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IN THIS CONSTRUCTION ACCIDENT CASE, DEFENDANTS WERE ENTITLED TO COMPEL PLAINTIFF TO ANSWER DEPOSITION QUESTIONS ABOUT HIS DRUG AND ALCOHOL USE; THE INFORMATION MAY BE RELEVANT TO LIFE AND/OR WORK-LIFE EXPECTANCY (SECOND DEPT). ​

The Second Department, in this construction accident case, determined defendant’s were entitled to compel plaintiff to answer deposition questions about his alcohol and drug use:

“Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue” … .

Here, the plaintiff asserted … damages claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based upon certain work-life and life expectancy ages. These claims affirmatively placed at issue the plaintiff’s health and ability to work, and the plaintiff’s work-life expectancy … . In making life expectancy determinations in the course of awarding damages for future lost earnings, juries are permitted to make life expectancy determinations based upon statistical life expectancy tables, together with their own experience and the evidence they have heard in determining what the plaintiff’s life and/or work-life expectancy is, based upon the plaintiff’s health, life habits, employment, and activities … . Hogdahl v LCOR 55 Bank St., LLC, 2023 NY Slip Op 04582, Second Dept 9-13-23

Practice Point: In a personal injury case, evidence of plaintiff’s drug and alcohol use may be relevant to life and work-life expectancy (damages).

 

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THE COMPLAINT ADEQUATELY ALLEGED THE COUNTY’S NEGLIGENT SUPERVISION OF PLAINTIFF WHILE SHE WAS IN FOSTER CARE; THE QUALIFIED IMMUNITY PURSUANT TO SOCIAL SERVICES LAW 419 IS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint adequately alleged the defendant county knew or should have known of plaintiff’s foster father’s propensity to commit child abuse. The qualified immunity pursuant to Social Services Law 419 does not apply to negligent supervision of children in foster care:

“[C]ounties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … .

Here, the complaint, which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable care should have known of the foster father’s propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated … . Moreover, the complaint sufficiently alleged that the County was negligent in failing to ensure that proper safeguards were in place so as to ensure the safety of the plaintiff in the foster home … .

… [T]he County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care … . Grabowski v Orange County, 2023 NY Slip Op 04580, Second Dept 9-13-23

Practice Point: In this Child Victim’s Act case, the complaint adequately alleged the county knew or should have known of her foster father’s propensity to commit child abuse. The qualified immunity in Social Services Law 419 does not apply to negligent supervision of children in foster care.

 

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AN ELEVATED BOARDWALK WITH NO GUARDRAILS WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE VILLAGE WAS NOT LIABLE FOR PLAINTIFF BICYCLIST’S RIDING OFF THE BOARDWALK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village was not liable for plaintiff’s riding her bike off an elevated boardwalk. The condition (the elevated boardwalk) was deemed “open and obvious;”

A landowner has a duty to maintain its premises in a reasonably safe manner … . However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . “[T]o obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous” … .

Here, the evidence submitted by the Village in support of its motion, including a transcript of the plaintiff’s deposition testimony and photographs of the accident site, demonstrated, prima facie, that the condition of the elevated boardwalk was both open and obvious, and not inherently dangerous. The plaintiff’s testimony established, inter alia, that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk without incident shortly prior to her accident … . Ferruzzi v Village of Saltaire, 2023 NY Slip Op 04578, Second Dept 9-13-23

Practice Point: Here the plaintiff, after riding her bike on an elevated boardwalk (no guardrails) for a while, rode off the boardwalk and was injured. The elevated boardwalk was deemed open and obvious and not inherently dangerous.

 

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DEFENDANT’S UNSAFE LANE-CHANGE, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, WARRANTED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff alleged defendant (Roman) suddenly attempted to change lanes in violation of the Vehicle and Traffic Law and struck plaintiff’s car. Defendant’s claim that he glanced quickly to the left as plaintiff was attempting to pass him did not raise a question of fact:

… [T]he plaintiff submitted a transcript of his testimony at a hearing pursuant to General Municipal Law § 50-h wherein he testified that while the vehicle that Roman was operating was traveling in the far right lane of a three-lane highway, Roman swerved into the vehicle the plaintiff was operating, which was traveling in the far left lane. This testimony established, prima facie, that Roman changed lanes before ascertaining that such movement could be made safely in violation of Vehicle and Traffic Law § 1128(a) … .

… Roman’s affidavit, wherein he stated that he quickly steered into the left lane after “glanc[ing]” to his left, when the vehicle operated by the plaintiff “apparently attempted to pass [him] quickly on the driver’s side,” did not establish a nonnegligent excuse for the happening of the accident … . Moreover, the defendants failed to demonstrate that the emergency doctrine was applicable … . Elfe v Roman, 2023 NY Slip Op 04575, Second Dept 9-13-23

Practice Point: The evidence that defendant struck plaintiff’s car making an unsafe lane change in violation of the Vehicle and Traffic Law (negligence per se) entitled plaintiff to summary judgment.

 

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FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (DMV) DOES NOT, STANDING ALONE, ESTOP THE DEFENDANT FROM CONTESTING SERVICE OF PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Warhit, reversing Supreme Court, after reviewing the caselaw in the state, determined the defendant was not estopped from contesting service of process based solely on his failure to update his address with the Department of Motor Vehicles (DMV) as required by Vehicle and Traffic Law 505 (5). Although the failure to update the address is a factor in determining whether estoppel applies, it cannot be the sole basis for estoppel. Here the defendant presented detailed evidence demonstrating that he no longer lived at the address on file with the DMV and there was no evidence he was deliberately evading service. Therefore a hearing on whether defendant was properly served was required:

The principal question presented on this appeal is whether an individual defendant’s failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative. … [W]e hold that, while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one’s address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine. Castillo-Florez v Charlecius, 2023 NY Slip Op 04570, Second Dept 9-13-23

Practice Point: Although the failure to update one’s address on file with the DMV can be a factor in determining whether a defendant should be estopped from contesting service of process, it cannot be the sole reason for applying the estoppel doctrine. There must be other evidence of a deliberate effort to evade service.

 

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PLAINTIFF STORE MANAGER FELL FROM A LADDER WHILE ATTEMPTING TO REPLACE CEILING TILES DAMAGED BY A LEAK IN THE ROOF; PLAINTIFF SUED THE BUILDING OWNER; THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED BUT THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law causes of action in this ladder-fall case were property dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, the manager of a Dunkin Donuts, fell from the ladder when attempting to replace ceiling tiles damaged by a leak in the roof. Plaintiff sued the building owner:

Labor Law § 241(6) applies only to a narrow class of protected workers engaged in “constructing or demolishing buildings in areas in which construction, excavation or demolition work is being performed” … . * * *

The Labor Law § 200 claim arises from the method of work, involving an inadequate ladder, but defendants exercised no supervisory control over the work, and therefore no liability attaches under Labor Law § 200 … .

… [T]he record raises triable issues of fact as to whether defendants had actual or constructive notice of an unsafe ceiling leak and whether the leak proximately caused plaintiff’s injury. Plaintiff alleged that the leak created a slippery condition on the ladder. Yousuf v Horace Plaza, LLC, 2023 NY Slip Op 04492, First Dept 9-7-23

Practice Point: Labor Law 241(6) applies only if plaintiff was injured constructing or demolishing a building. Labor Law 200 (re: method of work) applies only only when defendant exercises supervisory control over the work. Therefore the Labor Law causes of action did not apply to the store manager’s falling from a ladder while attempting to replace ceiling tiles damaged by a leak in the roof.

 

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THE EXPERT AFFIDAVITS SUBMITTED BY DEFENDANT HOSPITAL IN THIS MEDICAL MALPPRACTICE ACTION WERE CONCLUSORY AND DID NOT ADDRESS ALL OF PLAINTIFF’S ALLEGATIONS; THEREFORE SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court in this medical malpractice action, determined the expert affidavits were conclusory and did not address all the allegations made by plaintiff. Therefore defendant’s (St. Luke’s) motion for summary judgment should not have been granted:

The expert nurse and expert neurologist on whose affidavits St. Luke’s relied merely averred in a conclusory manner that the decedent could not have been monitored in a way to prevent her fall, that St. Luke’s implemented every appropriate fall risk procedure before the decedent’s fall, and that the decedent’s fall and the resulting subdural hematoma were not substantial factors in causing the decedent’s death … . The expert nurse also did not submit the fall risk assessment or hospital fall prevention policy in accordance with which, she claimed, the decedent was monitored … . Because St. Luke’s did not carry its prima facie burden on its motion, Supreme Court should have denied defendant’s motion with respect to those predicates, regardless of the sufficiency of the moving papers … .

As for the remaining predicates for plaintiffs’ medical malpractice claim, St. Luke’s did not address them in its moving papers, nor did its experts address them in their affidavits. Accordingly, St. Luke’s did not establish its prima facie entitlement to summary judgment dismissing them … . Martir v St. Luke’s-Roosevelt Hosp. Ctr., 2023 NY Slip Op 04478, First Dept 8-31-23

Practice Point: To warrant summary judgment in a medical malpractice action, the expert affidavits cannot be conclusory and must address all of the relevant allegations.

 

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A MUNICIPALITY HAS A DUTY TO INSPECT TREES ADJACENT TO ROADWAYS EVEN IF THE TREES ARE NOT ON THE MUNICIPALITY’S LAND; HERE THE MUNICIPALITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION OF THE TREE WHICH FELL ON PLAINTIFFS CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town’s motion for summary judgment in this falling-tree traffic-accident case should not have been granted. Although the tree which fell on plaintiff’s car was on private property, it was adjacent to the road. A municipality has a duty to inspect trees adjacent to roads and the town failed to demonstrate it did not have constructive notice of the dangerous condition of the tree:

“A municipality’s duty to maintain its roadways in a reasonably safe condition encompasses those trees, adjacent to the roads, which could reasonably be expected to pose a danger to travelers. However, liability will not attach unless the municipality had actual or constructive notice of the dangerous condition and subsequently failed to take reasonable measures to correct the condition” … . “Municipalities also possess a common-law duty to inspect trees adjacent to their roadways” … .

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . “Where there is no evidence that the tree showed any visible, outward signs of decay prior to the accident, it cannot be said that the municipality had constructive notice of a defect. Rather, a manifestation of decay must be readily observable in order to give rise to a duty to prevent harm” … . Jourdain v Metropolitan Transp. Auth., 2023 NY Slip Op 04421, Second Dept 8-30-23

Practice Point: A town has a duty to inspect trees which are adjacent to roads, even if the trees are on private property. Here the town did not demonstrate that it did not have constructive notice of the condition of the tree which fell on plaintiff’s car.

 

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THE COVID STATUTE OF LIMITATIONS TOLL FROM MARCH TO NOVEMBER 2020 DID NOT ONLY APPLY TO ACTIONS WHOSE STATUTES OF LIMITATIONS EXPIRED DURING THAT PERIOD; THEREFORE PLAINTIFF’S ACTION WAS TIMELY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the COVID toll of the statute of limitations rendered plaintiff’s negligence action timely, noting that the toll did not apply only to statutes of limitations which expired during the toll period:

Pursuant to CPLR 214(5), an action to recover damages for personal injuries is subject to a three-year statute of limitations. In Brash v Richards, this Court held that the executive orders “constitute a toll” of the filing deadlines applicable to litigation in New York courts (Brash v Richards, 195 AD3d 582, 582 … ). … [T]his toll of the statute of limitations did not only apply to statutes of limitations that expired between March 20, 2020, and November 3, 2020 … .

… [D]ue to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to commence this action was tolled between March 20, 2020, and November 3, 2020 …  Thus, this action … was commenced against those defendants well within the statute of limitations. Williams v Ideal Food Basket, LLC, 2023 NY Slip Op 04436, Second Dept 8-30-23

Practice Point: The COVID toll of the statute of limitations from March to November 2020 applies to all actions, not only those whose statutes of limitations expired during that period of time.

Similar issue and result in Baker v 40 Wall St. Holdings Corp., 2024 NY Slip Op 0179, Second Dept 4-3-24.

 

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IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANTS’ EXPERTS DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILLS OF PARTICULARS AND RELIED ON A DISPUTED FACT; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice actions should not have been granted. It was alleged that plaintiff’s decedent was not properly treated for a stroke. The defendants’ experts did not address all the allegations in the bills of particulars and relied on a disputed fact:

… [T]he expert physician for the defendants …, failed to address all of the specific allegations set forth in the plaintiff’s bill of particulars … . Because [the] affirmation relied upon a disputed fact, specifically that the decedent’s condition was improving … , it was insufficient to establish, prima facie, that.[defendants] did not deviate or depart from accepted medical practice or that such deviation or departure was not a proximate cause of the decedent’s injuries … . Hiegel v Orange Regional Med. Ctr., 2023 NY Slip Op 04434, Second Dept 8-30-23

Practice Point: In a medical malpractice action, at the summary judgment stage, the defense experts must address all the allegations in the bill of particulars and may not rely on facts which are disputed.

 

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