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AFTER THE STATUTE OF LIMITATIONS HAD RUN IN THIS SLIP AND FALL CASE PLAINTIFF SOUGHT TO AMEND HER COMPLAINT TO ADD PARTIES UNDER THE “RELATION BACK” DOCTRINE; HOWEVER THE ADDED PARTIES DID NOT MEET THE “UNITY OF INTEREST” REQUIREMENT; THE MOTION TO AMEND SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint after the statute of limitations had run to add parties under a “relation back” doctrine should not have been granted. The decision includes comprehensive discussions of the “unity of interest” component of the “relation back” doctrine which are too detailed to fairly summarize here:

“[T]he relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for [s]tatute of [l]imitations purposes where the two defendants are united in interest” … . Group, however, “was not a codefendant” when plaintiff moved for leave to amend the complaint because the court had already granted Group’s motion for summary judgment seeking dismissal of the complaint against it on the ground that it was a similarly named, but unrelated entity mistakenly sued by plaintiff that conducted a different business in a different state and never had any relationship to the subject plaza … .

.. [P]aintiff also failed to meet her burden of establishing that appellants were united in interest with Square. The record … indicates that appellants and Square are ” ‘separate and distinct business entities which have no jural relationship’ ” … , and plaintiff “failed to come forward with evidence that there is any type of interrelationship between them that would give rise to vicarious liability and entitle [her] to rely upon the relation back doctrine” … . Stepanian v Bed, Bath, & Beyond, Inc., 2022 NY Slip Op 04477, Fourth Dept 7-8-22

Practice Point: To add parties under the “relation back” doctrine, the parities must be “united in interest” with those named in the original complaint. This decision discusses the criteria for “united in interest” in some detail and is worth consulting on that issue.

 

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CONFLICTING EXPERT OPINIONS PRECLUDED DISMISSAL OF MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING THE ALLEGED PREMATURE DISCHARGE OF PLAINTIFF FROM EMERGENCY CARE AFTER SHE EXPERIENCED SYMPTOMS OF A STROKE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s medical malpractice causes of action against the doctor who discharged her from emergency care and the hospital should not have been dismissed because the expert affidavits presented conflicting opinions. Plaintiff experienced symptoms consistent with a stroke and went to the hospital. An MRI was done but plaintiff was released before a final review of the MRI. Evidence of a stroke was ultimately found on the MRI. Plaintiff’s expert opined that the event which caused plaintiff to go to the hospital was a transient ischemic attack (TIA), not a stroke, and that the stroke occurred at the hospital about when the MRI was performed:

… [B]y submitting the affidavit of their expert, [plaintiffs] raised an issue of fact on the issue whether Dr. Kandel deviated from the standard of care … . Dr. Kandel permitted plaintiff to leave the hospital before her brain MRI had undergone a final review by a neuroradiologist. Plaintiffs’ expert opined that discharging plaintiff before a final review of the scans was complete constituted a deviation from the standard of care in light of plaintiff’s medical history, which indicated a significant stroke risk.

… [P]laintiffs raised a question of fact with respect to causation … . The hospital defendants relied upon the affirmation of Dr. Kandel’s medical expert, who opined that any alleged negligence is not the proximate cause of plaintiff’s injuries inasmuch as plaintiff suffered a stroke at or before 3 a.m. on October 27, and that the window in which to administer tPA, an anti-clot medication, had closed long before plaintiff arrived at the hospital for treatment approximately 13 hours later. … [P]laintiffs submitted an expert affidavit asserting … that the symptoms plaintiff experienced on the morning of October 27 were the result of a transient ischemic attack (TIA), which results in temporary stroke-like symptoms but does not result in a blockage, and that she did not experience the actual blockage until sometime later in the day, around the time of her brain MRI. Plaintiffs’ expert further opined that, had plaintiff stayed at the hospital overnight and had the MRI been read correctly, tPA could have been administered when plaintiff’s new symptoms presented. Clark v Rachfal, 2022 NY Slip Op 04472, Fourth Dept 7-8-22

Practice Point: Conflicting expert opinions preclude summary judgment in medical malpractice actions.

 

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THE IDENTITY OF PLAINTIFF’S EMPLOYER WAS NOT A DISPUTED ISSUE IN THE WORKERS’ COMPENSATION PROCEEDING; THEREFORE DEFENDANTS WERE NOT COLLATERALLY ESTOPPED FROM CONTESTING THE IDENTITY OF PLAINTIFF’S EMPLOYER IN THIS RELATED NEGLIGENCE ACTION AND ARGUING PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION; HOWEVER DEFENDANTS PRESENTED CONFLICTING EVIDENCE OF THE IDENTITY OF PLAINTIFF’S EMPLOYER AND THEREFORE WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the collateral estoppel doctrine preclude defendants from disputing the identity of plaintiff’s employer because the issue was not in dispute the Workers’ Compensation proceeding. Plaintiff was a matron on a school bus and was injured when the bus was involved in a collision. Plaintiff sued the bus driver (Bonhome) and the bus company (Reliant). Defendants alleged plaintiff and Bonhome were both employed by Reliant and, therefore, Workers’ Compensation was plaintiff’s only remedy. But the defendants submitted conflicting evidence of the identity of plaintiff’s employer and therefore were not entitled to summary judgment:

… Bonhome and Reliant were not barred by the doctrine of collateral estoppel from disputing the identity of the plaintiff’s employer. “Under the doctrine of collateral estoppel, a party is precluded from ‘relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same'” … . “The quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … . Here, the plaintiff failed to demonstrate that the identity of her employer was a disputed issue at a proceeding before the Workers’ Compensation Board, or that the Workers’ Compensation Board specifically adjudicated that issue…. .

… [T]he defendants submitted conflicting evidence regarding the identity of the plaintiff’s employer. Thus, they failed to demonstrate, prima facie, that both Bonhome and the plaintiff were employees of Reliant at the time of the accident … . Calixte v City of New York, 2022 NY Slip Op 04286, Second Dept 7-6-22

Practice Point: In this traffic accident case the identity of plaintiff’s employer was not in dispute in the prior Workers’ Compensation proceeding. The collateral estoppel doctrine, therefore, did not apply and defendant can contest the identity of plaintiff’s employer in the related negligence proceeding. If both plaintiff and defendant were employees of the same employer, Workers’ Compensation would be plaintiff’s only remedy.

 

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THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Sourour’s) motion to set aside the verdict in the interest of justice in this medical malpractice action should have been granted. The evidence supported the jury’s finding that the failure to do diagnostic testing decreased the plaintiff’s chance of a better outcome. During the trial Sourour sought to but was precluded from cross-examining plaintiff’s expert about whether other doctors who consulted on the case also departed from accepted practice by not performing the additional diagnostic testing. That was deemed reversible error:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision” … . …

If, as Sourour proposes, a jury were to find that these doctors departed from accepted medical practice and that their departures were a substantial factor in depriving the decedent of a chance for an improved outcome, they could be found at fault together with Sourour … . As a result, any evidence as to the culpability of these doctors was relevant under CPLR 1601(1) … . The court’s error in precluding testimony on this issue deprived Sourour of “substantial justice” … . Schuster v Sourour, 2022 NY Slip Op 04317, Second Dept 7-6-22

Practice Point: Here the defendant doctor’s failure to do further diagnostic testing for cancer was deemed to have decreased the chance of a better outcome. Therefore the plaintiff’s verdict was supported by the evidence and properly survived a motion set aside as a matter of law. However, the judge erroneously precluded cross-examination of plaintiff’s expert about whether the other doctors who consulted on plaintiff’s treatment departed from accepted practice failing to order further diagnostic testing. If so, fault would have been shared pursuant to CPLR 1601.

 

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A PLAINTIFF BRINGING A SUMMARY JUDGMENT MOTION MUST ADDRESS AFFIRMATIVE DEFENSES RAISED IN THE ANSWER; HERE IN THIS TRAFFIC ACCIDENT CASE THE GRAVES AMENDMENT, WHICH PROVIDES THAT THE OWNER OF A LEASED CAR IS NOT LIABLE FOR THE NEGLIGENCE OF THE DRIVER, WAS RAISED AS AN AFFIRMATIVE DEFENSE; BECAUSE PLAINTIFF DID NOT ADDRESS THAT ISSUE IN THE SUMMARY JUDGMENT MOTION, THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this traffic accidence case did not demonstrate the owner of defendants’ vehicle, PV Holding, was vicariously liable for the negligence of the driver of the vehicle. Therefore plaintiff’s summary judgment motion with respect to PV Holding should not have been granted. Defendants apparently raised the affirmative defense that the vehicle was leased from PV Holding and therefore was not liable under the Graves Amendment. Because that defense was not addressed in plaintiff’s summary judgment papers, the motion should have been denied:

… [I]n 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. That act included the Graves Amendment (49 USC § 30106), which provides that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (1) is engaged in the trade or business of renting or leasing motor vehicles, and (2) engaged in no negligence or criminal wrongdoing contributing to the accident … .* * *

“CPLR 3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses” … . Pierrelouis v Kuten, 2022 NY Slip Op 04314, Second Dept 7-6-22

Practice Point: A plaintiff bringing a motion for summary judgment must address affirmative defenses raised in the answer. Failure to do so requires denial of the motion. Here the Graves Amendment was raised as an affirmative defense in this traffic accident case. The Graver Amendment provides that companies in the business of leasing cars are not vicariously liable for the negligence of the drivers. Plaintiff did not address that defense in the motion for summary judgment.

 

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IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined this “Child Victims Act” action against YMCA Buffalo, alleging sexual abuse in the 1950’s by employees at the now dissolved YMCA Niagara Falls, should not have been dismissed. The decision is comprehensive and cannot be fairly summarized here. There exist triable issues of fact whether the de facto merger doctrine applies rendering YMCA Buffalo liable for the torts of YMCA Niagara Falls:

… [A]s a general rule, “a corporation which acquires the assets of another is not liable for the torts of its predecessor” ,,, . There are exceptions, however, and thus “[a] corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations” … . Plaintiff relies exclusively on the second exception, which implicates the de facto merger doctrine … . The de facto merger doctrine is “based on the concept that a successor that effectively takes over a [corporation] in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased,” which “is consistent with the desire to ensure that a source remains to pay for the victim’s injuries” … . Dutton v Young Men’s Christian Assn. of Buffalo Niagara, 2022 NY Slip Op 04238, Fourth Dept 7-1-22

Practice Point: In this Child Victims Act action alleging sexual abuse in the 1950’s by employees of the now dissolved YMCA Niagara Falls, there are questions of fact about whether the de facto merger doctrine makes defendant YMCA Buffalo liable for the torts of YMCA Niagara Falls. The decision is comprehensive and discusses every conceivable aspect of the de facto merger doctrine as it applies to not-for-profit corporations.

 

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THERE WAS AN “UNWARNED” THREE-FOOT DROP ON THE OTHER SIDE OF A DOOR IN A REMOTE AREA OF THE HOSPITAL; PLAINTIFF, A HOSPITAL WORKER, WAS INJURED BY THE THREE-FOOT DROP; THE ARCHITECTURAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND NO DUTY WAS OWED TO THE PLAINTIFF; THE CONSTRUCTION COMPANY JUSTIFIABLY RELIED ON THE ARCHITECT’S SPECIFICATIONS AND COULD NOT BE HELD LIABLE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the architectural malpractice cause of action should not have been dismissed. Plaintiff, a hospital maintenance groundskeeper, was injured by a three-foot drop on the other side of a door for which there were no warning signs. Although the door was in a remote area of the hospital, Supreme Court should not have concluded the defendant architectural firm (SBRA) did not owe a duty to the hospital worker who was showing the area to a coworker. The cause of action against the construction company, however, was properly dismissed because the construction company was justified in relying upon SBRA’s specifications:

… SBRA had the initial burden of establishing that it “used the degree of care in design that a reasonably prudent architect would use to avoid an unreasonable risk of harm to anyone likely to be exposed to the danger” … . Initially, we conclude that the court erred in determining that plaintiff was not an intended user of the area where the incident occurred and thus that SBRA had no duty to plaintiff with respect to the design of that area. The evidence established that plaintiff was an employee of the hospital who was using the door in its ordinary manner, i.e., to reach the location on the other side of the door while he was showing that location to a coworker. Moreover, the coworker’s deposition testimony was submitted by SBRA in support of its motion and established that there was a three-foot differential to the floor upon exiting the door and there were no warning signs, no locks on the door, and no railings. Thus, we conclude that SBRA failed to establish as a matter of law that it had no duty to plaintiff … or that it was not negligent in the design of the relevant portion of the building … . Dentico v Turner Constr. Co. & SBRA, Inc., 2022 NY Slip Op 04237, Fourth Dept 7-1-22

Practice Point: There were questions of fact about whether the architectural firm was liable for injuries caused by a three-foot drop on the other side of a door. The causes of action should not have been dismissed on the ground no duty was owed to the plaintiff. Plaintiff was a hospital worker and the door was in a remote area of the hospital. The construction company was not liable because it justifiably relied on the architectural specifications.

 

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THE NYS GAMING COMMISSION’S DUTIES TO INSPECT HORSES AND EQUIPMENT BEFORE A HARNESS RACE ARE PROPRIETARY, NOT GOVERMENTAL, IN NATURE; THEREFORE ORDINARY NEGLIGENCE PRINCIPLES APPLY AND THE IMMUNITY DEFENSE IS NOT AVAILABLE; DURING THE RACE A HORSE FELL AND CLAIMANT’S HORSE COLLIDED WITH THE FALLEN HORSE; THERE ARE QUESTIONS OF FACT ABOUT THE SAFETY OF THE FALLEN HORSE’S EQUIPMENT AND WHETHER THE HORSE EXHIBITED INDICATIONS HE WAS LAME; THERE ARE QUESTIONS OF FACT ABOUT THE APPLICABILTY OF THE ASSUMPTION OF THE RISK DOCTRINE; REGULATIONS RE: THE INSPECTION OF HORSES AND EQUIPMENT ALLOWED CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION TO BE IMPUTED (THIRD DEPT). ​

The Third Department, in a comprehensive decision which should be consulted on the issues of governmental immunity, assumption of the risk and constructive notice, reversing Supreme Court, determined the New York State Gaming Commission was exercising a proprietary, not governmental, function when its employees inspected a harness-racing horse’s (Mister Miami’s) equipment and failed to scratch the horse, which exhibited indications he was “lame,” from the upcoming race. Claimant was injured when, during the race, claimant’s horse collided with Mister Miami after Mister Miami fell. Because the state’s alleged negligence stemmed from a proprietary function, ordinary negligence principles applied and there was no need to show a special relationship between claimant and the state, and the governmental immunity affirmative defense was not available. There were questions of fact whether the assumption-of-the-risk doctrine applied because the state may have acted to unreasonably increase the risk. As for notice, the regulations requiring the state to inspect the horses and equipment allowed the state’s constructive notice of the dangerous condition to be imputed:

… [T]he duties of [the state’s] officials are fundamentally intertwined with the operation of each and every race and, while such tasks may tangentially relate to the overall function of ensuring fair and honest gambling in this state, they are more specifically directed to the goal of ensuring the safety of the participants in those races … . … [I]t is apparent that at least part of the Commission’s role in harness racing is to work hand in hand with the private racing industry to further the state’s goal of “deriv[ing] a reasonable revenue for the support of government” … . * * *

… [W]e find that there are triable issues as to whether Commission officials adequately performed their duties and whether their alleged failures unreasonably increased the risk beyond a level generally inherent in harness track racing … .  …

Because [the inspection] duties were imposed upon the Commission officials by regulation, constructive notice of Mister Miami’s health and equipment issues that would have been observable during those inspections may be imputed … . Bouchard v State of New York, 2022 NY Slip Op 04202, Third Dept 6-30-22

Practice Point: This opinion has valuable discussions of; (1) how to analyze whether a government is exercising a governmental function (to which the “special relationship” and “governmental immunity” doctrines apply) or a proprietary function (to which ordinary negligence principles apply); (2) the assumption of the risk doctrine; and (3) the imputation of constructive notice when there are regulations mandating inspections which allegedly would have revealed the dangerous condition. Here claimant was injured during a harness race when his horse collided with a fallen horse. The complaint alleged the NYS Gaming Commission did not inspect the fallen horse and the fallen horse’s equipment prior to the race as required by the relevant regulations.

 

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UNDER THE NYC ADMINISTRATIVE CODE, ABUTTING PROPERTY OWNERS ARE LIABLE FOR THE CONDITION OF SIDEWALKS BUT NOT CITY OWNED TREE WELLS, UNLESS THEY AFFIRMATIVELY CREATE THE DANGEROUS CONDITION, NEGLIGENTLY REPAIR THE AREA, OR CREATE THE DANGEROUS CONDITION BY A SPECIAL USE; HERE PLAINTIFF SLIPPED AND FELL BECAUSE OF THE CONDITION OF THE TREE WELL, NOT THE SIDEWALK, AND NONE OF THE OTHER LIABILITY THEORIES APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant property owner and manager could not be held liable for the condition of a tree well within a city sidewalk. Therefore their motion for summary judgment in this slip and fall case should have been granted:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . However, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Thus, “liability may be imposed on the abutting landowner in such instances only where she or he has ‘affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area'” … . Ivry v City of New York, 2022 NY Slip Op 04157, Second Dept 6-29-22

Practice Point: Under the NYC Administrative Code, abutting property owners can be liable for a slip and fall due to the condition of the sidewalk, but not a city-owned tree well.

 

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PLAINTIFF’S DEPOSITION TESTIMONY THAT HE DID NOT RECALL HOW OR WHERE HE SLIPPED AND FELL AND DID NOT RECALL A FIGHT OR BEING HIT WERE FATAL TO THE SLIP AND FALL AND ASSAULT CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s deposition testimony that he didn’t recall how or where he slipped and fell, and, with respect to his assault cause of action, did not recall the fight or being hit, was fatal to the complaint:

In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation … . Here, with regard to that branch of their motion which was for summary judgment dismissing the cause of action alleging negligence, the defendants established, prima facie, that the plaintiff could not identify the cause of his alleged fall without engaging in speculation … . …

“To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . Here, the plaintiff testified at his deposition that he could not recall a physical altercation at the premises on the date of the alleged incident and did not “recall being hit.” Barnett v Fusco, 2022 NY Slip Op 04147, Second Dept 6-29-22

Practice Point: In a slip and fall case, the failure to recall the cause of the fall requires dismissal. In an assault and battery case, the failure to recall the fight or being hit requires dismissal.

 

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