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THE PLAINTIFF-STUDENT FOOTBALL PLAYER DID NOT ASSUME THE RISK OF INJURY IN A FOOTBALL-RELATED WEIGHT-LIFTING SESSION; THE RISK OF A WEIGHT-LIFTING INJURY IS NOT INHERENT IN THE GAME OF FOOTBALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student, a high school sophomore varsity football player, did not assume the risk of injury during a weight-lifting training-session when he voluntarily agreed to play football. The decision includes a good explanation of the assumption-of-the-risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sport or recreational activity is deemed to consent to the risks inherent in that sport, thereby negating any duty on a defendant’s part to safeguard the plaintiff from those risks … . While the absolute defense of implied assumption of risk, which was abolished by the enactment of CPLR 1411 in 1975, barred recovery by a plaintiff who was aware of the risks of engaging in a specific act and engaged in that specific act nonetheless …, the separate and distinct doctrine of primary assumption of risk posits that the risk is assumed by virtue of the plaintiff’s voluntary participation in a sporting event, which indicates the plaintiff’s consent to the risks that are inherent in that sport. Although a plaintiff’s knowledge of the risk involved in the particular act that results in injury remains relevant, under CPLR 1411, in assessing his or her comparative fault, in the context of primary assumption of risk, “knowledge plays a role but inherency is the sine qua non” … . * * *

Unlike a plaintiff subject to the pre-1975 defense of implied assumption of risk, the infant plaintiff in this case did not assume a risk at the moment he attempted to lift the 295-pound bar. Rather, his assumption of risk occurred when he joined the football team …, and the risks he assumed were limited to those that are inherent in the sport of football. The risk of losing control of a 295-pound bar is not a risk inherent in the sport of football … . Annitto v Smithtown Cent. Sch. Dist., 2022 NY Slip Op 06098, Second Dept 11-2-22

Practice Point: This decision clarifies the boundaries of the assumption-of-the-risk as it applies to school sports. When the plaintiff-student joined the football team, he assumed the risks inherent in the game of football. Here, those risks were not deemed to extend to weight-training, even though the weight-training was football-related. The student’s negligent supervision action stemming from his weight-training injury was not precluded by the assumption-of-risk doctrine.

 

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SIX TO TWELVE INCHES OF SNOW FELL OVERNIGHT AND PLAINTIFF SLIPPED AND FELL AT AROUND 6:00 AM; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM-IN-PROGRESS DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this slip and fall case should have been granted on the ground that the storm-in-progress defense applied:

On March 15, 2017, at approximately 5:55 a.m., the plaintiff … allegedly was injured when he slipped and fell on snow and ice on premises owned by the defendants. …

“Under the storm-in-progress rule, a property owner, tenant in possession, or, where relevant, a snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow . . . an opportunity to ameliorate the hazards caused by the storm” … . However, once a landowner or a tenant in possession elects to engage in snow removal during a storm in progress, “it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … . “The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm” … .

Here, in support of their motion, the defendants submitted … [plaintiff’s] deposition testimony, which established … that snow began to fall the day before the incident and continued to fall into the overnight hours, producing 6 to 12 inches of snow, and that the defendants did not have a reasonably sufficient time to ameliorate the hazards caused by the storm … . Henenlotter v Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116, Second Dept 11-2-22

Practice Point: Here six to twelve inches of snow fell overnight and plaintiff slipped and fell around 6 in the morning. The appellate court determined the storm-in-progress defense applied and defendants’ motion for summary judgment should have been granted.

 

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IN THIS REAR-END COLLISION CASE, THE DEFENDANT’S ALLEGATION HE DID NOT SEE PLAINTIFF’S BRAKE LIGHTS DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that allegation defendant did not see plaintiff’s brake lights in this rear-end collision case did not raise a question of fact about whether brake lights were not functioning:

… [T]he defendant failed to raise a triable issue of fact. Contrary to the defendant’s contention, his claim that he did not see brake lights on the plaintiffs’ vehicle prior to the collision, standing alone, was insufficient to raise a triable issue of fact as to whether an alleged malfunction of the brake lights on the plaintiffs’ vehicle proximately caused the accident … . Quintanilla v Mark, 2022 NY Slip Op 06151, Second Dept 11-2-22

Practice Point: In this rear-end collision case, the defendant’s allegation he did not see plaintiff’s brake lights did not raise a question of fact about whether the brake lights were functioning properly.

 

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THE EXPERT DISCLOSURE COMBINED WITH THE BILL OF PARTICULARS GAVE SUFFICIENT NOTICE OF THE NATURE OF THE PLAINTIFF’S EXPERT’S OPINION; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert in this medical malpractice action should not have been precluded from testifying on the ground the expert disclosure did not provide notice of topic the expert was prepared to testify about. The notice, in combination, with the pleadings was deemed to have provided sufficient notice. The essence of the complaint was defendant doctor’s (Ascencio’s) alleged failure to diagnose and treat a surgery-related infection. Plaintiff’s expert was going to testify the infection originated internally:

… [T]he Supreme Court precluded the plaintiff’s expert from testifying regarding his opinion that the plaintiff’s infection originated internally during the surgery on the ground that the expert disclosure referenced only the alleged failure to timely diagnose and appropriately treat a postoperative wound infection. However, in light of the other allegations in the expert disclosure and the incorporated bills of particulars, including those that addressed the alleged failure to discover a “festering infection” and/or a “surgical site infection” prior to the plaintiff’s discharge, “‘the expert witness [disclosure] statement was not so inadequate or inconsistent with the expert’s [proposed] testimony as to have been misleading, or to have resulted in prejudice or surprise'” … . Moreover, in this “prototypical battle of the experts” … , the preclusion of expert testimony concerning the origin of the plaintiff’s infection, and its effect on Ascencio’s alleged ability to discover the infection prior to the plaintiff’s discharge, prejudiced the plaintiff in presenting her case, such that the error cannot be deemed harmless … . Owens v Ascencio, 2022 NY Slip Op 06133, Second Dept 11-2-22

Practice Point: In this medical malpractice case, the plaintiff’s expert’s disclosure notice, in combination with the bill of particulars, sufficiently alerted defendants to the nature of the expert’s opinion. The preclusion of the expert’s testimony was reversible error.

 

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IN THIS SLIP AND FALL CASE, PLAINTIFF’S 50-H EXAMINATION TESTIMONY DIRECTLY CONTRADICTED HIS AFFIDAVIT OPPOSING THE CITY’S SUMMARY JUDGMENT MOTION; THE “FEIGNED ISSUE OF FACT” DID NOT RAISE A QUESTION OF FACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff’s affidavit in opposition directly contradicted his testimony at the General Municipal Law 50-h examination:

“[A] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition” … . Here, the defendant made a prima facie showing that it did not engage in any snow removal activity within the subject triangular area, and therefore was not responsible for creating the icy condition that caused the plaintiff to fall. In opposition to the defendant’s motion, the plaintiff submitted an affidavit in which he averred that, in the afternoon of the day before his accident, he “observed City personnel shoveling the snow from the [subject triangular area] and making piles of snow upon the perimeters.” Yet, at his examination pursuant to General Municipal Law § 50-h, the plaintiff had been asked “At any point between the snowfall and the morning before the accident happened, had you seen anyone clearing snow from that [triangular area],” and he had responded “No, no.” Since the assertion made for the first time in the plaintiff’s affidavit directly contradicted the testimony he had given at his General Municipal Law § 50-h examination, and he has not provided a plausible explanation for the inconsistency between the two statements, the assertion made in his affidavit must be viewed as presenting a feigned factual issue designed to avoid the consequences of his earlier testimony, and it is insufficient to raise a triable issue of fact … . Nass v City of New York, 2022 NY Slip Op 06132, Second Dept 11-2-22

Practice Point: Here the plaintiff’s 50-h examination testimony directly contradicted his affidavit opposing defendant’s motion for summary judgment. The “feigned issue of fact” did not raise a question of fact.

 

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THE RECEIVER APPOINTED TO CONTROL PROPERTY INVOLVED IN AN OWNERSHIP DISPUTE SHOULD HAVE BEEN SUBSTITUTED AS THE REPRESENTATIVE OWNER IN A SLIP AND FALL CASE (THIRD DEPT). ​

​The Third Department, reversing Supreme Court, determined the receiver, appointed to take control of two properties the ownership of which is in dispute, should have been substituted as the representative owner of the property in a slip and fall case:

Generally, a temporary receiver appointed pursuant to CPLR article 64 “is a person appointed by the court to take control of designated property and see to its care and preservation during litigation” … . Pertinent here, the appointment order authorized the receiver “to immediately take charge and enter possession of the properties,” and empowered the receiver to “act as manager and landlord of the properties.” Correspondingly, the receiver was “authorized and obligated to keep the properties insured against loss by damage of fire . . . and to procure such . . . other insurance as may be reasonably necessary.” Given these directives, we cannot agree with Supreme Court’s assessment that the receiver was accorded only a limited role that did not include property maintenance. To the contrary, the receiver was charged with both the authority and responsibility to assume control over the properties. Pursuant to CPLR 1017, “[i]f a receiver is appointed for a party . . . the court shall order substitution of the proper parties.” That is the situation here. By the court’s directive, responsibility over the management of the properties was passed from the disputing owners to the receiver … . As such, the receiver should have been substituted as the representative owner of the … property … . Wen Mei Lu v Wen Ying Gamba, 2022 NY Slip Op 06037, Second Dept 10-27-22

Practice Point: Here a receiver was appointed to control properties involved in an ownership dispute. The receiver should have been substituted as a representative owner in a slip and fall case.

 

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DEFENDANT DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it did not have constructive notice of the wet condition which allegedly caused plaintiff’s slip and fall:

Defendant demonstrated prima facie that it did not have actual or constructive notice of the dangerous condition by producing evidence of its maintenance activities on the day of the accident, specifically, that the wet condition did not exist when the stairs were cleaned by the porter less than three hours before plaintiff fell … , and that there were no complaints about a wet condition on the stairs in the morning prior to her accident … . Defendant was not required to produce a written schedule or log of its cleaning activities; the unrefuted testimony of its porter was sufficient. The porter’s testimony also established that there was a reasonable cleaning schedule in place that addressed the alleged ongoing and recurring condition … .

Plaintiff failed to raise an issue of fact concerning who created the wet condition and when … . Plaintiff presented no evidence that the ongoing and recurring condition was routinely left unaddressed by defendant, nor did she raise a factual issue that defendant’s cleaning routine “was manifestly unreasonable so as to require altering it” … . Hartley v Burnside Hous. Dev. Fund Corp., 2022 NY Slip Op 06065, First Dept 10-27-22

Practice Point: The defendant demonstrated it did not have constructive knowledge of the wet condition alleged to have cause plaintiff’s slip and fall by showing the stairs were cleaned three hours before the fall and no one had complained about the wet condition in the morning prior to the fall.

 

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THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE, WHERE ONE PARTY WAS BOTH A DEFENDANT AND A PLAINTIFF, SHOULD HAVE BEEN GRANTED; ANY PREJUDICE RESULTING FROM THE JURY’S KNOWLEDGE OF THE EXISTENCE OF INSURANCE (ONE OF THE ACTIONS IS AGAINST AN INSURER) CAN BE HANDLED WITH JURY INSTRUCTIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the motion to consolidate the trials of two actions stemming from the same fire which damages two adjoining properties should have been granted. The court noted that one party is both a plaintiff and a defendant:

Although a motion pursuant to CPLR 602(a) is addressed to the sound discretion of the trial court … , consolidation or joinder for trial is favored to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts … . “Where common questions of law or fact exist, a motion [pursuant to CPLR 602(a)] to consolidate [or for a joint trial] should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion” … .

Here … the two actions involve common questions of law and fact. Assuming, arguendo, that the respondents would be prejudiced if the two actions are tried before the same jury since it would bring to the jury’s attention the existence of insurance … , any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … . Furthermore, the possibility of such prejudice can be mitigated by appropriate jury instructions … . Moreover, a joint trial, rather than consolidation, is appropriate where a party is both a plaintiff and a defendant … . Calle v 2118 Flatbush Ave. Realty, LLC, 2022 NY Slip Op 05981, Second Dept 10-26-22

Practice Point: Here the motion pursuant to CPLR 602 to consolidate the trials of two actions stemming from the same fire should have been granted. One party was both a defendant and a plaintiff. The fact that consolidation would bring the existence of insurance to the jury’s attention (one of the parties is an insurer), although prejudicial, can be handled by jury instructions.

 

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PLAINTIFF, IN THIS CHILD VICTIMS ACT SUIT, ALLEGED HE WAS ABUSED BY AN EMPLOYEE OF FAMILY SERVICES OF WESTCHESTER (FSW) AND BROUGHT CAUSES OF ACTION FOR NEGLIGENT HIRING AND NEGLIGENT SUPERVISION AGAINST FSW; THOSE CAUSES OF ACTION WERE DISMISSED FOR FAILURE TO SUFFICIENTLY ALLEGE FSW WAS AWARE OF THE EMPLOYEE’S PROPENSITY TO COMMIT THE WRONGFUL ACTS ALLEGED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s negligence hiring and negligent supervision causes of action against Family Services of Westchester (FSW) should have been dismissed. Plaintiff, in this Child Victims Act suit, alleged he was abused by a youth mentor employed by FSW when he was 10 – 12 years old:

To sustain a cause of action sounding in negligent supervision of a child under the alleged facts of this case, the plaintiff must establish that the defendant “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “‘[t]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision [of an employee], it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

Here, the complaint failed to state a cause of action to recover damages for negligent supervision of the plaintiff, since it failed to sufficiently allege that the third party acts were foreseeable … . Similarly, the complaint failed to state causes of action to recover damages for negligent hiring and negligent training and supervision related to the plaintiff’s alleged youth mentor, since it failed to sufficiently allege that FSW knew, or should have known, of a propensity on the part of the youth mentor to commit the alleged wrongful acts … .  Fuller v Family Servs. of Westchester, Inc., 2022 NY Slip Op 05992, Second Dept 10-26-22

Practice Point: Here in this Child Victims Act suit alleging abuse by an employee of Family Services of Westchester (FSW), the complaint did not state causes of action against FSW for negligent hiring or negligent supervision because the complaint did not sufficiently allege FSW was aware of the employee’s propensity for the wrongful conduct alleged.

 

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IN THIS CHILD VICTIMS ACT SUIT ALLEGING ABUSE BY AN EMPLOYEE OF A GROUP FOSTER HOME, THE JUDGE SHOULD HAVE HELD A DISCOVERABILITY HEARING BEFORE DETERMINING WHICH FOSTER-CARE RECORDS WERE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the judge should have held a discoverability hearing before which foster-care records could be released to the plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home (Little Flower):

Social Services Law § 372(3) requires “authorized agenc[ies],” including Little Flower, to “generate and keep records of those [children] who are placed in [their] care” … . Foster care records are deemed confidential (see Social Services Law § 372[3]), “considering that they must contain individualized and often highly personal information about the [children]” … . The confidential nature of such records serves “[t]o safeguard both the child and [his or her] natural parents” … , as well as others who may be “the subjects of such records” … . Although foster care records are entitled to a presumption of confidentiality, they may nonetheless be deemed discoverable pursuant to the provisions of CPLR article 31 … . Moreover, since “[the] statutory confidentiality requirement is intended [in part] to protect the privacy of children in foster care,” it should not be used “to prevent former foster children from obtaining access to their own records” … , although this does not mean that they are always entitled to unfettered disclosure thereof. Even when considering a request for disclosure from a former foster child, “[a]n agency [may] move for a protective order where some part of the record should not be produced” … . * * *

Supreme Court improvidently exercised its discretion when it declined to conduct a discoverability hearing before deciding that branch of Little Flower’s motion which sought a protective order regarding the purportedly confidential portions of the records. We therefore remit the matter to the Supreme Court, Nassau County, to conduct such a hearing and to “clearly specify the grounds for its denial or approval of disclosure with respect to each document or category of documents” … .  Cowan v Nassau County Dept. of Social Servs., 2022 NY Slip Op 05989, Second Dept 10-26-22

Practice Point: Here, in this Child Victims Act suit, the judge should have held a discoverability hearing before deciding which foster-care records could be released to plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home.

 

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