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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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INFANT PLAINTFF WAS STRUCK BY DEFENDANT DRIVER WHILE IN A CROSS-WALK WITH THE WALK SIGNAL ON; SUN-GLARE IS NOT AN “EMERGENCY” WHICH WILL RAISE A QUESTON OF FACT; PLAINTIFFS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this pedestrian-cross-walk traffic accident case should have been granted. Defendant driver alleged sun-glare prevented her from seeing the infant plaintiff in the cross-walk. Sun-glare is not an “emergency” and did not raise a question of fact:

… [A] “violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . “A driver who faces a green light has a duty to yield the right-of-way to pedestrians who are lawfully within a crosswalk in accordance with the standard of care imposed by Vehicle and Traffic Law § 1111(a)(1)” … . “A driver also has ‘a statutory duty to use due care to avoid colliding with pedestrians on the roadway [pursuant to Vehicle and Traffic Law § 1146], as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting the police accident report, and an affidavit from a witness who averred that the defendants’ vehicle struck the infant plaintiff with its front bumper while the infant plaintiff was crossing Stillwell Avenue in a marked crosswalk with an active “white pedestrian signal” … . In opposition to the plaintiffs’ prima facie showing, the defendants failed to raise a triable issue of fact as to whether the defendant driver had a non-negligent explanation for the accident … . By the defendant driver’s own admissions in the police accident report and her affidavit, she did not see the infant plaintiff prior to the accident, which she only realized had occurred upon “hear[ing] the impact,” and she continued to drive into the crosswalk after being “blinded” by sun glare, which “caus[ed] her to collide into [the infant plaintiff].” Further, as the plaintiffs contend, the foreseeable occurrence of sun glare while the defendant driver was driving west at sundown did not constitute a ‘qualifying emergency’ under the emergency doctrine … . E.B. v Gonzalez, 2022 NY Slip Op 04942, Second Dept 8-17-22

Practice Point: Here the infant plaintiff was lawfully crossing the street in a cross-walk when struck by defendant driver. The driver’s allegation she was blinded by sun-glare was not an emergency and did not raise a question of fact. Plaintiffs’ motion for summary judgment should have been granted.

 

THE DEFENDANT RETAIL STORE IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF AND/OR CREATE THE DANGEROUS CONDITION (A PUDDLE OF LIQUID) WHICH CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant store (Whole Foods) did not demonstrated it did not have constructive notice of the puddle of liquid which caused plaintiff’s slip and fall:

… [V]iewing the evidence in the light most favorable to Yerry [plaintiff] as the nonmovant, the defendants failed to establish, prima facie, that the accident was not the result of the defendants’ failure to take appropriate remedial measures within a reasonable period of time after acquiring actual notice of a hazardous condition … . The evidence submitted by the defendants in support of their motion demonstrated the existence of a triable issue of fact as to whether the defendants’ employees made the condition “more hazardous by incomplete remedial measures” … . Yerry v Whole Food Mkt. Group, Inc., 2022 NY Slip Op 05000, Second Dept 8-17-22

Practice Point: Unusual case where there was a question of fact whether defendant’s inadequate clean-up of a puddle of liquid caused plaintiff’s slip and fall.

 

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THE MOTION TO DISMISS ALLEGATIONS OF MEDICAL MALPRACTICE PRIOR TO APRIL 2013 AS TIME-BARRED WAS PROPERLY GRANTED BECAUSE THE CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY; THERE WAS A SUBSTANTIVE DISSENT ARGUING THAT DOCUMENTS SUBMITTED BY THE DEFENDANTS SUPPORTED APPLYING THE CONTINUOUS TREATMENT DOCTRINE AND THE MATTER SHOULD PROCEED TO DISCOVERY (SECOND DEPT).

The Second Department, over an extensive dissent, determined the continuous treatment doctrine did not apply and defendants’ motion to dismiss allegations of medical malpractice occurring before April 9, 2013, was properly granted. The decision is detailed and fact-specific and cannot be fairly summarized here:

Accepting the plaintiff’s expansive view that the mere status of receiving treatment for menopausal symptoms necessarily encompasses all conditions related to menopause and aging, would undermine the sound policy reasons behind the continuous treatment doctrine … . Such a result is contrary to the foundational policy reasons for creating the continuous treatment doctrine, and could result in expanding it to virtually all the medical care a patient receives … . * * *

From the dissent:

The Supreme Court’s determination, endorsed by my colleagues in the majority, that the records submitted by the defendants never reference or address osteoporosis is, in fact, belied by those medical records created and submitted by the defendants, which document, inter alia, that, during the relevant period, the defendants assessed, treated, and monitored the plaintiff’s bone health, despite their failure to order a bone density test.

In sum, the majority’s characterization of certain of the defendants’ own documents fails to afford the plaintiff the favorable view through which the documents should be read … . Moreover, no discovery has been conducted yet, and “[t]he resolution of the continuous treatment issue . . . should abide relevant discovery” … . Weinstein v Gewirtz, 2022 NY Slip Op 04997, Second Dept 8-17-22

Practice Point: Here the pre-discovery motion to dismiss medical malpractice causes of action as time-barred was affirmed. The dissenter argued the defendants’ own documents demonstrated the possible applicability of the continuous treatment doctrine and the matter should proceed to discovery.

 

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