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Allegations Not Supported by Record Could Not Defeat Plaintiff-Pedestrian’s Motion for Summary Judgment/Plaintiff’s Mental Health Records Discoverable Where Plaintiff Alleges Anxiety and Mental Anguish After Being Struck by Defendant’s Van

Plaintiff was struck by defendants’ van as she was crossing a street.  In opposing the plaintiff’s motion for summary judgment, defendants claimed plaintiff was crossing when the signal was flashing the “don’t walk” icon, was talking on a cell phone, and “jumped” in front of defendants’ van.  In determining Supreme Court should have granted plaintiff’s motion for summary judgment, the Second Department wrote:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that she entered the crosswalk after exercising reasonable care and was walking within the crosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos was negligent in failing to yield the right of way (see Traffic Rules and Regs of City of NY [34 RCNY] § 4-03[a][1][i]; [c][1], [2];…). The assertions made by the defendants in opposition lacked an evidentiary basis in the record and, thus, failed to raise a triable issue of fact …. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.

The Second Department also determined Supreme Court properly granted defendants’ cross motion to compel the disclosure of plaintiff’s mental health records because she sought damages for anxiety, mental anguish and loss of enjoyment of life. Moreira v MK Travel & Transp, Inc, 2013 NY Slip Op 03645, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS, PEDESTRIANS

Allegation Plaintiff Abruptly Changed Lanes and Stopped in Front of Defendant Precluded Summary Judgment in Rear-End Collision Case​

In a rear-end collision case, the Second Department determined the allegation that the plaintiff abruptly changed lanes and came to a sudden stop in front of defendant raised a question of fact about plaintiff’s negligence:

Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle was fully stopped at a red traffic light when it was hit in the rear by the defendants’ vehicle…. In opposition, the defendants raised triable issues of fact as to whether the plaintiff was negligent in the operation of his vehicle, and whether his alleged negligence caused or contributed to the accident, through the affidavit of the defendant driver Roni J. Jaquez. Jaquez averred that the plaintiff’s vehicle abruptly changed lanes, directly in front of his vehicle, and then came to a sudden stop. … Markesinis v Jaquez, 2013 NY Slip Op 03641, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS

Speculation About Cause of Fall Required Dismissal of Complaint​

In determining the plaintiff’s resort to speculation about the cause of her fall required dismissal of the complaint, the Second Department wrote:

“In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” …. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff and her husband, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation …. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, that she did not know which foot made contact with the bar, and that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall. Deputron v A&J Tour, Inc, 2013 NY Slip Op 03629, 2nd Dept, 5-22-13

 

 

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Sudden Unexpected Action by Student Did Not Support Action Based on Negligent Supervision

In determining a student’s special education aide, who was standing nearby when the 8-year-old student suddenly placed his fingers inside the hinged side of a bathroom door (thereby immediately suffering injury), could not be liable for negligent supervision, the Second Department wrote:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …. “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another” …. Moreover, “[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant[ ] is warranted” … .  Gilman v Oceanside Union Fee Sch Dist, 2013 NY Slip Op 03634, 2nd Dept, 5-22-13

 

 

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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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