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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

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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

 

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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

 

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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

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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

 

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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

 

Emergency Doctrine Not Applicable to Striking Plaintiff’s Decedent’s Body in Roadway

The Third Department determined summary judgment should not have been granted to the defendant based upon the emergency doctrine.  Defendant struck the decedent’s body which was in the roadway.  Although defendant slowed when she saw the brake lights and flashers on vehicles ahead of her, she continued driving at about 50 miles per hour:

We are not persuaded that these facts demonstrate, as a matter of law, that defendant was confronted with an emergency situation that left her with little time for deliberation or that her reaction was reasonable such that there was nothing she could have done to avoid the accident.  Notably, “it is not uncommon for motorists to encounter debris or other hazards in the roadway” …and, here, by defendant’s own testimony, she had  notice from at least 20  or 30  car lengths away that something  out of the ordinary was  happening  on  the highway ahead  ….   Further, there is also deposition testimony of the front seat passenger in codefendants’ vehicle, which had arrived at the scene and  first struck either decedent or his motorcycle.  This witness testified that, as decedent was  lying in the roadway, other vehicles stopped at the scene without striking him, and at least one other vehicle passed through the scene without incident.  In light of  this testimony,  “a question  arises as to whether defendant should have anticipated and been prepared to deal with the situation confronting [her]” and  whether  her actions were reasonable under the circumstances… . Hallenbeck …v Smith…, 515155, 3rd Dept, 5-30-13

 

 

Res Ipsa Loquitur Proof Requirements Not Met Re: Cause of Fire

A fire apparently started in the vicinity of a gas grill resulting in the destruction of an apartment building.  In affirming summary judgment granted to the defendants, the Third Department noted that an unsigned report from the fire department was properly ignored by the motion court and plaintiff was not entitled to an inference of negligence based on the doctrine of res ipsa loquitur:

…[P]laintiff has not established its entitlement to an inference of negligence pursuant to the doctrine of res ipsa loquitur. To do so, plaintiff was required to demonstrate, among other things, that the fire was one that ordinarily would not have occurred in the absence of defendants’ negligence….   While plaintiff need not have eliminated every alternative explanation for the event, it was required to demonstrate that the probability of other causes was so reduced that defendants’ negligence was more likely than not to have caused the injury….  In view of plaintiff’s failure to proffer any admissible evidence – or, indeed, any evidence whatsoever based upon more than pure speculation – that negligence was a factor in the cause of the fire, plaintiff has not met its burden of demonstrating that res ipsa loquitor applies … .  92 Court Street…. v Monnet, et al, 514458, 3rd Dept, 5-30-13

 

 

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