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LOANING PLAINTIFF’S DECEDENT A CAR WITH A BROKEN FUEL GAUGE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH; THE CAR RAN OUT OF GAS AND PLAINTIFF’S DECEDENT PULLED OVER ONTO THE SHOULDER OF A TWO-LANE ROAD; SHE WAS STRUCK BY A HIT AND RUN DRIVER WHILE PUTTING GAS IN THE CAR WITH A GAS CAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence ascribed to the defendant in this fatal traffic-accident case was not a proximate cause of the accident. Defendant allegedly loaned a car with a broken fuel gauge to plaintiff’s decedent. The car ran out of gas on a two-lane highway and plaintiff’s decedent pulled the car over onto the shoulder. When plaintiff’s decedent was attempting to put gas in the car with a gas can, she was struck and killed by a hit-and-run driver:

… [T]he plaintiff alleged that the defendant knew that his vehicle had a malfunctioning gas gauge but nonetheless “allowed the decedent . . . to borrow and use” the vehicle. The plaintiff further alleged that the defendant negligently failed to maintain the vehicle in proper working order and loaned the vehicle to the decedent while it was in a state of disrepair, and that this negligence caused the decedent’s injuries. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending, inter alia, that it was not foreseeable that running out of gas would result in the decedent being struck by a hit-and-run driver, and that the defendant’s alleged conduct was not a proximate cause of the accident. …

… [T]he defendant established, prima facie, that his alleged negligence was not a proximate cause of the accident. Even assuming, arguendo, that permitting the decedent to borrow a vehicle with a malfunctioning gas gauge “furnished the condition or occasion” for the accident … , under the circumstances here, a hit-and-run driver striking the decedent constituted an intervening act which was not foreseeable … . Biamonte v Biamonte, 2023 NY Slip Op 04296, Second Dept 8-16-23

Practice Point: Here plaintiff’s decedent was struck and killed by a hit and run driver after the car loaned to her by defendant ran out of gas. The broken fuel gauge in the loaned car was not a proximate cause of her death. The hit and run accident was deemed an intervening act which was not foreseeable.

 

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THE ORDER DENYING DEFENDANTS THE ABILITY TO ASSERT CPLR ARTICLE 16 DEFENSES IS APPEALABLE; DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM ASSERTING THE CPLR ARTICLE 16 DEFENSES ATTRIBUTING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION TO NON-PARTIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendants in this medical malpractice action should not have been precluded from asserting the negligence of non-parties (CPLR article 16 defenses) as an affirmative defenses. The court noted that, although the a ruling on a motion in limine is generally not appealable, a ruling on a motion which seeks to limit the legal theories which can be asserted is appealable:

“Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . There is, however, “a distinction between an order that ‘limits the admissibility of evidence,’ which is not appealable . . . , and one that ‘limits the legal theories of liability to be tried’ or the scope of the issues at trial, which is appealable” … . * * *

… [D]efendants are entitled to assert their CPLR article 16 defenses regarding the nonparty providers. “As provided in CPLR 1601 (1), a defendant may raise the CPLR article 16 defense regarding a nonparty tortfeasor, provided that the plaintiff could obtain jurisdiction over that party” … . Here, defendants are entitled to raise their pleaded affirmative defenses pursuant to CPLR article 16 … because plaintiff could have sought to maintain an action against the nonparty providers in Supreme Court … .

The crux of the issue on appeal is whether defendants were required, in response to plaintiff’s demands for bills of particulars, to particularize the pleaded CPLR article 16 defense, and thus whether the court properly precluded them from asserting that defense at trial when they did not timely particularize that defense. We conclude that no such particularization was required under the circumstances of this case, and thus that the court erred in precluding defendants from asserting the CPLR article 16 defense at trial. Harris v Rome Mem. Hosp., 2023 NY Slip Op 04273, Fourth Dept 8-11-23

Practice Point: Motions in limine generally are not appealable. But motions seeking to preclude legal theories of liability are appealable.

Practice Point: Under the unique circumstances of this case, defendants in this medical malpractice action should not have been precluded from presenting CPLR article 16 affirmative defenses on the ground the defenses were not particularized in the bill of particulars. It was not clear the demands related to the CPLR article 16 affirmative defenses.

 

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​ DEFENDANT DEMONSTRATED PLAINTIFF CAUSED THE TRAFFIC ACCIDENT BY MAKING AN UNREASONABLE LEFT TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (NEGLIGENCE PER SE); THE COURT MAY DETERMINE THE PROXIMATE CAUSE OF A TRAFFIC ACCIDENT AT THE SUMMARY JUDGMENT STAGE AS A MATTER OF LAW IF ONLY ONE CONCLUSION CAN BE DRAWN FROM THE FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this traffic accident case demonstrated plaintiff violated the Vehicle and Traffic Law by unreasonably making a left turn, which constitutes negligence per se:

… [T]he defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that the plaintiff’s conduct in making a left turn directly into the path of the defendant’s vehicle without yielding the right-of-way to the defendant, in violation of Vehicle and Traffic Law § 1141, and when it was not reasonably safe to make a left turn, in violation of Vehicle and Traffic Law § 1163(a), was the sole proximate cause of the accident … . The issue of proximate cause may be decided as a matter of law where, as here, only one conclusion may be drawn from the established facts … . Lylan Pham v Lee, 2023 NY Slip Op 04200, Second Dept 8-9-23

Practice Point: Causing a traffic accident by making an unreasonable left turn into defendant’s lane of traffic in violation of the Vehicle and Traffic Law is negligence per se.

Practice Point: A judge at the summary judgment stage can determine the proximate cause of a traffic accident as a matter of law if there is only one conclusion which can be drawn from the facts.

 

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THE ALLEGATIONS WERE SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL TO REACH DEFENDANT LLC MEMBER PERSONALLY FOR BREACH OF THE HOUSING MERCHANT IMPLIED WARRANTY OBLIGATIONS; AND DEFENDANT COULD BE HELD PERSONALLY LIABLE FOR NEGLIGENT REPAIRS UNDER A HOME RENOVATION CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this home-renovation-contract dispute sufficiently alleged the corporate veil should be pierced to reach the defendant Assaf, member of the LLC, personally for failing to comply with the implied warrant requirements. Defendant could also be held personally liable for negligent repairs:

Among the plaintiffs’ allegations were that Assaf wound down the LLC’s business following the closing of title in an effort to keep the LLC undercapitalized and judgment proof and that, following the closing, he distributed sale proceeds without reserving sufficient assets needed to satisfy the LLC’s obligations under New York State’s housing merchant implied warranty and any contingent liability.

… “Although [c]orporate officers may not be held personally liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts, corporate officers may be held personally liable for torts committed in the performance of their corporate duties” … . Here, the plaintiffs adequately alleged that Assaf personally engaged in acts of negligence in performing repairs at the home … . Gold v 22 St. Felix, LLC, 2023 NY Slip Op 04194, Second Dept 8-9-23

Practice Point: Here the allegation that defendant LLC member undercapitalized the LLC supported piercing the corporate veil for breach of the home merchant implied warranty obligations.

Practice Point: A member of an LLC may be personally liable for negligent repairs pursuant to a home-renovation contract.

 

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THERE WAS NO REASONABLE VIEW OF THE EVIDENCE WHICH SUPPORTED THE JURY’S CONCLUSION THE BUS DRIVER WAS NOT NEGLIGENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted:

A jury verdict in favor of a defendant should be set aside as contrary to the weight of the evidence where the evidence preponderates so heavily in the plaintiff’s favor that it could not have been reached by any fair interpretation of the evidence … . “A driver . . . has ‘a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses'” … .

Here, no fair interpretation of the evidence supports a finding that Ramirez was free from negligence in the happening of this accident. Although it is unclear whether the plaintiff was crossing the entrance ramp in or near the crosswalk at the time that she was struck, Ramirez’s failure to observe the plaintiff crossing the entrance ramp at the time of the accident was a violation of his common-law duty to see that which he should have seen through the proper use of his senses … . Under these circumstances, the jury’s verdict that Ramirez was free from negligence was not supported by any fair interpretation of the evidence. Wargold v Hudson Tr. Lines, Inc., 2023 NY Slip Op 04153, Second Dept 8-2-23

Practice Point: A driver has a common law duty to see what he should have seen. The motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted.

 

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THE “TIME WHEN” ALLEGATIONS IN THE CLAIM IN THIS CHILD VICTIMS ACT SUIT WERE SUFFICIENT, COURT OF CLAIMS REVERSED (SECOND DEPT).

The Second Department, reversing the Court of Claims, over an instructive concurrence, determined the claim in this Child Victims Act action sufficiently alleged the “time when” the sexual abuse allegedly occurred:

… [T]he date ranges provided in the claim, together with the other information set forth therein, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b). The claimant alleged, among other things, that “[i]n approximately 1987, when [he] was approximately sixteen (16) years old, [he] was admitted to” a State-operated psychiatric hospital “for inpatient residential treatment,” and that “[while] admitted to the . . . facility” he was “sexually abused and assaulted” by a staff member on two occasions. Additionally, the claimant identified his alleged abuser in the claim and set forth the details of the two alleged assaults, including the location within the facility where they allegedly occurred. The claimant also alleged that, before the second incident of abuse occurred, he reported to his treating psychiatrist, whom the claimant identified by name, that the alleged perpetrator made the claimant “uncomfortable.” “Given that the CVA allows claimants to bring civil actions decades after the alleged sexual abuse occurred, it is not clear how providing exact dates, as opposed to the time periods set forth in the instant claim, would better enable the State to conduct a prompt investigation of the subject claim” … . We note, however, “that our determination that the claimant met the ‘time when’ requirement in the context of this action brought under the CVA does not change our jurisprudence with respect to the ‘time when’ requirement under different contexts, such as where a ‘single incidence of negligence’ occurs on a discrete date or other situations where ‘a series of ongoing acts or omissions occur[ ] on multiple dates over the course of a period of time’ … . Rodriguez v State of New York, 2023 NY Slip Op 04146, Second Dept 8-2-23

Practice Point: Here the allegations the sexual abuse took place in “approximately 1987” were deemed sufficient in this Child Victims Act suit.

 

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​ IN THIS LEGAL MALPRACTICE ACTION, THE EVIDENCE SUBMITTED BY DEFENDANT ATTORNEYS IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE;” THE PROOF REQUIREMENTS FOR A MOTION TO DISMISS ARE DIFFERENT FROM THE PROOF REQUIREMENTS FOR SUMMARY JUDGMENT; THE MOTION TO DISMSS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss in this legal malpractice case should not have been granted because the evidence offered in support of the motion (a letter from the insurer denying coverage and the insurance policy) was not “documentary evidence.” In addition, the Second Department noted that any deficiencies in the complaint were remedied by plaintiff’s affidavit submitted in opposition to the motion to dismiss. The complaint alleged defendant attorneys failed to timely file an action seeking recovery for personal injuries from a disability-insurance carrier:

“‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . * * *

“A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, [thereby] conclusively establishing a defense as a matter of law” … . “[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Maursky v Latham, 2023 NY Slip Op 04115, Second Dept 8-2-23

Practice Point: Irrespective of the possible result of a summary judgment motion, a motion to dismiss which depends on evidence and is not supported by “documentary evidence” will lose.

 

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THE PAVING CONTRACTOR FAILED TO DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM (A LIP OR HEIGHT DIFFERENTIAL IN THE ROAD SURFACE) WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THEREFORE THE CONTRACTOR DID NOT NEGATE THE APPLICABILITY OF THE ESPINAL EXCEPTION TO THE RULE THAT CONTRACTORS ARE GENERALLY NOT LIABLE TO THIRD PARTIES (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined the defendant paving company (DeBartolo) failed to eliminate a question of fact about whether it created the dangerous condition (i.e., launched the instrument of harm) which is alleged to have caused plaintiff’s slip and fall. The complaint alleged DeBartolo paved over existing pavement, created the height-differential over which plaintiff tripped. Although a contractor like DeBartolo ordinarily does not owe a duty of care to a third party who is not a party to the contract, the so-called Espinal exceptions apply when a contractor is alleged to have “launched an instrument of harm.” Once that theory of liability is alleged, the contractor seeking summary judgment must present evidence negating the allegation which DeBartolo failed to do:

… [T]he plaintiffs pleaded in their amended complaint and bill of particulars that DeBartolo Landscaping created the alleged dangerous condition that caused the injured plaintiff to fall as a result of, among other things, failing to properly repave the area. Therefore, DeBartolo Landscaping, in support of that branch of its motion which was for summary judgment dismissing the amended complaint insofar as asserted against it, had to establish, prima facie, that it did not create the dangerous or defective condition alleged (see Espinal v Melville Snow Contrs., 98 NY2d at 140 …). * * * … [The] evidence reveals … that DeBartolo Landscaping resurfaced Shady Glen Court in the area of the crosswalk prior to the subject accident, and that the resurfacing, which involved the application of new asphalt on top of the existing pavement, immediately resulted in a lip or elevation differential at the seam between the existing pavement and new asphalt. Thus, this evidence failed to demonstrate that Debartolo Landscaping did not create the alleged dangerous condition that caused the injured plaintiff to fall … . Camelio v Shady Glen Owners’ Corp., 2023 NY Slip Op 04105, Second Dept 8-2-23

Practice Point: Generally contractors are not liable to persons who are not parties to the contract. However, under the Espinal case, contractors can be liable to third persons if they “launch an instrument of harm.” If, as here, the plaintiff alleges the contractor launched an instrument of harm, the contractor must negate that allegation to be entitled to summary judgment. Here the proof did not negate the applicability of the Espinal exception.

 

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LYFT WAS NOT VICARIOUSLY LIABLE FOR THE ALLEGED SEXUAL ASSAULT BY A LYFT DRIVER; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD BASED UPON THE ASSURANCES OF SAFETY ON LYFT’S WEBSITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the vicarious liability and fraud causes of action against defendant Lyft, a livery cab service, should have been dismissed. The complaint alleged infant plaintiff used a mobile app to hire a Lyft driver, Singh, who began masturbating after she got in the car. The complaint failed to allege the driver was acting within the scope of his employment when the alleged sexual assault occurred. The complaint also failed to allege the elements of fraud based on the claim on the Lyft website that its service was safe and the drivers had been screened:

“[W]here an employee’s actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment” … . “A sexual assault perpetrated by an employee is not in furtherance of an employer’s business and is a clear departure from the scope of employment, having been committed for wholly personal motives” … . Here, assuming that Singh engaged in the sexual misconduct as alleged in the complaint, it is clear that such conduct was a departure from his duties as a Lyft driver and was committed solely for personal motives unrelated to Lyft’s business. As such, the sexual misconduct cannot be said to have been within the scope of employment … . Accordingly, the Supreme Court should have granted that branch of Lyft’s motion which was to dismiss the cause of action alleging vicarious liability under the doctrine of respondeat superior. …

“The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” … . “Each of the foregoing elements must be supported by factual allegations containing the details constituting the wrong sufficient to satisfy CPLR 3016(b)” … . “To establish causation, the plaintiff must show that defendant’s misrepresentation induced plaintiff to engage in the transaction in question (transaction causation) and that the misrepresentations directly caused the loss about which plaintiff complains (loss causation)” … .

Here, although the complaint alleges that the plaintiffs were aware of alleged representations on Lyft’s website that the Lyft service was safe to use, it fails to sufficiently specify which statements on Lyft’s website were false, and when those representations were made or accessed by the plaintiffs … . Moreover, the complaint fails to set forth any facts sufficient to show that any alleged misrepresentations on Lyft’s website regarding the safety of Lyft rides directly and proximately caused the plaintiffs’ alleged damages, which were otherwise alleged to have been caused directly by Singh’s sexual misconduct while operating the vehicle … . It is not sufficient to merely allege that the infant plaintiff would not have used the Lyft app but for Lyft’s alleged misrepresentations regarding safety … . Browne v Lyft, Inc., 2023 NY Slip Op 04102, Second Dept 8-2-23

Practice Point: In a complaint alleging the employer is vicariously liable for the acts of its employee, unless it is alleged the employee was acting within the scope of employment the cause of action will be dismissed. Here the alleged sexual assault by defendant Lyft driver was not alleged to be within the scope of the driver’s employment.

Practice Point: Here the plaintiff alleged she was sexually assaulted by defendant Lyft driver. The fraud cause of action alleged the assertions on Lyft’s website that the service was safe and the drivers were screened were false. That was not enough to state a cause of action for fraud.

 

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DEFENDANTS’ EXPERTS’ CLAIMS THAT DEFENDANTS PROVIDED PROPER CARE AND ADVICE IN THIS MEDICAL MALPRACTICE ACTION WERE BELIED BY THE MEDICAL RECORDS AS EXPLAINED BY PLAINTIFF’S EXPERTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s experts in this medical malpractice action raised questions of fact about the negligence of each defendant. The decision is fact-specific and far too detailed to fairly summarize, but it provides insight into when expert affidavits are deemed sufficiently substantive to raise questions of fact:

… [W]hen viewed in a light most favorable to plaintiff, we find that the record raises several questions of fact as to whether each defendant satisfied the standard of care applicable to him or it … . Despite that each defendant and their respective experts opined that decedent was not presenting with the signs or symptoms of a stroke, this is belied by the medical record, which establishes that decedent was experiencing a stroke and/or vertebral artery dissection during the relevant time period that they treated decedent and presented with the “classic” symptoms associated with a stroke. At a minimum, these differing opinions create a question of fact, which plaintiff’s experts highlighted in so far that each defendant deviated from the standard of care by failing to refer decedent to a specialist or neurologist … . McCarthy v Town of Massena, N.Y. (Massena Mem. Hosp.)2023 NY Slip Op 03959, Third Dept 7-27-23

Practice Point: Here the medical records as explained by plaintiff’s experts raised questions of fact about whether plaintiff’s decedent was exhibiting symptoms of a stroke at the time defendants treated him, a diagnosis defendants allegedly failed to make.

 

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