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PLAINTIFF ALLEGED HE WAS DENIED PROPER MEDICAL CARE IN THE NIAGARA COUNTY JAIL AND SUED THE JAIL DOCTOR, THE COUNTY AND THE SHERIFF; THE CAUSES OF ACTION ALLEGING THE VIOLATION OF PLAINTIFF’S CIVIL RIGHTS PURSUANT TO 42 USC 1983 SURVIVED MOTIONS TO DISMISS; OTHER CAUSES OF ACTION WERE DEEMED TIME-BARRED; ACTIONS ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE FOR THE ACTS OF THE SHERIFF WERE DISMISSED; THE RELATION-BACK DOCTRINE DID NOT APPLY BECAUSE THE COUNTY AND SHERIFF WERE NOT DEEMED “UNITED IN INTEREST” (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined some causes of action should have been dismissed and others should not have been dismissed in this action against the county, county employees and sheriff alleging plaintiff was denied proper medical care while he was an inmate in the Niagara County Jail. The medical malpractice and negligence causes of action against a doctor employed by the county were time-barred pursuant to General Municipal Law 50-d (one year and ninety days). The causes of action against the doctor and the county alleging civil rights violations pursuant to 42 USC 1983 properly survived motions to dismiss. But the 42 USC 1983 cause of action against the sheriff should have been dismissed because the sheriff had no personal involvement in plaintiff’s medical care. The relation-back doctrine was improperly invoked for time-barred causes of action against the sheriff because the county and the sheriff are not united interest (the county is not vicariously liable for the acts of the sheriff and the sheriff’s department does not have an identity separate from the county). The negligent investigation cause of action should have been dismissed because New York does not recognize it. Claims alleging the county was vicariously liable for the acts of the sheriff should have been dismissed because plaintiff did not allege there was a local law imposing such a responsibility. Prezioso v County of Niagara, 2023 NY Slip Op 00768, Fourth Dept 2-10-23

Practice Point: Plaintiff alleged he was denied proper medical care in the Niagara County Jail. Plaintiff’s causes of action alleging a violation of his civil rights pursuant to 42 USC 1983 survived dismissal. The confusing relationship between the county and the sheriff resulted in the dismissal of several causes of action. The one-year-ninety day statute of limitations in the General Municipal Law applied to some causes of action. Absent a local law to the contrary, a county is not vicariously liable for the acts of the sheriff. The decision is worth reading because of the sheer number of unique issues which arise in suits against counties, county employees and county sheriffs.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGATION THE ABUSE TOOK PLACE IN 1982 – 1983 WAS SPECIFIC ENOUGH TO MEET THE PLEADING REQUIREMENTS OF THE COURT OF CLAIMS ACT (SECOND DEPT).

The Second Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim sufficiently described when the sexual abuse occurred. The claimant alleged she was abused by a state employee in 1982 and 1983 when she was 17. The Court of Claims had dismissed the claim finding that the allegations when the abuse took place were not specific enough. The Second Department found the 1982 – 1983 time frame adequate:

Court of Claims Act § 11(b) “places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the 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” … .  ***

Under the particular circumstances of this case, the date ranges provided in the claim stating that the sexual abuse commenced in approximately 1982 and occurred “repeatedly” and “multiple times” from approximately 1982 to 1983, during periods when the claimant was directed to the Workshop to receive counseling, along with other information contained in the claim including, inter alia, that there was a criminal investigation, prosecution, and conviction of West based upon the claimant’s complaints of sexual abuse, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) … . Fenton v State of New York, 2023 NY Slip Op 00650, Second Dept 2-8-23

Practice Point: Here in this Child Victims Act case against a state employee, the allegation the sexual abuse took place in 1982 – 1983 was deemed specific enough to satisfy the pleading requirements in the Court of Claims Act.

Similar issues and result in Meyer v State of New York, 2023 NY Slip Op 00658, Second Dept 2-8-23

 

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THE REVIVED STATUTE OF LIMITATIONS FOR LAWSUITS ALLEGING SEXUAL ABUSE PURSUANT TO THE CHILD VICTIMS ACT (CVA) DOES NOT VIOLATE DUE PROCESS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined the revived statute of limitations for law suits based upon sexual abuse under the Child Victims Act (CVA) did not violate due process:

… [I]t is well settled that “a claim-revival statute will satisfy the Due Process Clause of the [New York] State Constitution if it was enacted as a reasonable response in order to remedy an injustice” … . Addressing the second prong of that standard first—i.e., whether the statute “remed[ied] an injustice”—the Court of Appeals recognized that, “[i]n the context of a claim-revival statute, there is no principled way for a court to test whether a particular injustice is ‘serious’ or whether a particular class of plaintiffs is blameless; such moral determinations are left to the elected branches of government” … . Here, as evidenced by the legislative history of the CVA, the legislature considered the need for “justice for past and future survivors of child sexual abuse” and the need to “shift the significant and lasting costs of child sexual abuse to the responsible parties” … . Specifically, the legislative history noted the significant barriers those survivors faced in coming forward with their claims, including that child sexual abuse survivors may not be able to disclose their abuse until later in life after the relevant statute of limitations has run because of the mental, physical and emotional injuries sustained as a result of the abuse … . As explained in the Senate Introducer’s Memorandum in Support, “New York currently requires most survivors to file civil actions . . . against their abusers by the age of 23 at most, long before most survivors report or come to terms with their abuse, which has been estimated to be as high as 52 years old on average” … .. Because the statutes of limitat ions left “thousands of survivors” of child sexual abuse unable to sue their abusers, the legislature determined that there was an identifiable injustice that needed to be remedied … . PB-36 Doe v Niagara Falls City Sch. Dist., 2023 NY Slip Op 00598, Fourth Dept 2-3-23

Practice Point: The revived statute of limitations in the Child Victims Act is constitutional.

 

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PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the relation-back doctrine applied such that two physician’s assistants (PA’s) could be added as defendants after the statute of limitations had expired. There was no evidence the PA’s and the doctors were united in interest and no evidence the PA’s had timely notice of the suit:

In a negligence or malpractice action “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other” … . … As the PA defendants were employed by the practice, not the individual doctor defendants, there is no vicarious liability based on respondeat superior … . …  [T]he plaintiff failed to set forth sufficient facts to demonstrate that the PA defendants were directly supervised or controlled by the doctor defendants in their care and treatment of the decedent.

… The record is devoid of evidence that the PA defendants had notice that an action had been commenced against the doctor defendants prior to the expiration in 2014 of the statute of limitations for the medical malpractice and wrongful death causes of action. Sanders v Guida, 2023 NY Slip Op 00455, Second Dept 2-1-23

Practice Point: Here two of the three prongs of the relation-back doctrine should not have been applied to allow adding two physician’s assistants (PA’s) as defendants in this med mal case after the statute of limitations had run. The defendant doctors were not the PA’s employers or supervisors (the doctors and PA’s were not united in interest) and the plaintiff did not show the PA”s had timely knowledge of the suit.

 

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EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change venue in this traffic accident case should not have been granted. Even though the accident didn’t occur in New York County and defendant corporation did not have an office in New York County, the certificate of incorporation designated New York County as the location of its principal office and the certificate controls:

Plaintiff properly placed venue in New York County based upon the corporate defendant’s initial certificate of incorporation designating New York County as the location of its principal office although the company has no office there (see CPLR 503 [c] …).

While defendants annexed to their moving papers the police report for the subject motor vehicle accident indicating that defendants’ vehicle was registered to a Nassau County address on the day of the accident and an affidavit from the corporate defendant’s Vice President averring that its office was in Nassau County when the action was commenced, the corporate residence designated in the initial certificate of incorporation controls for venue purposes … . There was no evidence of an amended certificate of incorporation that changed the principal place of business to Nassau County.

The general rule is that a transitory action, such as the subject motor vehicle accident, when other things are equal, should be tried in the county where the cause of action arose … . This rule, however, is predicated on the convenience of material nonparty witnesses who are to be present at trial … . While the situs of the accident provides a basis to change venue to Nassau County, defendants failed to sustain their burden, as the party moving for a discretionary change of venue pursuant to CPLR 510 (3), that there are material witnesses who would be inconvenienced by a trial in New York County … . Marte v Lampert, 2023 NY Slip Op 00375, First Dept 1-26-23

Practice Point: Here the traffic accident happened in Nassau County where defendant corporation had an office. But defendant’s certificate of incorporation indicated defendant’s principal office was in New York County. The certificate controls, even though the defendant corporation did not actually have an office in New York County.

 

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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school board should not have been granted. Petitioner alleged her child was not properly supervised at recess. The child apparently ran into a piece of equipment when being chased by classmates. There was an accident report and the three recess supervisors indicated they did not see the incident. The Second Department held that the school did not have timely notice of the potential claim and petitioner did not have an adequate excuse for failing to timely file:

… [T]he accident claim form states that three school employees were supervising recess but did not see the infant petitioner become injured. This, standing alone, is insufficient to establish actual knowledge of a potential negligent supervision claim because it is well established that schools “‘cannot reasonably be expected to continuously supervise and control all movements and activities of students'” …  The petitioners also failed to establish that the School Board had actual knowledge of the facts constituting their other two claims … . The petitioners identify no factual connection between the recess supervisors not seeing the infant petitioner’s injury and either the allegedly defective nature of the playground equipment or the instruction given or not given to students at recess. It is not even clear from the description of the incident on the accident claim form whether the school was aware that the infant petitioner injured himself on a “metal joint” as alleged in the petition and the notice of claim. Thus, the petitioners failed to establish that the School Board had actual knowledge of the facts constituting their claims … . Matter of R. M. v Board of Educ. of the Long Beach City Sch. Dist., 2023 NY Slip Op 00320, Second Dept 1-25-23

Practice Point: Here the petition for leave to file a late notice of claim should not have been granted in this school-playground accident case. There was an accident report but the report did not demonstrate the school had timely knowledge of the potential lawsuit. in addition, petitioner did not offer a reasonable excuse for failing to timely file.

 

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THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)(C) IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the infancy toll (CPLR 208) applies to the one year and 90-day time limit for a suit against a school district (General Municipal Law 50-i(1)(c)). Therefore the application for leave to file a late notice of claim in this action on behalf of an infant student against a school district should have been granted in its entirety:

Supreme Court erred in concluding that any claim by the infant plaintiff based upon incidents that occurred prior to May 31, 2017, would be time-barred. CPLR 208 tolls a statute of limitations for the period of infancy, including the limitation set forth in General Municipal Law § 50-i(1)(c) … . It is undisputed that the infant plaintiff was an infant at the time of the events underlying this action and at the time that the action was commenced. M. S. v Rye Neck Union Free Sch. Dist., 2023 NY Slip Op 00343, Second Dept 1-25-23

Practice Point: The infancy toll of the statute of limitations in CPLR 208 applies to the one-year-ninety-day time limit for a suit against a school district in General Municipal Law 50-i(1)(c).

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ALTHOUGH PLAINTIFF ALLEGED HE TRIPPED OVER A HOSE HE HAD PLACED ON THE STEPS, THERE WAS A QUESTION OF FACT WHETHER INADEQUATE LIGHTING WAS ANOTHER PROXIMATE CAUSE OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff apparently tripped over a hose he had placed on a step. Plaintiff alleged he didn’t see the hose because the light fixture was not working. The court noted that there can be more than one proximate cause of an accident (the hose and the lighting):

There can be more than one proximate cause of an accident and [g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . Here, the defendant failed to eliminate triable issues of fact as to whether inadequate lighting in the area of the subject steps contributed to the plaintiff’s accident … .

A defendant moving for summary judgment in a premises liability case may also establish its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the existence of the allegedly hazardous condition for a sufficient length of time to discover and remedy it … . Here, the deposition testimony of the defendant’s witness that he would have known if the light fixture near the steps was not working was conclusory and speculative, and failed to address the adequacy of the lighting, even assuming that the light fixture was working … . Reyes v S. Nicolia & Sons Realty Corp., 2023 NY Slip Op 00340, Second Dept 1-25-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff tripped over a hose he had placed on the steps and he alleged he didn’t see the hose because of inadequate lighting. Defendant’s motion for summary judgment should not have been granted.

 

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A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact precluded summary judgment in this medical malpractice/lack of informed consent case: The court noted that a signed consent form does not preclude a lack-of-informed-consent cause of action:

To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury … . The fact that a plaintiff signed a consent form, standing alone, does not establish a defendant’s prima facie entitlement to judgment as a matter of law … . Here, the defendants’ submissions failed to establish, prima facie, that the plaintiff was informed about the risks and benefits of inducing labor immediately, and the available alternatives thereto. Thus, the defendants failed to establish the absence of triable issues of fact with respect to the cause of action alleging lack of informed consent … . Guinn v New York Methodist Hosp., 2023 NY Slip Op 00308, Second Dept 1-25-23

Practice Point: Even if plaintiff in a medical malpractice action signed a consent form, a lack-of-informed-consent cause of action may survive summary judgment.

 

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IN THIS SLIP AND FALL CASE, THE DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO ADDRESS ANY ESPINAL EXCEPTION IN ITS ANSWER BECAUSE PLAINTIFF DID NOT ALLEGE AN EXCEPTION APPLIED; PLAINTIFF DID NOT DEMONSTRATE THAT AN ESPINAL EXCEPTION APPLIED IN OPPOSITION TO SUMMARY JUDGMENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant snow-removal company (WM) did not need to address in its answer any Espinal exception to the rule that a contractor is not liable to a plaintiff who is not a party to the snow-removal contract because no Espinal exception was raised by the plaintiff in the pleadings. In opposition to the summary judgment motion, plaintiff did not demonstrate that any of the Espinal exceptions applied:

… WM demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by coming forward with evidence that the plaintiff was not a party to the snow removal contract … . Since the plaintiff did not allege facts in the pleadings that would establish the possible applicability of any of the Espinal exceptions, WM was not required to affirmatively demonstrate tat these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether WM launched an instrument of harm … , and failed to raise a triable issue of fact as to the applicability of the other Espinal exceptions. Accordingly, the Supreme Court should have granted that branch of WM’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. Forbes v Equity One Northeast Portfolio, Inc., 2023 NY Slip Op 00305, Second Dept 1-25-23

Practice Point: Generally, in a slip and fall case, a snow-removal contractor is not liable to a plaintiff who is not a party to the snow-removal contract. The contractor will be liable only if an Espinal exception applies (for example, if the contractor “launches an instrument of harm” which injured plaintiff). If the plaintiff does not allege an Espinal exception applies, the contractor need not address the issue in the answer. If the plaintiff does not, at the summary judgment stage, demonstrate an exception applies, the contractor will be granted summary judgment.

 

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