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City Deemed Immune from Suit—Governmental and Proprietary Functions Explained 

Plaintiff was injured when a Department of Transportation (DOT) worker, who was setting up cones on the roadway in preparation for road repair, allowed plaintiff to ride through the work area on her bicycle.  The plaintiff was injured when she rode over a pothole. The First Department determined the defendant City was immune from suit because the DOT worker was performing a discretionary/governmental, not a proprietary function, when he allowed the plaintiff to ride through.  The decision includes detailed discussion of discretionary/governmental versus proprietary functions.  Wittorf v City of New York, 2013 NY Slip Op 02014, 8358, 103233/06, 1st Dept 3-26-13

 

Open and Obvious Nature of Condition Required Dismissal of Complaint

In reversing the denial of defendant’s motion to dismiss the complaint, the First Department determined the open and obvious nature of the danger precluded the lawsuit:

Dismissal of the complaint as against the City is warranted inthis action where the 14-year-old decedent drowned after she and friends scaled a fence, ignored signs prohibiting swimming, and entered into the Bronx River, which runs through River Park, even though she did not know how to swim. Although the City has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances …, “the duty to take reasonable precautions does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  Torres v City of New York, 2013 NY Slip Op 02019, 9607, 303086/11, 1st Dept 3-26-13

 

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Falling Off X-Ray Table Raised Question of Fact

The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays:

Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff[’s decedent] was not injured thereby’ ” … . With respect to decedent’s fall from the X ray table, defendant failed to present competent proof that it did not deviate from the applicable standard of care when the technician left the room to develop the X rays that had just been taken, with decedent still on the table.  Welsh, et al, v St Elizabeth Medical Center, 332, CA 12-01576, 4th Dept. 3-22-12

 

 

Stuck Door Could Constitute a “Dangerous Condition”

In finding that a stuck door could constitute a “dangerous condition,” the Fourth Department wrote:

Plaintiff commenced this action seeking damages for injuries he allegedly sustained when, in the course of his employment, he was delivering a package to defendant’s property. He attempted to open a door but, according to plaintiff, the door would not open because it was stuck and defendant had prior notice that “the door stuck on occasion.” Defendant moved for summary judgment dismissing the complaint on the sole ground that the “condition alleged by Plaintiff, [i.e.], the door that would not open on the date of the accident, is not an inherently dangerous condition giving rise to a duty in tort.” We conclude that Supreme Court erred in granting the motion.

As the Court of Appeals has written, the issue “whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally [one] of fact for the jury” … . With respect to summary judgment motions, it is well established that “[a] motion for summary judgment must be denied ‘if there is any significant doubt as to the existence of a triable issue [of fact], or if there is even arguably such an issue’ . . . Moreover, summary judgment is seldom appropriate in a negligence action” … . Bielicki v Excel Industries, Inc., 335, CA 12-01494, 4th Dept. 3-22-13

 

 

 

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Question of Fact Raised About Owner’s Knowledge of Presence of Lead Paint

The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the apartment had constructive notice of the presence of lead paint:

The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted himself as to whether he knew that a child lived in the apartment.  Regarding the other [Chapman v Silber (97 NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice … .  Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13

 

 

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Cause of Action Based on the Failure to Warn Mechanic About Remote Car Starter Survived Summary Judgment

The denial of summary judgment was affirmed by the Fourth Department.  The plaintiff, a mechanic, was injured when a remote car starter started the car he was working on, dragging and running over him.  The Court determined plaintiff had alleged sufficient facts to support the theory that the defendants (the owners/users of the car in question) had a duty to warn the plaintiff the car was equipped with a remote starter which could start the car when it was in gear and the clutch was not depressed:

Contrary to the contention of defendants, we conclude that Supreme Court properly denied their motion for summary judgment dismissing the complaint. “Under general tort rules, a person may be negligent because he or she fails to warn another of known dangers or, in some cases, of those dangers [of] which he [or she] had reason to know”… .  Chambers v Evans, et al. 291, CA 12-01517, 4th Dept. 3-22-13

 

 

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Defendant Could Not Deny Ownership Of Vehicle (Which Was Allegedly Transferred to Another Prior to the Accident) Because License Plates Had Not Been Removed

The Fourth Department determined that a defendant, Myers, was estopped from denying ownership of a vehicle, which was alleged to have been transferred to another defendant, Herring, because Myers’ license plates had not been removed:

With respect to the issue of ownership, we note that, pursuant to Vehicle and Traffic Law § 420 (1), “[u]pon the transfer of ownership .. . of a motor vehicle . . . , its registration shall expire; and the seller . . . shall remove the number plates from the vehicle.” Consequently, “[a] registered owner who transfers a vehicle without removing the license plates is estopped as against an injured third party from denying ownership” … . Inasmuch as Myers admittedly left his license plates on the vehicle after purportedly transferring ownership to Herring, Myers is estopped from denying ownership of the vehicle as against plaintiffs. Marafferi, et al v Herring, et al, 267, CA 12-01829, 4th Dept. 3-22-13

TRAFFIC ACCIDENTS

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Individual Employees of Defendant Can Be Named In the Complaint Even Though They Were Not Named in the Notice of Claim

In this case a notice of claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the notice of claim in order to sue them. In a full-fledged opinion by Justice Scudder, the Fourth Department wrote:

 …[D]efendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement. * * *

Although “[p]recedents involving statutory interpretation are entitled to great stability” …, we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute.

If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Goodwin, et al, v Pretorius, et al, 101, CA 12-01441, 4th Dept. 3-22-13

 

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Failure to Identify Notice Witness, Erroneous Missing Witness Charge and Erroneous Preclusion of Evidence Required Reversal.

A judgment in favor of the plaintiff after trial was reversed by the First Department because: (1) plaintiff’s son, a notice witness who testified about the alleged defective condition at the core of the lawsuit, had not been identified before trial; (2) a missing witness charge re: a purported employee of the defendant was given in the absence of proof of the employee’s existence; and (3), the testimony of defense witnesses was erroneously precluded or limited.  Collazo v Riverbay Co-op, 2013 NY Slip Op 01904, First Dept. 3-21-13

 

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Wife’s Derivative Claim Added to Complaint After Expiration of Statute of Limitations

The First Department held that a wife’s derivative claim in a medical malpractice action brought by her husband could be added to the complaint after the statute of limitations had expired (disagreeing with the 2nd and 3rd Departments):

The motion court properly exercised its discretion in granting leave to amend. The original complaint placed Kings Harbor on notice of the underlying transaction (see CPLR 203 [f] …. We are in accord with the 3rd Department’s view that “[i]n the absence of any prejudice and under these circumstances, Supreme Court should be permitted to exercise that same discretion which would allow the addition of a plaintiff’s derivative cause of action” … . We disagree with the cases holding that a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203 (f) (see e.g. Dowdall v General Motors Corp., 34 AD3d 1221, 1222 [4th Dept 2006]; Lucido v Vitolo, 251 AD2d 383, 384 [2d Dept 1998]).  Giambrone v Kings Harbor Multicare Ctr., 2013 NY Slip Op 01898, 9235N 307139/09, 1st Dept. 3-21-13

 

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