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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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PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY MEDICAL RECORDS; DEFENDANT PODIATRIST’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert affidavit in this medical malpractice case did not raise a question of fact. Plaintiff’s decedent presented with burns on his foot which were treated by defendant podiatrist, Papathomas. When the wound didn’t heal, defendant podiatrist referred plaintiff’s decedent to a wound clinic, which continued the same treatment given by defendant podiatrist until an infection was later detected:

The [plaintiff’s] expert relied upon certain photographs of the decedent’s foot, which were taken by the decedent’s daughter … and which allegedly showed signs that the wound was a third-degree burn, and not a second-degree burn as diagnosed by Papathomas … . According to the plaintiff’s expert, the failure to undertake “aggressive procedures,” including debridement of necrotic tissue as seen in the photographs, “predisposed” the decedent to a wound infection, which ultimately led to the partial amputation of his right foot, the stress of which caused the decedent to suffer a heart attack and die. …

… [I]t is undisputed that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affirmation of a board-certified podiatrist, who opined within a reasonable degree of podiatric certainty that the care Papathomas rendered to the decedent was in accordance with good and accepted practice, and did not proximately cause or contribute to any injuries … . * * *

… [S]ince the opinion of the plaintiff’s expert is entirely speculative and unsupported by the decedent’s medical records, the expert’s affidavit was insufficient to raise a triable issue of fact. Specifically, the decedent’s medical records establish that … after Papathomas observed that the decedent’s wound had not improved, Papathomas referred the decedent to a wound care clinic. … [At the wound clinic] the decedent received the same course of treatment prescribed by Papathomas. Moreover, the decedent’s medical records from his admissions to Plainview Hospital … contain no causal connection between the amputation of the decedent’s foot and his subsequent death, and the care the decedent received from Papathomas. Templeton v Papathomas, 2022 NY Slip Op 05228, Second Dept 9-21-22

Practice Point: Here in this medical malpractice case, plaintiff’s expert’s affidavit was speculative and was not supported by the medical records. The affidavit, therefore, did not raise a question of fact.

 

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IN THIS SLIP AND FALL CASE AGAINST NYC, AT THE SUMMARY JUDGMENT STAGE, ONCE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION WHICH CAUSED THE FALL, THE PLAINTIFF MUST COME FOWARD WITH EVIDENCE AN EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT APPLIES, EVEN IF, AS HERE, THE COMPLAINT ALLEGES NO EXCEPTION APPLIES; CASE LAW TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, clarified the burdens of proof at the summary judgment stage where the municipality demonstrates it did not have written notice of the condition which allegedly caused plaintiff’s slip and fall. Once the city demonstrates a lack of written notice, the plaintiff must come forward with proof of an applicable exception to the written-notice requirement, even where, as here, the complaint alleged no exception applies. Precedent to the contrary should no longer be followed:

… [W]here, as here, “the City establishes that it lacked prior written notice under [Administrative Code § 7-201(c)(2)], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” …  Furthermore, we clarify that the burden-shifting standard … is applicable even where, as here, the complaint alleged that the defendants created the allegedly dangerous condition … . To the extent that this Court’s case law conflicts with the burden-shifting standard set forth in Groninger or Yarborough [Yarborough v City of New York, 10 NY3d at 728; …Groninger v Village of Mamaroneck, 17 NY3d 125], it should no longer be followed … . * * *

Applying the correct standard here, the City sustained its initial burden on that branch of its motion which was for summary judgment dismissing the first cause of action. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City affirmatively created the allegedly dangerous condition. The expert affidavit proffered by the plaintiff was not supported by the record and, thus, was speculative and conclusory, and insufficient to raise a triable issue of fact … . Under the circumstances, those branches of the City’s motion which were for summary judgment dismissing the first cause of action and all cross claims insofar as asserted against it should have been granted. Smith v City of New York, 2022 NY Slip Op 05226, Second Dept 9-21-22

Practice Point: The Second Department clarified the burdens of proof at the summary judgment stage where a plaintiff alleges injury by a defective condition on NYC property. If the city demonstrates it did not have written notice of the condition, to survive summary judgment, the plaintiff must come forward with sufficient admissible evidence an exception to the written-notice requirement applies, even where, as in this case, the complaint alleges no exception is applicable. Case law in the Second Department to the contrary should no longer be followed.

 

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THERE WAS VIDEO EVIDENCE OF THE SLIP AND FALL, PHOTOGRAPHIC EVIDENCE OF THE UNLAWFUL DRAIN PIPE WHICH WAS THE SOURCE OF THE ICE ON THE SIDEWALK, AND EXPERT EVIDENCE; DEFENDANTS’ MERE HOPE THAT DISCOVERY WOULD REVEAL EVIDENCE TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DID NOT SUPPORT THE DENIAL OF THE MOTION AS PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this slip and fall case was not premature and should have been granted. There was video evidence and photographs depicting an unlawfully disconnected drain pipe which was the source of the ice on the sidewalk:

“Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent of the motion (see CPLR 3212[f]), ‘[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence'” … . …

… [W]here the icy condition on the sidewalk as well as Sloan’s fall are clearly depicted on a surveillance video and the condition of the drain pipe over time is revealed in photographs of the building, the defendants have offered nothing more than hope and speculation that additional discovery might uncover evidence sufficient to raise triable issues of fact regarding the manner in which the accident occurred, the cause of [plaintiff’s] fall, and their notice of the defective condition of the drain pipe … . Sloan v 216 Bedford Kings Corp., 2022 NY Slip Op 05173, Second Dept 9-14-22

Practice Point: Where plaintiff makes out a prima facie case and the defendant doesn’t raise a question of fact, defendant’s mere hope that discovery will provide evidence to defeat plaintiff’s motion for summary judgment is not enough to support denial of the motion aa premature.

 

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