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Attorney’s Failure to Investigate Client’s Premises Liability Claim Before Encouraging Settlement Raised Issue of Fact About Malpractice

In this legal malpractice action, the trial court ruled plaintiff had raised issues of fact concerning whether his attorney failed to adequately investigate the plaintiff’s premises liability claim before encouraging the plaintiff to settle.  In affirming the trial court, the First Department noted that the settlement agreement did not bar the legal malpractice action:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” …. A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” ….   *  *  *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer.  Angeles v Aronsky, 2013 NY Slip Op 02454, 8925, 100091/09, 1st Dept, 4-11-13

 

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Criteria for Holding Parent Company Liable for Torts of Subsidiary

In a products liability case, the Third Department determined a question of fact had been raised about whether the parent company could be liable for the torts of a subsidiary.  The relevant legal standard was described as follows:

Liability of a parent company for the torts of a subsidiary does not arise from the mere ownership of a controlling shareholder interest. “Rather ‘there must be direct intervention by the parent in the management of the subsidiary to such an extent that the subsidiary’s paraphernalia of incorporation, directors and officers are completely ignored'” … .   The  parent  company  must  “exercise[] complete  dominion  and  control over the subsidiary” ….  Goodspeed, et al, v Hudson Sharp Machine Company, 515490, 3rd Dept, 4-11-13

 

 

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Expert Affidavit in Support of Hospital’s Motion for Summary Judgment Not Sufficient

In this medical malpractice case, the plaintiff alleged a delay in performing an emergency cesarean section resulted in oxygen-deprivation-injury to her baby.  In affirming the denial of summary judgment to the hospital, the Third Department noted that the affidavits submitted on behalf of the hospital did not directly address with substantive facts the evidence of a delay in assembling the surgical team:

To establish a party’s entitlement to summary judgment, a physician’s affidavit “must be detailed, specific and factual in nature” and may not simply assert in conclusory fashion that a defendant complied with the standard of care without relating the contention to the particular facts at issue …. In the absence of any factual discussion of the delay, [the] general assertion that NDH “acted at all times in a prompt, timely, and reasonable manner” lacks specificity. Accordingly, NDH failed to establish its prima facie entitlement to summary judgment, and it is unnecessary to address the sufficiency of plaintiffs’ opposing papers … . Olinsky-Paul v Jaffe, et al, 514904, 3rd Dept 4-11-13

 

 

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Continuing Course of Treatment Doctrine Not Applicable

In a medical malpractice action, plaintiff alleged her pediatrician [Walders] was negligent in failing to properly address the condition of her foot, which turned out to be a symptom of a disorder that went undiagnosed for many years.  In upholding the trial court’s determination that the “continuing course of treatment” doctrine (which would toll the statute of limitations) did not apply, the Third Department explained:

A  “course  of treatment  speaks  to affirmative and ongoing conduct by the physician” which is recognized as such by both the patient and  physician … .Notably, a  “[r]outine examination of a seemingly healthy  patient, or  visits concerning  matters  unrelated  to  the condition  at issue giving rise to  the  claim, are  insufficient to invoke  the  benefit of the  [continuous  treatment]  doctrine” … . Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiff’s mother does not, by itself, establish an ongoing course of treatment … . Dugan v Troy Pediatrics, LLP, 515407, 3rd Dept 4-11-13

 

 

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Immunity for Land Owners Allowing Use of Land by Snowmobilers

Plaintiff’s decedent was killed while riding a snowmobile on a trail on privately owned land.  Plaintiff’s snowmobile struck the side of a tractor-trailer carrying logs.  The private logging road where the accident occurred was also used as a snowmobile trail.  Plaintiff sued the owner of the land.  The Third Department upheld the trial court’s ruling that the landowner was immune from suit under General Obligations Law 9-103, because the statutory “consideration exception” did not apply.  Plaintiff contended that certain “recreational leases” (for hunting and fishing) constituted “consideration” for the use of the trail, triggering the immunity exception.    The Third Department determined those leases had nothing to do with snowmobiling and noted:

General Obligations Law § 9-103 provides immunity, subject to certain exceptions, to landowners, lessees and occupiers who make their land available to the public for various enumerated recreational  activities, including  snowmobiling. As relevant here, the consideration exception provides that immunity does not exist “for injury suffered in any case where permission . . . was granted  for a  consideration, other  than  the  consideration, if any, paid to said landowner by the state or federal government” (General Obligations Law § 9–103 [2] [b]). It is the plaintiff who has the burden of establishing that the  claimed exception applies and, as the Court of Appeals has instructed, we must strictly construe the exception so as not to defeat the statute’s broad purpose … .  Ferland … v GMO Renewable Resources LLC, et al, 514045, 3rd Dept 4-11-13

 

 

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General Contractor’s Liability for Ice and Snow at Work Site/Criteria for Indemnification of General Contractor

In a common law negligence and Labor Law 200 action, the Second Department explained when a general contractor can be held liable for a dangerous condition.  Here the plaintiff was injured when he slipped on ice and snow at the work site.  The general contractor was seeking indemnification under a contract:

“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” …. ” Where, as . . . here, a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition'” …. [The general contractor] failed to establish, prima facie, that it lacked control over the work site or notice of the allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was not negligent ….  Mikelatos v Theofilaktidis, 2013 NY Slip Op 02382, 2012-00163, Index No 19488/05, 2nd Dept 4-10-13

 

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Failure to Allege Negligent Provision of Medical Care in Notice of Claim Required Dismissal of Negligence Cause of Action; Failure to Allege Facts Demonstrating a Custom or Practice of Providing Inadequate Medical Care Required Dismissal of 1983 Causes of Action 

After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in the complaint:

Here, the notice of claim failed to set forth any allegations of negligence on the part of the defendants regarding the deprivation of medical treatment to the plaintiff when he was in police custody. Therefore, the Supreme Court should have directed dismissal of so much of the complaint as alleged negligence, due to the plaintiff’s failure to file a proper notice of claim (see General Municipal Law § 50-e[2] … .  * * *

To hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy …. Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself …. Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of depriving medical treatment to persons in police custody ….  Vargas v City of New York, 2013 NY Slip Op 02391, 2011-02266, 2011-08980, 2011-09609, Index No 33215/07, 2nd Dept, 4-10-13

 

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Notice of Claim Deemed Insufficient to Allege Negligent Design or Construction of Road

The Second Department dismissed a complaint against a town because the notice of claim alleged “damages for negligence arising out of the use, operation, ownership, maintenance, custody, and control of Hynes Road” but did not allege defective design or negligent construction of a road, the specific theories alleged in the complaint:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality … . While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, “a party may not add a new theory of liability which was not included in the notice of claim”… .

Here, the Town established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting proof that the notice of claim made no allegations that the Town defectively designed or negligently constructed the roadway where the accident occurred … .  Crew v Town of Beekman, 2013 NY Slip Op 02370, 2011-10932, Index No 7540/07, 2nd Dept, 4-10-13

HIGHWAYS AND ROADS

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Out-of-Pocket Expenses Must Be Alleged in Claim Based on Alleged Failure to Detect Child’s Medical Condition In Utero

In dismissing a medical malpractice action which was based upon a physician’s alleged failure to detect a medical condition from the review of a sonogram, a condition which may have caused the parents to terminate the pregnancy, the Second Department reviewed the available damages in such an action. Ultimately the Second Department determined that the plaintiffs’ failure to raise a question of fact about future expenses they will incur for care of the child (currently paid for by Medicaid) required dismissal of the complaint:

Although a child with a disability may not maintain a wrongful life cause of action, the child’s parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child … . To succeed on such a cause of action, which “sound[s] essentially in negligence or medical malpractice,” the plaintiffs “must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by” them … . Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice … . Further, the claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition …. The “parents’ legally cognizable injury’ is the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority’” … . Since the parents’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable ….  Mayzel v Moretti, 2013 NY Slip Op 02379, 2011-11393, Index No 102307/09, 2nd Dept, 4-10-13

 

Fact that Driver’s Negligence Was Deemed “Sole Proximate Cause” of Passenger’s Injury Did Not Warrant the Dismissal of Claims Against the Other Driver Involved in the Collision

The plaintiff was a passenger in a car which was involved in an accident, injuring plaintiff.  Plaintiff sued the driver of the car she was in (Pistorino).  Based on the finding that Pistorino had violated the Vehicle and Traffic Law by making a left turn in front of an oncoming car driven by defendant Allen, the motion court determined Pistorino’s act was the sole proximate cause of plaintiff’s injury and granted summary judgment to the plaintiff on liability. Allen, the driver of the other car, moved for summary judgment dismissing the claims against him based on the motion court’s “sole proximate cause” finding.  The Second Department reversed the motion court’s dismissal of the claims against Allen and wrote:

The Supreme Court erred, however, in granting that branch of Allen’s motion which was for summary judgment dismissing all cross claims asserted against him. Allen’s motion was based entirely upon the preclusive effect of the finding made by the Supreme Court in deciding the plaintiff’s motion for summary judgment, that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident. However, the issue of the relative fault of Jaclyn Pistorino and Allen was not raised by the plaintiff in her motion. Correspondingly, the plaintiff did not demonstrate that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident.  Anzel v Pistorino, 2013 NY Slip Op 02362, 2011-08058, 2011-11125, Index No 4001/11, 2nd Dept, 4-10-13

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