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Lateness Not a Barrier to Motion to Amend Pleadings/Addition of Wrongful Death Cause of Action Allowed; No Prejudice to Defendant

The Second Department upheld Supreme Court’s grant of a motion to amend a complaint to add a cause of action for wrongful death “long after the action ha[d] been certified for trial…”.  The Second Department explained:

Although the plaintiff delayed in making the motion, ” [m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side'”…. Contrary to the defendants’ contentions, they did not demonstrate that they would be significantly prejudiced by the amendment. In light of the medical records of the plaintiff’s decedent, which documented multiple hospital admissions and her declining medical condition following the subject accident, along with the decedent’s deposition testimony regarding the aggravation of pre-existing medical conditions, the defendants cannot, under the circumstances of this case, claim to have been surprised by the amendment … . Moreover, the plaintiff offered a reasonable excuse for the delay, and to avoid any possible prejudice to the defendants, the Supreme Court granted them time to obtain further discovery … . Henry v MTA, 2013 NY Slip Op 03457, 2nd Dept, 5-15-13

 

 

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Plaintiff Unable to Demonstrate Freedom from Comparative Negligence as a Matter of Law; Plaintiff’s Motion for Summary Judgment in Automobile Accident Case Denied

In affirming the denial of plaintiff’s motion for summary judgment on liability in an automobile-accident case, the Second Department explained the plaintiff failed to demonstrate freedom from comparative negligence as a matter of law:

“There can be more than one proximate cause [of an accident] and, thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” …. While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield…, the operator traveling with the right-of-way still has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles…. The issue of comparative fault is generally a question for the trier of fact … .

Here, the plaintiff failed to submit evidence eliminating a triable issue of fact as to whether she contributed to the happening of the accident…. Since the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, her motion was properly denied regardless of the sufficiency of the defendant’s papers in opposition… .  Regans v Baratta, 2013 NY Slip Op 03468, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Passenger in Car of Which Plaintiff Lost Control in Snowy Conditions Entitled to Summary Judgment

In finding Supreme Court should have granted summary judgment in favor of the passenger-plaintiff, who was injured when the driver-defendant lost control of his car and struck a fence, the Second Department wrote:

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidence that this was a one-car accident which occurred when Rajput [defendant] lost control of the vehicle he was driving…. “An innocent passenger . . . who, in support of [his or] her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation” ….
In opposition, the defendants failed to raise an issue of fact sufficient to defeat summary judgment. Since Rajput acknowledged in his affidavit that it was snowing heavily at the time of his accident, and that he was aware of wet and icy road conditions, the emergency doctrine is inapplicable …. Furthermore, the affidavit, which failed to specify at what speed Rajput was actually driving before his vehicle skidded, was insufficient to establish that he was driving with reasonable care, and thus raise a triable issue of fact as to whether the skid was unavoidable … .  Mughal v Rajput, 2013 NY Slip Op 03466, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Assumption of Risk Extends to Construction of Baseball Field

Plaintiff, while playing baseball, fell on a concrete pathway adjacent to the outfield while running to catch a ball.  The Second Department determined the doctrine of primary assumption of risk applied to risks associated with the construction of the playing field:

…[T]he Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them based on the doctrine of primary assumption of risk. That doctrine extends to those risks associated with the construction of the playing field and any open and obvious condition thereon…, as well as risks involving less than optimal playing conditions …. The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff assumed the risk of injury by voluntarily participating in the softball game, thereby consenting to the commonly appreciated risks which are inherent in and arise out of the sport generally and flow from such participation, including those open and obvious risks associated with the construction of and conditions upon the playing field … .  Mattas v Town of Hempstead, 2013 NY Slip Op 03464, 2nd Dept, 5-15-13

 

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Pre-Deposition Motion to Dismiss in Rear-End Collision Case Not Premature

In reversing the denial of summary judgment to the plaintiff in a rear-end collision case, the Second Department determined the pre-deposition motion for summary judgment should not have been dismissed as premature:

The Supreme Court erred in concluding that the plaintiffs’ motion was premature. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; … .The defendant’s contention that the plaintiffs’ motion was premature because the plaintiffs had not yet been deposed at the time the plaintiffs’ motion was filed did not establish what information the defendant hoped to discover at the plaintiffs’ depositions that would relieve him of liability in this case. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” … .  Cajas-Romero v Ward, 2013 NY Slip Op 03446, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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No Demonstration Burst Water Pipe Could Have Been the Result of Negligent Inspection or Maintenance; Municipality Immune from Negligent Design

In affirming Supreme Court’s grant of summary judgment to the defendant town with respect to damages allegedly caused by a burst storm water pipe, the Second Department determined plaintiffs did not raise a question of fact concerning negligent inspection or maintenance:

“A municipality is immune from liability arising out of claims that it negligently designed [a] sewerage system” or storm drainage system”… . However, a municipality is not immune from liability arising out of claims that it negligently maintained its storm drainage system…. For the plaintiffs to recover under a theory of negligent inspection or maintenance of the storm drainage system, the plaintiffs must demonstrate that the defendants had ” notice of a dangerous condition or ha[d] reason to believe that the pipes ha[d] shifted or deteriorated and [were] likely to cause injury,’ that the [defendants] failed to make reasonable efforts to inspect and repair the defect,’ and that such failure caused the plaintiffs’ injuries”….  Bilotta v Town of Harrison, 2013 NY Slip Op 03444, 2nd Dept, 5-15-13

 

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Proof of Regular Cleaning Negated Constructive Notice Allegation​

In determining the defendant’s motion for summary judgment in a slip and fall case should have been granted, the Second Department explained defendant had met its burden on the issue of (the absence of) constructive notice by proof of regular weekly cleaning:

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition… . ” To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'”… .  A defendant’s submission of evidence of its general cleaning practices is generally insufficient to meet its burden on the issue of lack of constructive notice … . Here, however, the defendant submitted an affidavit from its superintendent indicating that each and every Monday, he would mop the entire building, including the stairwell where the plaintiff allegedly fell, and that this mopping would always occur between the hours of 3:00 p.m. and 4:00 p.m. This affidavit was specific enough to satisfy the defendant’s initial burden. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Armijos v Vrettos Realty Corp, 2013 NY Slip Op 03443, 2nd Dept,. 5-15-13

 

 

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Governmental Immunity Applied to Preclude Recovery by Bicyclist​

In finding the City was not liable for injury to a bicyclist because of governmental immunity, the First Department wrote:

In this action for personal injuries allegedly sustained by plaintiff when his bicycle hit a depression in a grassy area, after he was diverted from the bicycle path in a City park due to cleaning activities by defendants’ employees on a retaining wall, defendants moved to dismiss at the close of plaintiff’s… * * *  …[D]ismissal of the complaint is warranted on the … ground … that defendants’ employees were engaged in a governmental function giving rise to the governmental immunity defense. Diverting traffic to protect the public from the harsh chemicals used in the cleaning process was a discretionary act performed by public employees in the exercise of reasoned judgment … . Stashkevetch v City of New York, 2013, NY Slip Op 03418, 1st Dept, 5-14-13

 

 

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

Assumption of Risk Extends to Condition of Outside Basketball Court

The First Department affirmed the grant of summary judgment to the defendant finding that the plaintiff basketball player assumed the risks associated with playing basketball on defendant’s outdoor court:

Plaintiff, an experienced basketball player who had played on the subject court on numerous occasions, was injured when, while heading toward the rim to take a shot, his ankle twisted and he heard his knee “pop,” causing him to fall to the ground. Plaintiff observed that the court was cracked, repaired and uneven, which he believed to be the cause of his fall. Under the circumstances, dismissal of the complaint was proper since plaintiff assumed the risks associated with playing basketball or warming up to play basketball on this outdoor basketball court… . Felton v City of New York, 2013 NY Slip Op 03423, 1st Dept, 5-14-13

 

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