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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PREMATURE AND SHOULD HAVE BEEN DENIED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case was premature and should have been denied:

A motion for summary judgment may be denied as premature where it appears that the facts essential to oppose the motion exist but cannot then be stated (see CPLR 3212[f] …). “A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … .

Here, the plaintiff demonstrated that further discovery, including records of the United States Postal Service, a deposition of the plaintiff’s former coworker, and discovery related to hearsay statements that the alleged defect had been reported to the defendants, may result in the disclosure of evidence relevant to the issue of whether the defendants had notice of the alleged defective condition … . Knowles v 21-43 27th St., LLC, 2024 NY Slip Op 00759, Second Dept 2-14-24

Practice Point: Here the defendants’ motion for summary judgment was deemed premature; criteria explained.

 

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THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WAS NOT RETROACTIVE; THEREFORE DEFENDANT’S NURSING HOME WAS IMMUNE FROM SUIT STEMMING FROM PLAINTIFF’S DECEDENT’S DEATH FROM COVID-19 (FIRST DEPT).

The First Department determined the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) in April 2021 was not retroactive. Therefore defendant’s nursing home was immune from suit stemming from plaintiff’s decedent’s death from COVID-19. Although the Act does not confer immunity from gross negligence, gross negligence was not demonstrated because the Department of Health required nursing homes to admit COVID-positive patients:

As to the application of the EDTPA, defendant was entitled to immunity under that statute. The documents submitted with defendant’s motion to dismiss, including several pandemic-related policies, State Department of Health directives, and more than 1600 of pages of the decedent’s medical records, demonstrate that defendant was providing health care services to the decedent under the COVID-19 emergency orders when he was infected and, before that, “in accordance with applicable law”; the care provided was “impacted by” defendant’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives”; and the decedent was provided care “in good faith” … . Hasan v Terrace Acquisitions II, LLC, 2024 NY Slip Op 00739, First Dept 2-13-24

Practice Point: This decision includes an extensive discussion of when a statute can be deemed to apply retroactively.

 

THE SIDEWALK ON WHICH PLAINTIFF WAS RIDING HIS MOTORIZED BICYCLE WHEN HE FELL WAS NOT DESIGNED OR SUITABLE FOR RECREATIONAL USE; THEREFORE THE PROPERTY OWNER, SYRACUSE UNIVERSITY, COULD NOT RELY ON THE RECREATIONAL-USE STATUTE (GENERAL OBLIGATIONS LAW 9-103) TO ESCAPE LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the recreational use statute (General Obligations Law 9-103(1)(a)) did not apply to the sidewalk on which plaintiff was riding his motorized bicycle when he fell. Therefore defendant was not entitled escape liability based upon the statute. The sidewalk was along a busy road on the Syracuse University campus and therefore was not designed or suitable for recreational use:

General Obligations Law § 9-103 (1) (a) provides that “an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for . . . bicycle riding . . . or to give warning of any hazardous condition . . . on such premises to persons entering for such purposes.” The statute was enacted to “induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities” … . The rationale for the statute is that “outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; [and] more places will be made available if property owners do not have to worry about liability when recreationists come onto their land” … . The statute applies when two conditions are met: (1) the plaintiff is engaged in one of the activities identified in section 9-103 and (2) the plaintiff is recreating on land suitable for that activity … .

… In evaluating the suitability of a property for a particular activity, courts look to whether the premises is the “type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” … . … [W]e conclude that plaintiff sufficiently alleged that the sidewalk at issue was not appropriate for public use in pursuing the recreational activity of bike riding. Plaintiff alleged that the sidewalk area where [plaintiff] fell was not designated by defendant for bike riding and was situated along a busy campus roadway near the front entrance of an academic building containing classrooms and offices. Such a property is not appropriate for public use in pursuing bicycle riding as a recreational activity … . Inasmuch as the recreational use statute does not apply here, the court erred in granting the motion [to dismiss]. Delaney v Syracuse Univ., 2024 NY Slip Op 00731, Fourth Dept 2-9-24

Practice Point: General Obligations Law 9-103 allows property owners to open up their property for recreational use, including bicycling, without fear of liability for injury to those using the property for recreational purposes, Here the sidewalk on which plaintiff was riding when he fell was nether designed nor appropriate for recreational use. Therefore the property owner could not take advantage of the recreational-use statute to escape liability.

 

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IN A MED MAL ACTION PLAINTIFF’S EXPERT NEED NOT HAVE PRACTICED IN THE SAME SPECIALTY AS DEFENDANT DOCTOR TO BE QUALIFIED TO OFFER EXPERT OPINION EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert laid an adequate foundation for their qualifications in orthopedic medicine. The court noted that plaintiff’s expert need not have practiced in the same specialty as the defendant:

“[A] plaintiff’s expert need not have practiced in the same specialty as the defendant[]” … , and “any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Here, plaintiffs’ expert is board certified as a medical examiner, an orthopedic surgeon and an arthroscopic laser surgeon. The expert completed a residency in general and orthopedic surgery. The expert is now a clinical instructor of orthopedic surgery and a clinical assistant professor of orthopedic surgery. The expert is affiliated with four hospitals and previously served as the chair of the department of orthopedic surgery at one hospital. Thus, we conclude that plaintiffs’ expert “had the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion[ ] . . . [is] reliable” … . McMahon-DeCarlo v Wickline, 2024 NY Slip Op 00730, Fourth Dept 2-9-24

Practice Point: Although plaintiff’s expert had not practiced in the same specialty as defendant doctor in this med mal action, plaintiff’s expert was qualified to offer reliable expert opinion evidence.

 

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THE STREET REPAIR WORK DONE BY THE CITY IN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS DONE MORE THAN A YEAR BEFORE AND DETERIORATED GRADUALLY OVER TIME; IN ORDER FOR THE CITY TO BE LIABLE FOR CREATING THE DANGEROUS CONDITION THE DEFECT MUST HAVE BEEN THE IMMEDIATE RESULT OF THE WORK (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, dismissed the action against the city in this slip and fall case. There was a question whether the city repair to the street deteriorated over a period of a year or more. But in order to be liable for creating a dangerous condition, the defect must be the “immediate result” of the work done:

Plaintiffs failed to raise “a triable issue of fact concerning the applicability of [an] exception to the prior written notice requirement, i.e., whether the City created the allegedly dangerous condition through an affirmative act of negligence” … . The exception is limited to work by the City that immediately results in the existence of a dangerous condition. Although the record supports the inference that the City may have created a dangerous condition by failing to replace a temporary cold patch with a permanent repair, the resulting allegedly dangerous condition here developed over a period greater than a year and did not “immediately result” from the City’s work … . Graham v City of Syracuse, 2024 NY Slip Op 00710, Fourth Dept 2-9-24

Practice Point: In a slip and fall case, in order for a city to be liable for creating the dangerous condition, the defect must be the “immediate result” of the work done by the city. Here the work was done more than a year before and the defect developed gradually over time. The city was not liable.

 

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DEFENDANT-DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER HE WAS NEGLIGENT IN THIS VEHICLE-BICYCLE ACCIDENT CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant driver (Medina) raised a question of fact about whether he was negligent in this vehicle-bicycle collision case. Although plaintiff bicyclist made out a prima facie case, defendant’s affidavit was sufficient to defeat plaintiff’s summary judgment motion:

… [P]laintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability. In support of his motion, the plaintiff submitted, inter alia, his affidavit, which demonstrated that Medina was negligent in attempting to make a left turn at the intersection when the turn could not be made with reasonable safety (see Vehicle and Traffic Law § 1141 …). In opposition, however, the defendants raised triable issues of fact through the submission of Medina’s affidavit. Medina averred that he waited until traffic was clear before turning left with his left-turn indicator activated and a green traffic light in his favor. According to Medina, as he was making the turn, he observed a cyclist traveling west on Myrtle Avenue at a high rate of speed. Medina averred that he immediately brought his vehicle to a stop, but the cyclist was unable to stop due to his speed and collided with Medina’s vehicle. Medina’s affidavit was sufficient to raise triable issues of fact as to how the accident occurred and whether Medina was negligent in the happening of the accident  … . Amancio-Gonzalez v Medina, 2024 NY Slip Op 00400, Second Dept 1-31-24

Practice Point; It is possible that a driver can collide with a bicyclist and not be negligent.

 

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WHERE THE MUNICIPALITY HAS TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT AND HAS CONDUCTED A TIMELY INVESTIGATION INTO THE ALLEGATIONS, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT BE DENIED SOLELY BECAUSE PETITIONER DOES NOT HAVE A REASONABLE EXCUSE FOR FAILING TO FILE ON TIME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim against the town should have been granted. Petitioner was convinced a neighbor had trapped her cat and taken the cat to the town animal shelter. She communicated with the shelter many times and ultimately petitioner sought to sue the town for conversion and replevin. The Second Department determined the late notice of claim would not prejudice the town because the town was aware of petitioner’s’ claims from the beginning and had conducted investigations of those claims. The fact that petitioner did not have a reasonable excuse for failing to file a timely notice of claim did not justify denying leave to file:

Although the petitioner failed to establish a reasonable excuse for her delay in seeking leave to serve a late notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Anghel v Town of Hempstead, 2024 NY Slip Op 00420, Second Dept 1-31-24

Practice Point: This case illustrates that the most important factor in whether leave to file a late notice of claim against a municipality should be granted is whether the municipality had timely knowledge of the nature of the claim. Where there has been timely knowledge and a timely investigation by the municipality, the absence of a reasonable excuse for failure to timely file the notice of claim will be ignored.

 

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PLAINTIFF’S MOTION FOR A UNIFIED TRIAL (LIABILITY AND DAMAGES) IN THIS PEDESTRIAN-VEHICLE TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE NATURE OF THE INJURIES WAS RELEVANT TO HOW THE ACCIDENT OCCURRED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial, determined plaintiff’s motion for a unified trial on liability and damages should have been granted. Plaintiff was crossing a street when she was struck by defendant’s vehicle which was making a left turn across the crosswalk. Defendant alleged plaintiff walked into the side of defendant’s van. Plaintiff’s treating physician opined that the injury was consistent with plaintiff being in front of the van when she was struck. Because the injuries were relevant to the liability aspect of the trial, a unified trial was necessary:

Judges are encouraged to direct a bifurcated trial of the issues of liability and damages in any action to recover damages for personal injuries “where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” … . “Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases” … . A unified trial is appropriate where the nature of the plaintiff’s injuries has “an important bearing on the issue of liability” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion for a unified trial on the issues of liability and damages. The plaintiff and the defendant driver, the only witnesses to the accident, offered conflicting accounts of how the accident occurred, and the plaintiff demonstrated that evidence regarding the nature of her injuries was probative in determining how the accident occurred … . Marisova v Collins-Brewster, 2024 NY Slip Op 00414, Second Dept 1-31-24

Practice Point: Plaintiff, a pedestrian, was struck by defendant’s van in a crosswalk. Defendant alleged plaintiff walked into the side of the van and obtained a defense verdict. Plaintiff’s injuries indicated she was struck by the front of the van. Plaintiff’s motion for a unified trial should have been granted.

 

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DEFENDANT OPENED THE DRIVER’S-SIDE DOOR OF HIS PARKED CAR WITHOUT MAKING SURE IT WAS SAFE TO DO SO, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, AND PLAINTIFF WAS UNABLE TO AVOID STRIKING DEFENDANT’S CAR; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Defendant suddenly opened the driver’s side door of his parked car and plaintiff struck defendant’s car. Opening the door without  making sure it is safe to do so is a violation of the Vehicle and Traffic Law. Plaintiff was entitled to summary judgment on liability and dismissing defendant’s comparative-negligence affirmative defense:

Pursuant to Vehicle and Traffic Law § 1214, “[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.” Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her affidavit, which demonstrated that [defendant] violated Vehicle and Traffic Law § 1214 by opening the door on the side of his vehicle adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of his senses, he should have seen, and that his negligence proximately caused the accident … . Gil v Frisina, 2024 NY Slip Op 00407, Second Dept 1-31-24

Practice Point: Opening the drive’s side door of a parked car without checking to see it is safe to do so is a violation of the Vehicle and Traffic Law.

 

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DEFENDANT DID NOT SUBMIT PROOF DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED BEFORE THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; THE VIDEO SUBMITTED BY THE DEFENDANT WAS NOT AUTHENTICATED SO IT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant NYC Transit Authority was not entitled to summary judgment dismissing plaintiff’s slip and fall action. Plaintiff alleged she slipped and fell on a wet substance on the floor of defendant’s bus. The evidence of when the floor was last inspected was insufficient to show a lack of constructive notice. And the video submitted by the defendant was inadmissible because it was not authenticated:

The deposition testimony of a dispatcher employed by the defendant merely referred to general pre-trip inspection procedures performed by drivers. The defendant failed to present any evidence regarding “specific cleaning or inspection of the area in question relative to the time when the subject accident occurred” … .

Further, the defendant could not rely upon the video of the bus that it submitted on its motion so as to meet its prima facie burden, as the video was not authenticated, and thus, was not in admissible form … . Harrington v New York City Tr. Auth., 2024 NY Slip Op 00297, Second Dept 1-24-24

Practice Point: To demonstrate a lack of construction notice of the condition in a slip and fall case, the defendant must submit evidence of a specific inspection of the area close in time to the fall. Evidence of general inspection practices is never enough.

Practice Point: In order to submit a video in evidence, it must be authenticated.

 

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