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THE ALLEGED INTENTIONAL ACT OF THROWING A HAND TRUCK AT A BUS INJURING PLAINTIFF-PASSENGER DID NOT SUPPORT NEGLIGENCE OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION, BUT DID SUPPORT AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the allegation plaintiff was injured when defendant (McGregor) threw a hand truck at the bus in which plaintiff was a passenger did not support causes of action for negligence or negligent infliction of emotional distress, but did support a cause of action for intentional infliction of emotional distress:

… [T]he only inference that may be drawn from the plaintiff’s allegations is that the plaintiff’s alleged injuries resulted solely from McGregor’s intentional acts. Contrary to the plaintiff’s contention, even if McGregor “lacked any intent to make physical contact with, or otherwise injure, the plaintiff, the conduct attributed to [McGregor] in the amended complaint . . . constituted intentional, rather than negligent, conduct” … . …

“A negligent infliction of emotional distress cause of action must fail where, as here, no allegations of negligence appear in the pleadings” … . …

[Re; intentional infliction of emotional distress:] … [T]he complaint sufficiently alleged that McGregor engaged in conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . Besides the alleged throwing of the hand truck that is the basis of the plaintiff’s assault and battery causes of action, the plaintiff also alleges that McGregor threw other objects at the bus, attempted to board the bus, prevented the bus from moving, kicked the bus, and yelled threats and expletives. Chiesa v McGregor, 2022 NY Slip Op 05982, Second Dept 10-26-22

Practice Point: Here the alleged intentional act of throwing a hand truck at a bus injuring plaintiff-passenger did not support negligence and negligent infliction of emotional distress causes of action, even though the injuries to plaintiff may not have been intended. The allegation did support an intentional infliction of emotional distress cause of action.

 

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THE PLEADINGS ALLEGED THE NEGLIGENCE OF THE HOSPITAL’S “AGENTS AND EMPLOYEES” AND PLAINTIFF’S EXPERT POINTED TO THE ALLEGED NEGLIGENCE OF THE EMERGENCY ROOM PHYSICIAN WHO TREATED PLAINTIFF’S DECEDENT; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE HOSPITAL WOULD BE VICARIOUSLY LIABLE FOR THE EMERGENCY ROOM PHYSICIAN’S ACTS OR OMISSIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the defendant hospital was vicariously liable for the acts or omissions of the emergency room doctor, Vaugeois, who treated plaintiff’s decedent. Although the complaint did not name Vaugeois as a defendant, the pleadings alleged the negligence of defendant’s agents and employees:

… [Plaintiff’s expert] points to Vaugeois, the hospitalist who admitted and initially rendered care to decedent, as the negligent party. … [P]laintiff’s bill of particulars speaks to defendant’s “agents and employees, specifically including” Smithem and Dey [who had been dropped from the suit]. The word “including” is not exclusive, leaving open the prospect that vicarious liability was premised on the negligence of other providers. “A hospital is responsible for the malpractice of . . . a professional whom it holds out as performing the services it offers, even though in fact he or she is an independent contractor” … . At the very least, a question of fact is presented as to whether liability may be imposed against the hospital based on an apparent authority theory … . “Pursuant to that theory, under the emergency room doctrine, ‘a hospital may be held vicariously liable for the acts of an independent physician if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician'” … . Fasce v Catskill Regional Med. Ctr., 2022 NY Slip Op 05906, Third Dept 10-20-22

Practice Point: The pleadings alleged negligence on the part of defendant hospital’s “agents and employees.” Plaintiff’s expert alleged the emergency room physician was negligent. Therefore, there was a question of fact whether the hospital would be vicariously liable for the acts or omissions of the emergency room physician.

 

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THE PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT TO CURE THE OMISSION OF THE “PRIOR WRITTEN NOTICE” REQUIREMENT IN THIS SIDEWALK SLIP AND FALL CASE; THE AMENDMENT WAS NOT PALPABLY DEVOID OF MERIT AND WOULD NOT PREJUDICE THE CITY DEFENDANT; PLAINTIFF DID NOT NEED TO PRESENT ANY PROOF ON THE ISSUE; THEREFORE THE AMENDMENT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROOF SUBMITTED WAS INSUFFICIENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff should have been allowed to amend the complaint to cure a pleading omission in this slip and fall case. The complaint did not allege the defendant city had written notice of the sidewalk condition which allegedly caused plaintiff’s fall. The amendment sought to cure the omission. The Third Department explained that plaintiff did not need to present any proof at this pre-discovery stage. As long as the amendment is not palpably devoid of merit and does not prejudice the defendant  it should have been allowed. Therefore Supreme Court should not have considered plaintiff’s “written notice” proof and denied the amendment on the ground the proof did not demonstrate the defendant city had written notice of the condition:

As it is undisputed that plaintiff timely filed a notice of claim concerning her fall and the City and plaintiff thereafter participated in a 50-h hearing (see General Municipal Law§ 50-h), the City cannot allege prejudice or surprise. Moreover, as demonstrated by her proposed amended complaint, plaintiff is not changing her theory of causation, but merely curing her pleading omission. Although Supreme Court correctly determined that the proposed amended complaint cured the pleading omission, its attendant conclusion that “[plaintiff’s] claim is belied by the documentary evidence” and subsequent dismissal of the action on that basis was error.

At this stage of the litigation, where discovery has not yet even commenced, plaintiff has no burden to submit any proof. As such, the documents that she did submit are of no moment, and do not provide a basis upon which to dismiss her action … .. … [C]ontrary to the City’s assertion that the proposed amended complaint contains bare legal conclusions, plaintiff need not establish the merits of the proposed amendments … . Inasmuch as the proposed amendments were not palpably insufficient or patently meritless, and the City cannot allege surprise or prejudice as the proposed amended complaint otherwise contains facts formerly pleaded and previously known to it, leave should have been granted to amend the complaint … . Mohammed v New York State Professional Fire Fighters Assn., Inc., 2022 NY Slip Op 05909, Third Dept 10-20-22

Practice Point: Here plaintiff’s motion seeking leave to amend the slip and fall complaint by curing the omission of the “written notice” allegation should have been granted. Plaintiff did not need to present proof that the city actually had written notice. The only issues before the court were whether the amendment was palpably devoid of merit or the amendment would prejudice the city. Therefore Supreme Court erred by considering the “written notice” evidence presented by the plaintiff and denying the amendment because that evidence did not prove the city had written notice of the sidewalk condition.

 

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DEFENDANTS’ VAN FAILED TO YIELD TO APPELLANT’S VEHICLE, WHICH HAD THE RIGHT OF WAY, WHEN DEFENDANTS’ VAN ATTEMPTED TO MERGE INTO APPELLANT’S LANE; THE DASH CAM VIDEO DEMONSTRATED DEFENDANT-DRIVER VIOLATED THE VEHICLE AND TRAFFIC LAW; APPELLANT WAS NOT NEGLIGENT AS A MATTER OF LAW (SECOND DEPT). ​

​The Second Department, reversing Supreme Court, determined a dash cam video demonstrated that defendants’ van failed to yield to appellant’s vehicle. Therefore, appellant was not negligent as a matter of law:

“A driver has a duty not to merge into a lane of moving traffic until it is safe to do so, and a violation of this duty constitutes negligence as a matter of law” ( … see Vehicle and Traffic Law § 1128[a]). Moreover, a driver of a vehicle with the right-of-way is entitled to anticipate that the driver in the lane next to him or her will obey the traffic laws requiring them to yield to a driver with the right-of-way … . “‘[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision'” … .

Here, in support of her motion, the appellant submitted evidence which included, among other things, a dash cam video of the accident which demonstrated that the defendant van driver failed to yield the right-of-way to the appellant’s vehicle in violation of Vehicle and Traffic Law § 1128(a). The video revealed that the defendant van driver suddenly moved into the appellant’s lane of travel as that lane widened to become both a travel lane and an exit ramp lane and, within seconds, the right side of the vehicle of the defendant van driver collided with the driver’s side of the appellant’s vehicle as the appellant’s vehicle was entering the exit ramp lane. Thus, the evidence submitted by the appellant established, prima facie, that the defendant van driver’s failure to yield was the sole proximate cause of the collision and that the appellant was free from fault … . Vigdorchik v Vigdorchik, 2022 NY Slip Op 05886, Second Dept 10-19-22

Practice Point: Here defendant driver struck appellant’s car while attempting to merge into appellant’s lane, which violated the Vehicle and Traffic Law because appellant had the right of way. The accident was captured in a dash cam video. Appellant was not negligent as a matter of law.

 

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IN THIS REAR-END TRAFFIC ACCIDENT CASE, WHERE PLAINTIFF WAS AN INNOCENT PASSENGER, DEFENDANTS’ FAILURE-TO-STATE-A-CAUSE-OF-ACTION AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN STRUCK BECAUSE THE MOTION TO STRIKE AMOUNTED TO TESTING THE SUFFICIENCY OF PLAINTIFF’S OWN CLAIM (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the “failure to state a cause of action” affirmative defense in this traffic accident case should not have been struck. Plaintiff was a passenger in a car rear-ended by defendants. The court noted that any comparative negligence among defendant-drivers does not preclude summary judgment on liability in favor of a non-negligent passenger:

The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g] …). …

Supreme Court should have denied that branch of the plaintiff’s motion which was, in effect, pursuant to CPLR 3211(b) to dismiss the defendants’ first affirmative defense, alleging that the complaint fails to state a cause of action. “[N]o motion by the plaintiff lies under CPLR 3211(b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim” … . Ochoa v Townsend, 2022 NY Slip Op 05854, Second Dept 10-19-22

Practice Point: The plaintiff’s motion to strike defendants’ failure-to-state-a-cause-of-action affirmative defense should not have been granted because the motion amounts to plaintiff’s testing the sufficiency of his or her claim.

Practice Point: In a traffic-accident case, comparative negligence among defendant drivers does not preclude summary judgment on liability in favor of an innocent passenger.

 

 

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THE MAJORITY DETERMINED PLAINTIFF DID NOT TIE HIS DIMINISHED RANGE OF MOTION TO THE TRAFFIC ACCIDENT, AS OPPOSED TO HIS PRE-EXISTING CONDITIONS, AND THEREFORE PLAINTIFF DID NOT DEMONSTRATE “SERIOUS INJURY;” THE DISSENT ARGUED THE NATURE OF THE ACCIDENT (DEFENDANTS’ TRUCK REAR-ENDED PLAINTIFF’S CAR AT 45 MILES PER HOUR) SHOULD BE CONSIDERED AND DEFENDANT MUST TAKE THE PLAINTIFF AS HE OR SHE FINDS HIM (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined plaintiff did not raise a question of fact about whether he suffered serious injury within the meaning of Insurance Law 5102 in this rear-end traffic accident case. [Editor’s Note: Decisions determining whether plaintiff suffered “serious injury” within the meaning of the No-Fault Law are not covered in the New York Appellate Digest because each analysis is necessarily unique and fact-specific. This “serious injury” decision has been summarized because there is a two-justice dissent arguing (1) the nature of the accident, defendants’ truck rear-ending plaintiff’s car at 45 miles per hour, should have been considered, (2) the defendant must take the plaintiff as he or she finds him, and (3) there are questions of fact whether plaintiff’s pre-existing conditions were aggravated by the accident.]:

… [P]laintiff did not provide … objective medical evidence distinguishing his preexisting back condition from its purported exacerbation in the November 2016 accident — such as, for example, proof tying the diminished ranges of motion observed by [plaintiff’s expert] in March 2021 to the November 2016 accident rather than plaintiff’s prior degenerative back problems — or demonstrating a causal link between any exacerbation and the self-reported limitations on plaintiff’s activities for purposes of his 90/180-day claim … .

From the dissent:

The facts regarding the accident are not in dispute. Defendant Alton E. Horn was driving a 1998 Kenworth tractor trailer at a speed of 45 miles per hour when he rear-ended plaintiff. While we could find no postaccident photographs of the vehicles in the record, Horn stated that the impact bent his bumper and pushed the hood up on his tractor trailer, and plaintiff referred to his vehicle as “totaled.” Plaintiff was removed from the scene by ambulance and was administered morphine en route to the hospital. Although plaintiff was released from the hospital that night, he reported that he was bedridden for the next 10 days. During oral argument, defendants’ counsel urged us to ignore these facts attendant to the actual accident, however we could find no case law that mandates that the Court leave its common sense at the door. Simply put, the facts do matter. Finally, it is undisputed that, although plaintiff had not undergone surgery to alleviate the discomfort in his lower back before the accident, he has since.

… [E]very first-year law student is aware of the eggshell plaintiff axiom, namely that the defendant must take the plaintiff as he or she finds him, i.e., the plaintiff may recover to the extent that the accident aggravated his or her preexisting conditions … . Lemieux v Horn, 2022 NY Slip Op 05739, Second Dept 10-13-22

Practice Point: The majority concluded the plaintiff’s evidence did not link his current range of motion limitations to the traffic accident, as opposed to his pre-existing conditions. Therefore plaintiff did not demonstrate “serious injury” within the meaning of the Insurance Law. The two-justice dissent argued the nature of the accident–defendants’ truck rear-ended plaintiff’s car at 45 miles per hour–and plaintiff’s medical evidence raised a question of fact about whether plaintiff’s pre-existing conditions were aggravated by the accident.

 

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A DRAINAGE GRATE WHICH DOES NOT VIOLATE ANY CODE AND WHICH IS NOT DEFECTIVE IS NOT A DANGEROUS CONDITION SIMPLY BECAUSE IT WAS WET FROM RAIN AT THE TIME OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the drainage grate on which plaintiff slipped and fell was not a dangerous or defective condition. The grate did not violate any code and was not defective. The fact that the grate was wet from falling rain did not demonstrate a dangerous condition:

A property owner has a duty to maintain his or her premises in a reasonably safe condition … . “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of a dangerous or defective condition upon the landowner’s property, the plaintiff must establish, among other things, that a dangerous or defective condition actually existed” … . Here, the defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that the metal drainage grate, which was not in violation of any applicable code, was not in a defective or hazardous condition and that it maintained its premises in a reasonably safe condition … . The mere fact that the grate was wet from the falling rain was insufficient to establish the existence of a dangerous condition … . Shuttleworth v Saint Margaret’s R.C. Church in Middle Vil., 2022 NY Slip Op 05730, Second Dept 10-12-22

Practice Point: Here a drainage grate which did not violate any code and which was not defective was not a dangerous condition simply because it was wet with rain at the time of the slip and fall.

 

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DEFENDANT’S GENERAL AWARENESS THAT PUDDLES FORMED IN THE AREA OF PLAINTIFF’S SLIP AND FALL AND THAT WATER TURNS TO ICE WAS NOT ENOUGH TO DEMONSTRATE DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE ICY CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant had constructive notice of the icy condition where she slipped and fell. The fact that defendant may have been aware that puddles of water formed in that area was not enough:

The plaintiff’s submissions demonstrated that the defendant had a general awareness that puddles of water formed on the portion of the sidewalk or pathway where the plaintiff fell. However, the defendant’s general awareness that puddles of water formed in the precise location of the plaintiff’s fall is not sufficient to impute actual or constructive notice of the specific ice condition that caused her to fall … . The plaintiff submitted no evidence to show that the defendant was aware that ice formed in the area of the puddled water where the plaintiff fell … . General awareness that water can turn to ice is legally insufficient to constitute constructive notice of the particular ice condition that caused the plaintiff to fall … . The plaintiff’s submissions also failed to establish, prima facie, that the ice condition was otherwise visible and apparent, and had formed a sufficient period of time before the accident for the defendant to have discovered and remedied the condition … .  McDonnell v Our Lady of Mercy R.C. Church, 2022 NY Slip Op 05686, Second Dept 10-12-22

Practice Point: Defendant’s general awareness that puddles form in the area where plaintiff slipped and fell and that water turns to ice did not demonstrate defendant had constructive notice of the icy condition.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE; THE AFFIDAVIT, THEREFORE, DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert affidavit in this medical malpractice action was conclusory and speculative, and therefore did not raise a question of fact:

The plaintiff submitted the affidavit of her expert, a physician board certified in vascular surgery, who agreed with [defendant} Mansouri’s plan to perform right femoral popliteal bypass surgery. The plaintiff’s expert further opined, however, that Mansouri departed from the accepted standard of care by not choosing a different vessel once he found the popliteal artery to be diseased with plaque. The expert’s affidavit was conclusory and speculative. While the expert opined that Mansouri should have used a different vessel, he failed to specify which vessel should have been used … . For that same reason, the assertion by the plaintiff’s expert that “the vessel should have been bypassed more distally” was conclusory and speculative. Moreover, the opinion of the plaintiff’s expert that Mansouri deviated from good and accepted medical practice by failing to verify that the plaintiff had sufficient perfusion after the surgery is unsupported by competent evidence … . Coffey v Mansouri, 2022 NY Slip Op 05678, Second Dept 10-12-22

Practice Point: The plaintiff’s expert’s affidavit in this medical malpractice case was deemed speculative, conclusory and unsupported by competent evidence. Defendants’ motion for summary judgment should have been granted.

 

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PLAINTIFF BICYCLIST STRUCK THE DOOR OF DEFENDANT’S VAN AFTER DEFENDANT HAD OPENED THE DOOR; DEFENDANT RAISED QUESTIONS OF FACT ABOUT WHETHER HE HAD OPENED THE DOOR SAFELY AND WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED AND DEFENDANT’S COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bicyclist’s motion for summary judgment in this traffic accident case should not have been granted. Plaintiff alleged defendant, Stewart, opened the door of his van and plaintiff could not avoid striking the door. Stewart raised questions of fact about whether he was negligent and whether plaintiff was comparatively negligent:

The assertions made in Stewart’s affidavit, if credited, would support a finding that the plaintiff was riding his bicycle close to the parked vehicles, at a relatively high rate of speed, and possibly under the influence of alcohol, and he failed to perceive and avoid the van door, which had been open for as long as five seconds … .

… Stewart averred that, before opening the van door, he looked in his side-view mirror, where he was able to see the entire northbound lane for approximately 200 feet behind him, and he saw nothing approaching. Approximately five seconds later, the plaintiff’s bicycle collided with the van door. These averments were sufficient to raise a triable issue of fact as to whether Stewart failed to see what, by the reasonable use of his senses, he should have seen, and whether he opened the van door when it was not reasonably safe to do so … . Tucubal v National Express Tr. Corp., 2022 NY Slip Op 05731, Second Dept 10-12-22

Practice Point: In a traffic accident case, at the summary judgment stage, if defendant raises questions of fact about whether he/she was negligent and whether plaintiff was negligent, summary judgment should not be granted to plaintiff and the comparative negligence affirmative defense should not be dismissed.

 

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