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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT LAWSUIT AGAINST THE STATE ALLEGING SEXUAL ABUSE AT A PSYCHIATRIC HOSPITAL SUFFICIENTLY DESCRIBED THE TIME PERIOD WHEN THE ABUSE ALLEGEDLY TOOK PLACE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims in this Child Victims Act action, determined that the notice of claim sufficiently described when the alleged sexual abuse took place at the state’s psychiatric center:

The claimant commenced this claim against the State of New York to recover damages resulting from alleged acts of sexual assault committed against her, beginning when she was 15 years old, by an employee of Sagamore Children’s Psychiatric Center (hereinafter Sagamore). * * *

… [T]he claim was sufficiently specific to satisfy the pleading requirements of Court of Claims Act § 11(b). The claim alleged negligent hiring, training, and supervision of an employee who had subjected the claimant to multiple sexual assaults at Sagamore between June 5, 2013, and September 16, 2013—a period of approximately three months—while the claimant was a patient at Sagamore. This was sufficiently specific to enable the State to investigate the claim promptly and ascertain its liability … . D. G. v State of New York, 2023 NY Slip Op 01183, Second Dept 3-8-23

Practice Point: Here the notice of claim sufficiently described the three-month time-frame when the alleged sexual abuse of the plaintiff took place at a state psychiatric hospital, The Child Victims Act lawsuit should not have been dismissed.

 

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THE CAUSES OF ACTION FOR NEGLIGENT SUPERVISION (OF THE PLAINTIFF-STUDENT) AND NEGLIGENT FAILURE TO WARN (THE PLAINTIFF-STUDENT) SHOULD NOT HAVE BEEN DISMISSED IN THIS CHILD VICTIMS ACT CASE; THE COMPLAINT ALLEGED PLAINTIFF WAS SENT TO A PRIEST NOT EMPLOYED BY THE SCHOOL FOR DISCIPLINE AND WAS MOLESTED BY THE PRIEST (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligent supervision and negligent failure to warn causes of action against defendant Catholic school should not have been dismissed in this Child Victims Act case. Plaintiff alleged he was sent by the school to a priest, who was not employed by the school, for discipline. Plaintiff alleged he was molested by the priest and the school knew or should have known of the priest’s propensity:

The complaint alleges … the defendant knew or should have known of the priest’s propensity to molest children, that the defendant had a duty to exercise the same duty of care of supervision over its minor students as a reasonably prudent parent would, and that the defendant breached its duty to adequately supervise the plaintiff which caused him to be sexually abused by the priest. …  … [T]he fact that the sexual abuse occurred off school premises does not require dismissal of the cause of action alleging negligent supervision since, here, the plaintiff has alleged that the defendant released the plaintiff into a potentially hazardous situation and directed him to see a certain priest for discipline knowing that the priest had a propensity to sexually abuse children … . … [T]he criminal intervention of a third party may be a reasonably foreseeable consequence of circumstances created by the defendant, for example where, as here, the plaintiff was permitted to meet with the priest, a person who allegedly had a propensity to abuse children, alone and behind closed doors … .

… Supreme Court erred in determining that the cause of action alleging negligent failure to warn was subject to dismissal because it was duplicative of the cause of action alleging negligent supervision. … [T]hese causes of action are based on distinctive facts, one based on failing to warn the plaintiff about the priest and the other based on the defendant’s failure to adequately supervise the plaintiff … . Sullivan v St. Ephrem R.C. Parish Church, 2023 NY Slip Op 01207, Second Dept 3-8-23

Practice Point: Here plaintiff alleged the Catholic school sent him to a priest, who was not employed by the school, for school-related discipline and the priest molested him. The causes of action for negligent supervision of the plaintiff-student and failure to warn the plaintiff-student should not have been dismissed. The fact that the priest was not employed by the school did not require dismissal because the school allegedly released the plaintiff into a dangerous situation. Nor did the fact that the priest allegedly committed criminal acts relieve the school of potential liability.

 

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THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was evidence of two proximate causes of the slip and fall: (1) plaintiff/s knee buckled when she stepped out of the shower; and (2) when plaintiff tried to stop her fall by grabbing onto the vanity, the vanity moved five inches and she fell. The building superintendent testified that a properly installed vanity would not move away from the wall:

“There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault” … . “‘Generally, it is for the trier of fact to determine the issue of proximate cause'” … .

Here, the defendant failed to establish, prima facie, that the plaintiff losing her balance due to her knee buckling was the sole proximate cause of the accident and that the defendant was free from fault in the happening of the accident … . In support of its motion, the defendant submitted, inter alia, the transcript of the plaintiff’s deposition testimony, at which she testified that, after she lost her balance due to her knee buckling and she grabbed the vanity with one hand, the vanity moved about five inches away from the wall, “and when it moved I lost my balance even more and that’s when I fell.” Moreover, the plaintiff testified that the vanity had been installed around “a couple of weeks” prior to the accident. The defendant also submitted the transcript of the deposition testimony of the superintendent for the apartment building, who testified that a vanity which had been properly installed should not move away from the bathroom wall through “normal use.” Moe-Salley v Highbridge House Ogden, LLC, 2023 NY Slip Op 01187, Second Dept 3-8-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff’s knee buckled as she stepped out of the shower. When she tried to stop her fall by grabbing the vanity, the vanity moved and she fell. There was testimony that a properly installed vanity would not move away from the wall.

 

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DEFENDANTS IN THIS ICY-STEP SLIP AND FALL CASE DID NOT DEMONSTRATE THEY WERE OUT-OF-POSSESSION LANDLORDS WHO WERE NOT RESPONSIBLE FOR ICE AND SNOW REMOVAL; DEFENDANTS DID NOT SUBMIT THE LEASE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this icy-steps slip and fall case did not demonstrate they had transferred possession and control of the property such that they were not responsible for removal of ice and snow. The lease was not submitted in support of defendants’ motion for summary judgment:

… [T]he defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The defendants did not submit a copy of any lease, and the deposition testimony submitted in support of the motion failed to establish, prima facie, that the defendants had transferred possession and control of the premises … . Moreover, the deposition testimony submitted in support of the motion included testimony that the defendants were responsible for maintaining the property, including snow removal, and had engaged in snow removal on the premises. The defendants thus also failed to establish, prima facie, that they had no duty, by contract or course of conduct, to remove snow and ice from the premises … . Maharaj v Kreidenweis, 2023 NY Slip Op 01185, Second Dept 3-8-23

Practice Point: Here the defendant landlords did not submit the lease in support of their motion for summary judgment in this icy-step slip and fall case. Therefore the defendants did not demonstrate they were out-of-possession landlords not responsible for ice and snow removal.

 

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A VIDEO CAMERA HAD BEEN INSTALLED IN A GRAPEFRUIT-SIZED HOLE BEHIND A TOILET IN A WOMEN’S RESTROOM AND VIDEO HAD BEEN RECOVERED; OVERRULING PRECEDENT, THE FIRST DEPARTMENT HELD THAT “EXTREME AND OUTRAGEOUS CONDUCT” IS NOT AN ELEMENT OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND THAT CAUSE OF ACTION WAS REINSTATED (FIRST DEPT).

​The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Webber, determined “extreme and outrageous conduct” is not an essential element of negligent (as opposed to intentional) infliction of emotional distress. Here there was a hole in the wall behind a toilet in the women’s restroom. There was a video camera in the hole and video had been recovered.. Complaints about the hole in the wall had been made. Supreme Court properly upheld the negligence cause of action, but dismissed the negligent infliction of emotional distress cause of action:

Although it has been recognized that there may be recovery for negligent infliction of emotional distress, the elements necessary for recovery has developed through case law. This Department’s case law has held that both intentional infliction of emotional distress and negligent infliction of emotional distress require a showing of extreme and outrageous conduct.

… There is no stated rationale as to why extreme and outrageous conduct would be a required element for both an intentional act as well as a negligent act.

As such, we now hold that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress.

This holding is in line with recent decisions of the Second, Third and Fourth Departments. Brown v New York Design Ctr., Inc., 2023 NY Slip Op 01228, First Dept 3-9-23

Practice Point: All four appellate division departments have now held “extreme and outrageous conduct” is not an element of negligent infliction of emotional distress.

 

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IN A REAR-END COLLISION, THE ALLEGATION THE CAR IN FRONT STOPPED SHORT DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court in this rear-end traffic accident case, determined the allegation that the car in front stopped short did not raise a question of fact and summary judgment should have been awarded to driver/owner of the car in front:

Plaintiff alleges that he was injured in a two-car collision while he was a passenger in a car driven by Morera and owned by Giovanni. According to plaintiff, defendant Dan Espeut, who was driving behind the Morera defendants’ car, rear-ended the Morera defendants’ car.

It is well-settled law that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence by the driver of the rear vehicle, and imposes a duty on the driver of the rear vehicle to come forward with an adequate nonnegligent explanation for the accident … . Here, the Morera defendants made a prima facie showing of their entitlement to summary judgment by submitting Morera’s affidavit, in which he averred that he was driving straight and gradually applying his brakes because there was traffic ahead of him, and that as he was doing so, the Espeut vehicle rear-ended his vehicle … .

… Espeut’s affidavit, in which he averred that Morera stopped short in front of him after entering his lane of traffic, was insufficient to raise an issue of fact … . Moreover, Espeut had the obligation to maintain a safe distance between the vehicles, which, as the record evidence makes clear, he failed to do … . Obando v Espeut, 2023 NY Slip Op 01144, First Dept 3-2-23

Practice Point: In a rear-end collision case, the allegation by the driver of the rear-most car that the car in front stopped short is not a non-negligent explanation for the accident.

 

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THE INJURED PARTY WAS STRUCK WITH A BATON IN AN ALTERCATION OUTSIDE A BAR; IT WAS ALLEGED THE INJURY WAS ACCIDENTAL; THE INSURER SOUGHT A DECLARATORY JUDGMENT RE: THE OBLIGATION TO DEFEND AND INDEMNIFY; THERE WERE QUESTIONS OF FACT WHETHER THE INCIDENT FELL OUTSIDE THE COVERAGE OF THE POLICY (NO DISCLAIMER REQUIRED) OR WHETHER THE INCIDENT WAS SUBJECT TO A POLICY EXCLUSION (TIMELY DISCLAIMER REQUIRED) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the disclaimer by the insurer, Mapfre, was required and/or timely in this personal injury case. In the midst of some sort of altercation outside a bar, Groskopf was struck with a baton by Edward Ferrall. Edward Ferrall claimed he did not intend to strike Groskopf. The two questions before the court in this declaratory judgment action were (1) whether the injury was the result of an “occurrence” (accident) within the coverage terms of the policy, and (2) whether the injury was intended and therefore subject to a policy exclusion. If the claim falls outside the coverage terms no disclaimer is required. If the claim is subject to an exclusion from coverage, a timely disclaimer is required:

… Groskopf and the Ferrall defendants failed to establish, prima facie, their respective entitlement to judgment as a matter of law on whether an “occurrence” was involved giving rise to policy coverage and, if so, whether such occurrence fell within the “expected or intended” injury policy exclusion. * * *

… [D]efendants also failed to demonstrate their respective prima facie entitlement to judgment as a matter of law based upon Mapfre’s alleged untimely disclaimer. * * * [G]iven that there are triable issues of fact regarding whether the claim falls within the coverage, [the] defendants failed to establish, prima facie, that a timely disclaimer was required. Mapfre Ins. Co. of N.Y. v Ferrall, 2023 NY Slip Op 01082, Second Dept 3-1-23

Practice Point: Here there was an altercation outside a bar and the injured party was struck with a baton. It was alleged the injury was accidental and the insurer sought a declaratory judgment on its obligation to defend and indemnify. There were questions of fact whether the incident fell within the coverage terms (if so, no disclaimer was required) and whether the incident was subject to an exclusion from coverage (if so, a timely disclaimer was required).

 

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DEFENDANT’S CAR WAS STRUCK BY AN ONCOMING CAR WHICH CROSSED A DOUBLE YELLOW LINE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined defendant’s motion for summary judgment, based on the emergency doctrine, should have have been granted. A car traveling in the opposite direction crossed a double yellow line into the path of defendant’s car:

Pursuant to the emergency doctrine, “those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” … . “Under appropriate circumstances, the existence of an emergency, as well as the reasonableness of the actor’s response to it, may be determined as a matter of law” … . “A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic, and such an event constitutes a classic emergency situation, thus implicating the emergency doctrine” … . Lizares v Conklin, 2023 NY Slip Op 01081, Second Dept 3-1-23

Practice Point: A driver is not obligated to anticipate that an oncoming car will cross a double yellow line into the driver’s lane. In such a situation, the emergency doctrine applies to insulate the driver from liability.

 

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THE ALLEGATION THE CAR IN FRONT MADE A SUDDEN STOP DOES NOT RAISE A QUESTION OF FACT IN A REAR-END COLLISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the allegation plaintiff made a sudden stop in this rear-end collision case did not raise a question of fact about whether there was a non-negligent cause for the traffic accident:

… [T]he plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that her vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact. The defendants’ assertion that it was a sudden stop of the plaintiff’s vehicle that caused the accident was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the rear-end collision … . Genao v Cassetta, 2023 NY Slip Op 01078, Second Dept 3-1-23

Practice Point: In a rear-end collision case, the allegation the car in front made a sudden stop does not raised a question of fact about whether there is a non-negligent explanation for the accident.

 

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DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint against the NYC Housing Authority (NYCHA) in this slip and fall case should not have been dismissed based on plaintiff’s failure to attend the General Municipal Law 50-h hearing. The NYCHA unilaterally adjourned the hearing by follow-up letter. Plaintiff denied receipt of the follow-up letter and the NYCHA included an affidavit of service in its reply. The Second Department noted that the affidavit of service should not be considered because it was first submitted in reply. In addition, the affidavit did not present sufficient proof of mailing:

… [E]ven had the affidavit of service of the follow-up letter been submitted with the defendants’ moving papers, the mere assertion therein that the letter was mailed, unsupported by someone with personal knowledge of the mailing of the letter or proof of standard office practice to ensure that it was properly mailed, was insufficient to give rise to the presumption of receipt that attaches to letters duly mailed … . Inasmuch as there was no adequate proof that NYCHA served the follow-up letter adjourning the 50-h hearing, NYCHA failed to establish entitlement to such a hearing and that the plaintiff was precluded from commencing this action against NYCHA … . Acevedo v Hope Gardens I, LLC, 2023 NY Slip Op 01073, Second Dept 3-1-23

Practice Point: Yet again an affidavit did not prove a document was mailed because the affiant did not have personal knowledge of the mailing and there was no evidence of a standard office practice to ensure proper mailing.

 

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