You are here: / Negligence
, , , , , ,

“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

½ Inch Differential Was Trivial and Could Not Be Basis of Liability

The First Department affirmed the dismissal of a slip and fall complaint finding the one-half-inch differential between the level of the sidewalk and the frame of the cellar door was trivial and could not serve as the basis of liability.  Boynton v Haru Sake Bar, 2013 NY Slip Op 04113, 1st Dept, 6-6-13

 

,

In Court of Claims Case, Inability to Prove State Was Served with Notice of Claim Required Dismissal

In affirming the Court of Claims’ dismissal of a claim because claimant was unable to demonstrate the state was properly served, the Third Department explained the relevant law as follows:

“A claimant seeking to recover damages  for personal injuries caused by  the negligence . . . of an  officer or employee  of [defendant] must  file and  serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof”….  Both filing with the court and service upon the Attorney General must take place within the relevant statutory period … and, as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and  are in derogation of the common law, “the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction”….   Notably, “a defect in subject matter jurisdiction may be raised at any time, even for the first time  on appeal, because it relates to the competence of the court to consider [the] matter”… .and, therefore, such defect “cannot be overlooked or remedied by either waiver or estoppel” … .  Caci v State of New York, 515844, 3rd Dept, 6-6-13

BICYCLES

, , ,

Notice of Claim (Pursuant to Court of Claims Act) Not Specific Enough

The Third Department upheld the Court of Claims’ dismissal of a claim because the notice of claim was not specific enough.  In describing the statutory criteria, the Third Department wrote:

Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and  the total sum  claimed. “Because suits against [defendant] are allowed only by [defendant’s] waiver of sovereign immunity and  in derogation of the common law, statutory requirements conditioning suit must be strictly construed”….   Although “absolute exactness” is not required…, the claim must “‘provide a  sufficiently detailed  description  of  the  particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and  extent of its liability'” … .  Morra v State of New York, 515751, 3rd Dept, 6-6-13

NEGLIGENT SUPERVISION, EMPLOYEE

Question of Fact Re: Duty Owed to Developmentally Disabled Plaintiff for Injury Incurred After Plaintiff Left Facility for a Bus Ride Home

In affirming the denial of summary judgment to the defendant, which provided services to developmentally disabled people, the Third Department determined there was a question of fact about whether defendant owed plaintiff a duty and whether the breach of that duty was the proximate cause of plaintiff’s injuries.  Plaintiff was placed on a bus to take her home from defendant’s premises, after plaintiff’s mother had instructed a respite worker that plaintiff should be driven home.  Plaintiff was struck by a car as she crossed the road after getting off the bus.  The Third Department wrote:

… [W]e agree with Supreme Court that summary judgment in defendant’s favor is precluded by  material issues of fact as to the degree  of care that  defendant  owed  to  plaintiff and  its compliance  with that duty… .  Further, given the record evidence regarding defendant’s knowledge of plaintiff’s abilities and limitations, we  find that it did not establish as a matter of law that its conduct in sending plaintiff to an unsupervised location along a highway was not the proximate cause of her injuries or that plaintiff’s actions  constituted  an  intervening  cause  ….  Warley v Grampp, et al, 515724, 3rd Dept, 6-6-13

PEDESTRIANS, TRAFFIC ACCIDENTS

 

,

Out-Of-Possession Landlord Not Liable for Missing Light in Stairwell

The Second Department determined the out-of-possession landlord could not be liable for a missing light in a stairwell, the alleged cause of plaintiff’s fall:

“An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct”… . Here, the defendant established its entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord, that it was not contractually obligated to maintain the lighting at the premises or repair the alleged hazardous condition, that it did not endeavor to perform such maintenance, and that it did not violate any relevant statute or regulation… . Grimaldi v 221 Arlington Realty, LLC, 2013 NY Slip Op 03969, 2nd Dept, 6-5-13

SLIP AND FALL

 

,

Release Must Be Unambiguous to Allow Dismissal of Complaint

In affirming the denial of the defendant’s motion to dismiss the complaint based upon a release executed by the plaintiff, the Second Dept explained that motion must be denied because the scope the release could not be definitively determined:

“The meaning and scope of a release must be determined within the context of the controversy being settled” …. Where a release contains clear and unambiguous language, the signing of it is “a jural act binding on the parties” … . However, a release may not be read to cover matters which the parties did not intend to cover…. Moreover, while a release may encompass unknown claims, it must be clear that the parties so intended by the use of broad, all-encompassing language…. Where a court cannot definitively determine whether the scope of a release was intended to cover the allegations in a complaint, a motion pursuant to CPLR 3211(a)(5) to dismiss the complaint must be denied….  Desiderio v Geico Gen Ins Co, 2013 NY Slip Op 03964, 2nd Dept, 6-5-13

TRAFFIC ACCIDENTS

 

Driver Who Had Right of Way But Allowed Another Driver to Turn Can Be Liable to Motorist Struck by Turning Car​

The defendant stopped in the roadway when she had the right of way and gestured to an on-coming driver to make a left turn in front of her.  Plaintiff passed the defendant on the right and collided with the car making the turn.  The Third Department determined defendant’s motion for summary judgment should not have been granted:

When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances; this duty is owed to pedestrians and other motorists and passengers as well as to the person who is being signaled … .  Dolce v Sheridan, 515766, 3rd Dept, 5-30-13

TRAFFIC ACCIDENTS

,

No “Negligent Supervision” Cause of Action Against School Based on Student Attacking Another Student

In ruling that the defendant school district’s motion for summary judgment in a “negligent supervision” case should have been granted, the Third Department determined the school district could not have reasonably anticipated the attack of one student upon another.  The school personnel had been alerted to the possibility of an impending fight between the two students and had intervened.  The school personnel were assured by the student who ultimately attacked plaintiff’s daughter that she did not intend to fight plaintiff’s daughter.  The Third Department wrote:

…[A] school district will only be held liable for injuries intentionally inflicted by another  student  where  it is established that the dangerous conduct “could reasonably have been anticipated,” i.e., where school authorities had actual or constructive notice of prior similar conduct on the part of the offending student ….  Even where such notice is present and the consequent duty of supervision is breached, the plaintiff must further show that the alleged injury “was a normal or foreseeable consequence of the situation created by the school’s negligence”  … .The adequacy of supervision and the existence of proximate cause  are generally factual issues for a  jury to resolve … .

Regardless of any questions of fact regarding whether enough staff members were present in the hallway to prevent or break up the fight, defendant was entitled to summary judgment because it established that it could not have reasonably anticipated the attack.  Conklin v Saugerties Central School District, 515709, 3rd Dept, 5-30-13

 

,

No Negligence Based on Defendant’s Dog Barking [Which Allegedly Caused Plaintiff to Fall from Her Horse as the Horse Broke Into a Run]

Plaintiff was injured when she fell from her horse.  The defendant was jogging behind the horse with her dogs. Plaintiff alleged barking caused the horse to break into a canter or a run.  The Third Department determined Supreme Court should have granted defendant’s motion for summary judgment.  After discussing the principles underlying assumption of the risk in this context and the permissible causes of action based on the behavior of animals, the Third Department wrote:

“The mere act of [walking] . . . in close proximity to an unknown horse, as the complaint alleges, does  not present an  issue of negligence, as a matter of law” …. In this regard, defendant – who had  no  prior experience with horses – was  walking on  a public highway, where  she had  every right to be  (see Vehicle and  Traffic Law  §  1156  [b]).  She slowed down  to evaluate the horses and riders ahead  of her, and, while she did not stop, she was  still 50 yards away when plaintiff and her daughter lost control of their horses. Morever, plaintiffs’ negligence claim also fails because they alleged no facts from which it could be inferred that defendant’s actions, in walking on a public street or otherwise, were the proximate cause of plaintiff’s injuries … . Filer v Adams, 515403, 3rd Dept, 5-30-13

 

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