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Disclosure Appropriate in Lead Paint Case, Physician-Patient Privilege Waived

In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not entitled to full disclosure of records based on the physician-patient privilege.  The Fourth Department determined the privilege had been waived:

In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any related privileges with respect to the records sought, and that those records may be material and necessary to the defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433, 1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13

 

Abutting Landowner Not Liable for Sidewalk Slip and Fall

In affirming summary judgment to defendants (abutting landowners) in a sidewalk slip and fall case, the Fourth Department explained:

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions [on a] public sidewalk[] is placed on the municipality and not the abutting landowner” … .  That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk … .

It is undisputed that the applicable town code does not impose liability on defendants for injuries to users of the public sidewalk abutting their property.  Furthermore, the testimony and affidavits submitted by defendants in support of their motion established that the sidewalk was not constructed in a special manner for their benefit, that they did not affirmatively create the defect, and that they did not negligently construct or repair the sidewalk.  Notably, defendants’ submissions established that the sidewalk was constructed by the builder of defendants’ development, who laid it in continuation of the sidewalk on the properties neighboring defendants’ property in both directions, and that defendants did not request that the sidewalk be constructed and had no input into its construction.  Contrary to plaintiffs’ further contention, defendants established that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway… . Schroeck v Gies…, 1021, 4th Dept 10-4-13

 

Summary Judgment for Out of Possession Landlord in Slip and Fall Case

In a slip and fall case, the Fourth Department determined the defendant out-of-possession landlord (McDonald’s) had met its burden demonstrating it was not responsible for snow and ice removal:

McDonald’s met its initial burden of establishing its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact … .  McDonald’s submitted evidence demonstrating that it, as a franchisor, lacked day-to-day control over the franchisee …, and that it was an out-of-possession landlord who did not retain control over the premises and was not contractually obligated to repair or maintain the premises… . Maisano v McDonald’s …, 994, 4th Dept 10-4-13

 

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Negligence of Dog Owners In Calling A Dog Which Ran Into Bicyclist’s Path Is Actionable

Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward.  Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, the court wrote:

Recently, however, the Court of Appeals revisited Bard and Petrone when it decided an appeal of Hastings (94 AD3d 1171). In reversing the grant of summary judgment to the defendants, the Court recognized that an accident caused by an animal’s “aggressive or threatening behavior” is “fundamentally distinct” from one caused by an animal owner’s negligence in permitting the animal from wandering off the property where it was kept (21 NY3d 122, 125 [2013]). The Court stated that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities “would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id.). * * *

Defendants’ actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident. Doerr v Goldsmith, 2013 NY slip Op 06442, 1st Dept 10-3-13

 

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Hospital Not Necessary Party in Malpractice Action Where Liability Vicarious

The Second Department determined a hospital which may be vicariously liable in a medical malpractice action was not a necessary party to the action:

The Supreme Court did not err in concluding that the nonparty Victory Memorial Hospital (hereinafter the hospital) was not a necessary party to this action. Contrary to the appellants’ contention, even if it were shown that the hospital would be vicariously liable for any negligence of the individual defendants, or that it had a contractual obligation to indemnify those individual defendants for damages recovered from them in this action, those factors would not render the hospital a necessary party to this action (see CPLR 1001[a]…). Complete relief may be accorded to the parties in this action without the presence of the hospital, as a plaintiff may proceed against any or all joint-tortfeasors, and a judgment for or against one tortfeasor does not operate as a merger or bar of a claim against other tortfeasors … . Accordingly, the Supreme Court properly denied those branches of the motion and cross motion which were pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join a necessary party.  Smith v Pasqua, 2013 NY slip Op 06356, 2nd Dept 10-2-13

 

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Request to File Late Notice of Claim Granted in Absence of Good Reason for Delay

Over a dissent, the Second Department determined Supreme Court properly allowed plaintiff to file a late notice of claim, in the absence of a good reason for the delay. The infant plaintiff was a student who injured her finger in a door at school:

The plaintiffs demonstrated that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … .

Before the infant plaintiff was taken to the hospital by ambulance, her teacher told her that he would give her a dollar for every stitch she had, and he later called the infant plaintiff’s home to inquire about her. During that telephone call, the teacher and the infant plaintiff’s mother allegedly discussed a door at the school… Additionally, the school nurse completed a medical claim form, detailing the accident, the injury, and the treatment provided. Under these circumstances, the defendant acquired actual knowledge of the essential facts constituting the claim … .

Furthermore, the defendant will not be substantially prejudiced in maintaining a defense on the merits as a result of the plaintiffs’ delay in seeking leave to serve a late notice of claim, in light of the teacher’s involvement in the incident and the nurse’s documentation of the accident and injuries … . “[T]he absence of a reasonable excuse for the delay does not bar the granting of . . . leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice” … . Claud v West Babylon Union Free Sch Dist, 2013 NY Slip Op 06339, 2nd Dept 10-2-13

 

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Excessive Intervention and Improper Conduct by Trial Judge Required New Trial

In a medical malpractice case, the Second Department determined plaintiff was deprived of a fair trial by the trial judge’s excessive intervention and improper conduct:

“[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” . A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” … . Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance'” … . Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial===and often times in the presence of the jury—unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. Porcelli v Northern Westchester Hosp Ctr, 2013 NY Slip Op 06354, 2nd Dept 10-2-13

 

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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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