You are here: / Negligence
,

ALTHOUGH THE POLICE HAD VISITED PLAINTIFF SEVERAL TIMES IN RESPONSE TO HER CALLS ABOUT HER EX-BOYFRIEND’S VIOLATIONS OF THE ORDER OF PROTECTION AND THE POLICE HAD SPOKEN TO HER EX-BOYFRIEND (WHO LIVED DIRECTLY ABOVE HER), THE MAJORITY CONCLUDED THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE POLICE SUCH THAT PLAINTIFF COULD HAVE JUSTIFIABLY RELIED ON THE POLICE FOR PROTECTION; HER EX-BOYFRIEND SUBSEQUENTLY THREW HER OUT OF A SECOND-FLOOR WINDOW (CT APP).

The Court of Appeals, over two extensive dissenting opinions, determined the fact plaintiff’s ex-boyfriend was subject to an order of protection at the time he attacked her and threw her out of a second-floor window did not create a special relationship with the police such that the municipality would be liable for failing to protect her. The majority concluded plaintiff could not have justifiably relied on any police promises that her ex-boyfriend would be arrested for violating the order of protection. “Justifiable reliance” is an essential element of a special relationship:

… [Plaintiff] failed to raise a triable issue concerning the “critical” fourth element of an assumed special duty … . Plaintiff testified during her deposition that she had no contact with the police on the day of the incident prior to the attack, that her ex-boyfriend was in fact at liberty that day, and that the officers never told her that her ex-boyfriend would be arrested for violating the order of protection. Plaintiff’s own testimony demonstrates that she did not relax her vigilance based on any police promises that her ex-boyfriend would be arrested for violating the order of protection. It also shows that the police were not on the scene or in a position to provide assistance if necessary … , nor had they promised to “provide assistance at some reasonable time” … . In these circumstances, plaintiff could not have justifiably relied on any promises made or actions taken by defendants.

From Judge Wilson’s dissent:

Mr. Gaskin [the ex-boyfriend] had violently assaulted Ms. Howell [plaintiff] before, beginning when she was pregnant with their child. The first time he assaulted her, he threw her on the floor and kicked her stomach, causing her to bleed and require hospitalization. On the basis of that assault, Ms. Howell obtained an order of protection against Mr. Gaskin, requiring him to stay away from and not communicate with her. Based on Mr. Gaskin’s subsequent conduct, Ms. Howell obtained seven additional orders of protection against him, the most recent of which issued less than two months before Mr. Gaskin threw her out of the window. How did it happen that a woman who obtained eight orders of protection against the same abuser wound up unprotected? * * *

In the week before Mr. Gaskin threw Ms. Howell out of the window, Ms. Howell called the police several times to report that Mr. Gaskin was violating the order of protection. … The officers told Ms. Howell that they would “ensure . . . that [Mr. Gaskin] would be removed from the premises.” The officers spoke to Mr. Gaskin, who told the officers that he would leave his apartment [which was above Ms. Howell’s] and stay at his uncle’s house. … The officers made Ms. Howell “feel assured he won’t be coming back.” Howell v City of New York, 2022 NY Slip Op 06633, CtApp 11-22-22

Practice Point: Although plaintiff had repeatedly made the police aware of her ex-boyfriend’s violations of the order of protection and the police had promised to arrest him, the majority concluded there was no special relationship between the police and plaintiff such that plaintiff could have justifiably relied on police protection. Ultimately, the ex-boyfriend, who lived directly above plaintiff, threw plaintiff out of a second-floor window. There were two strong dissenting opinions.

 

,

PLAINTIFF’S DECEDENT WAS TORTURED AND MURDERED IN HER HOME BY HER MOTHER AND BROTHER; ALTHOUGH COUNTY AUTHORITIES HAD BEEN CALLED TO INVESTIGATE ALLEGATIONS PLAINTIFF’S DECEDENT HAD SUFFERED INJURIES AND SHERIFFS HAD RETURNED PLAINTIFF’S DECEDENT TO HER HOME AFTER SHE RAN AWAY, THERE WAS NO SPECIAL RELATIONSHIP WITH THE COUNTY SUCH THAT PLAINTIFF’S DECEDENT JUSTIFIABLY RELIED ON INTERVENTION BY COUNTY AUTHORITIES (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined plaintiff did not raise a question of fact about the existence of a special relationship between plaintiff’s decedent, Laura, and the county such that the county could be liable for the torture and murder of Laura by her mother, Eva, and brother, Luke. Laura, was a 23-year-old woman with developmental disabilities. Laura’s brother, Richard, called county authorities about injuries to his sister. Richard’s allegations were investigated and deemed unfounded. On one occasion Laura ran away from home after an argument with her mother and was returned by county sheriffs. The Court of Appeals held there was nothing about the way the authorities investigated Laura’s alleged injuries and Laura’s running away which met the criteria for a special relationship creating “justifiable reliance” on intervention by county authorities:

… [T]o establish that the government voluntarily assumed a duty to the plaintiff beyond what it generally owes to the public, the plaintiff must establish: ” ‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’ ” … .

“[A]ll four elements must be present for a special duty to attach” … .

… [T]he justifiable reliance element “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury. Indeed, at the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [the injured party] either to relax [their] own vigilance or to forego other available avenues of protection” …

Months before her death, both CPS [Child Protective Services] and APS [Adult Protective Services] investigated the reports that Laura was being abused, concluded that those reports were unfounded, closed their investigations, and advised Richard that the investigations were closed and would not be reopened without new information. … Richard “did not in fact relax his own vigilance inasmuch as he made two follow-up calls to the APS caseworker asking her to reopen the investigation, and he was not induced to forego other avenues of relief” … . Similarly, the Sheriff’s deputies took no action that could have induced reliance. Maldovan v County of Erie, 2022 NY Slip Op 06632, Ct App 11-22-22

Practice Point: Under the “special relationship” theory, to hold a municipality liable for failing to intervene to protect a plaintiff from injury by family members, the plaintiff must demonstrate a special relationship had developed with the county such that the plaintiff could justifiably rely on intervention by the municipality. No such ‘justifiable reliance” was demonstrated in this case where a developmentally disabled young woman was tortured and murdered by her mother and brother. County authorities had investigated allegations plaintiff’s decedent had been injured, but the allegations were deemed unfounded. The fact that county sheriff’s had returned plaintiff’s decedent to her home after she had run away because of an argument with her mother was not enough.

 

,

PLAINTIFF BICYCLIST ALLEGED HE STRUCK A FALLEN SIGNPOST WHICH WAS OBSTRUCTING THE SIDEWALK; THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE NOTICE OF THE CONDITION; PLAINTIFF DEMONSTRATED HE WAS ENTITLED TO DISCOVERY OF TOWN DOCUMENTS RELATED TO THE REPAIR OF TOWN SIGNS (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined (1) the town did not demonstrate it did not have written notice of the fallen signpost on the sidewalk (which plaintiff bicyclist allegedly struck), and (2) plaintiff demonstrated the town should comply with discovery demands for documents relating to the existence and repair of signs by the town:

The Town had the initial burden on the motion of establishing that no prior written notice of the alleged condition was given to either the Town Clerk or the Town Superintendent of Highways … . In support of its motion, the Town submitted, inter alia, the deposition testimony of an administrative aide in the Town Highway Department and the Town’s sign shop fabricator, each of whom testified that he did not learn of the fallen sign until he received the police report for the incident. However, neither employee testified that he searched the Highway Department’s or the Town Clerk’s records. Thus, the Town failed to establish as a matter of law that neither the Town Clerk nor the Town Superintendent of Highways received prior written notice of the alleged condition … . * * *

… [W]e conclude that plaintiff met his burden of establishing that the discovery documents were material and necessary to the prosecution of the action (see generally CPLR 3101 [a]). In opposing the motion, the Town failed to establish that the discovery requests were unduly burdensome … . Garcia v Town of Tonawanda, 2022 NY Slip Op 06584, Fourth Dept 11-18-22

Practice Point: Because the town did not demonstrate that it searched the highway department and town clerk’s records it did not demonstrate it had not received notice of the fallen signpost plaintiff bicyclist allegedly struck. Plaintiff was entitled to discovery of town documents relating to the repair of signs.

 

,

HERE THE LANGUAGE IN THE RELEASE WAS CLEAR AND UNAMBIGUOUS AND NONE OF THE TRADITIONAL FACTORS WHICH INVALIDATE A CONTRACT WERE PRESENT; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the release signed by plaintiff in this snowmobile accident case was enforceable and the complaint should have been dismissed. Plaintiff was a passenger on the snowmobile and she and the driver were represented by the same law firm. The settlement was for $25,000. Plaintiff signed the release but allegedly did not receive any compensation. The decision is comprehensive and well worth consulting; it addresses substantive issues not summarized here:

… [D]efendant met his initial burden of establishing that he was released from any claims by submitting the release executed by plaintiff … . As defendant contends, “the language of [the] release is clear and unambiguous” and plaintiff’s action against defendant to recover for personal injuries is barred … . * * *

The release in this case contains preliminary broad language releasing defendant from “any and all claims, demands, damages, costs, expenses, loss of services, actions, and causes of action whatsoever . . . arising from any act or occurrence up to the present time and particularly on account of BODILY INJURY, loss or damages of any kind” that plaintiff sustained or may sustain as a consequence of the accident, which is later narrowed by the language stating that the “agreement only releases the parties named above with respect to BODILY INJURY damages arising out of the accident” and that the “agreement does not waive any other party or parties from making any other claims that are not discharged or settled by this release” … . It is well established that where the language of a release is “limited to only particular claims, demands, or obligations, the instrument will be operative as to those matters alone, and will not release other claims, demands or obligations” … .

Even so, the release of defendant for any “bodily injury damages” arising from the accident clearly and unambiguously encompasses plaintiff’s action against defendant to recover for personal injuries sustained in the accident … . Putnam v Kibler, 2022 NY Slip Op 06574, Fourth Dept 11-18-22

Practice Point: Absent any of the traditional factors which will invalidate a contract, the unambiguous language of a release will be enforced to prohibit any further litigation in the matter.

 

, ,

THE BIG APPLE MAP RAISED A QUESTION OF FACT ABOUT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; PLAINTIFF’S COMPLAINT WAS AMENDED TO FIX A DEFICIENCY IN PLEADING THAT THE CITY HAD WRITTEN NOTICE OF THE DEFECT (FIRST DEPT).

​The First Department, reversing Supreme Court, determined: (1) there was a question of fact whether the Big Apple map provided the city with written notice of the sidewalk defect alleged to have caused plaintiff’s slip and fall; (2) the city’s evidence to the contrary was improperly first submitted in reply; (3) the plaintiff was entitled to amend the complaint to correct the deficiency in pleading the city had written notice of the sidewalk defect:

In support of its summary judgment motion, the City submitted evidence, including the most recent Big Apple Map received by the City prior to plaintiff’s accident, and argued that the Map did not depict the type of sidewalk defect that plaintiff testified caused her accident.

Based on all the evidence submitted, including the Big Apple Map and photographs of the sidewalk defect, plaintiff raised a triable issue of fact as to whether the City had prior written notice of the alleged dangerous condition … . The City’s contention that the Big Apple Map had been rendered inapplicable by subsequent sidewalk repairs is unavailing. Aside from the fact that this argument was improperly raised for the first time on reply, the City’s submissions indicated that the defect remained unchanged. Further, the issue of whether the Big Apple Map was sufficiently close in time to provide prior written notice, and whether the area had remained unchanged, was a question for the jury … . Bchakjan v City of New York, 2022 NY Slip Op 06543, First Dept 11-17-22

Practice Point: In NYC, a Big Apple map may provide the city with written notice of a sidewalk defect.

 

, ,

DEFENDANT’S EMPLOYER (TOMS) WAS NOT LIABLE FOR THE ACTS OF DEFENDANT EMPLOYEE (ROSNER) WHICH WERE NOT DONE WITHIN THE SCOPE OF ROSNER’S EMPLOYMENT OR TO FURTHER TOMS’ BUSINESS (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined that defendant Rosner, an employee of defendant TOMS Capital Management, was clearly not acting within the scope of his employment with TOMS when advising plaintiff on investments, allegedly as part of a scheme to deplete plaintiff’s assets. Therefore plaintiff’s unjust enrichment and negligence causes of action against TOMS based upon respondeat superior should have been dismissed:

In or about June 2020, Rosner allegedly began an affair with plaintiff’s wife. They then allegedly conspired to develop a scheme to deplete plaintiff’s assets. In furtherance of this scheme, Rosner began to advise plaintiff to invest in high-risk stock options which Rosner knew were not suitable for plaintiff and would not be profitable for him. Plaintiff followed the advice and sustained trading losses in excess of $300,000. Plaintiff alleges that this investment advice was part of a scheme by TOMS and Rosner to “better position the stock options,” in which TOMS was also allegedly participating, to benefit TOMS and Rosner and their clients.

The motion court incorrectly determined that the allegations in the complaint sufficiently supported claims for unjust enrichment and negligence against TOMS under a theory of respondeat superior. Even construed in the light most favorable to plaintiff … , the alleged acts by Rosner clearly were not made within the scope of his employment or in furtherance of TOMS’s business, but rather, for his own personal gain … . Courtois v TOMS Capital Mgt. LP, 2022 NY Slip Op 06545, First Dept 11-17-22

Practice Point: Here defendant allegedly gave investment advice to plaintiff which was designed to deplete plaintiff’s assets. Because defendant’s acts were not done within the scope of his employment the unjust enrichment and negligence causes of action against defendant’s employer, pursuant to the doctrine of respondeat superior, should have been dismissed.

 

, ,

NEW YORK DOES NOT HAVE GENERAL OR LONG-ARM JURISDICTION OVER A UK CORPORATION WHICH ALLEGEDLY MANUFACTURED A DEFECTIVE PART OF AN EXCAVATOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the Miller defendants, a UK corporation, were not amenable to general or long-arm jurisdiction in New York. Plaintiff alleged a part (a coupler) made by Miller failed causing an excavator bucket to detach and fall:

General jurisdiction exists over a corporate entity only in the state(s) in which it is incorporated and has its principal place of business … . * * *

Defendants have also failed to establish specific jurisdiction over the Miller parties pursuant to CPLR 302(a)(1), CPLR 302 (a)(3)(i) or CPLR 302 (a)(3)(ii). Although the Miller parties might have placed the coupler involved in plaintiff’s accident into the stream of commerce, and while they tout having a global customer base and business model, the Supreme Court of the United States has made clear that “the ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction … . Cruz v City of New York, 2022 NY Slip Op 06546, First Dept 11-17-22

Practice Point: The ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction. Here New York did not have general or long-arm jurisdiction over a UK corporation which manufactured a part on an excavator which allegedly failed causing the excavator bucket to detach.

 

IN THIS SIDEWALK SLIP AND FALL CASE, THE SUPPORT POLE FOR THE SIDEWALK TENT FURNISHED THE OCCASION FOR THE SLIP AND FALL BY REQUIRING PLAINTIFF TO CHOOSE WHICH SIDE OF THE POLE TO WALK ON BUT WAS NOT THE PROXIMATE CAUSE OF THE SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the support pole for the sidewalk shed furnished a condition for the sidewalk slip and fall but was not the proximate cause of the fall:

The record established as a matter of law that the sidewalk shed was not a proximate cause of plaintiff’s injuries. Plaintiff testified that the support pole for the sidewalk shed was placed in the middle of the sidewalk, dividing the area into two paths that were three feet wide on each side, and that she and her husband elected to walk side-by-side on the path to the left nearest the tree well. Plaintiff stated that her husband “nudged” her to the left, and her foot touched the edge of the tree well, which was not level with the sidewalk, causing her to fall. This testimony established that the placement of the sidewalk shed support pole did not compel plaintiff to step into the tree well to proceed forward, but that its placement merely facilitated the accident or furnished the occasion for it … . Kalnit v 141 E. 88th St., LLC, 2022 NY Slip Op 06552, First Dept 11-17-22

Practice Point: A condition can furnish the occasion for an accident without being the proximate cause of the accident. Here a support pole for a sidewalk tent required plaintiff to choose which side of the pole to walk on but did not cause her slip and fall (she stepped in a tree well).

 

, , ,

FAILURE TO FOLLOW DECEDENT’S DIRECTIVES IN A LIVING WILL OR HEALTHCARE PROXY CAN CONSTITUTE MEDICAL MALPRACTICE; HERE THERE WERE QUESTIONS OF FACT ABOUT WHICH HEALTHCARE PROXY APPLIED, WHETHER A PROXY WAS REVOKED BY DECEDENT, AND WHETHER THE TREATMENT GIVEN TO DECEDENT WAS APPROVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact concerning which of two contradictory healthcare proxies applied and whether one of the healthcare proxies was revoked by decedent’s conversations:

Plaintiff commenced an action against defendants alleging medical malpractice based on the various health proxies and forms. Plaintiff claims that defendants breached their agreement with the decedent by administering antibiotics and IV Hydration from April 15, 2017 onwards that prolonged his life.

Here, there are issues of fact that preclude summary judgment. It is unclear whether the 1993 healthcare proxy (and the living will), the 2016 healthcare proxy or the 2017 FLST [Forgoing Life-Sustaining Treatment Including DNR] governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a). Significantly, it is not clear from the record whether the treatment prolonged decedent’s life, as neither side submits an expert affidavit. There is also a question as to whether decedent’s health care agents approved the very treatment for which they now seek to hold defendants liable. Lanzetta v Montefiore Med. Ctr., 2022 NY Slip Op 06554, First Dept 11-17-22

Practice Point: Failure to follow a decedent’s directives in a living will or healthcare proxy can constitute medical malpractice. The directives can be orally revoked.

 

, ,

IF A TRIAL JUDGE DECIDES THE DAMAGES AWARDED BY THE JURY ARE EXCESSIVE, THE PROPER PROCEDURE IS TO ORDER A NEW TRIAL UNLESS PLAINTIFF STIPULATES TO THE REDUCED AWARD (SECOND DEPT).

The Second Department agreed with the trial judge’s reduction of damages awarded by the jury in this wrongful death case but noted that the judge should have ordered a new trial unless plaintiff stipulated to the lower damages amount:

… [W]hile the 21-year-old Bohdan [plaintiff’s decedent], who worked in the family business, lived with his parents, and cared for his younger sibling, was described as a wonderful, loving son who was especially helpful around the home, based on the record, the Supreme Court properly concluded that the jury awards for past pecuniary loss and future pecuniary loss were excessive. … . … [I]t was procedurally improper for the court to reduce the awards of damages for past pecuniary loss and future pecuniary loss without granting a new trial on those issues unless the plaintiff stipulated to reduce the verdict … . Vitenko v City of New York, 2022 NY Slip Op 06515, Second Dept 11-16-22

Practice Point: If the trial judge decides the damages awarded by the jury are excessive, the proper procedure is to order a new trial unless the plaintiff stipulates to the reduced amount.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy