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ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint in this traffic accident case should not have been granted. Plaintiff pulled into defendant’s lane of traffic to go around a mail truck. Just prior to the collision with plaintiff two other cars had passed the mail truck by pulling into defendant’s lane, yet plaintiff had not disengaged the cruise control. There was a question of fact whether defendant responded appropriately to the emergency:

A person facing an emergency is “not automatically absolve[d] . . . from liability” … . In determining whether the actions of a driver are reasonable in light of an emergency situation, the factfinder must consider “both the driver’s awareness of the situation and [the driver’s] actions prior to the occurrence of the emergency” … .

Defendant admitted that, after she noticed the mail truck, she observed two motor vehicles pass it by pulling out from behind the truck, crossing completely into the westbound lane, and returning to the eastbound lane of travel, but she nevertheless continued in the westbound lane without deactivating her cruise control. She then saw plaintiff’s vehicle cross over into her lane “possibly to see if there was oncoming traffic” before it reentered the eastbound lane. It was not until that point that plaintiff deactivated her cruise control, which had been set to 45 miles per hour. We conclude that issues of fact exist whether, given her observations, defendant responded reasonably under the circumstances … . Carollo v Solotes, 2023 NY Slip Op 05803, Fourth Dept 11-17-23

Practice Point: Here plaintiff entered defendant’s oncoming law to pass a mail truck and collided with defendant. Usually an emergency will absolve a driver of liability. But there was evidence two other cars had pulled into defendant’s lane to pass the mail truck and defendant did not disengage the cruise control. Therefore there was a question of fact whether defendant responded reasonably to the emergency.

 

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PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice:

The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as plaintiff’s son here, made many of the same allegations of negligence and malpractice against defendant as plaintiff does in this case. Both cases involved whether defendant properly monitored the patients and the babies and made proper decisions regarding oxytocin administration, and whether defendant made the proper decision to continue with vaginal delivery instead of proceeding with a cesarean section. Alternatively, defendant established that Laraby received specific, confidential information in the prior litigation that is substantially related to the present litigation … . In particular, Laraby had access to the litigation strategy to defend defendant against the allegations of malpractice, including speaking with and receiving reports of expert witnesses. Brandice M.C. v Wilder, 2023 NY Slip Op 05871, Fourth Dept 11-17-23

Practice Point: Here plaintiff’s attorney had represented the defendant in this medical malpractice action in a case where the issues were substantially the same. The motion to disqualify the attorney and the attorney’s small law firm should have been granted.

 

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THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED IN THIS SIDEWALK SLIP AND FALL CASE; THEREFORE PLAINTIFFS DID NOT NEED TO DEMONSTRATE THE ICE WAS PREEXISTING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined there was a question of fact whether the storm-in-progress doctrine applied in this slip and fall case. 

… [I]n this case a trier of fact should be charged with determining whether there was a lull or ongoing storm in progress that supports the continued delay of defendants’ obligation to remedy their premises from hazardous conditions … .

Inasmuch as defendants did not establish that there was a storm in progress, plaintiffs did not need to demonstrate that the ice was preexisting … . To that end, defendants also failed to establish as a matter of law the absence of a hazardous icy condition or whether they had notice and a reasonable period of time to correct such condition. We reach this conclusion particularly in light of the reply affidavit from Altschule [defendants’ meteorologist], who “generally agree[d]” with plaintiffs’ opposing meteorologist that ice may have formed as early as approximately 14 hours prior to the incident — therefore both acknowledging the presence of ice and confirming the maximum duration that it may have existed … . Gagne v MJ Props. Realty, LLC, 2023 NY Slip Op 05769, Third Dept 11-16-23

Practice Point: The jury must decide whether the storm-in-progress doctrine applied in this sidewalk slip and fall. Because the defendants did not demonstrate the doctrine applied, plaintiffs did not need to demonstrate the ice was preexisting.

 

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THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).

The First Department, reversing Supreme Court in this traffic-accident case, determined Supreme Court should not have, sua sponte, searched the record to award plaintiff summary judgment. The motion before the court was brought by the owner of the car which rear-ended plaintiff, Piard, against the employer of the driver of Piard’s car, Y & H. Piard alleged she did not give Y & H permission to drive the car outside of Y & H’s garage and sought summary judgment on that ground. The court improperly searched the record and awarded plaintiff summary judgment against Y & H:

… [T]he motion court erred in searching the record and granting summary judgment to plaintiff on plaintiff’s claim against Y&H. A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense … . Here, the only issues raised with respect to defendant Piard’s motion and plaintiff’s cross-motion were defendant Piard’s liability and plaintiff’s comparative fault. The court therefore erred in granting summary judgment to plaintiff based on co-defendant’s Y&H’s liability. Christopher v Piard, 2023 NY Slip Op 05787, First Dept 11-16-23

Practice Point: There are limits on a court’s power to search the record and, sua sponte, award summary judgment. Here the motions before the court did not address whether the employer of the driver of the car which rear-ended plaintiff was liable to plaintiff. Rather the motions addressed whether the owner of the car had given permission to the employer of the driver to use her car. The motion court should not have searched the record and awarded summary judgment to plaintiff against the employer of the driver of the car.

 

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ALTHOUGH DEFENDANT, A DOCTOR, USED A PORTION OF THE TWO-FAMILY HOUSE AS A STUDY OR HOME OFFICE, THE EXCLUSION OF OWNER-OCCUPIED TWO-FAMILY RESIDENCES FROM LIABILITY FOR SIDEWALK DEFECTS APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this sidewalk slip and fall case was entitled to summary judgment pursuant to the exclusion of one, two, and three- family residences from liability for sidewalk defects. Although defendant was a doctor and used space in the basement as a study, the residential character of the building was controlling:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . …

… [T]he defendant established … that the premises abutting the public sidewalk was a two-family, owner-occupied residence, and thus, that she is entitled to the exemption from liability for owner-occupied residential property. Contrary to the Supreme Court’s determination, the defendant’s partial use of the basement as an office space was merely incidental to her residential use of the property … . While the defendant testified at her deposition that she was a doctor and used a portion of the basement apartment as a study or home office and that it held office equipment, no evidence indicated that she used the space with regularity or that she claimed the premises as her business address or as a tax deduction. McCalla v Piris-Fraser, 2023 NY Slip Op 05722, Second Dept 11-15-23

Practice Point: Here the owner of the two-family residence abutting the sidewalk where plaintiff slipped and fell was a doctor who had a study or home office in the basement. The home office or study did not transform the property to a business and the doctor was entitled to the “owner-occupied, two-family-residence” exclusion from liability in the NYC Administrative Code re: sidewalk defects.

 

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PLAINTIFF-STUDENT’S FINGER WAS CAUGHT IN A DOOR SHUT BY ANOTHER STUDENT ACTING AS A LUNCH MONITOR; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE SCHOOL PROVIDED ADEQUATE SUPERVISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student’s negligent supervision action against the Department of Education (DOE) should not have been dismissed. Plaintiff’s finger was caught in a door as the door was shut by another student who was acting as a lunch monitor. Plaintiff and other students banged on the door to get someone to open it, but its wasn’t opened for three minutes. The tip of plaintiff’s finger was severed:

… [T]he defendants failed to establish, prima facie, that the DOE adequately supervised the infant plaintiff … , or that its alleged lack of adequate supervision was not a proximate cause of the accident … . Significantly, the defendants’ submissions demonstrated that there was no adult monitoring the area where the accident took place and that, at the time of the accident, an assistant principal in the cafeteria was in the midst of calling for more assistance. Among the triable issues of fact presented by the defendants’ submissions were whether there was an appropriate level of supervision for the seventh-grade students under the circumstances … , and whether the school played a role in empowering or training the student lunch monitor with respect to closing the door to the kitchen.

Although there are certain accidents that occur in such a short span of time “that even the most intense supervision could not have prevented [them and] any lack of supervision is not the proximate cause of the injury” … , this is not one of those cases, especially in light of the fact that the infant plaintiff’s finger remained pinched by the closed door for approximately three minutes while he and his fellow students banged on the door. Fleming v City of New York, 2023 NY Slip Op 05714, Second Dept 11-15-23

Practice Point: The accident–plaintiff-student’s finger was caught (for three minutes) in a door shut by another student who was acting as a lunch monitor–raised a question whether the level of supervision by the school was adequate.

 

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DEFENDANT STRUCK THE REAR OF PLAINTIFF’S STOPPED VEHICLE; DEFENDANT’S CLAIM THAT HIS FOOT SLIPPED OFF THE BRAKE PEDAL DID NOT PRESENT A NONEGLIGENT EXPLANATION OR TRIGGER THE EMERGENCY DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this rear-end collision case was entitled to summary judgment. Defendant’s allegation his foot slipped off the brake pedal because of rocks and pebbles under the floor mat did not present a nonnegligent explanation for striking plaintiff’s stopped vehicle:

[Defendant’s] assertion that he tried to apply the brakes on his vehicle to avoid a collision with the plaintiff’s vehicle, but his foot slipped off the brake pedal due to rocks and pebbles under the floor mat, was insufficient to raise a triable issue of fact as to as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied … . Donnellan v LaMarche, 2023 NY Slip Op 05713, Second Dept 11-15-23

Practice Point: Here defendant struck the rear of plaintiff’s stopped vehicle. Defendant’s explanation that his foot slipped off the brake pedal was not enough to raise a question of fact about either a nonnegligent explanation or the applicability of the emergency doctrine.

 

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THE RECENT COURT OF APPEALS DECISION ALLOWING A VETERINARIAN’S OFFICE TO BE SUED IN NEGLIGENCE WHEN A PATRON WAS BITTEN BY A DOG IN THE WAITING ROOM DID NOT EXTEND TO A RESTAURANT OWNER WHO ALLOWS PATRONS TO BRING THEIR LEASHED DOGS TO THE RESTAURANT; THE STRICT LIABILITY “NOTICE OF VICIOUS PROPENSITIES” STANDARD APPLIED TO THE RESTAURANT OWNER (SECOND DEPT).

The Second Department, in an extensive, full-fledged opinion by Justice Genovesi, reversing Supreme Court, determined the strict liability “notice-of-vicious-propensity” requirement applied to a restaurant which allowed patrons to bring their leashed dogs. Here the infant plaintiff was bitten by a patron’s dog. The negligence cause of action was not dismissed by Supreme Court pursuant to a recent Court of Appeals decision which held that a veterinarian’s office could be sued in negligence by a patron bitten by another patron’s dog. The Second Department refused to extend the Court of Appeals ruling re: a veterinarian to a restaurant owner:

On this appeal, we are presented with the opportunity to examine the extent to which the Court of Appeals’ opinion in Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541), serves to alter the standard applied in actions to recover damages for personal injuries caused by domesticated animals. Specifically, we address those actions commenced against individuals other than the animal’s owner. In Hewitt, the Court of Appeals engaged in an intensely fact-specific inquiry wherein it determined that the vicious propensities notice requirement is not necessary in a negligence action against a veterinary practice or other such places with “specialized knowledge relating to animal behavior” (id. at 548). We conclude that the holding of Hewitt, in line with the jurisprudence of this area of law, does not serve to carve out a path for ordinary negligence actions against all premises owners, in contravention of the vicious propensities notice requirement. Cantore v Costantine, 2023 NY Slip Op 05708, Second Dept 11-15-23

Practice Point: Although the Court of Appeals recently held standard negligence principles could be applied to a dog bite in a veterinarian’s office, here the strict liability “notice of vicious propensities” requirement applied to a restaurant owner who allows patrons to bring their leashed dogs into the restaurant.

 

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THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF AN ACCIDENT; HERE PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY BUT DEFENDANT DRIVER’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE REMAINED VIABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist should have been awarded summary judgment in this vehicle-bicycle accident case, but defendant’s comparative-negligence affirmative defense should not have been dismissed:

On a motion for summary judgment on the issue of a defendant’s liability, a plaintiff is no longer required to show freedom from comparative negligence to establish his or her prima facie entitlement to judgment as a matter of law … . Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability … , the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence … . “In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle’s horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . * * *

… [P]laintiffs … failed to establish, prima facie, that the injured plaintiff was not comparatively at fault in the happening of the accident. There can be more than one proximate cause of an accident, and generally, it is for the trier of fact to determine the issue of proximate cause … . Based upon the evidence presented by the plaintiffs in support of their motion, triable issues of fact exist as to whether the injured plaintiff was negligent in failing to keep a proper lookout, whether he should have slowed down earlier given the traffic conditions, and whether he contributed to the happening of the accident … . Bornsztejn v Zito, 2023 NY Slip Op 05706, Second Dept 11-15-23

Practice Point: There can be more than one proximate cause of an accident. Here the defendant driver failed to see was should have been seen, so the plaintiff bicyclist was entitled to summary judgment on liability. However there was a question of fact whether plaintiff was comparatively negligent, so the comparative negligence affirmative defense remained viable on the issue of damages.

 

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PLAINTIFF’S EXPERTS WERE NOT QUALIFIED TO OFFER AN OPINION ON THE TREATMENT PROVIDED BY DEFENDANT MEDICAL ONCOLOGIST; THEREFORE THE EXPERTS DID NOT DEMONSTRATE DEFENDANT OWED PLAINITFF A DUTY OF CARE, A QUESTION OF LAW FOR THE COURT (SECOND DEPT).

The Second Department, in a comprehensive decision, over a comprehensive dissent, determined that the summary judgment motion by one of plaintiff’s treating physicians was properly granted in this medical malpractice case. Neither of plaintiff’s experts was qualified to assess the defendant medical oncologist’s (Hindenberg’s) care of plaintiff. Therefore the expert affidavits did not demonstrate defendant owed a duty of care to the plaintiff (Petillo), which is a question of law for the court:

… [I]n order to reach any discussion[s] about deviation from accepted medical practice, it is necessary first to establish the existence of a duty”… . “‘Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient'” … . “The existence and scope of a physician’s duty of care is a question of law to be determined by the court” … . * * *

Petillo’s internal medicine and infectious disease expert failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist … . The expert did not claim to have any skill, training, education, knowledge, or experience in the field of medical oncology. While the expert gave an opinion that Hindenburg departed from the standards of care applicable to internal medicine, Petillo was not referred to Hindenburg as an internist and Hindenburg did not treat Petillo as an internist, rendering the standard of care for an internist inapplicable.

Petillo’s surgical oncologist expert also failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist. This expert, a board-certified surgeon who practices in the field of surgical oncology, a specialty distinct from medical oncology, failed to establish that he had the skill, training, education, knowledge, or experience in the field of medical oncology sufficient to provide a foundation to opine on the clinical standard of care and departures of a medical oncologist. Abruzzi v Maller, 2023 NY Slip Op 05704, Second Dept 11-15-23

Practice Point: Before an expert can offer an admissible opinion on the care provided by a doctor in a medical malpractice case, the expert must demonstrate he or she is qualified to assess the care provided by the defendant doctor, here a medical oncologist. The failure to demonstrate the necessary qualifications to assess the care provided by the defendant specialist, constituted the failure to demonstrate the defendant doctor owed a duty to the plaintiff, a question of law for the court.

 

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