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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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NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined New York did not have long-arm or personal jurisdiction over an Italian company which manufactured a hose used as a component in a dishwasher made and sold by a nonparty:

… [T]he defendant was an Italian corporation with its business located in that country. It manufactured, sold, and distributed its goods in Italy, and had no office or agent in New York. The plaintiff failed to show that the defendant purposefully availed itself of the privilege of conducting activities in New York so as to subject it to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . The plaintiff also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(3).

Since the defendant was not subject to the jurisdiction of New York, the plaintiff’s service of process upon it was not valid (see CPLR 313 …). Economy Premier Assur. Co. v Miflex 2 S.p.A., 2023 NY Slip Op 00303,Second Dept 1-25-23

Practice Point: Here plaintiff did not demonstrate the Italian company which manufactured a component of a dishwasher purposefully availed itself of the privilege of conducting business in New York. Therefore New York did not have long-arm or personal jurisdiction over the Italian company.

 

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DEFENDANT SUPERMARKET DID NOT OFFER PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED OR CLEANED PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE GRAPES ON THE FLOOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant supermarket’s motion for summary judgment in this slip and fall case should not have been granted; Defendant did not demonstrate it lacked constructive notice of the grapes on the floor because it presented no specific evidence of when the area had last been inspected or cleaned prior to the fall:

While defendant showed that it did not create or have actual notice of loose grapes in the produce aisle at the time of plaintiff’s accident, defendant failed to submit sufficient evidence to show, as a matter of law, that it lacked constructive notice of the condition. Specifically, defendant failed to show that its cleaning routine was followed on the day of the accident … . Its store manager testified generally that an employee was assigned to inspect and clean the produce aisle throughout the day and that he personally walked the aisles during the day, but he did not testify regarding any specific cleaning or inspection of the area in question on the day of plaintiff’s fall. A vice president testified that the cleaning protocols were verbal and were based on “common sense,” but did not offer any information as to what steps were taken during the last cleaning cycle prior to plaintiff’s accident, which also was not sufficient to establish lack of constructive notice on behalf of defendant. Accordingly, the burden did not shift to plaintiff to raise an issue of fact in opposition. Polanco v 756 Jomo Food Corp., 2023 NY Slip Op 00284, First Dept 1-24-23

Practice Point: To prevail on a motion for summary judgment in a slip and fall case the defendant must demonstrate a lack of constructive notice by proof the area was inspected or cleaned close in time to the fall.

 

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ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). ​

The First Department set aside the verdict against the attending physician and found the $3 million damages award excessive in this medical malpractice action. The attending physician, Tigges, could not be held vicariously liable fir the negligence of the physician’s assistant, Caputo, based on Tigges being a shareholder in the professional service corporation which employed Caputo. The First Department held the plaintiff should stipulate to damages in the amount of $500,000:

Dr. Tigges was not involved in plaintiff’s treatment during her admission, notwithstanding that he was often listed as the attending physician on her chart … . He was also not liable for Caputo’s conduct pursuant to Department of Health Regulations (10 NYCRR) § 94.2 or Business Corporation Law § 1505 (a). There is no indication that Dr. Tigges, and not another of the doctors at [defendant] OADC, was the doctor supervising Caputo at the time in question … .

We find that the $3 million jury award deviates materially from what would be reasonable compensation and should be reduced as indicated (see generally CPLR 5501[c] … ). Although none of the cases relied on by the parties are squarely on point, the subject award is well outside the range of awards in all of these cases … . Appleyard v Tigges, 2023 NY Slip Op 00260, First Dept 1-24-23

Practice Point: The attending physician in this medical malpractice case could not be held vicariously liable for the negligence of the physician’s assistant on the ground that the attending physician was a shareholder in the professional service corporation which employed the physician’s assistant.

 

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PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant 219 Ave. A was an out-of-possession landlord which, by the terms of the lease, was not obligated to repair or maintain the premises where plaintiff’s fall occurred. Plaintiff was standing on a couch in defendant Planet Rose’s karaoke bar when she fell backwards through a storefront window:

… [T]he owner of Planet Rose acknowledged that when vandals smashed another window in the storefront years earlier, the glazier recommended tempered glass as the best option for a storefront, and she accepted that recommendation. She also testified that there were many times over the years that patrons stood on the couch, as shown in photographs posted on Planet Rose’s social media. Thus, the record presents issues of fact as to whether defendants were negligent in failing to use tempered glass in the window to prevent a foreseeable injury … .

… Given the evidence that patrons of the karaoke bar sometimes stood on the couch, plaintiff’s conduct was not extraordinary or unforeseeable, and it therefore cannot be said that the setup at the bar merely furnished the occasion for the harm … .

219 Ave. A demonstrated that it had relinquished sufficient control of the premises to be deemed an out-of-possession landlord, and as such, was not contractually obligated to make repairs or maintain the premises … . Accordingly, its liability is limited to claims “based on a significant structural or design defect that is contrary to a specific statutory safety provision,” which are not at issue here … . Kitziger v 219 Ave. A. NYC LLC, 2023 NY Slip Op 00239, First Dept 1-19-23

Practice Point: Because patrons of defendant karaoke bar stood on the couch to dance, plaintiff’s fall through the storefront window was foreseeable and the failure to install tempered glass may have been negligent. This was not a case where the condition (the glass storefront window) merely furnished the occasion for the accident, as opposed to a proximate cause. By the terms of the lease the out-of-possession landlord was responsible only for structural repairs which were not at issue.

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT ATTORNEY NEGLIGENTLY FAILED TO PURSUE DAMAGES IN EXCESS OF THE POLICY LIMITS AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT DID NOT DEMONSTRATE PLAINTIFF WOULD NOT HAVE PREVAILED AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice action should not have been dismissed. It was alleged the defendant attorney, in this traffic accident case, failed to pursue damages in excess of the insurance-policy limits against the tortfeasor personally. Defendant did not demonstrate plaintiff would not have prevailed in an action against the tortfeasor personally:

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” … . “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” … .

Here, the defendants failed to establish, prima facie, that the plaintiff had no actual or ascertainable damages. “The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice” … . The complaint alleged that the damages included the failure to pursue SUM benefits, as well as the failure to pursue recovery against the alleged tortfeasor. Since it was alleged … that the defendants’ legal malpractice prevented the plaintiff from obtaining a judgment against the alleged tortfeasor, the defendants had the burden of affirmatively demonstrating that the plaintiff would not have prevailed against the alleged tortfeasor or that the alleged tortfeasor did not have personal assets such that his motorist insurance policy limit that was recovered in the amount of $50,000, was the maximum judgment that could have been obtained from him … . The defendants failed to do so. Chicas v Cassar, 2023 NY Slip Op 00202, Second Dept 1-18-23

Practice Point: Defendant attorney in this legal malpractice case did not demonstrate plaintiff would not have prevailed in an action against the tortfeasor personally in the underlying traffic accident case. Plaintiff alleged defendant attorney negligently failed to seek damages over and above the policy limits from the tortfeasor. Therefore defendant’s motion for summary judgment should not have been granted.

 

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NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the verdict should not have been set aside on the ground of jury confusion. No objection was made to the verdict sheet until after the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances:

The trial court should not have set aside the verdict based on a determination that the verdict sheet was, on its face, unclear and confusing. None of the parties or the court perceived any lack of clarity until after the jury was discharged, and there was no evidence in the trial record of substantial juror confusion … . Although the court stated that it gave no consideration to the posttrial juror affidavits stating that they believed that they were supposed to deduct from the damage award the amount of plaintiff’s comparative fault, that was the only evidence of jury confusion provided by plaintiff. However, “[ j]uror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances,” not present here …   Moreover, plaintiff did not object to the verdict sheet or the charge until after the jury was discharged, and therefore, waived such objections … . Suarez v Ades, 2023 NY Slip Op 00175, First Dept 1-12-23

Practice Point: The verdict should not have been set aside on jury-confusion grounds. No one objected to the verdict sheet before the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances not present in this case.

 

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