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PLAINTIFF WAS A PASSENGER IN DEFENDANT MC RAE’S VEHICLE WHEN MC RAE’S VEHICLE WAS STRUCK FROM BEHIND; THE ALLEGATION THAT MC RAE STOPPED FOR NO APPARENT REASON RAISED A QUESTION OF FACT WHETHER MC CRAE WAS COMPARATIVELY NEGLIGENT; COMPARATIVE NEGLIGENCE WILL PRECLUDE SUMMARY JUDGMENT WITH RESPECT TO CROSS CLAIMS BETWEEN DEFENDANTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant driver’s (McRae’s) motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff was a passenger in defendant McRae’s vehicle. McRae alleged his vehicle was stopped when it was struck by defendant NYC Transit Authority’s (NYCTA’s) bus (driven by defendant Pena). Defendants NYCTA and Pena alleged McRae stopped his vehicle for no apparent reason raising a question of fact about whether defendant McRae was comparatively negligent. Comparative negligence will preclude summary judgment with respect to cross claims between defendants:

… [T]he plaintiff established, prima facie, that NYCTA and Pena were negligent. In support of his motion, the plaintiff submitted, inter alia, the transcript of his deposition testimony, which demonstrated that the bus Pena was operating struck McRae’s stopped vehicle in the rear. In opposition, the NYCTA defendants failed to raise a triable issue of fact. The NYCTA defendants submitted, among other things, an affidavit in which Pena averred that McRae made a right turn into the path of the bus and began to move forward, but then stopped short. In essence, this explanation amounts to nothing more than a claim that McRae’s vehicle came to a sudden stop which, without more, failed to raise a triable issue of fact as to NYCTA and Pena’s liability … .

The Supreme Court should have denied that branch of McRae’s motion which was for summary judgment dismissing all cross claims insofar as asserted against him. In support of his motion, McRae submitted his affidavit, in which he averred that his vehicle, while stopped at a red light, was struck in the rear by the bus operated by Pena. Thus, McRae established, prima facie, that Pena was solely at fault in the happening of the accident … . In opposition, however, the NYCTA defendants raised a triable issue of fact as to whether McRae was comparatively at fault in the happening of the accident because he stopped suddenly for no apparent reason … . Thompson v New York City Tr. Auth., 2022 NY Slip Op 05052, Second Dept 8-24-22

Practice Point: Plaintiff was a passenger in defendant McRae’s car which was struck from behind by a NYC Transit Authority (NYCTA) bus. Defendant NYCTA raised a question fact about Mc Rae’s comparative negligence by alleging Mc Rae stopped suddenly for no apparent reason. Comparative negligent will preclude summary judgment with respect to cross-claims between defendants.

 

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DEFENDANT MADE A LEFT TURN IN THE PATH OF PLAINTIFF’S VEHICLE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY AND DISMISSING THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on liability and dismissing the comparative negligence affirmative defense in this intersection traffic accident case should have been granted:

… [T]he plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his deposition testimony and the deposition testimony of the defendant driver, which demonstrated that the defendant driver made a left turn directly into the path of the plaintiff’s vehicle without yielding the right-of-way to the plaintiff, in violation of Vehicle and Traffic Law § 1141, and when it was not reasonably safe to make a left turn, in violation of Vehicle and Traffic Law § 1163(a) … . The plaintiff also established, prima facie, that he was entitled to judgment as a matter of law dismissing the affirmative defense alleging comparative negligence by demonstrating that he was not at fault in the happening of the accident and that the defendant driver’s negligence was the sole proximate cause of the accident … . The plaintiff, who had the right-of-way, was entitled to anticipate that a vehicle turning left would obey the traffic laws requiring that vehicle to yield, and the evidence established that the plaintiff did not have a sufficient opportunity to avoid the accident when the defendant driver turned left directly into the path of the plaintiff’s vehicle … . Seizeme v Levy, 2022 NY Slip Op 05049, Second Dept 8-24-22

Practice Point: Defendant made a left turn in violation of the Vehicle and Traffic causing a collision with plaintiff in the oncoming lane. Plaintiff was entitled to summary judgment on liability and dismissing the comparative negligence affirmative defense.

THE LEG OF A LARGE DECORATIVE THRONE IN DEFENDANT’S BAR WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT AN ACTIONABLE TRIPPING HAZARD; PLAINTIFF HAD FREQUENTED THE BAR AND THE THRONE WAS READILY OBSERVABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the leg of a large decorative throne in defendant’s bar was open and obvious and therefore was not an actionable tripping hazard:

… [T]he defendant established … that the large decorative throne that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous … . “‘[T]here is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses'” … . “‘A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident'” … . “‘The determination of [w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case'” … .

Here, … the alleged defective condition was readily observable by those employing the reasonable use of their senses and was not inherently dangerous. The deposition testimony of a pianist who had performed at the bar for more than 20 years established that the throne was a novelty of the establishment, which drew in patrons. Further, the plaintiff’s own testimony established that he was aware of the throne, as he frequented the establishment and purported to have previously complained to the manager about its location … . Rider v Manhattan Monster, Inc., 2022 NY Slip Op 05048, Second Dept 8-24-22

Practice Point: Here plaintiff allegedly tripped over the leg of a large decorative throne in defendant’s bar. The throne was a readily observable novelty which drew patrons to the bar. Plaintiff frequented the bar and was well aware of the location of the throne. Because the throne was open and obvious it did not constitute an actionable tripping hazard.

 

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PLAINTIFF, A SCHOOL PSYCHOLOGIST, WAS ASSAULTED BY AN AUTISTIC STUDENT; THE NEGLIGENT-PARENTAL-SUPERVISION CAUSE OF ACTION AGAINST THE STUDENT’S PARENTS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “negligent parental supervision” cause of action against the parents of an autistic child who assaulted plaintiff school psychologist should not have been dismissed. In addition, the parents did not demonstrate their son was, due to his disability, incapable of being liable for negligence or assault. The facts are not discussed:

The plaintiff * * * was assaulted by the defendant David George (hereinafter David), an autistic student with an IQ of 41, who was almost 14 years old at the time. * * *

“While, as a general rule, parents are not liable for the torts of their child, a parent may be held liable, inter alia, where the parent[s] negligence consists entirely of his [or her] failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity toward such conduct'” … . Thus, a parent moving for summary judgment dismissing a cause of action alleging negligent supervision based on the physical tortious conduct of the parent’s child, must establish, prima facie, that the parent was not aware that, prior to the subject incident, his or her child engaged in violent or vicious conduct that would endanger a third party … . …

The defendants’ contention that the branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against David, on the ground that due to his developmental disability he was “non sui juris and incapable of being liable for negligence” or assault …, is without merit. Levine v George, 2022 NY Slip Op 05032, Second Dept 8-24-22

Practice Point: Parents are usually not responsible for the torts of their child. In this case the autistic child assaulted plaintiff school psychologist. The facts were not discussed, But the appellate court determined the “negligent parental supervision” cause of action should not have been dismissed.

 

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QUESTIONS OF FACT WHETHER DEFENDANT BUS DRIVER WAS NEGLIGENT; PLAINTIFF’S HAND WAS CAUGHT IN THE CLOSED DOOR OF THE BUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the driver of the bus negligent in closing the door on plaintiff’s hand and in failing to open the door to release plaintiff’s hand:

A “defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “There can be more than one proximate cause of an accident” …, and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … .

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint … . The evidence submitted in support of the motion failed to eliminate all triable issues of fact as to whether [the driver] negligently closed the doors as the plaintiff was attempting to board the bus, and negligently failed to reopen the doors and release the plaintiff’s hand after it became trapped. John v Dobson, 2022 NY Slip Op 05029, Second Dept 8-24-22

Practice Point: Plaintiff’s hand was caught in the closed door of the defendants’ bus. There were questions of fact whether the driver was negligent in closing the door on plaintiff’s hand and failing to open the door to release plaintiff’s hand.

 

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DEFENDANT MADE A LEFT TURN IN FRONT OF PLAINTIFF IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant attempted to make a left turn in front of plaintiff’s vehicle from the middle lane, cutting off plaintiff. The court noted that a plaintiff’s comparative negligence is not a bar to summary judgment:

The accident allegedly occurred when the defendants’ vehicle attempted to make a left turn from the middle lane of Rockaway Boulevard in front of the plaintiff’s vehicle, and cut off the plaintiff’s vehicle. …

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “To be entitled to . . . summary judgment [on the issue of liability] a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … . A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, his own affidavit, which demonstrated that the driver of the defendants’ vehicle was negligent in striking the plaintiff’s vehicle while attempting to make a left turn from the middle lane of traffic (see Vehicle and Traffic Law §§ 1128[a]; 1160[b …). Jaipaulsingh v Umana, 2022 NY Slip Op 05028, Second Dept 8-24-22

Practice Point: Here defendant violated the Vehicle and Traffic Law by making a left turn from the middle lane, cutting plaintiff off. Comparative negligence is not a bar to summary judgment. Plaintiff’s motion for summary judgment should have been granted.

 

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QUESTION OF FACT WHETHER DEFENDANT’S DOUBLE-PARKED TRUCK MERELY FURNISHED THE OCCASION FOR THE MOTORCYCLE ACCIDENT OR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF FLIPPED OVER THE MOTORCYCLE BRAKING TO AVOID COLLIDING WITH THE TRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff motorcyclist raised a question of fact whether defendant’s double-parked truck was a proximate cause of the accident. Plaintiff alleged the motorcycle struck a defect in the road which cause the motorcycle to veer toward defendant’s truck. Plaintiff flipped over the motorcycle when he braked to avoid colliding with truck. The issue was whether the double-parked trucked merely furnished the occasion for the accident or whether the double-parked truck was a proximate cause of the accident (a difficult distinction which comes up occasionally in the appellate decisions):

In support of its motion, [defendant] Peapod submitted the transcript of the plaintiff’s deposition testimony in which the plaintiff testified that his motorcycle struck a road defect, but that the defect did not cause him to immediately fall or apply the brakes. Instead, when the motorcycle encountered the defect, the motorcycle veered toward Peapod’s double-parked truck 40 yards ahead of him in the same lane of traffic. In order to avoid colliding with the truck, the plaintiff applied the front brakes of the motorcycle, which resulted in him flipping over the motorcycle. Given this evidence, it cannot be said that Peapod established as a matter of law that the truck merely furnished the occasion for the accident … . Rather, this testimony demonstrated the existence of a triable issue of fact as to whether the presence of Peapod’s double-parked truck was a proximate cause of the accident … . Further, the evidence relied upon by Peapod in support of its motion failed to establish, prima facie, that its truck was not negligently parked or violating applicable traffic regulations … . Colletti v City of New York, 2022 NY Slip Op 05019, Second Dept 8-24-22

Practice Point: Accident cases sometimes require making a difficult distinction between merely furnishing an occasion for an accident, which is not actionable, and a proximate cause of an accident. Supreme Court held the presence of defendant’s double-parked truck merely furnished the occasion for plaintiff’s motorcycle accident. The Second Department reversed finding a question of fact whether the presence of the truck was a proximate cause of the accident.

 

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AN AGREEMENT SIGNED BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION REQUIRING THE DEPOSITION OF EXPERT WITNESSES 120 DAYS BEFORE TRIAL IS VOID AND UNENFORCEABLE AS AGAINST THE POLICY UNDERLYING THE EXPERT DISCLOSURE PROVISIONS OF THE CPLR (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the agreement signed by plaintiff in this medical malpractice action which required the deposition of expert witnesses 120 days before trial was void and unenforceable:

The issue on this appeal is whether the defendants Benjamin M. Schwartz, M.D., and Island Gynecologic Oncology, PLLC (hereinafter together the defendants), may enforce a provision in an agreement that the defendant physician’s receptionist asked the injured plaintiff to sign among other routine medical releases prior to undergoing surgery. Pursuant to this provision, if a patient commenced a medical malpractice action against the defendant physician, each party’s counsel would have the right to depose the other parties’ expert witness(es) at least 120 days before trial. We hold that this provision is unenforceable as against public policy and, in any event, the defendants waived the right to enforce the provision. Furthermore, the entire agreement is unenforceable because the Supreme Court found certain other provisions to be unenforceable, the defendants do not challenge the court’s holding regarding those provisions on appeal, and those provisions are not severable from the remainder of the agreement, including the provision at issue on appeal. * * *

Requiring experts to be made available for deposition 120 days before trial also directly contradicts the provision in CPLR 3101(d)(1)(i) that gives trial courts the discretion to “make whatever order may be just” in the event that a party retains an expert in an insufficient period of time before the commencement of trial to provide appropriate notice. This statutory provision reflects the important public policy of allowing courts to retain discretion in their role as gatekeeper in determining the admissibility of expert testimony … . For all of the foregoing reasons, we conclude that, here, the public policy in favor of freedom of contract is overridden by these other important and countervailing public policy interests … . Mercado v Schwartz, 2022 NY Slip Op 04962, Second Dept 8-17-22

Practice Point: An agreement signed by a patient, who became a plaintiff in this medical malpractice action, which required the deposition of expert witnesses 120 days before trial is void and unenforceable as against the policy underlying the expert disclosure provisions of the CPLR.

 

THE PLAINTIFF DID NOT KNOW THE CAUSE OF HER STAIRCASE FALL AND DID NOT TIE THE FALL TO THE ABSENCE OF A SECOND HANDRAIL; THERE WAS NO STATUTE OR CODE PROVISION, AND NO COMMON LAW DUTY, REQUIRING TWO HANDRAILS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not know the cause of her staircase fall. The fact that there was only one handrail, which did not violate any statute or code provision, was not tied to the fall:

… [E]ven if a plaintiff’s fall is precipitated by a misstep, where the plaintiff testifies that he or she reached out to try to stop his or her fall, the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury” … .

… [T]he plaintiff did not know what had caused her to fall … . … [T]he building was not subject to the particular code provisions relied upon by the plaintiff … .. … [T]he plaintiff failed to raise a triable issue of fact as to whether there was an applicable statutory or code provision that required a second handrail on the staircase. The plaintiff also failed to raise a triable issue of fact as to whether the defendant breached her common-law duty to maintain the staircase in a reasonably safe condition by failing to install a second handrail … . Mancini v Nicoletta, 2022 NY Slip Op 04961, Second Dept 8-17-22

Practice Point: Here the plaintiff did not know the cause of her staircase fall. There was one handrail. There was no code provision or statute requiring a second handrail. Defendant was entitled to summary judgment.

 

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THE INSPECTION PIT, WHICH DID NOT VIOLATE ANY STATUTE OR REGULATION, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; PLAINTIFF’S FALL INTO THE PIT WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inspection pit into which plaintiff fell was open and obvious and therefore not actionable:

… “[T]here is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” ,,, , or “where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it” … .

Here, the defendants established, prima facie, that the inspection pit was an open and obvious condition that was inherent or incidental to the nature of the property and was not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact. The speculative and conclusory affidavit of the plaintiff’s expert submitted in opposition to the motion did not allege that there was a violation of any applicable statute or relevant industry standard, and it was insufficient to raise a triable issue of fact … . Lebron v City of New York, 2022 NY Slip Op 04960, Second Dept 8-17-22

Practice Point: The open and obvious condition, an inspection pit, into which plaintiff fell, was open and obvious and did not violate any statute or code provision. Therefore, plaintiff’s fall was not actionable.

 

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