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Late Notice of Claim Should Not Have Been Allowed

The Second Department reversed the trial court’s deeming a late notice of claim as timely served nunc pro tunc.  The claim was against the New York Health and Hospitals Corporation (HHC) which is not the same as the City of New York for purposes of a notice of claim.  The Second Department wrote:

The Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or “within a reasonable time thereafter” (General Municipal Law s 50-e[5]). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim … .  * * *Moreover, the plaintiff’s mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. … Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90-day period expired and then did not move for two more months to have that late notice of claim deemed timely … .  Platt v New York City Health & Hosps Corp, 2013 NY Slip Op 02733, 2nd Dept, 4-24-13

 

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Late Notice of Claim Allowed In Absence of Reasonable Excuse

In affirming the grant of leave to file a late notice of claim in the absence of a reasonable excuse, the Second Department wrote:

Here, the Fire Island Union Free School District (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose …. Immediately after the petitioner allegedly was injured in an accident at a school in the District, the petitioner told the school’s custodian how the accident occurred, a District employee called emergency medical services, and the petitioner was transported to a hospital. An incident form was prepared by the District which indicated the time and place of the accident and the petitioner’s injuries, and the petitioner’s accident was discussed at a construction meeting attended by the school’s superintendent. Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice …. The District’s conclusory assertions of prejudice, based solely on the petitioner’s delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … 

While the petitioner’s excuses for his failure to serve a timely notice of claim were not reasonable …, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and absence of prejudice …. Matter of Rodriquez v Woodhull Sch, 2013 NY Slip Op 02754, 2nd Dept, 4-24-13

 

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City Failed to Affirmatively Prove It Did Not Have Notice of Dangerous Condition

The Second Department determined the city’s failure to submit proof it had not received notice of a defective condition precluded summary judgment in the city’s favor:

As the party moving for summary judgment, in order for the defendant City of New York to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint … on the ground that it had no prior written notice of the alleged defective or dangerous condition (see Administrative Code of the City of New York § 7-201[c]), it was required to submit proof that it did not receive the notice required by the statute … . The City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff’s accident, and there was nothing in the deposition testimony of the three City witnesses that indicated that a search of the City records had been conducted without any success in finding any prior written notices. As such, the City failed to make a prima facie showing that no prior written notice was actually received … .   Martinez v City of New York, 2013 NY Slip Op 02723, 2nd Dept, 4-24-13

 

Slip and Fall Action Based On “Trivial Defect” Dismissed

In affirming the dismissal of a personal injury action in which the plaintiff alleged she fell when she stepped on a one-inch wide and one-half-inch deep hole on the edge of a step, the Second Department wrote:

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … .  *  *  * The plaintiff testified at her deposition that the semi-circular hole was one inch in diameter, half an inch deep, and located at the edge of the step. She used the staircase all the time, and she never had a problem traversing the area prior to the accident. Under the circumstances presented here, the alleged defect did not possess the characteristics of a trap or nuisance, and was trivial and, therefore, not actionable … . Maciaszek v Sloninski, 2013 NY Slip Op 02722, 2nd Dept, 4-24-13

 

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Scientific Expert Opinion Need Not Be Based Upon Textual Authority

In determining an expert’s testimony that an MRI would have revealed any injury caused by an epidural injection was properly admitted, the Second Department explained the criteria for the admission of (scientific) expert testimony:

In determining the admissibility of expert testimony, New York follows the rule of Frye v United States …  “that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance’ in its specified field” …. The test’s limited purpose is to ascertain whether the expert’s conclusion is based upon accepted scientific principles, rather than simply the expert’s own unsupported beliefs …. When applying the Fryetest to assess the reliability of an expert’s theory of causation, “it is not necessary that the underlying support for the theory . . . consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the . . . expert'” …. “The fact that there [is] no textual authority directly on point to support the [expert’s] opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility”… .

[Here the] literature established that the expert’s theory had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch … . The lack of textual authority to support the theory pertained to the weight to be given to his testimony, but did not preclude its admissibility ….  LaRose v Corrao, 2013 NY Slip Op 02719, 2nd Dept, 4-24-13

 

 

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Criteria for Professional Negligence Actions Against Accountant Not in Privity with Plaintiff and Against Actuary

The Second Department explained the criteria for professional negligence actions against an accountant, with whom the plaintiffs were not in privity, and against an actuary:

Accountants may be “held liable in certain circumstances for negligent misrepresentations made to parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant” … . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance” … . *  *  *

Because an actuary is not required to be licensed, is not regulated, and is not subject to a State-created disciplinary system, an actuary is not a “professional” for purposes of a malpractice cause of action … . Nevertheless, an actuary, possessing special knowledge, can be held liable for the negligent performance of its services …. [T]he complaint sufficiently alleges a cause of action against [the actuary] on a theory of common-law negligence ….  Health Acquisition Corp v Program Risk Mgt, Inc, 2013 NY Slip Op 02714, 2nd Dept, 4-24-13

 

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No Evidence Police Officer Acted in “Reckless Disregard” for Safety

The First Department determined the plaintiff did not raise a question of fact about whether a police officer drove his vehicle (which collided with plaintiff’s) in “reckless disregard for the safety of others,” finding plaintiff’s allegations “conclusory and speculative.:”

Defendants’ proof established that defendant Steve Tompos, a police officer, did not act in “reckless disregard for the safety of others” while operating his vehicle in the wrong direction on a one-way street (see Vehicle and Traffic Law § 1104[e]). Tompos testified that his vehicle’s emergency lights and siren had been activated prior to the accident, and the evidence showed that he reduced his speed before turning onto the subject street and that he veered to his right in an attempt to avoid impact … . We note in particular that Tompos’s partner testified that Tompos reduced the vehicle’s speed to 10 miles per hour as he turned into the street where the accident occurred. Plaintiff’s testimony that Tompos was driving at a “high” rate of speed, which plaintiff was admittedly unable to estimate, is conclusory and speculative .. . We therefore disagree with the dissent’s view that issues of fact preclude summary judgment. Frezzell v City of New York, 2013 NY Slip Op 02700, 8861 116366/07, 1st Dept, 4-23-13

TRAFFIC ACCIDENTS

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“Law of the Case” Does Not Bind Appellate Courts

In a medical malpractice action, plaintiff had moved to amend her complaint to add a cause of action for wrongful death and the motion was denied.  There was a mistrial.  Before the second trial, plaintiff again moved to amend her complaint.  The motion was denied because the first denial was deemed the law of the case.  In determining the motion to amend should have been allowed, the Second Department noted that the law of the case doctrine does not apply to appellate courts:

The doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination …. Accordingly, this Court is free to consider that branch of the plaintiff’s motion which was for leave to amend the complaint on the merits …. Under the circumstances presented here, we conclude that leave to amend the pleading should be permitted.

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]…). Here, in the aftermath of the court’s granting of a mistrial, Mercy [defendant] failed to allege, much less show, surprise or prejudice resulting from the plaintiff’s delay in asserting the wrongful death cause of action against it … . Moreover, the proposed amended complaint, which sufficiently alleged that Mercy’s negligence caused the decedent to suffer injuries and ultimately death, was neither “palpably insufficient nor patently devoid of merit” … .   Hothan v Mercy Med Ctr, 2013 NY Slip Op 02541, 2011-10562, Index No 14345/06, 2nd Dept, 4-17-13

 

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Question of Fact Raised About Whether School-Wrestler’s Risk of Injury Increased by Condition of Wrestling Mats

The Second Department ruled Supreme Court had properly denied the school’s motion for summary judgment because a question of fact had been raised about whether the way mats had been taped together increased the risk of injury to wrestlers:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”‘” … . “The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon” … . “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies” … . However, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” … . Philippou v Baldwin Union Free Sch Dist, 2012-02566, Index No 790/10, 2nd Dept, 4-17-13

 

Adult Care Facility, in Which Residents Have a High Level of Autonomy, Can Not Be Held Liable for Assault by One Resident Upon Another

In finding that Lakeside, an adult care facility (ACF), was not liable for an assault by a resident, Fierro, upon the plaintiff (also a resident), the Second Department wrote:

…[C]ourts have imposed a duty of care where “there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that [courts] have identified a duty to do so. Thus, [courts] have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [the] third person whose actions expose plaintiff to harm such as would require [one] defendant to protect the plaintiff from the conduct of others” … .

…Lakeside [presented evidence that its] residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Because it is an ACF, Lakeside’s control over Fierro, “and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions” …. Lakeside did not require the issuance of day passes, which would have been indicative of “a certain level of authority and control” over its residents …, who did not “relinquish general autonomy” … .  Malave v Lakeside Manor Homes for Adults, Inc, 2013 NY Slip Op 02547, 2012-00696, Index No 100904/10, 2nd Dept, 4-17-13​

THIRD PARTY ASSAULT

 

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