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THERE WERE QUESTIONS OF FACT WHETHER THE SNOW PLOW WAS “ENGAGED IN HIGHWAY WORK” AT THE TIME OF THE TRAFFIC ACCIDENT; THEREFORE THERE WERE QUESTIONS OF FACT CONCERNING WHETHER THE HIGHER “RECKLESS DISREGARD” STANDARD OF CARE APPLIED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this snow-plow traffic-accident case should not have been granted because there were questions of fact concerning whether the higher “reckless disregard” standard of care for snow plows was applicable. Although the “reckless disregard” standard may still apply where, as here, the snow plow is raised, the snow plow must be salting the road or otherwise “working its run” at the time of the accident:

Vehicle and Traffic Law § 1103 (b) “exempts from the rules of the road all vehicles, including [snowplows], which are ‘actually engaged in work on a highway’ . . . , and imposes on such vehicles a recklessness standard of care” … . The exemption “applies only when such work is in fact being performed at the time of the accident” … , which includes a snowplow engaged in plowing or salting a road … . Although the exemption does “not apply if the snowplow . . . [is] merely traveling from one route to another route” … , a snowplow may be “engaged in work even if the plow blade [is] up at the time of the accident and no salting [is] occurring” when the snowplow is nevertheless “working [its] ‘run’ or ‘beat’ at the time of the accident” … .

… [W]e conclude that the State failed to establish as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the accident (Vehicle and Traffic Law § 1103 [b] …). Lynch-Miller v State of New York, 2022 NY Slip Op 05640, Fourth Dept 10-7-22

Practice Point: Here the snow plow was raised when the traffic accident occurred. There were questions of fact about whether the snow plow was salting the road or otherwise working its run when at the time. Therefore, there were questions of fact about whether the higher “reckless disregard” standard of care for vehicles engaged in highway work applied.

 

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PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA), HEALTH CARE WORKERS WHO TREATED COVID-19 PATIENTS WERE IMMUNE FROM CIVIL LIABILITY; THE EDTPA HAS SINCE BEEN REPEALED; THE REPEAL SHOULD NOT BE APPLIED RETROACTIVELY; THE CAUSES OF ACTION ALLEGING IMPROPER TREATMENT FOR COVID-19 DURING THE TIME THE EDTPA WAS IN EFFECT MUST BE DISMISSED (FOURTH DEPT).

The Fourth Department determined the repeal of the COVID-19-related Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law sections 3080-3082) should not be applied retroactively. Therefore, the immunity from civil liability provided by the EDTPA for health care workers who treated COVID-19 patients was in effect when the causes of action in the complaint arose. The complaint, which alleged plaintiff nursing-home resident was not properly tested and treated for COVID-19, was dismissed:

We … conclude that applying the repeal of EDTPA to the allegations in the complaint would have retroactive effect “by impairing rights [defendants] possessed in the past, increasing their liability for past conduct and imposing new duties with respect to transactions already completed” … . “Because the [repeal of EDTPA], if applied to past conduct, would impact substantive rights and have retroactive effect, the presumption against retroactivity is triggered” … . Ruth v Elderwood At Amherst, 2022 NY Slip Op 05637, Fourth Dept 10-7-22

Practice Point: The immunity from civil liability provided to health care workers who treated COVID-19 patients while the Emergency or Disaster Treatment Protection Act (EDTPA) was in effect remains despite the subsequent repeal of the EDTPA. In other words, the repeal of the EDTPA is not given retroactive effect. The decision includes an exhaustive discussion and analysis of the retroactive application of statutes.

 

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IN THIS SLIP AND FALL CASE, THE DEFENDANTS DEMONSTRATED MEDICAL RECORDS PERTAINING TO PLAINTIFF’S PRIOR ANKLE INJURY WERE MATERIAL AND NECESSARY TO THE DEFENSE; DISCOVERY OF THOSE RECORDS SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants were entitled to discovery of the medical records for plaintiff’s prior injuries in this slip and fall case. Although the facts are not explained, the appellate court deemed he medical records relevant to whether plaintiff was negligent:

The plaintiff Shadia Hamed allegedly sustained personal injuries when she slipped and fell in a building owned and operated by the defendants. The plaintiff commenced this action alleging, inter alia, that the defendants negligently maintained their premises in an unsafe condition.

The defendants moved pursuant to CPLR 3124 to compel the plaintiff to provide certain discovery, including authorizations to obtain medical records related to the plaintiff’s treatment for pre-existing injuries to her right ankle. The defendants argued that these medical records were material and necessary to their defense of this action because these records were necessary to establish the plaintiff’s negligence. …

… Supreme Court improvidently exercised its discretion in only conditionally granting that branch of the defendants’ motion which was to compel the plaintiff to provide medical records pertaining to her pre-existing injury to her right ankle only in the event that the plaintiff ‘claims any effects on her gait or mobility as a result of this incident.’ The defendants established that these records are material and necessary to the defense of this action (see CPLR 3101[a][1]). Hamed v Alas Realty Corp., 2022 NY Slip Op 05518, Second Dept 10-5-22

Practice Point: In this slip and fall case, the medical records pertaining to plaintiff’s prior ankle injury were deemed material and necessary to the the defense, i.e., necessary to demonstrate plaintiff’s negligence. Therefore discovery of those records should not have been restricted.

 

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ALTHOUGH TRADER JOE’S APPARENTLY DID NOT OWN THE PARKING LOT WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT OCCUPY, CONTROL OR MAKE SPECIAL USE OF THE PARKING LOT; TRADER JOE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant Trader Joe’s motion for summary judgment in this parking lot slip and fall case should not have been granted. Although the parking lot was apparently owned by the town, Trader Joe’s did not demonstrate it did not occupy, control, or make special use of the parking lot:

“‘Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property'” … . “‘In the absence of ownership, occupancy, control, or special use, a party generally cannot be held liable for injuries caused by the dangerous or defective condition of the property'” … . * * *

Trader Joe’s failed to submit evidence sufficient to establish, prima facie, that it did not occupy, control, or make special use of the parking lot where the accident occurred, and that it cannot be held liable for Toner’s alleged injuries … . Toner v Trader Joe’s E., Inc., 2022 NY Slip Op 05555, Second Dept 10-5-22

Practice Point: Even though the defendant did not own the parking lot where plaintiff slipped and fell, to be entitled the summary judgment the defendant must show it did not occupy, control or make special use of the parking lot. The failure to do so here required denial of defendant’s motion.

 

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THE PETITION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN DISMISSED BASED ON THE WRONG VENUE BECAUSE RESPONDENTS DID NOT OBJECT TO THE VENUE; IN THIS MEDICAL MALPRACTICE CASE BASED UPON A STILLBIRTH, MOTHER’S AND FATHER’S PETITIONS MUST BE CONSIDERED SEPARATELY; ALTHOUGH PETITIONERS DID NOT SHOW RESPONDENTS HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT, MOTHER DEMONSTRATED AN ADEQUATE EXCUSE AND RESPONDENTS’ LACK OF PREJUDICE; MOTHER’S PETITION WAS GRANTED AND FATHER’S WAS DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother’s (but not father’s) petition for leave to serve a late notice of claim should have been granted in this medical malpractice action stemming from a stillbirth. Supreme Court had dismissed the petition because it was brought in the wrong county. But, because the respondents did not object to the venue, the judge did not have the authority to dismiss the petition on that ground. Even though mother did not demonstrate the respondents had timely knowledge of the potential malpractice action, her petition should have been granted because she had an adequate excuse (mental health issues triggered by the stillbirth) and demonstrated respondents were not prejudiced by the delay. Father’s petition must be considered separately from mother’s and was denied (mother’s excuse did not apply to father):

… Supreme Court … erred when it raised the issue of improper venue sua sponte and dismissed this proceeding on that ground. The court should have instead decided the merits of the petition. * * *

Where leave is sought in one proceeding to pursue both a direct claim by an injured person and a derivative claim by his or her spouse, the spouse’s request for leave to serve a late notice of claim will not automatically be granted even if leave is granted to the injured person. Instead, the spouse’s request must be analyzed separately … . .* * *

While the actual knowledge factor [i.e., knowledge of the potential lawsuit] generally should be given “great weight” in the analysis … , the petitioners’ failure to satisfy that factor is not fatal to their petition for leave to serve a late notice of claim … . * * *

… [T]he petitioners met their initial minimal burden of providing a plausible argument supporting a finding of no substantial prejudice based on their contention that the respondents could defend themselves by reviewing the relevant medical records, interviewing witnesses, and consulting with experts. * * *

… [Mother] demonstrated a reasonable excuse for her delay due to her emotional and psychological injuries and the accompanying preoccupation with her well-being, as well as her attorney’s prompt investigation into the claim … . Matter of Balbuenas v New York City Health & Hosps. Corp., 2022 NY Slip Op 05526, Second Dept 10-5-22

Practice Point: The petition for leave to file a late notice of claim should not have been dismissed based on improper venue because respondents didn’t object to the venue.

Practice Point: The fact that petitioners did not demonstrate the respondents in this medical malpractice case had timely knowledge of the potential lawsuit was not fatal to the petition.

Practice Point: Here the potential medical malpractice action was based upon a stillbirth. Mother’s and father’s petitions must be considered separately.

Practice Point: Mother’s mental health issues stemming from the stillbirth constituted an adequate excuse for failing to timely serve a notice of claim.

Practice Point: Petitioners demonstrated the respondents were not prejudiced by the delay because of the medical records and the ability to interview witnesses.

Practice Point: Mother’s petition was granted, but father’s was denied because the only factor available to father was the absence of prejudice to the respondents.

 

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ALTHOUGH DEFENDANT DRIVER HAD THE RIGHT-OF-WAY AND PLAINTIFF APPARENTLY PULLED OUT OF A DRIVEWAY IN FRONT OF DEFENDANT, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT KEPT A PROPER LOOKOUT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact in this traffic accident case, even though defendant driver had the right-of-way and plaintiff pulled out of a driveway in front of defendant. The facts are not described:

The defendants’ evidence established, prima facie, that the defendant driver had the right-of-way, that the plaintiff was at fault in the happening of the accident, and that the defendant driver was not at fault in the happening of the accident (see Vehicle and Traffic Law § 1143 …). In opposition, the plaintiff submitted, among other things, his own affidavit, in which he gave a completely different version of the events preceding the accident. The plaintiff’s evidence raised a triable issue of fact as to whether the defendant driver, who was obligated to keep a proper lookout, see what was there to be seen through the reasonable use of his senses, and avoid colliding with other vehicles … , was indeed at fault in the happening of the accident. Hassan v Brauns Express, Inc., 2022 NY Slip Op 05520, Second Dept 10-5-22

Practice Point: Defendant driver had the right-of-way and plaintiff apparently pulled out of a driveway in front of defendant. However, plaintiff raised a question of fact about whether defendant kept a proper lookout which was sufficient to avoid summary judgment.

 

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WHEN THE CONTRACTOR’S EMPLOYEE ARRIVED TO CLEAN THE TANK, THE OPENING WAS COVERED ONLY BY CARDBOARD; AFTER FINISHING THE WORK, THE EMPLOYEE REPLACED THE CARDBOARD COVER; PLAINTIFF SUBSEQUENTLY STEPPED ON THE CARDBOARD AND FELL INTO THE TANK; THE CONTRACTOR’S EMPLOYEE DID NOT LAUNCH AN INSTRUMENT OF HARM WITHIN THE MEANING OF ESPINAL, 98 NY2D 140 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the contractor’s (A&L’s) employee did not launch an instrument of harm by leaving the accident site as it was when the employee arrived to clean a sewage tank, the opening of which was covered only by cardboard. Plaintiff stepped on the cardboard and fell into the tank:

Supreme Court should have granted A&L summary judgment dismissing the complaint as against it. Plaintiff was not a party to A&L’s contract to clean the sewage tank. Plaintiff argues that A&L may nevertheless be liable in tort because it failed to exercise reasonable care in the performance of its contractual duties and thereby launched a force or instrument of harm (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, this exception to the general rule that a contractual obligation does not give rise to tort liability to a third party is inapplicable where “the breach of contract consists merely in withholding a benefit . . . where inaction is at most a refusal to become an instrument for good” … . Thus, a defendant who neglects to make the accident site “safer — as opposed to less safe — than it was before” the defendant came upon the site is not liable pursuant to the Espinal exception … . …

By simply replacing the cardboard box cover already in place over the sewage tank after he completed his work, A&L’s employee returned the site to the condition in which he originally found it. Thus, he neglected to make the area safer, but did not affirmatively make the area less safe than it was when he first came upon it … . That A&L’s employee did not report the cardboard is immaterial because a third-party contractor’s awareness of a condition and failure to warn does not amount to launching an instrument of harm … . Skeete v Greyhound Lines, Inc., 2022 NY Slip Op 05511, First Dept 10-4-22

Practice Point: A contractor will be liable to an injured person who is not a party to the contract if the contractor launches an instrument of harm which causes the injury. Here the contractor’s employee left the accident scene as it was before the employee started the job, replacing the cardboard which covered the opening to the tank which the employee cleaned. The contractor’s employee did not launch an instrument of harm by replacing the cardboard cover. The contractor was not liable to the plaintiff who stepped on the cardboard and fell into the tank.

 

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THE DEFENDANT GROCERY STORE DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THE STORE DID NOT SUBMIT EVIDENCE THAT THE AREA HAD BEEN INSPECTED CLOSE IN TIME TO THE FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendant grocery store in this slip and fall case did not demonstrate it did not have constructive notice of the condition which caused the fall:

… [T]the court erred in granting the motion with respect to the claim that defendant had constructive notice of the dangerous condition … . Defendant failed to meet its initial burden on that issue inasmuch as its own submissions raise triable issues of fact whether the wet floor “was visible and apparent and existed for a sufficient length of time prior to plaintiff’s fall to permit [defendant’s employees] to discover and remedy it” … . Although defendant submitted the affidavit and deposition testimony of its former store manager, in which he indicated that store employees routinely frequented the area and would have looked for dangerous conditions, defendant’s evidence failed to establish that the employees actually performed any security sweeps on the day of the incident, or that anyone actually inspected the area in question before plaintiff’s fall. Consequently, defendant failed to eliminate all issues of fact with respect to constructive notice … . Andrews v JCP Groceries, Inc., 2022 NY Slip Op 05422, Fourth Dept 9-30-22

Practice Point: In a slip and fall case, to demonstrate the defendant did not have constructive knowledge of the dangerous condition, the defendant must present evidence the area was inspected close in time to the fall. Without such evidence, the defendant’s motion for summary judgment must be denied.

 

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ONLY THE SPECIFIC CONDUCT ENUMERATED IN VEHICLE AND TRAFFIC LAW 1104 (E) IS SUBJECT TO THE HIGHER “RECKLESS DISREGARD” STANDARD OF CARE FOR EMERGENCY VEHICLES; OTHER INJURY-CAUSING ACTIONS INVOLVING THE EMERGENCY VEHICLE ARE SUBJECT TO THE ORDINARY NEGLIGENCE STANDARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, noted that while parking in a “no standing” zone maybe subject to the “reckless disregard” standard for emergency vehicles, other injury-causing actions may not be exempt from the ordinary negligence standard:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)” … . “Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” … . Here, although defendants established that they engaged in conduct covered by Vehicle and Traffic Law § 1104(b)(1) by parking in a “No Standing” area, there were, at a minimum, questions of fact whether the ambulance had its emergency lights and sirens activated as required by Vehicle and Traffic Law § 1104(c). Taveras v Almodovar, 2022 NY Slip Op 05385, First Dept 9-29-22

Practice Point: Only the specific conduct enumerated in Vehicle and Traffic Law 1104 (e) is subject to the higher “reckless disregard” standard of care for emergency vehicles. Other injury-causing actions involving the emergency vehicle (i.e. failure to activate emergency lights and sirens) are subject to the ordinary negligence standard.

 

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THE DEFENDANT “DORMITORY AUTHORITY OF NEW YORK STATE’S” INSURERS HAD ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF PLAINTIFF’S SLIP AND FALL WITHIN 90 DAYS OF THE ACCIDENT; THE PETITION FOR LEAVE TO SERVE THE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to serve a late notice of claim in this slip and fall case against the Dormitory Authority for the State of New York (DASNY) should have been granted because DASNY’s insurers had actual knowledge of the facts of the within 90 days of the accident:

… [T]he petitioner’s submissions demonstrated that DASNY’s insurers had actual notice of the essential facts constituting the claim within 90 days of the petitioner’s accident. The petitioner annexed to the petition a copy of a certificate of liability insurance stating that his employer was insured under a number of policies in connection with the construction project at the premises and identifying both DASNY and the State as “Additional Insureds” with respect to the project. The petitioner also annexed to the petition a letter dated July 8, 2019, approximately 70 days after the accident, in which the State informed the insurers named in the certificate of liability insurance that a notice of claim concerning the petitioner’s accident had been served on the State on or about June 14, 2019. The notice of claim that had been served on the State identifies the date, time, and location of the petitioner’s accident, describes the petitioner’s injuries, and specifies construction debris on the stairwell as the dangerous condition which caused the petitioner’s accident. Thus, DASNY’s insurers acquired actual notice of the essential facts constituting the petitioner’s claim within 90 days of his accident (see General Municipal Law § 50-e[5] …). Matter of Joseph v City of New York, 2022 NY Slip Op 05318, Second Dept 9-28-22

Practice Point: A slip and fall lawsuit against the Dormitory Authority of the State of New York (DANYS) must be preceded by service of a notice of claim. Here the fact that the DANYS’s insurers had been given notice of the essential facts of the slip and fall within 90 days of the accident was a sufficient ground for leave to serve a late notice of claim.

 

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