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THE DEFENDANTS’ FAILURE TO APPEAR AT THE SCHEDULED EXAMINATIONS UNDER OATH BREACHED A CONDITION PRECEDENT FOR INSURANCE COVERAGE ENTITLING THE INSURER TO SUMMARY JUDGMENT ON ITS CAUSE OF ACTION FOR A DECLARATORY JUDGMENT OF NONCOVERAGE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff insurer was entitled to summary judgment for a declaratory judgment of noncoverage because the defendants did not appear at the scheduled Examinations Under Oath (EUOs):

Plaintiff insurer seeks a declaratory judgment of noncoverage based, among other things, on its allegations that defendants Munoz, Cameron, and Santiago (collectively, the claimants) each breached a condition precedent to coverage by failing to appear for properly noticed Examinations Under Oath (EUOs). In support of its motion for a default judgment against the defaulting defendants, plaintiff demonstrated through admissible evidence that the claimants each breached a condition precedent to coverage by failing to appear for properly and timely noticed EUOs … . The documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required … . Contrary to the motion court’s calculation, the 15-day period starts with receipt of the NF-3 forms, not the NF-2 Application for No-Fault Benefits forms … . State Farm Fire & Cas. Co. v Soliman, 2023 NY Slip Op 01949, First Dept 4-13-23

Practice Point: Failure to appear for an Examination Under Oath breaches a condition precedent in the insurance contract, entitling the insurer to a declaratory judgment of noncoverage.

 

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THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE ASSIGNMENT OF THE LEASE; THEREFORE DISMISSAL OF THE COMPLAINT PURSUANT TO THE GRAVES AMENDMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Chase, the defendant – lessor of the car involved in a traffic accident, did not present sufficient evidence of its status as the lessor for purposes of asserting the Graves-Amendment defense. The business records which would have established the lessor-lessee relationship were either illegible or were not submitted:

When evidentiary material is considered on a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the motion should not be granted unless the evidentiary material “conclusively [establishes] that the plaintiff has no cause of action” … .

Pursuant to the Graves Amendment, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of the vehicle if (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner … .

… Chase attempted to establish the fact that it leased the subject vehicle to [defendant] through the business records exception to the hearsay rule (see CPLR 4518[a]). … [E]ven assuming that the … affidavit had established a proper foundation, “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … .. Since Chase failed to submit the purported assignment of the lease agreement, it failed to conclusively establish that … it was shielded by the Graves Amendment. Tello v Upadhyaya, 2023 NY Slip Op 01913, Second Dept 4-12-23

Practice Point: Here the lessor of the car involved in the accident attempted to raise the Graves-Amendment defense but did not submit the business records showing the assignment of the lease. Therefore the affidavit laying a foundation for those records was hearsay and the motion to dismiss should not have been granted.

 

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THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER MADE A LEFT TURN INTO TO THE PATH OF DEFENDANT’S ONCOMING CAR WITHOUT CHECKING FOR ONCOMING TRAFFIC; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this traffic accident case should have been granted. The driver of the car in which plaintiff was a passenger attempted a left turn in front of defendant’s vehicle without checking for oncoming traffic:

On this record, defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that Ryan failed to yield the right-of-way and turned directly into the path of his vehicle … . Thus, the burden shifted to plaintiff to demonstrate a triable issue of fact on the issue of defendant’s comparative fault. Plaintiff failed to do so. Ohl v Smith, 2023 NY Slip Op 01823, Third Dept 4-6-23

Practice Point: The driver of the car in which plaintiff was a passenger made a left turn into the path of defendant’s car without checking for oncoming traffic. There was no evidence of comparative fault on defendant’s part. Defendant’s motion for summary judgment should have been granted.

 

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ALTHOUGH PLAINTIFF SIGNED A RELEASE AND WAIVER OF LIABILITY BEFORE ATTENDING THE DEMOLITION DERBY, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT UNREASONABLY INCREASED THE RISK BY FAILING TO INSTALL SUFFICIENT BARRIERS TO PROTECT SPECTATORS FROM THE VEHICLES IN THE DERBY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff raised a question of fact whether defendant unreasonably increased the risk of injury at a demolition derby by failing to install sufficient barriers to protect the public from injury. Here one of the cars in the derby pushed through the concrete barriers and injured the plaintiff:

The issue … distills to whether plaintiff’s submissions “demonstrate[d] facts from which it could be concluded that defendant unreasonably enhanced the danger or created conditions which were unique or above those inherent in the activity” … . To that end, in his opposition to the motion, plaintiff submitted an affidavit averring that he was not warned that there was a risk that participating vehicles could break through the barricade and strike spectators. Plaintiff also proffered the expert affidavit of Russell E. Darnell, a licensed engineering contractor and certified National Institute of Automotive Service Excellence master technician who holds several racing licenses. … Darnell opined, among other things, that these barriers “were not up to the standard of the industry and are not generally accepted within the demolition derby community which requires sturdy, immovable barricades in a protective ring.” Waite v County of Clinton, N.Y., 2023 NY Slip Op 01831, Third Dept 4-6-23

Practice Point: The assumption-of-the-risk doctrine will not apply if the defendant unreasonably increased the risks associated with the activity. Here plaintiff raised a question fact whether the risk to spectators at a demolition derby was increased by the failure to install sufficient barriers between the spectators and the derby vehicles.

 

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THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT DOES NOT APPLY TO CIVIL RIGHTS CAUSES OF ACTION PURSUANT TO 42 USC 1983; THE DUTY TO REPORT CHILD ABUSE UNDER THE SOCIAL SERVICES LAW APPLIES ONLY TO “PERSONS LEGALLY RESPONSIBLE” FOR THE CARE OF THE CHILD, WHICH DOES NOT INCLUDE TEACHERS (THIRD DEPT).

​The Third Department, in a full-fledged opinion by Justice Aarons, reversing (modifying) Supreme Court, determined the negligence and civil rights causes of action against the school district in this Child Victims Act suit were properly dismissed, and the Social Services Law causes of action should have been dismissed. The complaints alleged sexual abuse by a teacher. The Third Department followed the Fourth Department holding that the extended statute of limitations in the Child Victims Act did not apply to the 42 USC 1983 civil rights causes of action. The Third Department also determined the teacher was not a “person legally responsible” for the plaintiffs such that the abuse-reporting requirement in the Social Services Law applied to the school district:

It is true that CPLR 214-g contains broad language. The statute nonetheless limits the types of causes of action — i.e., claims involving child sexual abuse — that are revived and then given a new limitations period. … 42 USC § 1983 does not create any independent, substantive rights but merely provides a vehicle to enforce such rights … . As the Fourth Department reasoned, to determine whether CPLR 214-g was a related revival statute would require a court to impermissibly consider the particular facts or particular legal theory advanced by a plaintiff in a section 1983 claim (see BL Doe 3 v Female Academy of the Sacred Heart, 199 AD3d at 1422). Accordingly, we decline plaintiffs’ invitation to reject the Fourth Department’s approach as articulated in BL Doe 3 v Female Academy of the Sacred Heart … . * * *

… [C]ertain individuals must report cases of suspected abuse when reasonable cause exists that a child coming before them is an abused child (see Social Services Law § 413). Civil liability may be imposed upon these individuals who knowingly and willfully fail to make the requisite report (see Social Services Law § 420 [2]). … [F]or purposes of Social Services Law § 413, an “abused child” is one who is abused by a “parent or other person legally responsible for [a child’s] care” (Family Ct Act § 1012 [e]; see Social Services Law § 412 [1]).

The School District maintains that plaintiffs’ statutory claim should have been dismissed because Wales [defendant teacher] was not a “person legally responsible” for plaintiffs’ care at the time of the alleged abuse. … [W]hether an individual constitutes a “person legally responsible” for a child within the meaning of Family Ct Act § 1012 (e) entails the examination of various factors … . The Court of Appeals cautioned … that “persons who assume fleeting or temporary care of a child . . . or those persons who provide extended daily care of children in institutional settings, such as teachers,” should not be interpreted as a “person legally responsible” for a child’s care … . … [T]he School District cannot be liable for any alleged failure to report any abuse by Wales … . Dolgas v Wales, 2023 NY Slip Op 01830, Third Dept 4-6-23

Practice Point: Here the school district was sued under the Child Victims Act alleging sexual abuse by a teacher. The civil rights causes of action pursuant to 42 USC 1983 are not subject to the extended statute of limitations in the Child Victims Act and, therefore, those causes of action were properly dismissed.

Practice Point: A teacher is not a “person legally responsible” for the care of a child within the meaning of the Family Court Act. Therefore the causes of action under the Social Services Law alleging the school district failed to report abuse by a teacher should have been dismissed.

 

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ALTHOUGH THE VILLAGE ENGINEER SENT A LETTER TO THE ABUTTING PROPERTY OWNERS REQUIRING REPAIR OF THE SIDEWALK DEFECT WHERE PLAINTIFF SLIPPED AND FELL, THE MAJORITY CONCLUDED PLAINTIFF DID NOT DEMONSTRATE THE VILLAGE HAD WRITTEN NOTICE OF THE DEFECT; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined the village demonstrated it did not have written notice of the sidewalk defect where plaintiff allegedly slipped and fell. The village code requires that the board of trustees be given written notice of the defect in order to hold the village liable. Here there was a letter from the town engineer to the abutting homeowners notifying them of the sidewalk defect and requiring repair within 30 days. The majority held that letter did not meet the written notice requirements in the code, which must be strictly construed. the dissent disagreed:

Where … a municipality has enacted a prior written notice law, neither actual nor constructive notice of a condition satisfies the prior written notice requirement … . Records generated by other agencies of the Village, outside of the strict construction of Code of the Village of Garden City § 132-2, fail to satisfy the requirements of the relevant prior written notice law … .. On this record, the plaintiffs failed to raise a triable issue of fact as to whether any documents to or from other municipal employees found their way to the Village Board of Trustees so as to cognizably qualify as prior written notice under the terms of the Village Code.

Our learned dissenting colleague concludes that the plaintiffs, through the submission of a letter on the Village’s letterhead dated May 11, 2015, from the Village Engineer to the defendant homeowners, raised a triable issue of fact as to whether the Village Board of Trustees had prior written notice of the alleged sidewalk defects. … The letter … states … that a recent inspection of the sidewalk and/or driveway apron adjacent to the defendant homeowners’ property indicated that concrete was in need of repair or replacement. The letter continues, stating that it was necessary to repair or replace a defective sidewalk and/or driveway apron for safety reasons and to reduce the likelihood of lawsuits against the property owners and the Village. For these reasons … the Village Board of Trustees had adopted a resolution … providing that property owners are required to repair or replace defective or damaged sidewalks and/or driveway aprons fronting their property within 30 days of receiving notice of such defects. Strictly construing the terms of the Village’s prior written notice law, as we must … that letter from the Village Engineer to the defendant homeowners does not constitute the giving of prior written notice to the Village Board of Trustees. … . Kolenda v Incorporated Vil. of Garden City, 2023 NY Slip Op 01783, Second Dept 4-5-23

Practice Point: Here the village code required that written notice of a sidewalk defect be provided to the board of trustees. A letter from the village engineer to the abutting homeowners requiring repair of the defect did not meet the code’s written-notice requirements, which must be strictly construed. Therefore the village cannot be held liable for the slip and fall.

 

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PLAINTIFF’S INABILITY TO IDENTIFY THE WET SUBSTANCE ON THE STEP WHERE SHE ALLEGEDLY FELL WAS NOT AN INABILITY TO IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the slip and fall complaint should not have been dismissed because plaintiff did not know what the wet substance on the step was:

… [T]he defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. In support of its motion, the defendant submitted the deposition testimony of the plaintiff, who testified that she slipped and fell on a wet step … . Contrary to the defendant’s contention, the plaintiff’s alleged inability to identify the “precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall” … . Diaz v SCG 502, LLC, 2023 NY Slip Op 01779, Second Dept 4-5-23

Practice Point: Plaintiff alleged she slipped and fell on a wet step. Her inability to identify the wet substance was not an inability to identify the cause of her fall.

 

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THE DEFENDANT RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD LAST BEEN INSPECTED PRIOR TO THE FALL; THEREFORE THE RESTAURANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED WET CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant restaurant (ABB) did not demonstrated when the area where plaintiff slipped and fell had been last inspected prior to the fall. Therefore ABB did not demonstrate it did not have constructive notice of the wet condition:

ABB … failed to demonstrate … that it lacked constructive notice of the alleged dangerous condition. Although ABB’s witness testified that the accident occurred five minutes after the witness had entered the restaurant and observed the floor to be dry, the plaintiff testified that the accident occurred at least one hour later, and ABB did not submit any evidence as to when it last inspected the area prior to the time when the plaintiff asserted the accident occurred … . Carey v Walt Whitman Mall, LLC, 2023 NY Slip Op 01773, Second Dept 4-5-23

Practice Point: To be entitled to summary judgment in a slip and fall case, the defendants must show where the area of the fall was last inspected prior to the fall to demonstrate it did not have constructive notice of the dangerous condition.

 

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ABSENT FRAUD OR COLLUSION, STRICT PRIVITY PRECLUDES THE PROSPECTIVE BENEFICIARIES OF AN ESTATE FROM BRINGING A LEGAL MALPRACTICE ACTION AGAINST THE ATTORNEY WHO PLANNED THE ESTATE; THE ATTORNEY OWED NO DUTY TO THE BENEFICIARIES (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the malpractice action by the prospective beneficiaries of an estate against the attorney who planned the estate should have been dismissed because there was no privity between the beneficiaries and the attorney:

In the context of estate planning malpractice actions, strict privity applies to preclude a third party, such as beneficiaries or prospective beneficiaries like plaintiffs, from asserting a claim against an attorney for professional negligence in the planning of an estate, absent fraud, collusion, malicious acts or other special circumstances … . While plaintiffs argue their claim against defendant attorneys is couched as one for simple negligence, as opposed to legal malpractice, plaintiffs have not pleaded facts to show that defendant attorneys owed plaintiffs a duty of care in the drafting of their client’s will and trust agreement. The strict privity requirement here protects estate planning attorneys against uncertainty and limitless liability in their practice … . Thus, plaintiffs’ negligence claim is unavailing for lack of factual allegations to demonstrate that defendants owed plaintiffs a duty.

Plaintiffs have not pleaded sufficient factual allegations in their amended complaint to indicate that circumstances of fraud, collusion and/or aiding and abetting exist in this case to override the strict privity rule. Plaintiffs have not alleged fraud with requisite specificity as, inter alia, there are no allegations defendants knowingly made material misrepresentations in the will and trust for the purpose of inducing justifiable reliance by their client (since deceased) upon such misrepresentations, and moreover the allegations made do not support favorable inferences in that regard … . Phillips v Murtha, 2023 NY Slip Op 01767, First Dept 4-4-23

Practice Point: Absent fraud or collusion, strict privity precludes a legal malpractice action by prospective beneficiaries of an estate against the attorney who planned the estate. Here the attorney owed no duty to the prospective beneficiaries.

 

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THE MOTION TO SET ASIDE THE VERDICT APPORTIONING LIABILITY TO THE GYNECOLOGIST WHO NOTED IN HIS REPORT HE FOUND “NO ABNORMALITIES” SHOULD HAVE BEEN GRANTED; PLAINTIFF DID NOT PROVE THE NOTATION MISLED THE PRIMARY CARE PHYICIAN RESULTING IN A DELAY IN DIAGNOSING APPENDICITIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Dr. Subramanyam’s motion to set aside the verdict apportioning liability to him in this medical malpractice case should have been granted. Plaintiff experienced abdominal and was referred by her primary physician (defendant Dr. Selitsky) to Dr. Subramanyam for a gynecological exam. Dr. Subramanyam’ noted in his report that “no abnormalities” were found. Plaintiff argued the “no abnormalities” finding misled Dr. Selitsky causing a delay in diagnosis of plaintiff’s appendicitis:

We find that the record was insufficient to support the jury’s findings that Dr. Subramanyam’s notation of “no abnormalities” misled Dr. Selitsky, who was plaintiff’s primary care physician, and thereby delayed plaintiff’s treatment for appendicitis.

Defendant Dr. Selitsky, testified that she did not rely upon Dr. Subramanyam’s sonogram report in ruling in or out the possibility of appendicitis, a diagnosis she already had considered as part of her differential diagnosis. She further testified that her referral of plaintiff to Dr. Subramanyam was solely to determine whether the source of plaintiff’s pain was gynecological in origin. Furthermore, Dr. Selitsky testified that while she assumed that she had received a copy of the report, she could not recall reading it, and, if she had read it, when she did so. Dr. Subramanyam also testified that it was not within his role to provide recommendations in his report or advise physicians what they should do next. Ameziani v Subramanyam, 2023 NY Slip Op 01759, First Dept 4-4-23

Practice Point: Defendant primary care doctor referred plaintiff to defendant gynecologist to determine the cause of abdominal pain. The gynecologist noted in his report he found “no abnormalities.” Plaintiff alleged that notation misled the primary care physician causing delay in the diagnosis of appendicitis. The appellate division set aside the verdict against the gynecologist.

 

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