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DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN ALLOWED TO AMEND HIS ANSWER TO ASSERT A GRAVES AMENDMENT AFFIRMATIVE DEFENSE (AVAILABLE TO THE LESSOR OF A VEHICLE); PLAINTIFF WAS NOT PREJUDICED BY THE LATENESS OF THE MOTION (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant’s (Lubman;s) motion to amend his answer in this traffic accident case should have been granted. The lateness of the motion to amend did not cause sufficient prejudice to plaintiff to justify denial:

… [T]he court … improperly determined that the Graves Amendment is inapplicable here. Although Lubman did not clearly establish that he was a commercial lessor of motor vehicles … , he proffered sufficient evidence to create a question of fact as to the Graves Amendment’s applicability. He submitted evidence that he owned between four and seven cars that he rented fifty-nine times over a nine-month period through Turo, a peer-to-peer car sharing service. This volume of rental activity, which involved several vehicles, demonstrated more than a casual or occasional endeavor. The fact that Lubman operated under his own name rather than a corporate entity was not determinative. The Graves Amendment defines “owner” as “a person,” which it defines, in part, as “any individual” as well as a “corporation, company . . . or any other entity” … . Thus, by its own terms, the Graves Amendment is intended to cover both individuals and corporate entities.

Supreme Court should have granted Lubman’s motion for leave to amend his answer to assert a Graves Amendment affirmative defense. Lubman demonstrated that his proposed amended answer was not palpably insufficient or clearly devoid of merit …  Although plaintiff … claimed that they would be prejudiced by the amendment because Lubman waited ten months after his deposition before seeking leave to amend his answer, such delay was not significant prejudice that hindered their case preparation or prevented them from acting in support of their position … , as the note of issue had not yet been filed and Lubman could have been deposed further on the limited issue of the Graves Amendment affirmative defense. Ventura v Lubman, 2023 NY Slip Op 03444, First Dept 6-27-23

Practice Point: Although the motion to amend the answer was made 10 months after depositions, the note of issue had not been filed and defendant could be deposed further. The delay therefore did not prejudice plaintiff sufficiently to warrant denial of the motion.

Practice Point: The Graves Amendment limits the liability of a lessor of a vehicle involved in an accident to negligent maintenance or repair. The affirmative defense is available to individuals as well as business entities.

 

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PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY HOUSING AUTHORITY’S (NYCHA’S) APARTMENT COMPLEX; THE NOTICE OF CLAIM ALLEGED THE LACK OF LIGHTING CONSTITUTED NEGLIGENT SECURITY; THE ADDITIONAL ALLEGATIONS OF SECURITY-RELATED NEGLIGENCE IN THE BILL OF PARTICULARS SHOULD HAVE BEEN STRUCK (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined certain allegations of negligence in the bill of particulars should have been struck because the notice of claim did not provide notice of them. The appellate division interpreted the notice of claim to allege that the lack of security at defendant’s apartment complex stemmed from inadequate lighting. Plaintiff’s decedent was shot and killed in an area which, allegedly, was completely dark. The additional claims of negligence in the bill of particulars were struck:

… [T]he crux of the notice of claim is that [defendant] NYCHA was negligent in failing to provide adequate security by failing to provide adequate lighting at the location where the decedent was shot and killed … .

… [T]he notice of claim did not directly or indirectly reference those allegations raised in … the bill of particulars that concern NYCHA’s failure to protect tenants from criminal activities and criminal intrusions, NYCHA’s failure to remove alleged known criminals from its premises in violation of its Permanent Exclusion Policy and Real Property Law § 231(2), NYCHA’s failure to install CCTV cameras, and the alleged sale of drugs on NYCHA premises. These allegations go beyond mere amplification of the inadequate lighting allegation and are instead new, distinct, and independent theories of liability that cannot be corrected pursuant to General Municipal Law § 50-e(6) … .Mosley v City of New York, 2023 NY Slip Op 03345, Second Dept 6-21-23

Practice Point: The General Municipal Law section 50-e(6) allows mistakes or omissions from a notice of claim to be overlooked where the defendant is not prejudiced. Here the appellate division interpreted the notice of claim to allege the defendant housing authority’s only negligence was the failure to provide adequate lighting in the area where plaintiff’s decedent was shot. Therefore the additional allegations of negligent security in the bill of particulars (“failure to protect tenants from criminal activities and criminal intrusions, NYCHA’s failure to remove alleged known criminals from its premises in violation of its Permanent Exclusion Policy and Real Property Law § 231(2), NYCHA’s failure to install CCTV cameras, and the alleged sale of drugs on NYCHA premises“) should have been struck.

 

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APPELLANT PHYSICIAN’S ASSISTANT HAD LEFT DEFENDANT-PRACTICE AT THE TIME THE MEDICAL MALPRACTICE ACTION WAS BROUGHT AGAINST THE PRACTICE; THE PLAINTIFFS DID NOT DEMONSTRATE APPELLANT HAD TIMELY NOTICE OF THE SUIT; THEREFORE THE RELATION-BACK DOCTRINE DID NOT SUPPORT THE MOTION TO ADD THE APPELLANT AS A DEFENDANT AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to add appellant, a physician’s assistant, to this medical malpractice action should not have been granted. The statute of limitations has run and the relation-back theory was not supported by evidence appellant had timely notice of the suit. Appellant had stopped working for defendant practice at the time the suit was commenced:

“In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiffs must establish that (1) both claims arose out of [the] same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he [or she] will not be prejudiced in maintaining his [or her] defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiffs as to the identity of the proper parties, the action would have been brought against him [or her] as well” … . “The linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

Here, the plaintiffs failed to meet their burden as to the third prong of the relation-back doctrine. The record establishes that the appellant was no longer working for the practice at the time of the commencement of the action, and there is no evidence that she had actual or constructive knowledge within the limitations period of the commencement of the action … . Dixon v Jones, 2023 NY Slip Op 03336, Second Dept 6-21-23

Practice Point: To add a defendant to a complaint after the statute of limitations has run under the relation-back doctrine, plaintiff must demonstrate the party to be added had timely notice of the suit, not the case here.

 

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THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S SLIP AND FALL AND PLAINTIFF TESTIFIED SHE NOTICED THE FLOOR WAS WET AND SMELLED OF CLEANING FLUID AFTER SHE FELL; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT BUILDING OWNER CREATED THE DANGEROUS CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant property owner created the dangerous condition which caused plaintiff’s slip and fall. The area had been mopped with a soap-like substance an hour before the fall and plaintiff testified she noticed the floor was wet and smelled of cleaning fluid after she fell:

… [D]efendant relied upon the deposition testimony of the plaintiff and of the defendant’s maintenance employee who was in charge of mopping the lobby. Their testimony demonstrated that the lobby area where the plaintiff fell had been mopped with a soap-like substance sometime during the hour preceding the plaintiff’s fall and that, after she fell, the plaintiff noticed that the floor was wet and smelled like a cleaning liquid. Given this evidence, the defendant failed to eliminate all triable issues of fact as to whether it created the condition that caused the plaintiff to fall … . Contrary to the defendant’s contention, its submissions failed to establish that the wet or oily condition of the floor was readily observable by a reasonable use of the plaintiff’s senses prior to her fall … . Buestan v Tiff Real Prop., Inc., 2023 NY Slip Op 03220, Second Dept 6-14-23

Practice Point: Evidence that the area of the slip and fall was mopped with soap an hour before plaintiff’s slip and fall and that plaintiff noticed the floor was wet and smelled of soap after her fall raised a question of fact whether the property owner created the dangerous condition which caused the fall.

 

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AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion for summary judgment based upon the res ipsa loquitur theory of liability should have been granted. Plaintiffs’ car was inspected by defendant car dealership and the tires (wheels?) were removed and reattached. When plaintiff Kathleen Becchetti drove the car from the dealership one of the tires (wheels?) detached causing an accident:

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” … . The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause … . The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect … . Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence … .

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence … . Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence … and that the plaintiffs did not contribute to the event … . …

… [S]ince this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” … , the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability. Bicchetti v Atlantic Toyota, 2023 NY Slip Op 03219, Second Dept 6-14-23

Practice Point: Here a wheel fell off plaintiffs’ car after the car was serviced, causing an accident. Although the car was not in the exclusive control of the dealership when the wheel fell off, the negligence occurred when the dealership had exclusive control. This was deemed a rare case warranting summary judgment.

 

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DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT SCOLIOSIS COULD NOT HAVE BEEN DIAGNOSED UNTIL A YEAR AFTER PLAINTIFF LEFT DEFENDANT’S CARE; PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS THAT ISSUE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant pediatric practice in this medical malpractice action was entitled to summary judgment. Plaintiff alleged the failure to diagnose scoliosis. Defendant submitted evidence that adolescent scoliosis could not have been diagnosed until a year after plaintiff left defendant’s care. Plaintiff’s expert’s affidavit did not address that issue:

… S.V. [defendant pediatric practice] established its prima facie entitlement to judgment as a matter of law by submitting, among other things, an affirmation of a physician board certified in orthopedic surgery. The expert opined that the care and treatment rendered by S.V.’s employees did not deviate from accepted medical practice, and that the injured plaintiff’s adolescent idiopathic scoliosis condition could not have been diagnosed until he reached adolescence, which did not occur for at least one year after he left S.V.’s care, during which time the injured plaintiff tested negative for the condition … . In opposition, the evidence submitted by the plaintiffs, including an affirmation of a physician, failed to raise a triable issue of fact. The plaintiffs’ expert failed to address the specific assertion of S.V.’s expert that the injured plaintiff did not develop adolescent idiopathic scoliosis until after he left S.V.’s care, and was otherwise speculative, conclusory, and unsupported by the record … . Lagatta v Rivera, 2023 NY Slip Op 03227, Second Dept 6-14-23

Practice Point: In this medical malpractice action, plaintiff’s expert did not address defendant’s expert’s prima facie proof on a dispositive issue. In that circumstance, defendant is entitled to summary judgment.

 

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CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION; DEFENDANT, IN ITS MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON PROXIMATE CAUSE; THEREFORE PLAINTIFF, IN OPPOSITION, WAS NOT REQUIRED TO RAISE A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Plaintiff’s decedent was diagnosed with a degenerative spine but died hours later of a heart attack:

To prevail on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing either that there was no departure from accepted community standards of practice or that any alleged departure was not a proximate cause of the plaintiff’s injuries … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … . “Once a defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact’ as to the elements on which the defendant met the prima facie burden” … . “‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions'” … . * * *

… [T]he plaintiff raised triable issues of fact by submitting the affirmation of an expert who opined, based upon his review of, inter alia, the decedent’s medical records, among other things, that the decedent exhibited symptoms consistent with a myocardial infarction when he presented to the hospital emergency department, as well as a large scar from a prior cardiac surgery, and that the defendants departed from the accepted standard of medical care by failing to perform a cardiac workup on the decedent at that time … . Contrary to the defendants’ contention, the opinions of the plaintiff’s expert were not vague or conclusory … . Moreover, the plaintiff was not required to raise a triable issue of fact as to the element of proximate cause, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to that element … . Kielb v Bascara, 2023 NY Slip Op 03226, Second Dept 6-14-23

Practice Point: In opposition to a defense motion for summary judgment in a medical malpractice action, plaintiff need not address issues on which defendant did not make out a prima facie case. Here defendant did not make out a prima facie case on the issue of proximate cause and plaintiff, therefore, did not need to address that issue in opposition.

Similar issues and result in Lopresti v Alzoobaee, 2023 NY Slip Op 03228, Second Dept 6-14-23 (failure to diagnose testicular cancer; inadequate attempt to address proximate cause by submitting an expert affidavit with reply papers).

 

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DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON BLACK ICE WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate it did not have constructive notice of the black ice in the parking lot where plaintiff slipped and fell. Defendant did not submit evidence of when the area was last cleaned or inspected:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Accordingly, a property owner seeking summary judgment in a slip-and-fall case “has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition. The defendant provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall, and there are triable issues of fact as to whether the alleged ice condition had existed for a sufficient length of time before the accident such that the defendant could have discovered and corrected it … . Edwards v Genting N.Y., LLC, 2023 NY Slip Op 03223, Second Dept 6-14-23

Practice Point: To demonstrate a lack of constructive notice of a dangerous condition in a slip and fall case, a property owner must submit proof the area was inspected or cleaned close in time to the fall.

 

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THE FLOOR IN THE BATHROOM WHERE PLAINTIFF SLIPPED AND FELL HAD RECENTLY BEEN MOPPED; THE DEFENDANT GROCERY STORE DID NOT PROVE THERE WAS AN ADEQUATE WARNING; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. The bathroom floor where plaintiff fell had been mopped recently. There were questions of fact whether there was an adequate warning about the condition of the floor:

The evidence submitted by the defendants in support of the motion raised triable issues of fact as to whether Food Parade provided any warning about a potentially hazardous condition in the bathroom and whether any warning that was provided adequately gave notice that there was a hazardous condition inside the bathroom … . Darginsky v Food Parade, Inc., 2023 NY Slip Op 03222, Second Dept 6-14-23

Practice Point: Here plaintiff slipped and fell on a recently mopped floor. Defendant did not demonstrate there was an adequate warning of the condition. Defendant’s motion for summary judgment should not have been granted.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR NEGLIGENT SUPERVISION OF DEFENDANT INVESTMENT BANK’S EMPLOYEE WHO ALLEGEDLY DEFRAUDED PLAINTIFFS OF $25 MILLION TO COVER THE EMPLOYEE’S LOSSES; THE ARGUMENT THAT PLAINTIFFS COULD NOT SUE THE BANK BECAUSE THEY WERE NOT BANK CUSTOMERS WAS REJECTED (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, reversing the appellate division, determined plaintiffs (charitable foundation) stated a cause of action against defendants (investment bank) for negligent supervision of an employee who allegedly defrauded the foundation of $25 million. Plaintiffs were not customers of defendants (investment bank). Rather, plaintiffs were approached by defendants’ employee to invest $25 million, allegedly as part of a fraudulent scheme to cover the employee’s losses. The argument that plaintiffs could not sue because they were not defendants’ customers was rejected by the majority:

… [T]he complaint adequately alleged that defendants were on notice of the employee’s propensity to commit fraud prior to his interactions with plaintiffs and their resulting losses. * * *

When an employer has notice of its employee’s propensity to engage in tortious conduct, yet retains and fails to reasonably supervise such employee, the employer may become liable for injuries thereafter proximately caused by its negligent supervision and retention … . As every Department of the Appellate Division has recognized, a defendant is on notice of an employee’s propensity to engage in tortious conduct when it knows or should know of the employee’s tendency to engage in such conduct … . * * *

… [P]laintiffs were not customers of defendants, as that term is typically understood, but plaintiffs alleged that they were prospective customers who were solicited by [defendants’ employee] to participate in a financing arrangement related to one of defendants’ legitimate business deals, supported by defendants’ genuine documentation and information, which he was given access to by defendants as part of his employment. We hold that these allegations support the existence of a duty on the part of defendants to non-negligently supervise [the employee] for plaintiff’s benefit … . Moore Charitable Found. v PJT Partners, Inc., 2023 NY Slip Op 03185, CtApp 6-13-23

Practice Point: Here the complaint stated a cause of action for negligent supervision against an investment bank based on fraud allegedly committed by a bank employee, even though the plaintiffs were not customers of the bank. The Court of Appeals found a duty to supervise the employee for the plaintiffs’ benefit.

 

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