You are here: / Negligence
, ,

PLAINTIFF, A DEVELOPMENTALLY DISABLED STUDENT, WAS KNOCKED OVER BY ANOTHER STUDENT; THE DEFENDANT SCHOOL HAS A DUTY TO PROPERLY SUPERVISE ITS STUDENTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SCHOOL (THE YOUNG ADULT INSTITUTE, INC.) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment in favor of defendant in this negligent supervision case. Plaintiff, a developmentally disable adult and a member of defendant Young Adult Institute, Inc. (YAI) was knocked over in a parking lot by a fellow student:

Programs such as YAI that provide services to developmentally disabled adults have a duty to adequately supervise such students in their care, “and are liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “‘[I]n determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated'” … . “‘Even if a breach of the duty of supervision is established, it must [also] be demonstrated that such negligence was a proximate cause of the injuries sustained'” … . “‘The test for causation is whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence'” … . Sclafani v Young Adult Inst., Inc., 2025 NY Slip Op 04266, Second Dept 7-23-25

Practice Point: ​A provider of services to developmentally disabled adults has a duty to adequately supervise its students. Here there were questions of fact about whether supervision was adequate. Plaintiff student was knocked over by another student in a parking lot.

 

,

PLAINTIFF TRIPPED OVER AN EMPTY MILK CRATE ON A CARPETED FLOOR; THE CONDITION WAS DEEMED “OPEN AND OBVIOUS” AS A MATTER OF LAW ENTITLING DEFENDANTS TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants were entitled to summary judgment in this slip and fall case on the ground the empty milk crate plaintiff tripped over was an “open and obvious” condition:

The accident occurred in the morning, during one of the plaintiff’s usual daytime shifts. As the plaintiff was walking in a hallway with carpeting she described as “reddish, green-ish . . . earth colors,” she tripped on an empty, black milk crate. By all accounts, the milk crate was an ordinary milk crate and it was not attached to the floor in any way … . * * *

… [T]he hotel defendants established … the empty milk crate was open and obvious, as it was readily observable by those employing the reasonable use of their senses, and was not inherently dangerous under all the existing circumstances … . Raspberry v Best W. JFK Airport Hotel, 2025 NY Slip Op 04264, Second Dept 7-23-25

Practice Point: This decision presents a rare example of a condition which caused a trip and fall, i.e. an empty milk crate on a carpeted floor, deemed “open and obvious” as a matter of law.​

 

,

IN A SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DOES NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED DANGEROUS CONDITION; ONLY PROOF THE AREA WAS INSPECTED OR CLEANED CLOSE IN TIME TO THE FALL WILL SUFFICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate a lack of constructive notice of the dangerous condition and therefore were not entitled to summary judgment:

… [T]he evidence submitted by the defendants in support of their motion failed to demonstrate, prima facie, that they lacked constructive notice of the allegedly dangerous condition that caused the plaintiff to fall. The defendants’ property manager provided information only as to the building’s general cleaning and inspection practices, and the defendants did not proffer any evidence demonstrating when the staircase was last cleaned or inspected before the plaintiff slipped and fell … . Johnson v 2525-2537 Realty, LLC, 2025 NY Slip Op 04239, Second Dept 7-23-25

Practice Point: In a slip and fall, a lack of constructive notice of the alleged dangerous condition cannot be proved by evidence of general cleaning practices. There must be evidence the area was cleaned or inspected close in time to the fall.

 

, ,

IN A MED MAL ACTION, AN EXPERT’S AFFIRMATION WHICH IS NOT SUPPORTED BY THE RECORD WILL BE DEEMED “CONCLUSORY” AND WILL NOT SUPPORT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice case should not have been granted because the expert affirmation submitted is support of the motion was “conclusory and not supported by the record:”

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The defendants submitted, inter alia, the affirmation of an expert, whose opinions regarding the defendants’ alleged failure to diagnose the plaintiff’s aortic dissection after receipt of certain X-ray results and blood test results were conclusory and unsupported by the record … . That expert’s opinion regarding proximate cause was also conclusory and insufficient to meet the defendants’ burden as the parties moving for summary judgment … . In v Maimonides Med. Ctr., 2025 NY Slip Op 04238, Second Dept 7-23-25

Practice Point: In a med mal case. an expert affirmation which is not supported by the record will be deemed “conclusory” and insufficient to support summary judgment.

 

, , ,

HERE PLAINTIFF SUBMITTED A SUPPLEMENTAL BILL OF PARTICULARS, NOT AN AMENDED BILL OF PARTICULARS, MORE THAN 30 DAYS BEFORE TRIAL; DEFENDANTS SHOULD HAVE ACCEPTED IT; LEAVE OF COURT WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined plaintiff was entitled to compel defendants to accept a second supplemental bill of particulars after plaintiff had surgery on her injured shoulder:

“Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court at any time, but not less than 30 days prior to trial, if it alleges ‘no new cause of action’ or claims no ‘new injury'” (… quoting CPLR 3043[b]). Here, contrary to the defendants’ contention, the plaintiff sought to allege continuing consequences of the injuries suffered to her left shoulder and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Miller v Great Vegetable Farm, Inc., 2025 NY Slip Op 04170, Second Dept 7-16-25

Practice Point: Here plaintiff documented the results of surgery on her injured shoulder in a supplemental bill of particulars. Because the document addressed injuries already alleged to have been caused by the slip and fall, and not new injuries, the document was a supplemental bill of particulars, not an amended bill of particulars. As long as a supplemental bill of particulars is served more than 30 days before trial, leave of court is not required and defendant must accept it.

 

, ,

ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case against NYC, determined the city was equitably estopped from asserting the notice of claim was untimely served. Although the notice of claim was served one day after the 90-day deadline, and the city initially notified plaintiff that service was untimely, subsequent communication from the city indicated the claim was being considered:

The plaintiff’s submissions established that although the Comptroller sent the plaintiff a letter dated March 6, 2020, indicating that a notice of claim was not timely filed within 90 days from the date of occurrence, the Comptroller sent the plaintiff another letter, also dated March 6, 2020, acknowledging receipt of the notice of claim, which was assigned a claim number, and stating that “[w]e will do our best to investigate and, if possible, settle your claim.” That letter also stated that “if we are unable to resolve your claim, any lawsuit against the City must be started within one year and ninety days from the date of the occurrence,” without any reference to the claim being untimely … . Further, the plaintiff’s attorney averred that on March 21, 2021, the City sent a letter requesting certain documents from the plaintiff “to evaluate the claim for settlement purposes” and that the plaintiff’s attorney emailed the requested documents the following day. The plaintiff also submitted an email dated March 25, 2021, from Millicent Nicholas-Richards, Negotiation and Settlement Supervisor for the New York City Law Department, acknowledging receipt of the requested documents, and stating that “[w]e are reviewing” and that the plaintiff’s attorney would be contacted if any additional documents were needed. Thus, the plaintiff demonstrated that the defendants made representations that the plaintiff’s claim was under consideration for settlement and that the plaintiff did not need to take any action other than providing documents “for settlement purposes” or to commence an action against the City within one year and 90 days if a settlement was not possible. Under these circumstances, the plaintiff, who did not move to deem the notice of claim timely served or to extend the time to serve the notice of claim within the one year and 90 day limitations period, was “lulled . . . into sleeping on [his] rights to [his] detriment” … .Guo En Tan v City of New York, 2025 NY Slip Op 04161, Second Dept 7-16-25

Practice Point: The notice of claim in this slip and fall action against the city was served one day late. Communications from the city indicated the city was considering the claim. The deadline for making a motion for leave to serve and file a late notice of claim passed. At that point, the city was equitably estopped from asserting the notice of claim was not timely served as a defense to the action.​.

 

IN THIS REAR-END COLLISION CASE, THE DEFENDANT DRIVER ALLEGED PLAINTIFF DRIVER STOPPED IN THE MIDDLE LANE OF TRAFFIC FOR NO APPARENT REASON, THEREBY RAISING A QUESTION FACT ABOUT WHETHER PLAINTIFF DRIVER WAS SOLELY AT FAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this rear-end collision case were not entitled to summary judgment. Defendant raised a question of fact alleged plaintiff driver stopped suddenly in the middle lane of traffic for no apparent reason:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . Thus, “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit of the plaintiff driver, which demonstrated that the plaintiffs’ vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants’ vehicle … . However, an affidavit of the defendant driver … raised triable issues of fact as to how the accident occurred and whether the defendants had a nonnegligent explanation for their vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault in causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Correa v Cannon, 2025 NY Slip Op 04157, Second Dept 7-16-25

Practice Point: Unless the driver of the rear vehicle in a rear-end collision case raises a nonnegligent explanation for striking the car in front, summary judgment will be awarded to the front driver. Here the rear driver alleged the front driver stopped in the middle lane of traffic for no apparent reason. That allegation raised a question of fact whether the front driver was solely at fault.

 

,

TO WARRANT SUMMARY JUDGMENT IN A SLIP AND FALL CASE BASED ON LACK OF NOTICE OF THE CONDITION, A DEFENDANT MUST PROVE WHEN THE SPECIFIC AREA OF THE FALL WAS LAST CLEANED OR INSPECTED; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defendant hospital did not demonstrate a lack of constructive notice of the water on the floor in front of the elevator. To warrant summary judgment the defendant must show that the area of the slip and fall was inspected or cleaned close in time to the fall. Evidence of general cleaning practices is not enough:

… [T]he defendant failed to establish, prima facie, that it did not have constructive notice of the alleged condition that caused the plaintiff to fall. The deposition testimony of the defendant’s security manager and of another employee of the defendant merely referred to the general cleaning and inspection practices at the hospital. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Delfino v Montefiore Nyack Hosp., 2025 NY Slip Op 04082, Second Dept 7-9-25

Same issue and result in Freeman v New York City Hous. Auth., 2025 NY Slip op 04086, 7-9-25 Second Dept

Practice Point: A defendant seeking to prove it did not have constructive notice of the condition which caused a slip and fall must prove the area of the fall was cleaned or inspected close in time to the fall. Proof of general cleaning practices will not suffice.

 

,

PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A CHERRY TOMATO IN DEFENDANT’S STORE; CONSULT THIS DECISION FOR A DISCUSSION OF HOW A DEFENDANT CAN DEMONSTRATE A LACK OF ACTUAL AND CONSTRUCTIVE NOTICE; DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this slip and fall case, determined defendant grocery-store’s motion for summary judgment should have been granted. Plaintiff failed to raise a question of fact about the store’s constructive notice of the presence of a cherry tomato on the floor:

Defendant offered plaintiff’s deposition testimony and the deposition testimony of several of its employees, including the produce manager on duty the day of the fall. Plaintiff recalled in her deposition testimony that she was walking, slipped and fell forward to the ground. She did not know what caused her fall at the time, but afterward when she examined both the bottom of her shoe and the floor, she realized that she slipped on a cherry tomato. Plaintiff did not see the tomato prior to falling and has no knowledge of how long it may have been there. The assistant store manager stated that the store was cleaned every night by an outside company, that he inspected the store every morning when he first arrived as well as throughout the day, and that he did not recall any produce on the floor prior to plaintiff’s fall. The produce manager relayed in his deposition testimony that he had been the produce manager at the subject store for 14 years, that he received training regarding safety concerns and that he had, in turn, trained his associates on matters of safety. Here, defendant’s safety policy with regard to the floor area did not call for any sort of regularly scheduled inspections but rather consisted of directing its employees to be continually vigilant for dropped items — in essence, if you see something, immediately pick it up. The produce manager stated that the cherry tomatoes sold at the store are packaged in a clamshell container with a lid that locked into place. He further stated that he regularly inspects the floors for safety issues, that he was not aware of anyone who stepped on or slipped on produce in his department prior to plaintiff’s fall in 2020, nor had he received any complaints about produce being spilled on the floor. He asserted that the cherry tomato display was approximately 15 to 20 feet from where plaintiff fell. Most importantly, he testified that on the day in question, he inspected the area where plaintiff fell approximately 40 minutes before her fall and did not see any produce on the floor.[FN1] Additionally, he testified that he had not received any complaints that morning about produce on the floor. The foregoing was sufficient to establish defendant’s prima facie entitlement to summary judgment by demonstrating that it maintained the property in a reasonably safe condition, did not create the allegedly dangerous condition that caused plaintiff’s injury and had neither actual nor constructive notice of such condition … . Levitt v Tops Mkts., LLC, 2025 NY Slip Op 04060, Third Dept 7-3-25

Practice Point: Here defendant proved a lack of actual and constructive notice of a cherry tomato on the store floor which allegedly caused plaintiff’s slip and fall. Essentially the store demonstrated the floor is inspected continually throughout the day and the area of the fall was inspected 40 minutes before the fall.

 

, ,

BY SUBMITTING A CLAIM TO THE “SEPTEMBER 11TH VICTIM COMPENSATION FUND” (VCF), PLAINTIFF, WHO ALLEGED HIS PROSTATE CANCER WAS RELATED TO HIS WORK AT THE WORLD TRADE CENTER AFTER SEPTEMBER 11TH, WAIVED HIS RIGHT TO SUE HIS PHYSICIAN FOR AN ALLEGED DELAY IN DIAGNOSIS AND TREATMENT OF THE PROSTATE CANCER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the plaintiff’s submission of a claim to the September 11th Victim Compensation Fund (VCF) precluded his medical malpractice action. Plaintiff submitted the claim to VCF alleging his prostate cancer was related to his work at the World Trade Center after September 11th. Years later, in 2021, plaintiff sued his physician alleging a delay in diagnosing and treating the prostate cancer. Apparently the VCF claim was made close in time to the filing of the lawsuit. By filing the VCF claim, plaintiff waived the right to bring a civil lawsuit based on the prostate cancer:

“… [T]he Air Stabilization Act * * * created the [VCF]  . . . to provide no-fault compensation to victims who were injured in the attacks and to personal representatives of victims killed in the attacks … ; and provided an election of remedies —all claimants who filed with the [VCF] waived the right to sue for injuries resulting from the attacks except for collateral benefits” … .

The Air Stabilization Act was amended by the Aviation and Transportation Security Act … . * * *  The waiver provision now provides:

“Upon the submission of a claim under this title, the claimant waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or for damages arising from or related to debris removal. Brennan v MacDonald, 2025 NY Slip Op 03994, Second Dept 7-2-25

Practice Point: Submitting a claim to the September 11th Victim Compensation Fund (VCF) waives the right to bring a civil suit based on the subject of the claim. Here plaintiff alleged his prostate cancer was related to work at the World Trade Center. Because he submitted a VCF claim for the prostate cancer, he cannot sue his physician for medical malpractice alleging a delay in diagnosis and treatment.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy