You are here: / Negligence
, , , ,

IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF WAS ADMITTED WITH COVID, WAS TREATED FOR COVID AND DIED FROM COVID; PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) THE DEFENDANT WAS IMMUNE FROM SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant New York City Health and Hospitals Corporation was immune from a lawsuit stemming from a COVID-19-related death pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA):

… [T]he EDTPA initially provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” as long as three conditions were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives; and the services were arranged or provided in good faith … . The health care services covered by the immunity provision included those related to the diagnosis, prevention, or treatment of COVID-19; the assessment or care of an individual with a confirmed or suspected case of COVID-19; and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration … . Mera v New York City Health & Hosps. Corp., 2023 NY Slip Op 04975, Second Dept 10-4-23

Practice Point: Pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA), the defendant health care facility was immune from a lawsuit premised upon admission, treatment and death from COVID-19.

 

, , , , ,

BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

, ,

CLAIMANT ALLEGED SHE WAS SEXUALLY ABUSED BY TWO NAMED COUNSELORS FROM 1976 – 1978; THE CLAIM SUFFICIENTLY STATED A CAUSE OF ACTION PURSUANT TO THE CHILD VICTIMS ACT (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated a Child Victims Act cause of action stemming from claimant’s time in foster care from 1976 to 1978:

In August 2021, the claimant commenced this claim pursuant to the Child Victims Act (see CPLR 214-g) against the defendant, inter alia, to recover damages for negligent hiring, retention, and supervision. The claim alleged that the claimant, who had been placed in a group home for foster children when she was a child, was sexually abused by two named counselors at the facility from approximately 1976 to 1978. * * *

Court of Claims Act § 11(b) requires a claim to specify: “(1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed,” and a failure to comply with any of those requirements “constitutes a jurisdictional defect mandating dismissal” … . The purpose of the pleading requirements is to provide “a sufficiently detailed description of the particulars of the claim” so that the defendant can “investigate and promptly ascertain the existence and extent of its liability” … . “However, absolute exactness is not required, so long as the particulars of the claim are detailed in a manner sufficient to permit investigation” … .

Contrary to the Court of Claims’ determination, the claim set forth the nature of the claim with sufficient detail to allow the defendant to investigate the claim in a prompt manner and to assess its potential liability … . Brown v State of New York, 2023 NY Slip Op 04997, Second Dept 10-4-23

Practice Point: To state a cause of action pursuant to the Child Victims Act, the claim need only provide sufficient detail to allow a prompt investigation. Here the claimant alleged sexual while in foster care from 1976 – 1978 by two named counselors. The claim should not have been dismissed.

 

, ,

QUESTIONS OF FACT ABOUT WHO HAD THE GREEN LIGHT AND WHETHER DEFENDANT DRIVER SAW WHAT SHOULD HAVE BEEN SEEN PRECLUDED SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact which precluded summary judgment in favor of defendants in this intersection traffic accident case. Although plaintiffs’ car was struck when attempting a left turn across defendant’s oncoming lane, there was conflicting evidence about which party had the green light and whether defendant failed to see what should have been seen:

Susan [plaintiff] testified at her deposition that she entered the subject intersection to turn left when a traffic arrow controlling the left turn was green in her favor. In contrast, Peter [defendant] testified at his deposition that the traffic light was green in his favor as he approached the subject intersection from the opposite direction. In addition, Peter testified that there was nothing obstructing his view of the intersection as he began to drive through it, and it is undisputed that he then struck the plaintiff’s vehicle on the middle portion of the passenger side door. Thus, although the defendants submitted some evidence that Susan failed to yield the right-of-way to the defendants’ vehicle at the intersection in apparent violation of Vehicle and Traffic Law § 1141, the evidence submitted by the defendants failed to eliminate triable issues of fact as to whether Peter entered the intersection against a red traffic light in violation of Vehicle and Traffic Law § 1111(d)(1) or, if the traffic light was green in his favor, failed to exercise reasonable care notwithstanding the invitation to proceed by the green light facing him … . Accordingly, the defendants did not establish, prima facie, that Susan’s failure to yield the right-of-way was the sole proximate cause of the accident and that the defendants were themselves free from fault … . Schmitz v Pinto, 2023 NY Slip Op 04983, Second Dept 10-4-23

Practice Point: There can be more than one proximate cause of a traffic accident. Although plaintiff was struck making a left turn across defendant’s lane, there were questions of fact about who had the green light, and, if defendant had the green light, whether he should have seen what was there to be seen (plaintiff’s car was struck in the middle of the passenger door).

 

, , ,

PETITIONER-PEDESTRIAN ESTABLISHED THE IDENTITY OF THE DRIVER WHO STRUCK HER COULD NOT BE ASCERTAINED THROUGH REASONABLE EFFORTS; THEREFORE SHE COULD SUE THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner-pedestrian demonstrated the driver who violated the Vehicle and Traffic Law, struck her and fled the scene could not be identified. Therefore she was entitled to sue the Motor Vehicle Accident Indemnification Corporation (MVAIC). The court noted that, although petitioner relied on a hearsay police report, the report could be considered because the MVAIC also relied on it:

Petitioner alleged that on March 4, 2021, she was injured as a pedestrian in the crosswalk after a two-motor-vehicle collision between a BMW and Cadillac. The police report stated that petitioner was struck by the Cadillac after its driver disobeyed a traffic light and collided with the BMW, and the driver of the Cadillac subsequently fled from the scene by foot. The police later discovered that the Cadillac’s license plate did not match the vehicle.

… [P]etitioner proffered … a police accident report pertaining to the incident, a letter from the BMW’s insurer disclaiming coverage on the ground that its insured driver did not disobey any traffic law, and a sworn Notice of Intention to Make a Claim (Notice of Intention) attesting that the Cadillac’s driver was unknown, and the vehicle had a fake license plate. … [T]hese documents were sufficient to satisfy the requirements of Insurance Law § 5218 to commence an action against MVAIC … . Petitioner met her burden of demonstrating that the subject accident was one in which the identity of the owner and operator of the Cadillac was not ascertainable through reasonable efforts … . Although a police report is generally inadmissible as hearsay, MVAIC also relied on it in opposing the petition, and thus it may be considered in support of the Notice of Intention .. . Matter of Richardson v Motor Veh. Acc. Indem. Corp., 2023 NY Slip Op 04950, Second Dept 10-3-23

Practice Point: This decision gives some insight into the proof required to demonstrate the identity of a driver involved in an accident cannot be ascertained, clearing the way for a suit against the MVAIC.

 

, ,

THE POLICE OFFICER INJURED IN THE TRAFFIC ACCIDENT AND THE CITY SEEKING RECOVERY OF PAYMENTS MADE STEMMING FROM THE OFFICER’S INJURY MUST SHARE THE $100,000 “PER PERSON” INSURANCE-POLICY LIMIT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the police officer injured in a car accident and the city suing for payments made for the officer’s salary and medical expenses had to share the $100,000 “per person”  policy-limit in the Safeco insurance policy:

… [T]here is a $100,000 policy limit for “each person” sustaining bodily injury. The policy provides that the limit of bodily injury liability for “each person” is the “maximum limit of liability for all damages, including damages for care, loss of services or death, resulting from any one auto accident” for bodily injury not resulting in death of “any one person” (emphasis added). The City here asserted a claim against the tortfeasors pursuant to General Municipal Law § 207-c (6), which creates a cause of action for municipalities for reimbursement of “such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the police officer shall have a cause of action for the injury sustained or sickness caused by such third party.” The municipality’s right to recover “is derived from its insured employee’s cause of action in negligence against the person causing such injury,” and the “right to bring the direct action is bottomed on the employee’s cause of action in negligence” … . … [T]he City’s statutory claim and plaintiff’s claim both result from the injuries sustained by plaintiff and are both included in the same $100,000 per person limit of liability in the policy … . Lewczyk v Safeco Ins. Co. of Am., 2023 NY Slip Op 04867, Fourth Dept 9-29-23

Practice Point: Here, pursuant to the unambiguous terms of the insurance policy, the police officer injured in a traffic accident and the city seeking recovery of the related salary and medical-expense payments must share the $100,000 “per person” insurance-policy limit.

 

, , ,

PLAINTIFF’S DECEDENT’S COUNSEL IN THIS SLIP AND FALL CASE DID NOT SEEK LETTERS OF ADMINISTRATION FOR FIVE YEARS AFTER PLAINTIFF’S DECEDENT’S DEATH; THE ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO CPLR 1021 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the slip and fall action should have been dismissed. The slip and fall occurred in 2013. The plaintiff died in 2015.and the letters of administration were issued in 2021. Plaintiff’s attorney’s failure to move for substitution of a representative within a reasonable time warranted dismissal:

CPLR 1021 provides as follows: “A motion for substitution may be made by the successors or representatives of a party or by any party . . . . If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate . . . . [I]f the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed” (emphasis added).

In determining reasonableness, a court should consider the plaintiff’s diligence in seeking substitution, prejudice to the other parties, and whether the action is shown to have potential merit … . Here, the unexplained, more than five-year delay in seeking letters of administration shows a lack of diligence … . Further, no demonstration of a potentially meritorious cause of action was made. Neither the attorney affirmation, complaint, bill of particulars, nor supplemental bill of particulars constituted an affidavit of merit, as counsel had no personal knowledge of the facts of this case … . Since an affidavit of merit was not submitted and no reasonable justification for the delay in petitioning for letters of administration was provided, the Supreme Court should have granted that branch of Nargis’s motion which was pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against it … . Mesniankina v 302 BBA, LLC2023 NY Slip Op 04765, Second Dept 9-27-23

Practice Point: If your client dies and you wait five years before substituting an administrator for the decedent, you risk dismissal pursuant to CPLR 1021.

 

UNLIKE THE GENERAL OBLIGATIONS LAW (DRAM SHOP ACT) CAUSES OF ACTION AGAINST A BAR WHICH SERVES A VISIBLY INTOXICATED PERSON WHO IS LATER INVOLVED IN A TRAFFIC ACCIDENT, A COMMON LAW NEGLIGENCE CAUSE OF ACTION APPLIES ONLY TO INJURIES CAUSED BY AN INTOXICATED PERSON ON DEFENDANT’S PROPERTY OR IN AN AREA UNDER DEFENDANT’S CONTROL AND SUPERVISION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the common law negligence cause of action against the bar (Catch 22) which allegedly served alcohol to the minor driver should have been dismissed. The driver was involved in an accident and plaintiff’s decedent, a passenger, was killed. The General Obligations Law causes of action premised on defendant’s allegedly serving alcohol to a visibly intoxicated person properly survived summary judgment. But the common law negligence cause of action would only apply to injuries which occurred on defendant’s property (not in a traffic accident which occurred after leaving defendant’s property):

Under a theory of common-law negligence, a landowner may be responsible for injuries caused by an intoxicated guest … . However, liability may be imposed only for injuries that occurred on a defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control … . There is no dispute that the motor vehicle accident at issue occurred on a public roadway hours after the decedent and [the driver] had left the area that was under the supervision and control of Catch 22, and thus, Catch 22 established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against it … . Filc v 221 Someplace Else, Ltd., 2023 NY Slip Op 04751, Second Dept 9-27-23

Practice Point: A bar which serves a visibly intoxicated person may be liable in negligence (as opposed to pursuant to the Dram Shop Act) when the intoxicated person causes injury on the bar’s property or in an area under the bar’s supervision and control. The negligence theory does not apply to traffic accidents which occur off premises.

 

,

PLAINTIFF, A PASSENGER ON A BUS WHICH VEERED OFF THE HIGHWAY IN SNOWY CONDITIONS, WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff, a passenger on a bus which veered of the highway in snowy conditions, was entitled to summary judgment:

“‘An innocent passenger . . . who, in support of [his or] her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation'” … . Here, the plaintiff’s affidavit and the bus driver’s admissions in a certified police accident report submitted in support of the motion … established that the bus driver lost control of the vehicle, and that the bus driver was aware of the snowy weather conditions, rendering the emergency doctrine inapplicable … . In his affidavit, the plaintiff stated that it was snowing when the bus left the bus station. Immediately before the accident, the plaintiff did not hear horns or the screeching of brakes, but did hear the bus driver state, “It’s bad.” The bus then swerved, left the roadway, and rolled over onto its passenger’s side in the center median of the highway. Additionally, the certified police accident report contains the bus driver’s statement that he lost control because of a slippery highway. Bing Kang Chen v S & F Travel, Inc., 2023 NY Slip Op 04746, Second Dept 9-27-23

Practice Point: A passenger on a bus which veers off the highway in snowy conditions is entitled to summary judgment in the absence of any evidence that something other than the snowy conditions caused the accident.

 

,

PLAINTIFF’S PARKED VEHICLE WAS STRUCK FROM BEHIND BY DEFENDANT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY; THE FACT THAT PLAINTIFF MAY HAVE VIOLATED TRAFFIC RULES RE: PARKING SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT RELEVANT TO LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. Plaintiff’s car was parked when it was struck from behind by defendant. The fact that plaintiff may have parked in a manner which violated the NYC traffic rules speaks only to plaintiff’s comparative negligence, which is not relevant at the summary judgment stage:

… [P]laintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of her affidavit, in which she averred that her vehicle was struck in the rear by the defendants’ vehicle while the plaintiff’s vehicle was parked on the shoulder of the roadway (see Vehicle and Traffic Law § 1129[a] …). In opposition to the plaintiff’s prima facie showing, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . The defendants’ contention that the plaintiff proximately caused the accident by violating 34 RCNY 4-07(b)(1) and 4-08(e)(1) [NYC Traffic Rules re: parking] speaks to her comparative negligence, which was not the subject of this motion and is insufficient to defeat the plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of liability … . Whaley v Carvana N.Y. City, 2023 NY Slip Op 04794, Second Dept 9-27-23

Practice Point: Plaintiff’s parked car was struck from behind and defendant did not offer a nonnegligent explanation for the collision. Therefore plaintiff was entitled to summary judgment on liability. The fact that plaintiff may have violated parking rules speaks to comparative negligence and is not relevant to liability.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy