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THE RIGHT LANE WAS FOR RIGHT TURNS ONLY; THE MIDDLE LANE WAS FOR EITHER GOING STRAIGHT OR TURNING RIGHT; HERE THE DRIVER IN THE FAR RIGHT LANE DID NOT TURN RIGHT AND STRUCK THE CAR IN THE MIDDLE LANE WHICH WAS MAKING A RIGHT TURN; THE DRIVER IN THE MIDDLE LANE WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined plaintiff’s motion for summary judgment against defendant Rubio should not have been granted and defendant Rubio’s motion for summary judgment should have been granted. Plaintiff was a passenger in a taxi driven by defendant Muy-Angamarca. Muy-Angamarca was in the far right lane, which was for right turns only. Rubio was in the middle lane which could be used to go straight or turn right. When Rubio attempted the right turn, Muy-Angamarco continued straight and struck Rubio’s car:

… [T]he Rubio defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the sole proximate cause of the accident was Muy-Angamarca’s vehicle continuing straight through the intersection in disregard of a traffic sign directing that his lane was for right turns only … . Based upon Muy-Angamarca’s disregard of the traffic sign, he was in violation of the Vehicle and Traffic Law, and thus, he was negligent as a matter of law (see Vehicle and Traffic Law § 1110[a] …). Rubio was entitled to assume that Muy-Angamarca would obey the traffic sign requiring Muy-Angamarca to turn right … . Indeed, the plaintiff testified at his deposition that he observed that Rubio had signaled before making a legal right turn from the middle lane, that Muy-Angamarca “started to accelerate” toward the intersection while Rubio’s vehicle was turning, and that he did not believe Rubio was at fault in the happening of the accident. Ellsworth v Rubio, 2022 NY Slip Op 02781, Second Dept 4-27-22

 

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THERE WAS NO OBJECTIVE SUPPORT FOR PLAINTIFF BUS PASSENGER’S CLAIM THE MOVEMENT OF THE BUS WHICH CAUSED HER TO FALL WAS “UNUSUAL AND VIOLENT” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant bus company’s, MTA’s, motion to dismiss the complaint in this bus-passenger injury case should have been granted:

To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, a plaintiff must establish that the movement consisted of a jerk or lurch that was “‘unusual and violent'” … . “Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent” … . There must be “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant” … . “In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the movement of the vehicle was not unusual and violent” … .

… MTA established its prima facie entitlement to judgment as a matter of law. MTA demonstrated, by submitting the transcript of the plaintiff’s deposition testimony, that the movement of the bus was not unusual and violent or of a “different class than the jerks and jolts commonly experienced in city bus travel” … . The nature of the incident, according to the plaintiff’s deposition testimony, was that she was caused to fall as the bus stopped at the intersection. According to the plaintiff, who did not provide an estimate as to how fast the bus was traveling prior to stopping at the intersection, she was the only passenger on the bus who fell, although there was another passenger standing within two feet of her at the time. The plaintiff testified that she landed on the floor near where she was standing prior to falling down. This is not, in itself, sufficient to provide the objective support necessary to demonstrate that the movement of the bus was unusual and violent, and of a different class than the jerks and jolts commonly experienced in city bus travel … . Orji v MTA Bus Co., 2022 NY Slip Op 02811, Second Dept 4-27-22

Practice Point: In order to survive a motion to dismiss, a bus passenger’s allegation his or her injury was caused by an “unusual and violent” movement of the bus must have some sort of “objective support,” which was absent in this case.

 

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THE OVER $3,000,000 VERDICT IN THIS TOXIC TORT CASE REVERSED; THE PROOF THAT DEFENDANT’S TALCUM POWDER, WHICH ALLEGEDLY CONTAINED ASBESTOS, CAUSED PLAINTIFF’S DECEDENT’S LUNG CANCER WAS DEEMED INSUFFICIENT; THE STANDARD FOR PROOF OF CAUSATION IN TOXIC TORT CASES DISCUSSED IN DEPTH (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, over an extensive dissenting opinion, determined the proof of plaintiff’s decedent’s exposure to asbestos in defendant’s talcum powder was not sufficient to demonstrate the powder caused decedent’s mesothelioma (lung cancer). The opinion reviews the toxic-tort caselaw with respect to the sufficiency of proof of causation. That discussion is too comprehensive to fairly summarize here:

Although we have recognized that in any given case it may be “difficult, if not impossible, to quantify a plaintiff’s past exposure” to a toxin … , our standard itself is not “impossible” for plaintiffs to meet … . We must, as always, strike a balance between the need to exclude “unreliable or speculative information” as to causation with our obligation to ensure that we have not set “an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court” … . The requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness strikes the appropriate balance … . The fault here is not in our standard, but in plaintiff’s proof. Nemeth v Brenntag N. Am.. 2022 NY Slip Op 02769, CtApp 4-26, 2022

Practice Point: This Court of Appeals opinion reviews and analyzes the causation proof-requirements for toxic tort cases. Here the proof that asbestos in talcum powder caused plaintiff’s decedent’s lung cancer was deemed insufficient.

 

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PLAINTIFF AND DEFENDANT WERE HUNTING TURKEY WHEN DEFENDANT SHOT PLAINTIFF; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING POSSIBLE COMPARATIVE-NEGLIGENCE ISSUES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this hunting accident case should have been granted. Defendant, like the plaintiff, was hunting turkey when he shot plaintiff and his friend. Defendant subsequently pled guilty to attempted assault:

We agree with plaintiffs that they established as a matter of law that defendant was negligent by failing to exercise the degree of care that a reasonable person “of ordinary prudence would exercise under the circumstances, commensurate with the known dangers and risks reasonably to be foreseen” … , and that defendant failed to raise an issue of fact in response. We also agree with plaintiffs that triable issues of fact regarding plaintiff’s comparative negligence do not preclude an award of summary judgment in plaintiffs’ favor on the issue of defendant’s negligence … . Pachan v Brown, 2022 NY Slip Op 02684, Fourth Dept 4-22-22

Practice Point: Comparative negligence is no longer a bar to summary judgment on liability. Comparative negligence is relevant only to damages.

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE EVIDENCE ESTABLISHED DEFENDANT FAILED TO STOP AT A STOP SIGN AND FAILED TO SEE WHAT SHOULD HAVE BEEN SEEN (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this intersection traffic-accident case should have been granted:

Plaintiffs established their prima facie entitlement to partial summary judgment by averring that, at the time of the accident, their vehicle was traveling westbound through an intersection at 91st Avenue in Queens, when defendants’ vehicle failed to stop at a designated stop sign and struck the middle of the driver’s side of plaintiffs’ vehicle … . A presumption of negligence arises from the failure of a driver at a stop sign to yield the right of way to the vehicle on the highway in violation of Vehicle and Traffic Law § 1142 … . …

Defendants’ claim that defendant Bennett stopped at the stop sign, and checked for oncoming traffic but did not see plaintiffs’ vehicle until it suddenly appeared in front of her as she proceeded into the intersection, fails to rebut the presumption of negligence arising from her failure to yield the right of way to plaintiffs’ vehicle, but instead indicates that she was negligent in failing to see what was there to be seen … . Samnath v Lifespire Servs., Inc., 2022 NY Slip Op 02643, First Dept 4-21-22​

Practice Point: Failure to stop at a stop sign raises a presumption of negligence in an intersection traffic-accident case. Proceeding into the intersection and striking a car which has the right-of-way constituted a negligent failure to see what should have been seen.

 

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IN THIS TRAFFIC ACCIDENT CASE INVOLVING THE DEFENDANT NYC TRANSIT AUTHORITY’S BUS, THE AUTHORITY GAINED TIMELY KNOWLEDGE OF THE POTENTIAL CLAIM WHEN IT INVESTIGATED THE ACCIDENT AND WAS NOT PREJUDICED BY THE DELAY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file a late notice of claim in this traffic accident case should have been granted. It was alleged defendant NYC Transit Authority’s bus collided with a NYC sanitation truck which then collided with petitioner’s car. The Transit Authority investigated the accident and therefore had knowledge of the essential facts of the claim. Because the defendant had timely actual knowledge of the potential claim and did not demonstrate prejudice from the delay, petitioner did not need to present a reasonable excuse for the late notice:

… [A]s the Authority acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing that the Authority would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the Authority failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits … . Since the Authority had actual knowledge of the essential facts underlying the claim and no substantial prejudice to the Authority was demonstrated, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim did not serve as a bar to granting leave to serve a late notice of claim … . Matter of Manbodh v New York City Tr. Auth., 2022 NY Slip Op 02544, Second Dept 4-20-22

​Practice Point: Here the defendant NYC Transit Authority investigated the traffic accident involving petitioner’s car and therefore had timely notice of the essential facts of the potential lawsuit. In that situation, in the absence of prejudice to the defendant caused by petitioner’s failure to timely file a notice of claim (none here), petitioner need not provide a reasonable excuse and leave to file a late notice should be granted.

 

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ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion seeking leave to file a late notice of claim was timely and should have been granted. Although the second order to show cause was submitted two days beyond the one year-and-90-day deadline for suing a municipality. the statute of limitations was tolled for three days between the filing of the first order to show cause and the denial of that first motion:

Since the time to serve a notice of claim upon a public corporation cannot be extended beyond the time limited for commencement of an action against that party … , the court lacks authority to grant a motion for leave to serve a late notice of claim made more than one year and 90 days after the cause of action accrued, unless the statute of limitations has been tolled … . “CPLR 204(a) tolls the statute of limitations while a motion to serve a late notice of claim is pending” … . Where “a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application for the same relief is granted, the period of time in which the earlier application [was] pending [is also] excluded from the limitations period” … . …

… [T]he medical records provided the defendants with actual knowledge of the essential facts constituting the plaintiff’s claim. The records evinced that a stroke code was called shortly after the plaintiff’s presentation to the hospital, that, based on an assessment of her condition, it was decided that a tissue plasminogen activator was not needed, and that it was later determined that the plaintiff had suffered a stroke but that it was too late to administer that drug.

The plaintiff further made an initial showing that the defendants would not suffer any prejudice by the delay in serving the notice of claim, and the defendants failed to rebut the showing with particularized indicia of prejudice … .

Finally, where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim … . Ahmed v New York City Health & Hosp. Corp., 2022 NY Slip Op 02521, Second Dept 4-20-22

Practice Point: The one-year-ninety-day statute of limitations for suing a municipality is tolled for the time between submitting an order to show cause seeking leave to file a late notice of claim and the judge’s refusal to sign the order to show cause. Here, although the second order to show cause seeking leave to file a late notice was submitted two days after the one-year-ninety-day statute had run, it was timely because of the three-day toll between the filing and denial of first order to show cause. Here the medical records sufficiently notified the municipality of the essential facts of the claim, the municipality did not demonstrate prejudice and there was no need for a reasonable excuse because there was actual knowledge and no prejudice.

 

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THE DOCUMENT LABELED A “SUPPLEMENTAL” BILL OF PARTICULARS WAS ACTUALLY AN “AMENDED” BILL OF PARTICULARS BECAUSE IT ADDED NEW INJURIES AFTER THE NOTE OF ISSUE WAS FILED; THE DEFENDANT’S MOTION TO STRIKE THE AMENDED BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined the document labeled a “supplemental” bill of particulars was actually a post-note-of-issue “amended” bill of particulars which should not have been served without leave of the court:

… [T]he document that they denominated a “supplemental bill of particulars” … , was, in reality, an amended bill of particulars, as they sought to add new injuries (see CPLR 3043[b]). Accordingly, the Supreme Court erred in denying that branch of [defendant’s] motion which was to strike the amended bill of particulars … , denominated as a supplemental bill of particulars, which was served without leave of court and after the note of issue had been filed …  . Naftaliyev v GGP Staten Is. Mall, LLC, 2022 NY Slip Op 02556, Second Dept 4-20-22

Practice Point: A “supplemental” bill of particulars which adds new injuries after the note of issue is filed is actually an “amended” bill of particulars which can only be served with leave of the court.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

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IN ORDER TO HOLD A PROPERTY OWNER LIABLE FOR THE CREATION OF A DANGEROUS CONDITION, HERE THE INSTALLATION OF A COMPOSITE MATERIAL AT THE TOP OF A STAIRWELL WHICH ALLEGEDLY BECAME SLIPPERY WHEN WET, A PLAINTIFF MUST SHOW THE DEFENDANT WAS AWARE OF THE DANGER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged a composite material used at the top of a staircase was inappropriate for that purpose because the surface became slippery when wet from rain. The Second Department found that the defendants did not demonstrate they did not have constructive knowledge of the condition, mainly because the evidence relied upon was inadmissible hearsay. But the Second Department also noted the plaintiff must show more than the creation of a dangerous condition to hold the defendants liable. It must also be shown the defendants knew or should have known of the danger:

“In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . Contrary to the plaintiff’s contention, the defendants may not be held liable merely because they created the allegedly dangerous condition by directing the installation of the composite decking material on the landing. “[A]bsent a statute imposing strict liability, a defendant may not be held liable for creating a dangerous or defective condition upon property unless the defendant had actual, constructive, or imputed knowledge of the danger created” … . San Antonio v 340 Ridge Tenants Corp., 2022 NY Slip Op 02298, Second Dept 4-6-22

Practice Point: It may be an obvious point, but in order to hold a property owner liable for creating a dangerous condition, the plaintiff must not only show that the defendant created the condition, but also that the defendant was aware of the danger. In this case the defendant installed a composite flooring at the top of a stairwell which allegedly became slippery when wet. Just proving the defendant installed the floor and that the floor became slippery when wet would not be enough.

 

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