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IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant City of New York did not demonstrate when the area where plaintiff slipped and fell was last cleaned or inspected. Therefore the city did not demonstrate a lack of constructive notice of the dangerous condition:

… [T]he defendants failed to establish … that they did not have constructive notice of the alleged hazardous snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants in support of their motion did not show when the staircase was last cleaned or inspected in relation to when the subject accident occurred, but rather merely described their general cleaning and inspection practices for the staircase … . Islam v City of New York, 2023 NY Slip Op 03685. Second Dept 7-5-23

Practice Point: Once again an appellate court reiterates that proof of general cleaning or inspection practices does not prove a lack of constructive notice of the condition which caused a slip and fall.

 

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IN THIS INTERSECTION TRAFFIC ACCIDENT CASE, ALTHOUGH THE STATE DEMONSTRATED THE INTERSECTION WAS SAFE WHEN CONSTRUCTED, CLAIMANT RAISED A QUESTION OF FACT WHETHER INCREASED TRAFFIC RENDERED THE INTERSECTION UNSAFE AND WHETHER THE STATE WAS AWARE OF THE DANGER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined claimant’s cause of action alleging the intersection where claimant was injured in a traffic accident was dangerous should not have been dismissed. Although the state demonstrated the intersection was not dangerous when constructed, claimant raised a question of fact whether increased traffic rendered the intersection dangerous and whether the state was aware of the danger:

Under the ordinary rules of negligence, the State “has a nondelegable duty to keep its roads reasonably safe . . . , and the State breaches that duty ‘when [it] is made aware of a dangerous highway condition and does not take action to remedy it’ ” … . The duty includes the “continuing duty to review [a planned intersection] in light of its actual operation” … . Although the State established that its design of the intersection in 1974 was reasonably safe, claimant raised an issue of fact whether the intersection was reasonably safe at the time of the accident in light of the significant increase in traffic at that intersection over the years for drivers turning left onto the I-690 West ramp … . Claimant submitted the affidavit of her expert, who averred that the significant increase in traffic volume warranted the installation of a left-turn-only lane for eastbound drivers turning left onto Collingwood. Indeed, the expert averred that there was insufficient sight distance for eastbound left-turning vehicles because of the continuous line of oncoming traffic. Lilian C. v State of New York, 2023 NY Slip Op 03618, Fourth Dept 6-30-23

Practice Point: Here in this traffic-accident negligent-highway-design case, the state demonstrated the intersection was safe when constructed in 1974. But the claimant’s expert raised a question of fact whether increased traffic rendered the intersection unsafe. Claimant also raised a question of fact whether the state was aware of the danger.

 

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PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined plaintiff, an experienced motocross rider, assumed the risk of injury when using defendant’s motocross track. Plaintiff alleged a pothole where riders landed after a jump was filled with a talcum-powder-like substance which caused him to lose control of the bike. The majority concluded plaintiff was aware of the risk associated with the material used to fill the pothole:

Considering that Fritz [plaintiff] testified that on both jump landings the back end of his bike “kicked up,” that he hit the same pothole and that he had to work to recover the bike, we are satisfied that he was aware of the potential for injury on that jump’s landing … . Fritz v Walden Playboys M.C. Inc., 2023 NY Slip Op 03524, Third Dept 6-29-23

Practice Point: Here plaintiff testified he was aware that some aspect of a jump-landing area of the motocross track caused him to lose control of his bike briefly in a prior practice run but he did not investigate. The majority concluded he therefore assumed the risk associated with a pothole filled with talcum-like powder in the landing area. Plaintiff lost control of the bike in the area of the filled pothole on his second jump.

 

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PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​

The First Department, reversing Supreme Court, determined the application for damages in this personal injury action should not have been denied due to plaintiffs’ counsel’s failure to submit medical records for more than a year after the inquest. Plaintiffs should not be prejudiced by their counsel’s inaction:

Although plaintiffs’ counsel had timely subpoenaed the relevant medical records and those records were apparently delivered to the subpoenaed records room in the courthouse, they were not available at the inquest. Supreme Court therefore reserved decision to give plaintiffs time to submit evidence supporting their damages claim. After a period of more than one year in which plaintiffs’ counsel failed to provide the requested information, Supreme Court issued an order … denying the application for damages on the ground of failure of proof.

Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the underlying default. Although we share the court’s concern regarding the extended delay and the inattentiveness of plaintiffs’ former counsel, counsel’s neglect in pursuing his clients’ action should not be permitted to redound to the clients’ detriment … . Counsel did not deny that he failed to respond to communications from the court, but explained that the delays were due to a problem in his firm’s case management system, which did not provide reminders … . These circumstances present a type of law office failure for which the clients should not be penalized , particularly in light of the strong public policy preference for deciding cases on the merits … . In addition, defendants defaulted and therefore will not be prejudiced … . Rosario v General Behr Corp., 2023 NY Slip Op 03560, Second Dept 6-28-23

Practice Point: Here the attorney’s failure to submit medical records requested by the judge after an inquest was not the type of law office failure for which plaintiffs should be penalized. The judge should not have dismissed the application for damages based on counsel’s neglect.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT CASE SUFFICIENTLY ALLEGED CLAIMANT’S INJURY, DEFENDANT’S FAILURE TO PROTECT CLAIMANT WHILE IN FOSTER CARE AND THE TIME THE CLAIM AROSE (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the Notice of Claim in this Child Victims Act proceeding sufficiently described claimant’s injury, the state’s failure to protect claimant while in foster care, and the time when the claim arose:

… [T]he claim sufficiently provided the defendant with a description of the manner in which the claimant was injured, and how the defendant was negligent in allegedly failing to protect the claimant from sexual abuse while a resident in a state-certified foster care facility. The claimant is not required to set forth the evidentiary facts underlying the allegations of negligence in order to satisfy the section 11(b) “nature of the claim” requirement … . As the claim is sufficiently detailed to allow the defendant to investigate and ascertain its liability, it satisfies the nature of the claim requirement of Court of Claims Act § 11(b)… .

… The claim alleges that the claimant was sexually abused repeatedly in 1992 and 1993, on numerous and regular occasions, including conduct taking place in his room three to four times a week. This Court has stated recently in the context of the CVA, that “[w]e recognize that in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … . Thus a claimant commencing a claim pursuant to the CVA is not required to allege the exact date on which the sexual abuse occurred … . As the claim here sufficiently alleges the time when the abuse occurred, the Court of Claims properly declined to dismiss the claim on that ground … . Davila v State of New York, 2023 NY Slip Op 03451, Second Dept 6-28-23

Practice Point: In this Child Victims Act case against the state alleging the failure to protect claimant in foster care, the Notice of Claim sufficiently alleged the injury, defendant’s negligence and the time the claim arose.

 

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PLAINTIFF STATED A CLAIM FOR LEGAL MALPRACTICE BASED UPON THE ATTORNEYS’ ALLEGEDLY UNREASONABLE DELAYS IN PROSECUTING AN ACTION AGAINST A CONTRACTOR, RESULTING IN THE INABILITY TO COLLECT THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging legal malpractice should not have been dismissed. Plaintiff alleged the attorneys’ delays in prosecuting the action against a contractor resulted in plaintiff’s inability to collect a judgment against the contractor. By the time the judgment was acquired, the contractor had sold its assets and moved out of the country:

… [A]ccepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor … . Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory … . Ofman v Tenenbaum Berger & Shivers, LLP, 2023 NY Slip Op 03471, Second Dept 6-28-23

Practice Point: Here the complaint stated a legal malpractice claim based upon the attorneys’ alleged unreasonable delays in prosecuting an action against a contractor, resulting in the inability to collect the judgment. The contractor sold its assets and moved out of the country.

 

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A PARTY INJURED IN A HIT AND RUN TRAFFIC ACCIDENT CANNOT SUE THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) IF THE PARTY WAS OPERATING AN UNINSURED MOTOR VEHICLE AT THE TIME OF THE ACCIDENT; HERE THE ELECTRIC BIKE PETITIONER WAS OPERATING WAS DEEMED AN UNINSURED MOTOR VEHICLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was not entitled to sue the Motor Vehicle Accident Indemnification Corporation (MVAIC) for injuries suffered in a hit and run accident because the electric bike petitioner was operating was deemed to be an uninsured motor vehicle:

… [T]he petitioner testified, among other things, that the “electric bike” he was operating at the time of the accident was not equipped with pedals, was powered by an electric battery that must be charged in order for the vehicle to operate, and was “probably” capable of reaching a speed of approximately 30 miles per hour. …

A court may make an order permitting a person injured in a hit-and-run collision to commence an action against MVAIC to recover damages if the court is satisfied that, among other things, “the injured . . . person was not at the time of the accident operating an uninsured motor vehicle” (Insurance Law § 5218[b][3] …). “Uninsured motor vehicle” for purposes of the MVAIC Act is defined by reference to the definition of “motor vehicle” set forth in Vehicle and Traffic Law § 125 (see Insurance Law § 5202[a], [c], [d]). “Motor vehicle” is defined by Vehicle and Traffic Law § 125 as “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” with certain enumerated exceptions.

… MVAIC established as a matter of law that the electric-powered vehicle operated by the petitioner at the time of the accident was an uninsured motor vehicle … . Matter of Jackson v Motor Veh. Acc. Indem. Corp., 2023 NY Slip Op 03464, Second Dept 6-28-23

Practice Point: A driver injured in a hit and run accident is not entitled to recover from the Motor Vehicle Accident Indemnification Corporation  (MVAIC) if the driver was operating an uninsured motor vehicle at the time of the accident. Here the electric bike the injured driver was operating was deemed an uninsured motor vehicle.

 

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BEFORE SUING A TORTFEASOR’S INSURER, PLAINTIFF MUST OBTAIN A JUDGMENT AGAINST THE TORTFEASOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer’s motion to dismiss the complaint in this personal injury action should have been granted. The injured plaintiff sued the tortfeasor’s insurer before obtaining a judgment against the tortfeasor (the insured):

Insurance Law § 3420 “grants an injured party a right to sue the tortfeasor’s insurer, but only under limited circumstances—the injured party must first obtain a judgment against the tortfeasor, serve the insurance company with a copy of the judgment and await payment for 30 days” … . Here, the defendants established, prima facie, that the plaintiff lacked standing to commence this action by submitting the complaint, which alleged that the underlying action against [the tortfeasor] “is currently pending.” The complaint is evidence that the plaintiff has not established the condition precedent to maintain a direct action against the defendants (see Insurance Law § 3420[a][2] …). Sizova v Union Mut. Fire Ins. Co., 2023 NY Slip Op 03502, Second Dept 6-28-23

Practice Point: A plaintiff must obtain a judgment against the tortfeasor before the tortfeasor’s insurer can be sued.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, THE DEFENDANT PROPERTY OWNERS HAD DIED AT THE TIME THE ACTION AGAINST THEM WAS COMMENCED; THAT ACTION WAS A NULLITY; THEREFORE THE MOTION TO AMEND THE COMPLAINT TO SUBSTITUTE THE EXECUTOR SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the sidewalk slip and fall action brought against defendant property owners was a nullity because the property owners had died before the suit was commenced. Because the action was a nullity, the motion to amend the complaint to substitute the executor as a party should not have been granted:

“A party may not commence a legal action or proceeding against a dead person” … . The deaths of Leon Chain and Hanka Chain (hereinafter together the decedents) prior to the commencement of this action rendered the action, insofar as asserted against them, a legal nullity from its inception. The plaintiff was instead required to commence an action against the personal representative of the decedents’ estates … . Moreover, even assuming that Ziv was the duly appointed executor of each of the decedents’ estates, the decedents were never a party to the action since they died before the commencement of the action, and the decedents’ estates could not be brought into the action by substitution or by amendment of the caption (see CPLR 1015[a]; 1021 …). The plaintiff’s attempt to amend the complaint to designate the purported executor of the decedents’ estates as a defendant in the place of the decedents was invalid and ineffective to retroactively render the action properly commenced against the decedents’ estates … . Hussain v Chain, 2023 NY Slip Op 03455, Second Dept 6-28-23

Similar issues and result in a foreclosure action: Waterfall Victoria Master Fund, Ltd. v Estate of Dennis F. Creese, 2023 NY Slip Op 03497, Second Dept 6-28-23

Practice Point: Here the defendants had died at the time the action was commenced. That action was therefore a nullity. The complaint could not be amended to substitute the executor as a party.

 

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SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM, IS NOT SPOLIATION OF EVIDENCE AND DOES NOT WARRANT SANCTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined plaintiff’s surgery, even after a defense request for a pre-surgical physical exam, is not spoliation of evidence and does not trigger sanctions. In this traffic accident case, plaintiff underwent surgery before the action was commenced and again after a defense demand for a pre-surgery medical exam:

… [T]he First Department has recently rejected the proposition that a spoliation analysis can apply in such a situation. In Gilliam v Uni Holdings, LLC (201 AD3d 83), the First Department held “that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis” … . After noting that “[s]poliation analysis has long been applied to a party’s destruction of inanimate evidence,” the First Department concluded that the “state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies” … . * * *

We agree with the First Department’s conclusion in this regard, for the reasons stated in its opinion. It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed” (CPLR 3126). Fadeau v Corona Indus. Corp., 2023 NY Slip Op 03453, Second Dept 6-28-23

Practice Point: Here in this traffic accident case, plaintiff underwent surgery before the action was commenced and again after the defense demand for a pre-surgery physical exam. Joining the First Department, the Second Department held that surgery is not spoliation of evidence and does not trigger sanctions.

 

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