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Defendant Failed to Demonstrate Lack of Constructive Notice of Condition; Did Not Present Evidence of Last Inspection of Area Where Slip and Fall Occurred

In a slip and fall case, the Second Department noted defendants’ failure to demonstrate when the area where the fall occurred had last been inspected:

By failing to demonstrate when the area where the plaintiff fell was last inspected in relation to the accident, the defendants failed to make a prima facie showing that they lacked constructive notice of the allegedly dangerous condition described by the plaintiff … . Further, the defendants, by merely pointing to gaps in the plaintiff’s proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden as movants seeking summary judgment on the issue of whether the condition complained of did in fact constitute a defect… . Griffin v JK Chopra Holding LLC, 2013 NY Slip Op 07448, 2nd Dept 11-13-13

 

“Sudden Stopping” and “Emergency Doctrine” Jury Instructions Proper in Rear-End Collision Case

Plaintiff was rear-ended by defendant [Dellapenta] on a clear, windy day when blowing snow caused a temporary whiteout. The jury returned a verdict of no cause for action.  The Fourth Department determined the jury was properly given the “sudden stopping” charge and the emergency doctrine:

While plaintiff claimed that he was forced to stop due to the actions of the vehicle ahead of him …, Dellapenta testified that plaintiff did not slow down before the whiteout, he did not see any vehicles ahead of plaintiff, plaintiff’s vehicle was completely stopped in the whiteout, he never saw plaintiff’s brake or hazard lights, and plaintiff told Dellapenta after the accident that he stopped because he could not see.  Thus, the issue whether plaintiff “stopped suddenly, without an apparent reason to do so,” was properly submitted to the jury … .

We reject plaintiff’s further contention that the court erred in instructing the jury on the emergency doctrine (see PJI 2:14) inasmuch as, evaluating the evidence in the light most favorable to defendants, a reasonable view of the evidence supported the conclusion that a sudden and temporary whiteout constituted a qualifying emergency … .  Although Dellapenta had previously experienced whiteouts … at that location, such experience does not negate the applicability of the emergency doctrine “as to the events in issue in this case” … . Barnes v Dellapente…, 1039, 4th Dept 11-8-13

 

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Emergency Doctrine Precluded Action on Behalf of Driver of Car Which Crossed Into On-Coming Lane of Traffic; ”Noseworthy” Doctrine Did Not Apply to Reduce Plaintiff’s Decedent’s Burden of Proof

The Fourth Department reversed Supreme Court and granted summary judgment to defendant who was struck when plaintiff’s decedent’s on-coming car crossed into defendant’s lane.  The court determined the “Noseworthy” rule (lowering the plaintiff’s burden of proof) did not apply and the emergency doctrine precluded recovery:

Under the emergency doctrine, “ ‘when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency’ ” … .  It is well established that a driver is “not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel” … .

Here, defendants met their initial burden by establishing that the emergency doctrine applied, inasmuch as they established that decedent’s vehicle unexpectedly crossed over into defendant’s lane of travel, defendant had been operating his vehicle in a lawful and prudent manner, and defendant had little time to react to avoid the collision … .  Although “it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver’s] response was reasonable” …, we conclude that summary judgment is appropriate here because defendants presented “sufficient evidence to establish the reasonableness of [defendant’s] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact”… . Shanahan… v Mackowiak…, 1105, 4th Dept 11-8-13

 

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“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with a quality assurance review or a malpractice prevention program:

…[T]he hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j” … .  Moreover, with respect to the privilege set forth in Public Health Law § 2805-j, we deem the conclusory statement in the affidavit submitted by the hospital’s director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program, as required by statute” to be insufficient to meet the hospital’s burden of demonstrating that the form was actually generated at the behest of the hospital’s malpractice prevention program.  Slayton … v Kolli…, 1083, 4th Dept 11-8-13

 

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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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