The Second Department, reversing Supreme Court, determined the indemnification and contribution causes of action brought by the defendant grocery store (ShopRite) against the floor-cleaning defendants (Advance and Corporate) in this slip and fall case should have been dismissed. There was no express indemnification agreement. There was no showing Advance and Corporate were negligent. Safier v Wakefern Food Corp., 2023 NY Slip Op 05413, Second Dept 10-25-23
The First Department, reversing Supreme Court, determined defendant in this Dram Shop Act did not present enough evidence to warrant summary judgment, noting that pointing to gaps in plaintiffs’ proof never sufficient:
Defendant failed to establish its prima facie entitlement to summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act (General Obligations Law § 11—101; Alcoholic Beverage Control Law § 65[2]). “[A] defendant when moving for summary judgment cannot merely point to gaps in the plaintiffs’ evidence, but must affirmatively demonstrate entitlement to summary judgment” … .
Although defendant’s manager testified about employee training and practices generally, his testimony regarding the incident at issue—including, inter alia, that he did not know whether any patrons were intoxicated on the date of the alleged incident, that he was not aware of anyone being asked to leave the establishment due to intoxication during the month of the incident, and that defendant did not keep records of intoxicated individuals—failed to carry defendant’s initial burden. Defendant’s further “reli[ance] on plaintiffs’ inability to prove that the assailants were served alcohol or were intoxicated” was similarly insufficient to carry its prima facie burden … . Bauseman v Pamdh Enters. Inc., 2023 NY Slip Op 05355, First Dept 10-24-23
Practice Point: Defendant’s pointing to gaps in plaintiffs’ proof is not be enough to support summary judgment.
The First Department, reversing Supreme Court, determined plaintiff passenger was not entitled to summary judgment in this traffic accident case. The defendant, Rodriguez, was driving the car in which plaintiff was a passenger when it stuck another car driven by Espada. Plaintiff did not demonstrate that Rodriguez did not maintain a safe distance from the Espada car. Therefore plaintiff did not make out a prima facie case that Rodriguez was liable for a rear-end collision:
Plaintiff failed to make a prima facie showing that the accident was a rear-end collision resulting from Rodriguez’s failure to maintain a safe distance behind Espada’s vehicle, in violation of Vehicle and Traffic Law § 1129(a) … . Rather, plaintiff testified that Rodriguez’s vehicle came in contact with Espada’s vehicle as Rodriguez was turning into an intersection, and plaintiff did not see the Espada vehicle prior to the accident and did not know if it was moving or stopped at the moment of impact. Absent a showing that Rodriguez negligently struck Espada’s vehicle due to a failure to maintain a safe distance, plaintiff, even as an innocent passenger, was not entitled to summary judgment … . McDowell v Rodriguez, 2023 NY Slip Op 05368, First Dept 10-24-23
Practice Point: To be entitled to summary judgment in a rear-end collision case, the plaintiff must demonstrate the driver did not maintain a safe distance from the car in front.
The First Department, reversing (modifying) Supreme Court, determined defendant’s comparative-negligence affirmative defense should not have been dismissed. Although plaintiff’s comparative negligence is no longer a bar to summary judgment on liability, it is relevant to damages:
Plaintiff was injured when he was struck by the wheelchair ramp of a bus. That bus was owned by defendants and operated by an employee of defendants. The bus operator testified that he deployed the ramp and saw it hit plaintiff. He testified that he gave warnings in a loud voice before lowering the ramp, which made a “very loud” beeping noise that was “excruciating.”
Plaintiff met his prima facie burden by submitting evidence, including his deposition testimony, that the operator was negligent in lowering the ramp onto the sidewalk when it was not reasonably safe to do so … . In opposition, defendants did not offer any nonnegligent explanation for the accident … . This accident was not within plaintiff’s exclusive knowledge, because it occurred in the presence of a potential witness, namely the operator … . Defendants’ remaining arguments effectively assert comparative negligence by plaintiff, which he was not required to disprove to be entitled to partial summary judgment … .
Supreme Court should not, however, have dismissed the affirmative defense of comparative negligence. At summary judgment, issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party … . Prendergast v New York City Tr. Auth., 2023 NY Slip Op 05378, First Dept 10-24-23
Practice Point: Even where a plaintiff is entitled to summary judgment on liability, a defendant’s comparative-negligence affirmative defense remains relevant to damages.
The First Department, reversing Supreme Court and reinstating the medical malpractice action, noted that malpractice in treating an injury is a foreseeable consequence of the injury. Plaintiff’s decedent was injured during surgery and the injury was subsequently treated at another hospital (The Valley Hospital). Defendants’ expert opined that a delay in treatment at The Valley Hospital was the cause of decedent’s injuries:
Although defendants’ expert opined that the cause of decedent’s injuries was negligent delay by The Valley Hospital, any such delay “does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury” … . Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort … . Therefore, regarding these injuries, defendants’ expert “never actually opined that [decedent’s] claimed injuries were not causally related to defendants’ alleged malpractice” … . Murphy v Chinatown Cardiology, P.C., 2023 NY Slip Op 05321, First Dept 10-19-23
Practice Point: If the initial medical injury leads to subsequent treatment at another hospital, any malpractice in the subsequent treatment is a foreseeable consequence of the initial medical injury.
The First Department, reversing Supreme Court, determined the motion to amend the complaint to add a claim for punitive damages did not prejudice defendant (Eldridge) and should have been granted:
The court improvidently exercised its discretion and should have granted plaintiffs’ motion to amend the complaint to add a claim for punitive damages against Eldridge based on his deposition testimony that he knowingly drove a truck on a public roadway with defective brakes, horn, and one inoperable windshield wiper, and was reaching for his cell phone that had fallen to the floor of the car when his truck collided with the rear of plaintiffs’ vehicle. A jury might find that such conduct sufficiently demonstrated a conscious and willful disregard of the interests of others … .
The court denied plaintiffs’ motion to reargue their … order upon a finding that the amendment would prejudice Eldridge because it subjected him to personal exposure in the accident. However, greater exposure to liability does not constitute prejudice. There must be some indication that defendant has been hindered in the preparation of its case or has been prevented from taking some measure to support its position, and the burden of demonstrating prejudice is on the party opposing amendment … . Eldridge failed to sustain his burden of showing prejudice. Owens v STD Trucking Corp., 2023 NY Slip Op 05323, First Dept 10-19-23
Practice Point: Here the fact that the proposed amendment to the complaint exposed the defendant to greater exposure to liability does not constitute prejudice. The motion to amend the complaint to add a claim for punitive damages should have been granted.
The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit raised a question of fact whether defendants’ failure to diagnose plaintiff’s decedent’s atherosclerotic cardiovascular disease proximately caused decedent’s premature death:
… Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a proximate cause of the decedent’s alleged injuries … . However, … the affirmation of the plaintiff’s expert, wherein the expert opined to a reasonable degree of medical certainty that the defendants’ departures from accepted standards of medical care proximately caused the decedent to die prematurely … , as a result of atherosclerotic cardiovascular disease, was sufficient to raise an issue of fact with respect to causation … . Persuad v Hassan, 2023 NY Slip Op 05279, Second Dept 10-18-23
Practice Point: Here plaintiff alleged defendants’ failure to diagnose decedent’s atherosclerotic cardiovascular disease constituted medical malpractice. Plaintiff’s expert raised a question of fact on causation by asserting the failure to diagnose the disease proximately caused decedent’s premature death.
The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this vehicle-pedestrian accident case should have been granted. Whether plaintiff was contributorily negligent should not have been considered:
… [P]laintiff, who was wearing a bright green safety vest, was standing at or near the sideview mirror of the cab while the cab was stopped at a tollbooth when the cab pulled forward and came into contact with the plaintiff’s foot or ankle … . In opposition, the defendants failed to raise a triable issue of fact. Although the Supreme Court made a determination that, based on the evidence presented, a jury could determine whether the plaintiff was “vigilant” under the circumstances, that is immaterial to the plaintiff’s entitlement to summary judgment on the issue of liability in this case. “To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence” … .
… [P]laintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence on the issue of the defendants’ liability, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f] …). Vasquez v Vullis Corp, 2023 NY Slip Op 05286, Second Dept 10-18-23
Practice Point: Here plaintiff was struck by defendant’s car. At the summary judgment stage, whether plaintiff was contributorily negligent is not relevant. Defendant driver was expected to see what should have been seen.
The Second Department, reversing Supreme Court, determined the complaint in this traffic accident case should not have been dismissed because it was identical to a prior action. The first complaint was never served so there was no prior action:
CPLR 3211(a)(4) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against [them] on the ground that . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” However, a complaint must have been served in that other action, otherwise it is not “another action,” or a “prior action pending” … within the meaning of CPLR 3211(a)(4) … . Here, it is undisputed that the complaint in the prior action was not served. Quinones v Z & B Trucking, Inc., 2023 NY Slip Op 05282, Second Dept 10-18-23
Practice Point: A complaint which is never served does not constitute an “action.” The subsequent identical complaint should not have been be dismissed on the ground there was a prior identical action.
The Second Department, reversing (modifying) Supreme Court, determined the negligence action against the driver and owner of an UBER vehicle should not have been dismissed. The driver stopped two feet from the curb and plaintiff tripped trying to get into the vehicle. A NYC regulation requires vehicles-for-hire to be within 12 inches of the curb:
“To hold a defendant liable in common-law negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) that the breach constituted a proximate cause of the injury” … “Although the issue of proximate cause is generally one for the finder of fact, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .
“A common carrier owes a duty to a passenger to provide a reasonably safe place to board and disembark its vehicle” … . 34 RCNY 4-11(c) requires taxis and for-hire vehicles to be within 12 inches of the curb when picking up or discharging passengers. Porcasi v Oji, 2023 NY Slip Op 05281, Second Dept 10-18-23
Practice Point: Here the NYC regulation requiring for-hire vehicle to be within 12 inches of the curb when picking up a passenger created a duty on the part of the driver which was breached when the driver stopped two-feet from the curb. The defendant driver did not demonstrate the breach was not the proximate cause of plaintiff’s fall and did not demonstrate the driver’s action merely furnished a condition for the fall. Therefore there are questions of fact for the jury.
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