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Late Notice of Claim Disallowed.

The Second Department reversed the trial court’s grant of a petition to file a late notice of claim.  “The petitioner did not demonstrate a reasonable excuse… .  The petitioners’ assertion that they only recently discovered that they had a claim against the City is not an acceptable excuse … .  * * *  The fact that the … Police Department had knowledge of this accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the City …”. Matter of Klass vs City of New York, 2012-00913, Index No. 16699/11 Second Dept. 2-20-13

 

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Workers’ Compensation Board’s Determination of Duration of Disability Given Preclusive Effect in Related Personal Injury Action

“The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the” Workers’ Compensation Board with respect to “findings of fact that are necessary for an administrative agency to reach.”  Here the Workers’ Compensation Board’s determination of the duration of the work-related injury was given preclusive effect in a related personal injury action.  Judge Pigott wrote a strong dissent, arguing in part that the finding was necessarily a mixture of fact and law, not subject to the collateral estoppel principle. Auqui v Seven Thirty One Ltd. Partnership, 2013 NY Slip Op 00950 [20 NY3d 1035], CtApp 2-14-13

 

“Zone of Danger” Theory Applies Only to Immediate Family.

The Second Department determined the “zone of danger” theory of recovery for witnessing the death of someone in the plaintiff’s “immediate family” did not allow recovery for witnessing the death of a man, not plaintiff’s biological father, who was the only person plaintiff had ever known as a father figure.  Thompson vs Dhaiti, 2011-11215, Index No. 24951/09 Second Dept. 2-13-13

 

Intentional Assault Did Not Sever Causal Connection to Serving Alcohol.

The First Department determined an intentional assault would not sever the causal connection between injury to the plaintiff and the bar’s serving alcohol to a person alleged to have been visibly intoxicated, as well as the bar’s alleged failure to provide proper security.  Carver vs P.J. Carney’s, 9216, 103191/10 First Dept. 2-7-13

 

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Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance).

In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property.  The sidewalk was separated from the defendant’s property by a strip of land owned the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… .  James vs 1620 Westchester Avenue, LLC, 8710A, 17396/06 First Dept. 2-7-13

 

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plaintiff entitled to a potential bias jury instruction when fact witness called by defendant receives a fee much higher than the minimum fee required by cplr 8001.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the plaintiff in this personal injury action was entitled to a potential bias jury instruction. The fact witness subpoenaed by the defendant (CSI) was paid $10,000 and the high fee was not explained:

Plaintiff testified that she stepped into a “dip in the trench” that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the “history” section of his consultation note that plaintiff “tripped over a dog while walking last night in the rain” (emphasis supplied). He testified consistently with his documented note. During cross-examination, plaintiff’s counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify[ ] to my records.” His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiff’s counsel requested that the court strike the doctor’s entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence.

The following day, before summations, plaintiff’s counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that [*3]there was no prohibition against paying a fact witness for time missed from work. * * *

We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI’s payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the [*5]jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony (see PJI 1:904) … . Caldwell v Cablevision Sys. Corp., 2013 NY Slip Op 00783 [20 NY3d 365], CtApp 2-7-13

 

general business law 627-a, which requires that a health club have an automated external defibrillator and a person qualified to use it does not impose tort liability on the club for failure to use it.

The Court of Appeals, in a full-fledged opinion by Judge Read, over a partial dissent, determined that General Business Law 627-a, which requires a health club to have an automated external defibrillator (AED) and a person qualified to use it, does not impose tort liability based upon a failure to use the device. Here plaintiff’s decedent collapsed and the health club employee did not use the AED because plaintiff’s decedent was breathing. Subsequently a doctor and a medical student attended to plaintiff’s decedent. When the ambulance personnel used a AED, plaintiff’s decedent could not be revived. A wrongful death action was brought against the club (Bally) and defendant’s moved to dismiss:

… [W]e hold that General Business Law § 627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained on site.

The dissent objects that our interpretation renders section 627-a “virtually meaningless” (dissenting op at 352) and “purposeless” … . On the contrary, there is nothing meaningless or purposeless about a statute that seeks to insure the availability of AEDs and individuals trained in their use at locations—i.e., health clubs—where there is a population at higher risk of sudden cardiac arrest. Obviously, though, AEDs are not meant to be employed mindlessly. …

A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce. The implied duty envisioned by the dissent is neither; such a duty… would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty. The legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages provided by General Business Law § 628. Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 [20 NY3d 342], CtApp 2-7-13

 

 

 

 

 

 

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Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance)

In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned by the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James v 1620 Westchester Avenue, LLC, 8710A, 17396/06 1st Dept. 2-7-13

 

Liability for Providing Alcohol to Under-Age Purchaser Only Triggered by Injury Caused by the Purchaser.

There is no common-law cause of action for the negligent provision of alcohol.  Under General Obligations Law section 11-100, liability for furnishing alcohol is triggered only if the person who unlawfully received the alcohol causes injury.  In this case, a clerk in a convenience store sold alcohol to a 17-year-old with a fake ID who then shared the alcohol with friends.  One of the friends became intoxicated and had an automobile accident, injuring the plaintiff. Because it was not the purchaser of the alcohol who caused the accident, General Obligations Law section 11-100 did not apply.  Gutierrez vs. Devine, 1489, CA 12-01209 Fourth Dept. 2-1-13

 

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A Shooting Victim’s Negligence and Public Nuisance Actions Against the Manufacturer, Distributor and Resellers of Firearms Is Allowed to Go Forward.

Back in October, 2012, in a full-fedged opinion by Justice Peradotto, the Fourth Department reversed Supreme Court’s dismissal of a complaint brought by a shooting victim which alleged negligence, public nuisance and intentional-violation-of-gun-laws causes of action against the manufacturer, distributor and resellers of firearms.  (Williams v Beemiller, Inc., et al, 100 AD3d 143).

Reargument was subsequently granted.  After reargument, the Fourth Department amended its October opinion by adding a new section.  Excerpts from the new section follow:

With respect to the common-law negligence cause of action, although “ ‘ [a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others’ “ …, “[a] duty may arise … where there is a relationship…between defendant and a third-person’s actions “ … .  In Hamilton [v Berretta USA Corp., 96 NY2d 222], the Court of Appeals determined that no such relationship existed because the plaintiffs were unable to draw any connection between specific gun manufacturers and the criminal wrongdoers … . Here, by contrast, plaintiffs have alleged that defendants sold the specific gun used to shoot plaintiff to an unlawful straw purchaser for trafficking into the criminal market, and that defendants were aware that the straw purchaser was acting as a conduit to the criminal market. Thus, unlike in Hamilton, plaintiffs have sufficiently alleged that defendants “were a direct link in the causal chain that resulted in plaintiffs’ injuries, and that defendants were realistically in a position to prevent the wrongs” … .

Further [an] intervening criminal act does not necessarily sever the causal connection between the alleged negligence of defendants and plaintiff’s injury … . Rather, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant[s’] negligence” … .  Here, plaintiffs allege that defendants… knowingly participated in the sale of 140 handguns, including 87 handguns in a single transaction, to [a] gun trafficking ring.  We conclude that those allegations are sufficient to raise a question of fact whether it was reasonably foreseeable that supplying large quantities of guns for resale to the criminal market would result in the shooting of an innocent victim ….

We likewise conclude that the allegations in the complaint are sufficient to state a cause of action for public nuisance … . [P]laintiffs allege that defendants violated federal and state laws by selling guns to a straw purchaser, who funneled the guns into the criminal gun market, thereby posing danger to the general public, and that plaintiff was injured by one of those guns. Thus, plaintiffs have alleged that defendants engaged in unlawful conduct that endangered the lives of “a considerable number of persons” … and that plaintiff “ ‘ suffered special injury beyond that suffered by the community at large’ “ … .Williams v Beemiller, Inc., Motion No. 938/12, CA 11-02092 Fourth Dept. 2-1-13

 

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