[w]here, as here, ‘a plaintiff is offered only at-will employment, he or she will generally be unable to establish reasonable reliance on a prospective employer’s representations'” … . * * * Inasmuch as any oral assurances made by the hospital as to the security of plaintiff’s position could not have altered the at-will nature of the employment contract, the hospital established its prima facie entitlement to judgment as a matter of law dismissing the claims against it, shifting the burden to plaintiff “‘to establish the existence of material issues of fact which require a trial of the action’”… . * * *

… [A] claim of tortious interference with contract requires (1) the existence of a valid contract between a plaintiff and a third party, (2) a defendant’s knowledge of such contract, (3) the intentional inducement of a breach of that contract, and (4) damages … .  Significantly, as the contract here was terminable at will, plaintiff was also required to “show that [Hussain] employed wrongful means, such as fraud, misrepresentation or threats[,] to effect the termination of employment”… .No such showing was made here. * * *

“[Prima facie tort] requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful . . . and that malevolence was the sole motivating factor” … .  Considering plaintiff’s acknowledgment that Hussain prevented him from examining patients as a result of complaints made by patients who wanted to be treated by Hussain and not plaintiff, plaintiff could not establishthat Hussain’s actions were motivated solely by “disinterested malevolence”… . Hobler v Hussain…, 516381, 3rd Dept 11-7-13

 

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Town Could Not Be Liable for Discretionary Judgment Made by EMT (Third Dept).

The Third Department determined that an EMT employed by the town made a discretionary judgment that plaintiff’s decedent did not need life support during transport to the hospital.  Plaintiff’s decedent’s condition worsened during the trip and he died a week later.  Because the EMT’s judgment was discretionary, the town could not be held liable:

The Court of Appeals recently held that when a municipality provides emergency first responder services in response to a 911 call for assistance, as the Town did here by dispatching its paramedic, “it performs a governmental function[, rather than a proprietary one,] and cannot be held liable unless it owed a ‘special duty’ to the injured party” … .  A plaintiff generally must first establish the existence of a special duty before it becomes necessary for the court to address whether the governmental function immunity defense applies …, but the special relationship issue is irrelevant where the government action in question is discretionary … .  “Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … .  Discretionary authority involves “the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … .

Although the record here at least arguably contains factual issues concerning whether the Town voluntarily assumed a duty to decedent or plaintiff, thereby creating a special duty …, we need not address that question because the Town’s actions were discretionary.  The Town’s paramedic exercised his discretion in making medical determinations concerning decedent’s condition … . DiMeo… v Rotterdam Emergency Medical Services, Inc, 516264, 3rd Dept 10-31-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc

The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The second attorney (Siegel) , however, had not filed a retainer agreement and made a motion to file late:

Every attorney practicing law in the Second Judicial Department who is retained with respect to, inter alia, a medical malpractice action must file a retainer statement with the OCA within 30 days after being retained … . Additionally, every “attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the [OCA] a written statement of such retainer” (22 NYCRR 691.20[a][3]). Filing a retainer statement with the OCA is a condition precedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies … . Attorneys failing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20 are precluded from asserting breach of contract causes of action for outstanding fees, and are limited to suit in quantum meruit … . However, a late filing of a retainer statement is sufficient to preserve an attorney’s right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc … .

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion … . Here, the reason for the delay, in effect, Siegel’s law office failure, was an isolated, inadvertent mistake … and there is no prejudice to Glassman… . Siracusa v Fitterman, 2013 NY slip Op 07025, 2nd Dept 10-30-13

 

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Question of Fact About Whether Rider Assumed Risk of Being Kicked by Horse—Allegations Defendant Heightened Risk

The Third Department there was a question of fact whether plaintiff assumed the risk of being kicked by defendant’s horse.  Plaintiff alleged the risk was heightened by defendant’s actions:

While it has been recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  “‘[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct'” … .

Here, plaintiffs have raised triable issues of fact by offering evidence that defendant’s attendant assisted plaintiff in mounting her assigned horse, and the attendant then positioned the head of her horse within six inches of the tail of the horse in the line in front of her.  The attendant then was called away and, in leaving, he ducked under the head of plaintiff’s horse, causing it to nudge the horse in front of it.  The horse in front then kicked back, striking plaintiff in the leg and injuring her. Defendant’s co-owner acknowledged that the positioning of horses is an important safety concern and that horses should be spaced approximately one horse length apart.  Thus, while being kicked by a horse is an obvious risk of horseback riding, and plaintiff, although an inexperienced rider, was aware of the risk, issues of fact exist as to whether defendant’s alleged actions in positioning the horses and then ducking under the head of plaintiff’s horse heightened the risk of injury to an inexperienced rider… . Valencia … v Diamond F Livestock, Inc…, 516434, 3rd Dept 10-24-13

 

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Malpractice Action for Depression-Treatment Prior to Suicide Is Actionable

The Second Department determined a cause of action for malpractice in treating plaintiff’s decedent for depression prior to her committing suicide should not have been dismissed:

Here, the complaint sought damages for conscious pain and suffering arising from Family Services’ alleged negligence in treating the decedent’s depression during the period between October 19, 2005, and the time of her death about 10 days later. That cause of action states a cognizable legal theory sounding in professional malpractice … .

Further, EPTL 11-3.2(b), referred to as the “survival statute” …, provides that “[n]o cause of action for injury to person . . . is lost because of the death of the person in whose favor the cause of action existed.” A cause of action based on personal injuries which survives the death of the decedent is distinct from a cause of action to recover damages for wrongful death … . Accordingly, the cause of action to recover damages for conscious pain and suffering predicated on alleged acts of professional malpractice committed between October 19, 2005, and October 28, 2005, survived the decedent’s death, and damages for such pain and suffering may be recoverable by her estate … .  Stolarski v Family Servs of Westchester Inc, 2013 NY Slip Op 06850, 2nd Dept 10-23-13

 

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Abutting Landowner Not Responsible for Condition of Sidewalk Tree Well; Open and Obvious Condition Relates Only to Comparative Negligence

In affirming the denial of the summary judgment motion brought by the defendant abutting landowner in a sidewalk slip and fall case, the Second Department noted that an abutting landowner is not responsible for defects in a tree well, and the allegation that a condition is open and obvious only raises a question of fact about plaintiff’s possible contributory negligence. Vigil v City of New York, 2013 NY Slip Op 06853, 2nd Dept 10-23-13

 

 

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Question of Fact about Implied Physician-Patient Relationship In Malpractice Action

In a medical malpractice action, the Second Department determined there was a question of fact about whether an implied physician-patient relationship existed:

Liability for medical malpractice may not be imposed in the absence of a physician-patient relationship … . A physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment … . An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional … . Whether a physician’s proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury … .  Thomas v Hermoso, 2013 NY Slip Op 06852, 2nd Dept 10-23-13

 

Standard of Care Required of Train Operator

n affirming the grant of summary judgment to the defendant, the Second Department explained the standard of care applicable to a train operator.  Plaintiff’s decedent was struck by the train:

The complaint in this case alleged that the defendants acted negligently and thereby caused the death of the plaintiff’s decedent, who was struck by a train owned and operated by the defendants. “[A] train operator may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person” … . In support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence, including the deposition testimony of the operator of the train involved in the subject accident, that he was operating the train at a lawful speed and was approximately one car length away when he first observed the decedent, who was intoxicated, trespassing on the tracks. The train operator immediately applied the emergency brakes and sounded the horn, but at that point, it was impossible to avoid the collision. The evidence submitted by the defendants established, prima facie, that they were not negligent in the happening of the accident as a matter of law … .  Neenan v Quinton, 2013 NY Slip Op 06843, 2nd Dept 10-23-13

 

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Plaintiff’s Chapter 13 Bankruptcy Did Not Preclude Lawsuit—Question of Fact Re: Applicability of Emergency Doctrine

In affirming the denial of summary judgment to the defendant driver who struck plaintiff when the defendant turned toward the shoulder to avoid an on-coming car, the Third Department noted that plaintiff’s Chapter 13 bankruptcy did not preclude the suit and there were questions of fact about the applicability of the emergency doctrine:

Initially, we reject defendants’ assertion that plaintiff lacks the capacity to sue by virtue of his failure to disclose his personal injury claim in his chapter 13 bankruptcy schedule of assets.  “While [c]hapter 7 and [c]hapter 11 debtors lose standing to maintain civil suits – which must be brought and/or maintained by their bankruptcy trustees – it is clear that [c]hapter 13 debtors like plaintiff are not subject to this restriction” … .   Accordingly, Supreme Court properly concluded that plaintiff’s omission in this regard was not fatal. …

“Under the emergency doctrine, a driver who confronts a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration may be relieved of liability if the actions taken in response are reasonable and prudent in the emergency context” … .  The reasonableness of the driver’s conduct, as well as whether he or she could have done something to avoid the accident, typically present questions of fact for a jury to resolve … .  Thus, in order to be granted summary judgment in this regard, “a driver must establish as a matter of law that he or she did not contribute to the creation of the emergency situation, and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision” …Defendants failed to meet that burden here.  Collins v Suraci, 516138, 3rd Dept 10-17-13

 

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