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THE THIRD DEPARTMENT JOINS THE OTHER DEPARTMENTS IN HOLDING THAT A PLAINTIFF NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO PRESERVE AN “AGAINST THE WEIGHT OF THE EVIDENCE” ARGUMENT ON APPEAL (THIRD DEPT). ​

The Third Department, affirming the defense verdict in this medical malpractice case, joined the other appellate division departments in finding that a plaintiff may make a “verdict is against the weight of the evidence” argument on appeal without moving to set aside the verdict on that ground:

… [We now join our colleagues in our sister Departments in concluding that plaintiffs were not required to preserve their weight of the evidence contention by moving to set aside the verdict upon that basis … . A trial court has the authority to order a new trial “on its own initiative” when the verdict is contrary to the weight of the evidence (CPLR 4404 [a]), and this Court’s power “is as broad as that of the trial court” … . Although we believe it remains best practice for a party to challenge a verdict upon this basis before the trial court, in light of its superior opportunity to evaluate the proof and credibility of witnesses … , we nonetheless agree that this Court is fully empowered to “order a new trial where the appellant made no motion for that relief in the trial court” … . To the extent that our prior decisions have suggested otherwise, they should no longer be followed … . Fitzpatrick v Tvetenstrand, 2024 NY Slip Op 01956, Third Dept 4-10-24

Practice Point: In this decision, the Third Department joined the other departments in holding that a plaintiff need not make a motion to set aside the verdict to preserve an “against the weight of the evidence” argument on appeal.

 

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A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the property managing agent did not exercise complete and exclusive control of the operation of the property and therefore could not be held liable for plaintiff’s trip and fall over a stub-up pipe protruding from a step:

Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against CBRE [the managing agent] on the ground that CBRE does not own, operate, or control the premises. “Where, as here, a managing agent is accused of nonfeasance which causes injury to a third party, it is subject to liability only where it has complete and exclusive control of the management and operation of the property in question” … . “A managing agent is not in complete and exclusive control of the premises where the owner has reserved to itself a certain amount of control in the written agreement” … .

Here, CBRE established, prima facie, that it was a managing agent of the premises and that the management agreement was not so comprehensive and exclusive as to displace the duty of the owner of the premises to maintain the premises safely … . Quezada v CBRE, Inc., 2024 NY Slip Op 01829, Second Dept 4-3-24

Practice Point: A managing agent is not liable for injury caused by a dangerous condition on the managed property unless the agent exercises complete and exclusive control over the operation of the property.

 

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ALTHOUGH DEFENDANT RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S CONTRIBUTORY NEGLIGENCE IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT RAISE A QUESTION OF FACT ABOUT HIS OWN LIABILTY; THE JUDGE SHOULD NOT HAVE DEEMED PLAINTIFF’S SUMMARY JUDGMENT MOTION PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined that although defendant raised a question of fact about whether plaintiff was contributorily negligent, defendant did not raise a question of fact about the defendant-driver’s liability. In addition, plaintiff’s motion for summary judgment should not have been deemed premature:

… [T]he defendants submitted an affidavit from the defendant driver, in which he stated that he was “not fully responsible” for the accident. The defendant driver also averred that the traffic light had turned green and that the plaintiff had moved forward and then suddenly stopped, causing the defendant driver to strike the rear of the plaintiff’s vehicle despite his efforts to stop his vehicle. This evidence raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident, thereby supporting the denial of that branch of her motion which was for summary judgment dismissing the affirmative defenses alleging comparative negligence … . However, since the defendants’ evidence related only to the plaintiff’s comparative fault, the defendants failed to raise a triable issue of fact in opposition to that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging negligent operation of a motor vehicle … .

Furthermore, the Supreme Court erred in determining that the plaintiff’s motion was premature. “[W]hile a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, [a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … . Here, the defendants had personal knowledge of the relevant facts, and their mere hope or speculation that evidence might be uncovered during discovery was an insufficient basis for denying the plaintiff’s motion …. Martin v Copado-Esquivel, 2024 NY Slip Op 01804, Second Dept 4-3-24

Practice Point: In a rear-end collision case, the fact that defendant raises a question of fact about plaintiff’s contributory negligence does not preclude granting plaintiff summary judgment on the issue of defendant’s liability.

Practice Point: Here, where the facts of the rear-end collision were within defendant’s personal knowledge, plaintiff’s motion for summary judgment should not have been dismissed as premature.

 

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THE POLICE OFFICER WHO STRUCK PLAINTIFF’S CAR WAS ENGAGED IN AN “EMERGENCY OPERATION” AND DID NOT ACT IN “RECKLESS DISREGARD” OF THE SAFETY OF OTHERS; COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city demonstrated the police officer who struck plaintiff’s car was engaged in an “emergency operation” at the time of the accident and did not act in “reckless disregard” for the safety of others:

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104 by submitting evidence that the officer was responding to a radio call about a man with a gun when his police vehicle struck plaintiff’s car … . Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard (Vehicle and Traffic Law § 1104 [e] …).

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104 [e] …). The officer testified that he approached a red light with a vehicle stopped at the intersection, so he had to cross the double yellow lines to avoid it. He also testified that he reduced his speed and looked both ways when approaching the red light at the intersection. The officer attempted to avoid colliding with plaintiff by braking hard and swerving upon realizing that plaintiff’s car had entered the intersection. Seo v City of New York, 2024 NY Slip Op 01785, First Dept 4-2-24

Practice Point: When a police officer engaged in an emergency operation takes steps to avoid colliding with other vehicles the “reckless disregard for the safety of others” standard has not been met.

Similar issues and result in a suit against a private ambulance company in Alonso v Crest Transp. Serv., Inc., 2024 NY Slip Op 01788, Second Dept 4-3-24

 

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THE DEFENDANT SCHOOL DID NOT ELIMINATE TRIABLE QUESTIONS OF FACT ABOUT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S ABUSIVE PROPENSITIES; THE NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CAUSES OF ACTION IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the negligent hiring and negligent supervision causes of action against defendant school stemming from a teacher’s alleged abuse of plaintiff-student should not have been dismissed. There was a question of fact about whether the school district had constructive notice of the teacher’s abusive propensities:

… [G]iven the frequency of the alleged abuse, which occurred over a three-year period, and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher or the plaintiff was not negligent, in light of, among other things, the teacher was on “probationary” status during the relevant period, the special education lessons during which the alleged abuse occurred were one-on-one and behind closed doors, the plaintiff testified at his deposition that the school principal “never came in” or “checked” on him during the lessons, and only a single observation report from Columbus Avenue Elementary School is available in the teacher’s employment file during the relevant period. MCVAWCD-DOE v Columbus Ave. Elementary Sch., 2024 NY Slip Op 01703, Second Dept 3-27-24

Practice Point: Here the defendant school did not eliminate questions of fact about whether it had constructive notice of the teacher’s abusive propensities in this Child Victims Act case. The alleged abuse took place often behind closed doors when the teacher, who was on probation, was alone with the plaintiff.

 

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THE INABILITY TO IDENTIFY THE SLIPPERY SUBSTANCE WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS FATAL TO THE LAWSUIT; ALLEGING THE FLOOR WAS SHINY OR SLIPPERY IS NOT ENOUGH, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s inability to identify the cause of her slip and fall was fatal to the lawsuit. Evidence that the floor was shiny or slippery was not enough to survive a summary judgment motion:

The plaintiff expressly testified that she did not know what caused her to fall … , nor did she recall observing garbage or liquid on the floor, either before or after her fall … .

… The plaintiff’s affidavit and additional portions of her deposition testimony submitted in opposition to the [summary judgment] motion merely confirmed that she fell as a result of a slippery substance that she could not identify. To the extent that the plaintiff’s two witnesses identified the cause of the fall in their affidavits without engaging in speculation … , this evidence was insufficient to raise a triable issue of fact. Although each witness averred that the plaintiff’s fall may have been caused by the “shiny” and “slippery” nature of the floor, “the mere fact that a smooth floor may be shiny or slippery,” without more, “does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Alvarez v Staten Is. R.T. Operating Auth., 2024 NY Slip Op 01695, Second Dept 3-27-24

Practice Point: Here plaintiff’s inability to identify the slippery substance which caused the fall required summary judgment in defendant’s favor. The fact that a floor is shiny or slippery is not enough. The relevant proof requirements are laid out in detail.

 

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PLAINTIFF STUDENT WAS INJURED WHEN SHE COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME; THE GAME WAS DEEMED AGE-APPROPRIATE AND THE SUPERVISION WAS DEEMED ADEQUATE; THE SCHOOL DISTRICT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant school district was entitled to summary judgment in this negligent supervision case. Plaintiff student was injured when she collided with another student during a supervised game which required running to pick up an object and running back to the finish line. The game was deemed to be age-appropriate and the supervision was deemed adequate:

… [T]he defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that it provided adequate supervision and instruction during the infant plaintiff’s gym class … . The infant plaintiff and her classmates were instructed “that there was to be no . . . tackling involved” in the game … . Since the inadvertent collision occurred quickly and without warning, the defendant demonstrated that “more intense supervision would not have prevented the spontaneous and accidental collision of the two children” … . S.T. v Island Park Union Free Sch. Dist., 2024 NY Slip Op 01743, Second Dept 3-27-24

Practice Point: Where a game is age-appropriate, the supervision is adequate, and the student’s injury was inadvertent and occurred suddenly without warning, the school will not be liable under a negligent supervision theory.

 

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PLAINTIFF WAS INJURED AT JFK AIRPORT, OWNED BY THE PORT AUTHORITY OF NY & NJ, BY A FORKLIFT WHICH WAS BACKING UP; THE FACT THAT REAR-VIEW MIRRORS WERE OPTIONAL WAS NOT A DESIGN DEFECT, CRITERIA EXPLAINED; THE PORT AUTHORITY WAS IMMUNE FROM A NEGLIGENCE ACTION ALLEGING FAILURE TO INSPECT THE FORKLIFT, CRITERIA EXLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this forklift-accident case, determined the fact that the rear-view mirrors for the forklift were optional was not a design defect, and the landlord, the Port Authority, was immune from the negligence action alleging a failure to properly inspect the forklift:

… Unicarriers [defendant forklift manufacturer] established … the plaintiff’s employer was thoroughly knowledgeable about forklifts and knew that mirrors were available, since it maintained more than 100 forklifts in operation in New York, and the brochure for the forklift listed rearview mirrors as an optional feature. Unicarriers also established that the forklift was not unreasonably dangerous without backup mirrors and that the plaintiff’s employer was in the best position to balance the benefits and the risks of not having mirrors on the forklift … . * * *

… [T]he Port Authority established, prima facie, that its alleged failure to properly inspect the forklift and its issuance of a Port Authority license plate were governmental functions. Contrary to the plaintiff’s contention, the forklift inspections performed by the Port Authority and the issuance of the license plate were an exercise of the Port Authority’s police power for the protection and safety of the public rather than any authority conferred by a landlord-tenant relationship … . The actions of the Port Authority did not create a special duty toward the plaintiff because the inspections were designed to protect public safety rather than the safety of particular individuals … . Strassburger v Unicarriers Ams. Corps., 2024 NY Slip Op 01742, Second Dept 3-27-24

Practice Point: Here in this forklift accident case, the fact that rear-view mirrors were optional was not a designe defect. The relevant criteria are explained.

Practice Point: Here the Port Authority of NY & NJ, the landlord for JFK Airport, was exercising a governmental function when inspecting the forklift and therefore was immune from suit, criteria explained.

 

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IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.

 

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SM STABBED INFANT PLAINTIFF SHORTLY AFTER BEING TREATED BY DEFENDANT HOSPITAL WHICH ALLEGEDLY NEGLIGENTLY FAILED TO DETAIN OR REPORT SM; ALTHOUGH SM DID NOT WAIVE THE PATIENT-PHYSICIAN PRIVILEGE, PLAINTIFF WAS ENTITLED TO AN IN CAMERA REVIEW OF SM’S MEDICAL RECORDS AND DISCLOSURE OF ANY RELEVANT NONMEDICAL INFORMATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the demand for disclosure of SM’s medical records was properly denied because SM had not waived the physician-patient privilege, but the request for an in camera review of the records for nonmedical information should have been granted. SM has been treated by defendant New York City Health + Hospital/Lincoln Medical Center (NYCHH) shortly before SM stabbed infant plaintiff. Plaintiff alleged NYCHH should have reported SM and detained her or taken some other measures to protect infant plaintiff:

Infant plaintiff and her father allege that NYCHH’s employees negligently treated SM when she presented to the hospital on April 26 and April 27, 2016, shortly before she stabbed the infant plaintiff and brother, resulting in the brother’s death. They allege that SM had a history of mental illness for which she had been treated by NYCHH on “scores of previous occasions,” and that NYCHH failed to detain SM, call a report to the Statewide Central Register of Child Abuse and Maltreatment, or “take any other action to protect” the infant plaintiff. SM, who is currently incarcerated, has not waived the physician-patient privilege and is believed to be unable or unwilling to do so.

Supreme Court properly determined that Mental Hygiene Law § 33.13(c)(1) does not apply to allow disclosure of SM’s hospital records in the interests of justice, absent SM’s consent or express or implied waiver of the physician-patient privilege provided by CPLR 4504, 4507 … . … Supreme Court should have granted plaintiffs’ alternative request for in camera review to determine whether the records include information of a nonmedical nature, such as observations of SM’s conduct, language, and appearance and factual matters, which is subject to disclosure … . S.M. v City of New York, 2024 NY Slip Op 01689, First Dept 3-26-24

Practice Point: Although medical records are protected from disclosure by the patient-physician privilege, relevant nonmedical, factual information in the records may be disclosed pursuant to an in camera review.

 

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