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IN A REAR-END COLLISION CASE, DEFENDANT’S ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident cause should have been granted. Defendant’s allegation plaintiff stopped suddenly did not raise a question of fact:

It is well established that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle … .

… [D]efendant failed to provide a nonnegligent explanation for the accident … . Defendant failed to establish that she maintained a safe following distance (see Vehicle and Traffic Law § 1129[a] … ) and that any repeated braking by plaintiff was not foreseeable due to the existence of the construction zone and 15 mile per hour speed limit. Defendant failed to establish that given the circumstances she could have “reasonably expected that traffic would continue unimpeded” … . While defendant claims that plaintiff made a sudden stop, a “claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Ahmad v Behal, 2023 NY Slip Op 06196, First Dept 11-30-23

Practice Point: In a rear-end collision case, alleging the car in front stopped suddenly does not defeat the presumption that the rear driver was negligent.

 

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PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence action alleging plaintiff stood up from a desk and tripped on the bottom desk drawer should not have been dismissed. The defendant did not demonstrate the condition was open and obvious and did not demonstrate it did not have actual or constructive notice of the condition:

According to the plaintiff, she was sitting behind a desk and when she got up, she tripped on the bottom desk drawer which, unbeknownst to her, had become ajar. …

A condition is open and obvious if it is “readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . …

A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s accident … .  Cosme v New York City Dept. of Educ., 2023 NY Slip Op 06026, Second Dept 11-22-23

Practice Point: Whether a condition is open and obvious depends on the totality of the circumstances. Here plaintiff alleged she didn’t know the bottom drawer of her desk had opened and she tripped over it when she stood up from the desk. There was a question of fact whether the condition was open and obvious. The fact that the defendant did not demonstrate when the desk had last been inspected raised a question of fact about whether the defendant had constructive notice of the condition.

 

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THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act:

The reality is that “in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … .Where sexual abuse is alleged to have occurred several decades ago “when the claimant was a child, it is not reasonable to expect the claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required” … . Under the particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient … . Accordingly, the Court of Claims should not have granted defendant’s motion to dismiss on the ground that the claim failed to adequately state the time when the claim arose.

Also, contrary to defendant’s contention, claimant sufficiently states the nature of his claim. He alleges that between 1986 and 1990, when he was a minor, he was raped and sexually abused by numerous men in multiple incidents while he was lawfully at the premises; that the abuse was perpetrated “by both employees of [defendant] as well as members of the general public”; that the “majority of these incidents occurred at the premises, more specifically in the bathrooms, stairwells, tunnels, boiler room, and Kitty Carlisle Hart Theater”; that many of the perpetrators “were agents, servants and/or employees of [defendant]”; and that “[t]hese men were known among the community and the children as a sexual predator [sic] yet allowed unfettered access to children.” Claimant also alleges that abusers used their positions of power and authority provided by defendant “to be able to sexually abuse [him] and other boys” and that their abuse “was open and obvious.” Claimant further asserts that defendant negligently retained an abuser “in his position as teacher, coach, and counselor,” despite notice of his propensities, thereby allowing his abuse of claimant and other boys to continue. We conclude that these allegations are sufficient to provide defendant with “an indication of the manner in which . . . claimant was injured and how [defendant] was negligent” … , and thus “defendant cannot reasonably assert that it is unaware of the nature of the claim” … . Because the claim is sufficiently detailed to allow defendant “to investigate the claim and to reasonably infer the basis for its alleged liability” … , it satisfies the nature of the claim requirement of Court of Claims Act § 11 (b). Wright v State of New York, 2023 NY Slip Op 06013, Third Dept 11-22-23

Practice Point: The allegations of sexual abuse within a four-year time frame met the pleading criteria of Court of Claims Act section 11 (b) in that the allegations were sufficiently detailed to determine the nature of the claim and to allow investigation of the claim.

 

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A DRIVER WHO HAS THE RIGHT-OF-WAY IS ENTITLED TO ANTICIPATE OTHER DRIVERS WILL OBEY THE TRAFFIC LAWS REQUIRING THEM TO YIELD; HERE DEFENDANT ENTERED AN INTERSECTION WITH A GREEN LIGHT AND PLAINTIFF MADE A LEFT TURN IN FRONT OF HIM; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant driver demonstrated he had the right-of-way when he entered the intersection with and green light and plaint made a left turn in front of him. Defendant’s motion for summary judgment should have been granted:

“A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way” … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he had the right-of-way, the plaintiff failed to yield the right-of-way, and the defendant did not have sufficient time to react in order to avoid the collision … . The defendant, as the driver with the right-of-way, was entitled to anticipate that the plaintiff would obey the traffic laws which required her to yield … . Smith v Trail, 2023 NY Slip Op 06070, Second Dept 11-22-23

Practice Point: A driver who fails to take evasive action can be contributorily negligent. But here defendant entered the intersection with a green light and plaintiff made a left turn in front of him. Plaintiff did not raise a question of fact whether defendant had time to take evasive action.

 

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THE COMPLAINT ALLEGED DECEDENT, WHO WAS SUFFERING SHORTNESS OF BREATH, SHOULD HAVE BEEN PROVIDED AN ADVANCE LIFE SUPPORT AMBULANCE; THE COMPLAINT SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint alleging decedent, who was suffering shortness of breath, should have been provided an advance life support (ALS) ambulance sounded in medical malpractice, not negligence. Therefore the 2 1/2 year statute of limitations applied and the action was time-barred:

… [T]he allegations in the complaint sound in medical malpractice rather than ordinary negligence. Plaintiffs seek to hold defendant liable for its failure to provide decedent with an advance life support (ALS) ambulance after being advised that decedent was suffering from shortness of breath. The type of ambulance provided by defendant “bears a substantial relationship to the rendition of medical treatment,” and thus plaintiffs’ claims must be viewed within a medical malpractice framework … . The dispatcher would need to understand the significance of “shortness of breath,” have specialized knowledge of the equipment or devices that could treat or care for the possible conditions arising from this symptom and be familiar with accepted practice in providing an ALS ambulance … . Trofimova v Seniorcare Emergency Med. Servs., Inc., 2023 NY Slip Op 05997, First Dept 11-21-23

Practice Point: Where the complaint alleges the need for and failure to provide an ambulance with advance life support, it sounds in medical malpractice, not negligence.

 

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PLAINTIFFS ALLEGED THE TOWN NEGLIGENTLY MAINTAINED A SEWER MAIN CAUSING SEWAGE TO BACKFLOW INTO PLAINTIFFS’ HOME; AN INTENTIONAL ENTRY IS ONE OF THE ELEMENTS OF TRESPASS; THEREFORE THE TRESPASS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint which alleged the town negligently failed to maintain a sewer main causing sewage to backflow into plaintiffs’ home did not state a cause of action for trespass, which requires an intentional act:

Among other elements, a claim for trespass requires “an intentional entry” … . Intent, in this context, “is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act” … . Here, accepting the allegations in the amended complaint as true … , we conclude that the amended complaint does not state a cause of action for trespass inasmuch as it failed to allege an intentional entry onto plaintiffs’ property … .  Drake v Village of Lima, 2023 NY Slip Op 05833, Fourth Dept 11-17-23

Practice Point: Here the trespass cause of action was based upon the backflow of sewage into plaintiffs’ home allegedly caused by the negligent maintenance of a sewer main. Trespass requires an “Intentional entry” which was not alleged here.

 

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ALTHOUGH PLAINTIFFS COULD HAVE COMMENCED THE LAWSUIT WITHIN THE THREE-YEAR STATUTE OF LIMITATIONS BY FILING BEFORE OR AFTER THE COVID TOLL-PERIOD, THAT IS NOT RELEVANT; THE TOLL EFFECTIVELY ADDED 228 DAYS, THE LENGTH OF THE TOLL-PERIOD, TO THE THREE-YEAR STATUTE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the COVID tolls of the statute of limitations rendered the plaintiffs action timely:

472 days of the 1,095-day limitation period had elapsed by the time the toll began on March 20, 2020. Upon the expiration of the toll on November 3, 2020, the remaining 623 days of the limitation period began to run again, expiring on July 20, 2022 … . Thus, the action was timely commenced on May 18, 2022 … .

Defendants contend that the toll is inapplicable here because plaintiffs could have timely commenced the action at any point between December 4, 2018 [when the cause action accrued], and March 20, 2020 [when the toll began], or between November 3, 2020 [when the toll expired], and December 4, 2021 [three years from accual]. We reject that contention. “[A] toll operates to compensate a claimant for the shortening of the statutory period in which it must commence . . . an action, irrespective of whether the stay has actually deprived the claimant of any opportunity to do so” …  Thus, plaintiffs were entitled to the benefit of tolling for the entire 228-day duration of the COVID-19 Executive Orders. Harden v Weinraub, 2023 NY Slip Op 05822, Fourth Dept 11-17-23

Practice Point: Here the plaintiffs’ action accrued before the COVID toll-period which began on March 20, 2020, and there was still time left on the three-year statute of limitations when the toll was lifted on November 3, 2020. The fact that plaintiffs could have commenced the suit within three years of accrual was not relevant. The three-year statute was extended by the the length of the toll-period, 228 days.

 

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PLAINTIFF, A PERMISSIVE DRIVER OF DEFENDANT’S TRUCK, WAS INJURED WHEN HE OPENED THE WATER RESERVOIR FOR THE ENGINE AND IT “EXPLODED,” APPARENTLY BECAUSE THE ENGINE OVERHEATED DUE TO THE POSITION OF THE SNOW PLOW AND THE CONSEQUENT BLOCKING OF AIR FLOW TO THE ENGINE; THERE ARE QUESTIONS OF FACT WHETHER THE INCIDENT WAS FORESEEABLE, WHETHER PLAINTIFF WAS THE SOLE PROXIMATE CAUSE, AND WHETHER DEFENDANT OWED PLAINTIFF A DUTY OF CARE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care. Plaintiff was driving defendant’s truck when everything on the dashboard turned red and plaintiff pulled over to check out the problem. When plaintiff opened the water reservoir cap the reservoir “exploded” injuring him. Plaintiff was told by the police officer who stopped to help that the position of the snow plow on the front of the truck was blocking air flow to the engine (apparently causing the engine to overheat). The Fourth Department determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff, a permissive user of defendant’s truck, a duty of care:

… [T]here are triable issues of fact whether plaintiff’s conduct was a normal and foreseeable consequence of the truck’s mechanical issues … . * * *

… [D]efendant failed to establish as a matter of law that plaintiff’s conduct, in investigating the cause of the malfunction and checking the water level in the reservoir, was of an unreasonable character, was done in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, or was done with conscious indifference to the outcome. * * *

The owner of a vehicle can be liable to permissive guests, users, or occupants if the owner knew or should have known of defects in the vehicle … . Bialecki v HBO Bldrs. W., Inc., 2023 NY Slip Op 05907, Fourth Dept 11-17-23

Practice Point: Here plaintiff, a permissive driver of defendant’s truck, was injured when he checked the engine water reservoir and it “exploded.” Apparently the engine overheated because the snow plow blocked air flow to the engine. There were questions of fact whether the incident was foreseeable, whether plaintiff was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care.

 

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PLAINTIFF’S HUSBAND, THE INSURED, WAS DRIVING WHEN PLAINTIFF WAS SERIOUSLY INJURED IN A TRAFFIC ACCIDENT; PLAINTIFF MAY BE ABLE TO SHOW HER HUSBAND HAD REQUESTED COVERAGE ON HER BEHALF AND, BECAUSE THE INSURER (ALLEGEDLY) NEGLIGENTLY FAILED TO PROVIDE THE COVERAGE, THE INSURER IS OBLIGATED TO COVER HER LOSS, DESPITE HER STATUS AS A NONCLIENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the injured plaintiff might be able to show her husband (the insured) requested supplemental spousal liability (SSL) coverage on her behalf and that she was harmed by the insurer’s failure to provide it, despite her status as a nonclient. Plaintiff’s husband was driving and plaintiff was a passenger when she was seriously injured in a traffic accident:

“An insurance agent ordinarily does not owe a duty of care to a nonclient; however, where an agent’s negligence results in an insured being without coverage, the agent may be liable for damages sustained by an injured third party if the third party was the intended beneficiary of the insurance contract and ‘the bond between [the agent and the third party is] so close as to be the functional equivalent of contractual privity’ . . . The functional equivalent of privity may be found . . . where the defendants are aware that their representations are ‘to be used for a particular purpose,’ there was ‘reliance by a known party or parties in furtherance of that purpose’ and there is ‘some conduct by the defendants linking them to the party or parties and evincing [the] defendant[s’] understanding of their reliance’ ” … .

“[A] third party may sue as a beneficiary on a contract made for [its] benefit. However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to enforce the particular contracts” … . Thus, “[p]arties asserting third-party beneficiary rights under a contract must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost” … . Smith v NGM Ins. Co., 2023 NY Slip Op 05815, Fourth Dept 11-17-23

Practice Point: An insurer may be liable for negligently failing to provide requested coverage for a nonclient. Here, the insured, plaintiff’s husband, allegedly requested supplemental spousal liability (SSL) coverage on behalf of his wife, the injured plaintiff. The insurer, which allegedly failed to provide the requested coverage, may be liable for her loss.

 

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A TEACHER IS NOT A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A STUDENT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW; THEREFORE A SCHOOL DISTRICT IS NOT OBLIGATED TO REPORT SUSPECTED CHILD ABUSE BY A TEACHER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the teacher (Grunwald) accused of sexual abuse of a student in this Child Victims Act suit was not a person legally responsible for the child’s care within the meaning of the Social Services Law. Therefore the defendant school district did not have a duty to report suspected abuse by the teacher:

… [P]laintiff alleged that Pioneer violated its statutory reporting duties under Social Services Law former § 413 by failing to report the abuse of plaintiff by Grunwald. Social Services Law former § 413, however, applied only where there was “reasonable cause to suspect that a child . . . [was] an abused or maltreated child” … . The Social Services Law incorporated the definition of “abused child” in the Family Court Act … , which in turn defined that term, as relevant here, as a child harmed by a “parent or other person legally responsible for [the child’s] care” … .

Under Family Court Act article 10, however, the definition “should not be construed to include [abuse by] persons who assume fleeting or temporary care of a child such as . . . those persons who provide extended daily care of children in institutional settings, such as teachers” … . Inasmuch as Grunwald, based on the allegations in the complaint, could not be the subject of a report for purposes of Social Services Law former § 413, Pioneer was not required to report any suspected abuse by him … . Solly v Pioneer Cent. Sch. Dist., 2023 NY Slip Op 05814, Fourth Dept 11-15-23

Practice Point: The Social Services Law obligates a person legally responsible for the care of a child to report suspected child abuse. Because a teacher is not a person legally responsible for the care of a student, the school district is not subject to that reporting requirement.

 

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