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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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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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