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IN A SIDEWALK SLIP AND FALL CASE AGAINST A MUNICIPALITY, VERBAL NOTICE OF THE DEFECT, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sidewalk slip and fall case, determined the defendant city demonstrated it did not have written notice of the sidewalk defect and rejected the allegation that the city had verbal notice that may have been reduced to writing:

… [P]laintiff and the cross-claim defendants never contested the City’s “proof that it had not received prior written notice of the defect, asserting, instead, that such notice was unnecessary” because the City had actual notice … . However, “it is well settled that verbal or telephonic communications to a municipal body, even if reduced to writing, do not satisfy a prior written notice requirement” … . Runge v City of N. Tonawanda, 2023 NY Slip Op 03123, Fourth Dept 6-9-23

Practice Point: In a sidewalk slip and fall case against a municipality, verbal notice of the defect, even if reduced to writing, does not satisfy the written notice requirement.

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN THIS EMERGENCY-VEHICLE TRAFFIC ACCIDENT CASE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others in this emergency-vehicle traffic accident case. Defendant police officer was responding to a call concerning a burglar alarm and was driving without emergency lights at 70 mph on a sparsely populated rural two-lane road with a 55 mph speed-limit when plaintiff attempted a left turn and the collision occurred:

… [D]fendant submitted the deposition testimony of plaintiff, who testified that as plaintiff approached the intersection from the two-lane, hilly, wet road, he did not see any other vehicles when he activated his left turn signal. Plaintiff testified that he began his left turn and was already in the process thereof when he first noticed defendant’s vehicle approaching his vehicle. Contrary to the dissent’s position, plaintiff maintains that defendant failed to yield to plaintiff’s right-of-way and did not concede the issue. Plaintiff further testified that defendant’s vehicle was coming toward his vehicle at a “high rate of speed” and did not have on any headlights, siren or flashing lights. While there was evidence that defendant attempted to brake before colliding with plaintiff’s vehicle, there was undisputed evidence that defendant’s vehicle was traveling 70 miles per hour in a 55 mile per hour zone just prior to the collision and that defendant was still traveling 47 miles per hour at the time of impact with plaintiff’s vehicle. Defendant submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a “possible burglar alarm.” Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to “an alarm” at an address. 

From the dissent:

… [T]he evidence submitted by defendant established that he was traveling no more than 70 miles per hour when responding to the emergency, and that the posted speed limit in the area is 55 miles per hour. Data retrieved from the “black box” in the police vehicle showed that defendant started slowing down five seconds before the collision, decreasing his speed to 47 miles per hour by the time of impact. It is well settled that speeding by a police officer while operating an emergency vehicle during an emergency operation “certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)” … and the record here reveals no other conduct allegedly engaged in by defendant that made it ” ‘highly probable that harm would follow’ ” … . Gernatt v Gregoire, 2023 NY Slip Op 03094, Fourth Dept 6-9-23

Practice Point: Even though plaintiff was convicted of failing to yield the right-of-way, the majority held there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others. The officer was driving 70 mph on a sparsely populated rural road with a 55 mph speed limit, without emergency lights, when plaintiff attempted a left turn. The two-justice dissent argued the officer’s speeding was not enough to raise a question of fact.

 

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DEFENDANT PHYSICIAN’S AFFIDAVIT DID NOT PROVE PLAINTIFF’S DECEDENT WAS INFORMED OF THE PRESENCE OF A FOREIGN BODY IN HIS PELVIS; THE AFFIDAVIT RELIED ON INSUFFICIENT EVIDENCE OF THE DEFENDANT’S CUSTOM OR HABIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s decedent’s primary care physician (PCP) did not prove whether or when the decedent was informed of the foreign object (a sponge) which was left in decedent’s pelvis after surgery. The PCP’s affidavit relied on custom or habit evidence, which was not sufficient. Therefore defendants did not prove whether or when decedent was informed of the foreign object. The complaint should not have been dismissed as time-barred:

“[E]vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again” … . “The applicability of this doctrine is limited to cases where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances . . . as opposed to conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” … .

In order to establish the admissibility of the PCP’s habit evidence, defendants were required to establish that the PCP engaged in a routine practice of informing patients of the results of their diagnostic procedures and that his practice did not vary from patient to patient … . We conclude that defendants failed to do so. The affidavit of decedent’s PCP, submitted in support of the motions, explicitly concedes that the manner in which he informs patients of the results of diagnostic procedures varies. * * *

Inasmuch as defendants failed to establish that decedent was or should have been aware of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied … . Baker v Eastern Niagara Hosp., Inc., 2023 NY Slip Op 03090, Fourth Dept 6-9-23

Practice Point: The evidence of defendant physician’s custom or habit of informing patients of the presence of a foreign object was insufficient. Therefore this medical malpractice action should not have been dismissed as time-barred. Defendant did not prove whether or when decedent was informed of the foreign object.

 

THE DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE THE FLOWER POT OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE CIRCUMSTANCES OF THE ACCIDENT RAISED A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate the flower pot over which plaintiff tripped was open and obvious and not inherently dangerous:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell over a white flowerpot located next to a white column on the landing of premises owned by the defendant. At her deposition, the plaintiff testified that, on the day at issue, she was standing on the landing outside the defendant’s front door speaking with the defendant, who was standing in the doorway. The plaintiff testified that when the defendant moved the outer screen door toward her, she stepped back into the object, lost her balance, and fell from the landing. …

… “[W]hether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . Therefore, “[w]hether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury” … .

… [T]he defendant failed to establish … the alleged condition was open and obvious and not inherently dangerous under the circumstances surrounding the accident … . Evans v Fields, 2023 NY Slip Op 03000, Second Dept 6-7-23

Practice Point: When defendant property owner opened the screen door, plaintiff stepped back, tripped on a flower pot and fell down the stairs. Under the circumstances, there is a question of fact whether the flower pot was open and obvious and not inherently dangerous.

 

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THE CITY ISSUED TREE PIT PERMITS FOR THE SIDEWALK ABOVE A SUBWAY STATION; PLAINTIFF WAS INJURED IN THE SUBWAY STATION BELOW THE SIDEWALK WHEN A PIECE OF CONCRETE FELL; THE CITY DID NOT CLAIM IT DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK DEFECT; THERE WAS A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION (TREE PIT PERMITS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined there was a question of fact whether the city created the dangerous condition on a sidewalk which resulted in a piece of concrete falling on plaintiff in the subway station below. Although the city can escape liability if it did not have written notice of the sidewalk defect, the city did not claim a lack of notice. Because the city issued permits for tree pits above the subway, there was a question of fact whether the city created the dangerous condition (as opposed to having written notice of it):

Generally, assuming that the alleged dangerous condition falls within the scope of Administrative Code § 7-201(c)(2), under the framework set forth in Smith v City of New York [210 AD3d 53] , the City would have the initial burden to show that it lacked prior written notice. Here, however, the City does not argue on appeal that it lacked prior written notice of the alleged defect. Therefore, we do not address this issue. Because the burden did not shift to the plaintiff to demonstrate the applicability of an exception to the prior written notice defense … , we consider instead whether the City made a prima facie showing that, contrary to the allegations in the complaint, it did not cause or create the alleged dangerous condition.

Here, the City failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against it … . As the Supreme Court noted, the City annexed to its motion papers street opening permits for “tree pits” along Metropolitan Avenue between Union Avenue and Lorimer Street … . Neither in its initial moving papers nor in its reply papers … did the City submit evidence that the construction company’s preparation of tree pits above the subway station did not cause or create the defective condition which allegedly caused the injured plaintiff’s accident. Morejon v New York City Tr. Auth., 2023 NY Slip Op 03007, Second Dept 6-7-23

Practice Permit. Here the city did not claim it didn’t have written notice of a sidewalk defect which allegedly caused a piece of concrete to fall on plaintiff in the subway station below. Because the city issued tree pit permits for the sidewalk, there was a question of fact whether the city created the dangerous condition.

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; BUT DEFENDANTS’ COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on liability in this intersection traffic accident case, but defendant’s comparative-negligence affirmative defense should not have been dismissed:

… [T]he plaintiff established prima facie entitlement to judgment as a matter of law by demonstrating that [defendant] Giunta entered the intersection without yielding the right-of-way to the plaintiff’s vehicle, and that such negligence was a proximate cause of the accident (see Vehicle and Traffic Law § 1142[a] …). … [P]laintiff testified … that his vehicle had been traveling for about six blocks before approaching the subject intersection; that he was operating his vehicle at or below the speed limit of 25 miles per hour as he approached the intersection; that he saw the defendants’ vehicle “speeding” while moving from left to right; and that he had only one second to react before the impact … .

In opposition, the defendants failed to raise a triable issue of fact … .

… Giunta averred that he stopped at the stop sign and proceeded at 10 miles per hour through the intersection. Giunta further averred that after the front of his vehicle had passed through the intersection, the plaintiff’s vehicle struck the right rear quarter panel of his vehicle with such “tremendous force” that it caused his vehicle to spin around and roll over on its roof and then back onto its wheels. Under these circumstances, the defendants raised triable issues of fact, including whether the plaintiff exercised reasonable care in approaching the intersection and whether the plaintiff could have avoided the collision … . Ki Hong Park v Giunta, 2023 NY Slip Op 03004, Second Dept 6-7-23

Practice Point: Plaintiff’s comparative negligence is not a bar to summary judgment in a traffic accident case. But defendant can still raise a comparative-negligence affirmative defense which can survive plaintiff’s successful summary judgment motion.

 

THERE WERE TWO STEPS LEADING TO A LANDING AT DEFENDANT’S FRONT DOOR; PLAINTIFF ALLEGED THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff raised a question of fact whether the absence of a handrail where two steps led to an elevated landing at defendant’s front door was a proximate cause of her fall. Plaintiff alleged there was nothing to grab onto as she fell. Supreme Court had dismissed the complaint on the ground plaintiff did not know the cause of her fall:

The defendant failed to establish her prima facie entitlement to judgment as a matter of law dismissing the complaint … . The defendant’s submissions in support of her motion included, inter alia, a transcript of the plaintiff’s deposition testimony, which revealed the existence of a triable issue of fact. In particular, the plaintiff testified, among other things, that she “was looking for something to grab onto” as she fell but found nothing. “Even if the plaintiff’s fall was precipitated by a misstep,” her testimony that she looked for something to grab onto to stop her fall presented “an issue of fact as to whether the absence of a handrail was a proximate cause of her injury” … . Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the opposing papers … . Jean-Charles v Carey, 2023 NY Slip Op 03003, Second Dept 6-7-23

Practice Point: Here plaintiff alleged there was nothing to grab onto as she fell from a landing at defendant’s front door, which raised a question of fact whether the absence of a handrail was a proximate cause of her fall. There were only two steps leading to the landing.

 

​DEFENDANT DAWSON FELL ON PLAINTIFF DURING A DANCE HOSTED BY DEFENDANT NON-PROFIT, LENOX HILL; PLAINTIFF SUED LENOX HILL ALLEGING NEGLIGENT SUPERVISION OF THE DANCE; LENOX HILL DID NOT OWE A DUTY OF CARE TO PLAINTIFF AND DID NOT PROXIMATELY CAUSE PLAINTIFF’S INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was unable to show defendant non-profit (Lenox Hill), which hosted a dance for its members, owed her a duty of care to her or proximately caused her injury. Both plaintiff and defendant, Dawson, were members of defendant Lenox Hill. Lenox Hill hosted a dance. During the dance Dawson fell on plaintiff, breaking her ankle. Plaintiff sued Lenox Hill alleging negligent supervision:

In general, a party does not have “a duty to control the conduct of third persons to prevent them from causing injury to others … . A duty can only be found where there exists a special relationship between the defendant and the plaintiff requiring the defendant to protect the plaintiff from the third party, or a special relationship “between defendant and [the] third [party] person whose actions expose[d] plaintiff to harm,” which “would require the defendant to attempt to control the third person’s conduct” … .

… [P]laintiff failed to plead that she had a special relationship to defendant requiring it to protect her … . * * *

Plaintiff also failed to establish proximate cause. To establish proximate cause, “a plaintiff must show that the defendant’s negligence was a substantial cause of the events which produced the injury” … . In the context of the intervention of a third-party between defendant’s conduct and plaintiff’s injury, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” … .

Here, Lenox Hill established that Dawson’s fall was not foreseeable. The record supports that Lenox Hill was not on notice of any similar incidents. Bindler v Lenox Hill Neighborhood House, Inc., 2023 NY Slip Op 02966, First Dept 6-6-23

Practice Point: Generally a party does not have a duty to control the conduct of third persons. Therefore the defendant nonprofit which hosted the dance where plaintiff was injured when another dancer fell on her did not owe plaintiff a duty of care and did not proximately cause her injury.

 

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PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to an in camera review her assailant’s (Downing’s) medical records to discovery of any non-privileged references to his aggressive behavior. Plaintiff was a nurse assigned to work in defendant’s hospital when she was assaulted by defendant patient:

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged (…see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

Here, the plaintiff seeks information as to any prior aggressive or violent acts by Downing. Information of a nonmedical nature regarding prior aggressive or violent acts is not privileged … . Accordingly, we remit the matter to the Supreme Court, Queens County, for an in camera review of the subject hospital records, to determine which records contain nonprivileged information that is subject to disclosure, and thereafter disclosure of such records … . Gooden v New York City Health & Hosps. Corp., 2023 NY Slip Op 02867, Second Dept 5-31-23

Practice Point: Here a nurse injured by a hospital patient was entitled to any non-privileged information about the patient’s aggressive behavior in the patient’s medical records. An in camera review of the records was ordered.

 

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IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated when the alleged sexual assault occurred in this Child Victims Act action:

“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” … . A failure to comply with the requirements set forth in section 11(b) is a jurisdictional defect that requires dismissal of the claim … . “[A] sufficiently detailed description of the particulars of the claim” is necessary because “[t]he purpose of the section 11(b) pleading requirements is . . . to enable the State to investigate and promptly ascertain the existence and extent of its liability” … . “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” … . However, “‘[a]bsolute exactness is not required,'” so long as the particulars of the claim are detailed in a manner sufficient to permit investigation … . * * * The Court of Claims erred in directing dismissal of so much of the claim as relates to the alleged sexual assault perpetrated by Hector. The claimant alleged, inter alia, that she was admitted to RPC in 1969 when she was 10 years old, and that Hector assaulted her in the auditorium in the first year of her admission. Contrary to the State’s argument, the claimant was not required to allege the exact dates on which the sexual abuse occurred …”. Wimbush-Burkett v State of New York, 2023 NY Slip Op 02804, Second Dept 5-24-23

Practice Point: Here in this Child Victims Act action, the claim sufficiently alleged the time of the sexual assault. The criteria for a sufficient claim under Court of Claims Act section 11(b) are laid out.

 

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