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Excessive Intervention by Trial Judge Required New Trial

Over a partial dissent, the Second Department granted defendant a new trial before a different justice in a medical malpractice case based upon the trial judge’s erroneous exclusion of evidence, excessive intervention in the trial, and an erroneous (“Noseworthy”) jury instruction. With respect to the judicial intervention, the Second Department wrote:

The defendant was … deprived of a fair trial by the court’s excessive intrusion into the examination of witnesses, and by the nature and extent of its questioning and comments … . It is axiomatic that the trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nonetheless, a trial court must be “mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner” … . Here, while the trial court had the authority to elicit and clarify the defense witnesses’ testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner. The court conveyed an impression of incredulity with respect to the defense witnesses’ opinions, as reflected by the record … . Moreover, the court’s incredulity had an improper cumulative effect … . Nunez v New York City Health & Hosps Corp…, 2013 NY Slip Op 06350, 2nd Dept 10-2-13

 

Defendant Failed to Raise Question of Fact About Lack of Notice of Icy Condition

Over a dissent, the First Department determined the defendant in a slip and fall case failed to raise a question of fact re: its claim it did not have notice of the icy condition on the sidewalk. The court explained that the defendant failed to offer sufficient evidence of the condition of the sidewalk before the fall:

Plaintiff correctly contends that defendants failed to satisfy their prima facie burden since they did not submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped …. In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident … . …

Defendants’ supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants’ evidence was “not probative of lack of actual or constructive notice,” and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment …. As defendants failed to meet their initial burden, the motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers … . Rodriguez v Bronx Zoo Rest. Inc, 2013 NY Slip Op 06294, 1st Dept 10-1-13

 

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Fraud and Breach of Fiduciary Causes of Action Dismissed as Duplicative

The Fourth Department dismissed as duplicative causes of action sounding in fraud and breach of fiduciary duty in complaints against dentists also alleging malpractice, negligence, breach of General Business Law section 349 and 350, and failure to obtain informed consent, all based on dental treatment provided to children:

We agree with defendants that the court erred in denying those parts of their respective motions seeking dismissal of the fraud and breach of fiduciary duty causes of action, and we therefore modify the order by dismissing the first and third causes of action of the amended complaints against defendants.  “Dismissal of a fraud cause of action is required ‘[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged [dental] malpractice cause of action’ ” … .  Inasmuch as the damages sought by plaintiffs, including punitive damages, are the same for the fraud and dental malpractice causes of action, we conclude that the fraud cause of action must be dismissed.  We further conclude that the breach of fiduciary duty cause of action must be dismissed because it is duplicative of the malpractice cause of action … .  Both the breach of fiduciary duty cause of action and dental malpractice cause of action are based on the same facts and seek identical relief… . Matter of Small Smiles Litigation … v Forba Holdings LLC…, 996, 4th Dept 9-27-13

 

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Question of Fact Raised by Competing Expert Affidavits

The Fourth Department determined competing experts raised a question of fact about whether the post-discharge arrangements for psychiatric treatment of plaintiff’s decedent were adequate.  Plaintiff’s decedent committed suicide 16 days after he was released from defendant psychiatrist’s in-patient care:

…[P]laintiff submitted the affidavit of her unidentified expert, wherein the expert stated that the proper standard of care required that decedent, who had been prescribed multiple medications that had significant side effects, such as suicidal ideation, “be monitored closely by a psychiatrist from the point of his discharge.” It is undisputed that defendant approved the discharge without ensuring that decedent had a psychiatrist who could treat him. Additionally, defendant acknowledged at her deposition that decedent required psychiatric care upon discharge, but testified that it was not her responsibility to arrange for decedent’s post-discharge care and that this responsibility was “customarily [within] the purview of the social worker.”  Similarly, defendant’s expert stated in his affidavit that it was within the standard of care to delegate to a licensed social worker the task of arranging for post-discharge care. Plaintiff’s expert, however, disagreed, stating that “delegating the task to a social worker without insuring that the task was completed is a . . . deviation from the standard of care.”  We conclude that the conflicting opinions of the experts raise an issue of fact for trial… .  Mazella… v Beals…and Mashinik, 931, 4th Dept 9-27-13

 

Storm in Progress Doctrine Warranted Summary Judgment to Defendant in Slip and Fall Case

In reversing Supreme Court, the Fourth Department determined the “storm in progress” doctrine warranted summary judgment to the defendant in a slip and fall case.  In addition, the Fourth Department determined the plaintiff failed to raise a question of fact about whether the defendant created the dangerous condition, noting that the failure to remove all the ice and snow and the failure to sand or salt a sidewalk does not constitute exacerbation of a dangerous condition.  With respect to the “storm in progress” doctrine, the Court wrote:

We conclude that the evidence submitted by defendant in support of his motion, including an affidavit from his expert meteorologist and the weather reports upon which that expert relied, established as a matter of law that there was a storm in progress at the time of the accident … and, thus, that defendant had no duty to remove the snow and ice “until a reasonable time ha[d] elapsed after cessation of the storm” ….  The accident occurred at approximately 8:45 a.m. on December 31, 2008, when plaintiff exited defendant’s store in the City of Rochester.  According to defendant’s expert meteorologist, a snowstorm began in the Rochester area late in the evening on December 30, 2008, and continued into the next day.  At 4:15 a.m. on December 31, the National Weather Service issued a “winter weather advisory” for the Rochester area and, two hours later, the advisory was upgraded to a “winter storm warning.”  More than 11 inches of snow accumulated in Rochester on December 31, which was a record for that date, and most of that snow fell during the early morning hours.  Indeed, plaintiff acknowledged during her deposition that it was snowing on the morning in question as she drove to the store, and that testimony was consistent with the testimony of defendant’s wife, among other witnesses. Glover v Botsford…, 959, 4th Dept 9-27-13

 

Business Not Liable for Slip and Fall on Abutting Icy Sidewalk/”Special Use” Doctrine Explained

The Fourth Department determined the defendant funeral home could not be held liable for the plaintiff’s fall on an icy sidewalk in front of the home.  There was no statute or ordinance imposing liability on the abutting landowner (as opposed to the municipality), the funeral home did not derive a special use from the sidewalk, and the funeral home did not create or exacerbate the dangerous condition. In explaining the “special use” doctrine, the court wrote:

Under the special use doctrine, a landowner whose property abuts a public sidewalk may be liable for injuries that are caused by a defect in the sidewalk when the municipality has given the landowner permission to “interfere with a street solely for private use and convenience in no way connected with the public use” and the landowner fails to maintain the sidewalk in a reasonably safe condition … .  “A special use is typically characterized by the installation of some object in the sidewalk or street or some variance in the construction thereof” … . Here, defendants established that the sidewalk was unencumbered by the installation of any objects or by other variances in construction, and plaintiff submitted no evidence that “the sidewalk was constructed in a special manner for the benefit of the abutting owner or occupier”… . Panzica v Fantauzzi…, 863, 4th Dept 9-27-13

 

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Question of Fact About Whether Horse Owner Liable for Injuries to Novice Rider

The Fourth Department affirmed the denial of summary judgment to the owners of a horse which allegedly brushed up against a tree, injuring the novice rider.  The court explained that the “knowledge of vicious propensities” doctrine applied here because there was evidence the defendants knew the horse had a propensity to ride too close to trees, the general release signed by plaintiff was void as against public policy, and the defendants did not establish as a matter of law that plaintiff had assumed the increased risk of horseback riding alleged here:

It is well settled that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … .  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447).  In support of their motion, defendants submitted the deposition testimony of plaintiff, wherein she testified that defendant and a guide employed by the Ranch instructed plaintiff to push off of the trees if the horse walked too closely to the trees on the single-file woodland trail.  * * *

Even assuming, arguendo, that defendants conclusively demonstrated that plaintiff executed the release, we conclude that, under these circumstances, where the riding lesson was ancillary to the recreational activity of horseback riding, General Obligations Law § 5-326 renders the release void as against public policy… .* * *

Finally, defendants failed to establish as a matter of law that plaintiff assumed the risk of horseback riding.  Horseback riding “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  Here, defendants submitted evidence that raised a question of fact whether they unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which did not provide plaintiff with the ability to control the horse, and by failing to give plaintiff, who was a novice rider, adequate instructions on how to control the horse … .  Vandeerbrook v Emerald Springs Ranch…, 855, 4th Dept 9-27-13

 

Emergency Doctrine Explained; Admissibility of Deposition Excerpts Re: Summary Judgment Motion Explained; Bicyclist Injured When Path Allegedly Blocked to Protect Child

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants. The plaintiff-bicyclist was injured when, it is alleged, one of the defendants stepped into the bicyclist’s path to protect children who were crossing the street. The court explained the admissibility requirements for excerpts of deposition testimony and an unsworn police report, as well as the emergency doctrine:

The unsigned excerpts of …defendants’ deposition testimony, which the defendants submitted in support of their motion, were admissible under CPLR 3116(a) since they were submitted by the party deponents themselves and, accordingly, those transcripts were adopted as accurate by those deponents … . Additionally, although the defendants initially failed to submit the certification page of the depositions of nonparties …, as well as those for the depositions of …defendants, they submitted those certifications in reply papers in response to the plaintiffs’ arguments in opposition … . Under the circumstances of this case, the late submission did not prejudice the plaintiffs, and the Supreme Court properly considered these certifications …. Furthermore, although unsigned, as noted above, the transcripts … were certified, and the plaintiffs did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the defendants’ motion for summary judgment … . However, the unsigned, uncertified excerpt of the injured plaintiff’s deposition was not in admissible form, nor was the uncertified, unsworn police report submitted by the defendants. Accordingly, neither of these items should have been considered in determining whether the defendants satisfied their prima facie burden … . * * *

“Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . ” This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed'” … . ” Both the existence of an emergency and the reasonableness of a party’s response thereto will ordinarily present questions of fact'” … . Pavane v Marte, 2013 NY Slip Op 05991, 2nd Dept 9-25-13

 

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In Spite of Settlement of Underlying Action, the Legal Malpractice Case Alleging Failure to Adequately Investigate Can Go Forward

Plaintiff was attacked and injured in the lobby of his building.  He hired an attorney to bring a premises liability action.  The action was ultimately settled, but plaintiff brought a legal malpractice action against the defendant attorney alleging the attorney did not adequately investigate the security of the building.  The First Department determined that plaintiff, who was described as unsophisticated in legal matters, had stated a cause of action because the defendant attorney admitted he had relied entirely on a brief conversation with the plaintiff about the security situation at the building before recommending settlement.  The First Department explained the relevant principles as follows:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” … . A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” … . * * *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer. Furthermore, defendant says he told plaintiff, when he conveyed the settlement offer, that it was a “difficult liability case.” It is difficult to understand, on the record before us, how he made that assessment without going to the building, or speaking to the superintendent. Angeles v Aronsky, 2013 NY Slip Op 05955, 1st Dept 9-24-13

 

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No Negligence In School District’s, School’s and Attending Nurse’s Care of Child Who Died After Suffering an Allergic Reaction in School

In a full-fledged opinion by Justice Eng, the Second Department determined the action brought on behalf of a child who died in school after suffering an allergic reaction was correctly dismissed with respect to the Department of Education (DOE) and should have been dismissed with respect to the school and the attending nurse who was tasked with monitoring the child at school.  The lengthy opinion deals in depth with many topics including:  the DOE’s duty, the school’s duty, the nurse’s duty, the finding that the nurse was an independent contractor as opposed to an employee, and the proximate cause issue raised by the inability to determine what caused the allergic reaction.  The child was autistic and suffered from asthma and numerous severe allergies.  The DOE developed a plan (Individualized Education Program) which involved placement of the child in a private school equipped to care for children with special needs and the provision of a nurse who was with the child continuously during the school day.  The Second Department treated all the issues (including the adequacy of the medical care provided by the nurse) exhaustively and determined no questions of fact had been raised about the negligence of any of the defendants. Begley v City of New York, 2013 NY Slip Op 05867, 2nd Dept 9-18-13

 

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