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PLAINTIFFS RAISED QUESTIONS OF FACT (1) WHETHER THE POLICE ACTED IN RECKLESS DISREGARD OF THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE AND IN FAILING TO NOTIFY THE DISPATCHER OF THE CHASE, AND (2) WHETHER THE CHASE WAS A PROXIMATE OR CONCURRENT CAUSE OF PLAINTFFS’ ACCIDENT (THERE WAS NO CONTACT WITH EITHER VEHICLE INVOLVED IN THE CHASE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined plaintiffs raised questions of fact about whether the police acted in reckless disregard of the safety of others during a high-speed chase, and whether the chase of the BMW driven by Llewellyn was a proximate or concurrent cause of the accident (neither vehicle involved in the chase struck plaintiffs’ vehicle):

… [T]he motion court properly held that the reckless disregard standard applied in evaluating the City defendants’ conduct in pursuing Llewellyn (see Vehicle and Traffic Law §§ 1104[b], 1104[e]). However, the motion court erred in determining that “there is no evidence that the NYPD officers acted recklessly as a matter of law, and that the pursuit was not the proximate cause or a concurrent cause of this incident” … . …

Plaintiffs … submitted evidence that the City defendants initiated a high-speed chase of Llewellyn’s BMW at close proximity after observing it run a single red light, and continued the high-speed chase, which included crossing over a double yellow line and running two red lights, in a known congested and heavily populated residential area which at the time of the pursuit had moderate to heavy traffic and numerous pedestrians…. . …

Plaintiffs also raised an issue of fact concerning whether the NYPD officers acted recklessly in failing to notify the radio dispatcher at the start of the pursuit and inform headquarters with relevant information, including the nature of the offense. Handelsman v Llewellyn, 2022 NY Slip Op 04093, First Dept 6-23-22

Practice Point: Here there were questions of fact whether the police acted in reckless disregard of the safety of others during a high-speed chase such that the city would be liable for plaintiffs’ accident, and whether the high-speed chase was a proximate or concurrent cause of plaintiffs’ accident (there was no contact with either vehicle involved in the chase). There were questions of fact whether the police drove “in reckless disregard of the safety of others” and whether their failure to notify the dispatcher of the chase was also reckless.

 

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IN NEW YORK THERE ARE NO CAUSES OF ACTION FOR “PRECONCEPTION NEGLIGENCE” OR “WRONGFUL LIFE;” HERE MOTHER ALLEGED THE DRUG SHE HAD BEEN TAKING FOR EPILEPSY BEFORE SHE LEARNED SHE WAS PREGNANT CAUSED THE BABY TO BE BORN WITH SPINA BIFIDA (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ actions for “preconception negligence” and “wrongful life” should have been dismissed. Plaintiff mother had been treated for epilepsy for years with a drug (VPA). She became pregnant while taking the drug and stopped taking it as soon as she learned she was pregnant. The baby was born with spina bifida:

Defendants treated the infant plaintiff’s mother for epilepsy. To control her seizures, they prescribed valproic acid (VPA), which the mother had been taking for years while under the care of other physicians. Unbeknownst to all, while she was on VPA, the mother conceived the infant plaintiff. Although the VPA was discontinued when the mother learned that she was pregnant, the infant was born with spina bifida, for which she seeks to hold defendants responsible.

It is well established that an infant has no cause of action for preconception negligence … . The infant’s claims that defendants failed to ensure that her mother was on birth control and monitored regularly for pregnancy while on VPA sound in “wrongful life,” for which there is also no cause of action … . Z.L. v Mount Sinai Hosp., 2022 NY Slip Op 04112, First Dept 6-23-22

Practice Point: New York does not recognize actions for “preconception negligence” or “wrongful life.” Here mother alleged the epilepsy drug she was taking until she learned she was pregnant caused her baby to be born with spina bifida. Both causes of action should have been dismissed.

 

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DEFENDANT’S MOTION TO COMPEL PLANTIFF TO APPEAR FOR A PSYCHIATRIC EXAMINATION (INDEPENDENT MEDICAL EXAMINATION [IME]) SHOULD HAVE BEEN GRANTED BECAUSE PLAINTIFF HAD PLACED HER MENTAL CONDITION IN CONTROVERSY; DEFENDANT’S MOTION TO VACATE THE NOTE OF ISSUE SHOULD HAVE BEEN GRANTED BECAUSE DISCOVERY WAS NOT COMPLETE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s motions to compel plaintiff to appear for an independent medical examination (IME) and to vacate the note of issue should have been granted:

We find that plaintiff’s mental condition is, in fact, in controversy. Plaintiff requests compensatory damages only for her alleged emotional distress, and she has testified that she experienced depression, anxiety, and dizziness, as well as headaches brought on by severe mental anguish (CPLR 3121[a]). As a result, a mental examination by a psychiatrist is warranted to enable defendants to rebut plaintiff’s causes of action for emotional distress … .

… [W]e grant defendants’ motion to vacate the note of issue. Contrary to the certificate of readiness, discovery had not been completed, as plaintiff had not yet complied with the court’s directive to submit a Jackson affidavit detailing the process she had undertaken to search her social media post … . Lopez v Bendell, 2022 NY Slip Op 03990, First Dept 6-21-22

Practice Point: Plaintiff had placed her mental condition in controversy by testifying about depression, anxiety, dizziness and headaches caused by mental anguish. Defendant was therefore entitled to compel a psychiatric exam (an independent medical examination [IME]). Here defendant’s motion to vacate the note of issue should have been granted because defendant’s discovery was not complete.

 

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DEFENDANT REHABILITATION AND RECOVERY SERVICES DID NOT DEMONSTRATE IT DID NOT HAVE A DUTY TO PREVENT A PERSON UNDER ITS SUPERVISION AND CARE FROM HARMING MEMBERS OF THE GENERAL PUBLIC; PLAINTIFF WAS KIDNAPPED AND RAPED BY A PERSON WITH A VIOLENT PAST WHO WAS UNDER DEFENDANT’S CARE AND SUPERVISION (THIRD DEPT). ​

The Third Department determined the defendant Rehabilitation Support Services’ (RSS’s) motion for summary judgment in this negligence, negligent supervision, medical malpractice, negligent infliction of emotional distress action was properly denied. Plaintiff was kidnapped and raped by Jose Marlett who was under the care and supervision provided by RSS, a rehabilitation and recovery program for persons who have mental illness and substance abuse issues:

Marlett had been an outpatient client at RSS for approximately one year and had been a resident in its apartment program for approximately one to three months prior to his receipt of personal recovery services. Marlett’s application for RSS services included his diagnoses of bipolar disorder and schizoaffective disorder, and a history of delusions, hallucinations, paranoia, suicidal and homicidal ideations and incarceration. RSS identified Marlett’s risks as suicide and violence, and noted that he had a history of physical altercations, threatening and attempting to harm others and was a danger to himself and others. In order to receive RSS services, Marlett was required to forego other psychiatric and mental health treatment and RSS essentially became the exclusive provider of Marlett’s medication management, clinical counseling, therapy and psychiatric assessments. * * *

… [W]e find that defendants failed to prove a lack of duty to take reasonable steps to prevent Marlett from harming members of the general public. * * *

[Re: medical malpractice] Defendants failed to submit a competent expert medical opinion, instead submitting a speculative and conclusory affidavit by its nonphysician director that failed to provide any factual basis showing that they complied with professional standards … .* * *

“A cause of action for negligent infliction of emotional distress generally requires the plaintiff to show a breach of a duty owed to him or her which unreasonably endangered his or her physical safety, or caused him or her to fear for his or her own safety” … . “Unlike intentional infliction of emotional distress, … the Court of Appeals has not stated that extreme and outrageous conduct is an essential element of a cause of action to recover damages for negligent infliction of emotional distress” … . Doe v Langer, 2022 NY Slip Op 03957, Third Dept 6-15-22

Practice Point: Here defendant provided rehabilitative and recovery services for persons with mental illness and substance abuse problems. A person, with a violent past, was under defendant’s care and supervision when he kidnapped and raped plaintiff. Defendant did not demonstrate that it did not have a duty to protect members of the general public from a violent person under its care and supervision.

 

PLAINTIFF ASSUMED THE RISK OF SLIPPING ON THE BASKETBALL COURT WHICH WAS WET WITH CONDENSATION; PLAINTIFF WAS AWARE OF THE RECURRING CONDITION (SECOND DEPT).

The Second Department determined defendants were entitled to summary judgment in this basketball-injury case. Plaintiff was deemed to have assumed the risk of slipping and falling on condensation on the floor of the court:

… [T]he defendants established … ,that the plaintiff was aware of and had assumed the risk that the floor of the basketball court would be slippery from condensation that had formed due to humid conditions in the gymnasium. The defendants’ submissions, including the plaintiff’s own deposition testimony, demonstrated that the plaintiff had played basketball in the gymnasium on more than 50 occasions prior to the day of the accident, knew that the gymnasium air was “humid” and had dry-mopped the gymnasium floor while playing basketball in the past when it was “getting wet” from “[c]ondensation,” and nevertheless continued playing basketball in the gymnasium on multiple occasions up until the date of the accident despite his awareness of this condition. Under these circumstances, the plaintiff assumed the risk of injury inherent in playing basketball on an indoor court which he knew to become slippery due to humid conditions in the gymnasium … . Lungen v Harbors Haverstraw Homeowners Assn., Inc., 2022 NY Slip Op 03717, Second Dept 6-8-22

Practice Point: Plaintiff was aware that the basketball court routinely became wet with condensation. Therefore he assumed the risk of slipping on the condensation while playing basketball.

 

A FLATTENED CARDBOARD BOX ON THE FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a flattened cardboard box was not actionable in this slip and fall case;

The plaintiff commenced this action to recover damages for personal injuries after she slipped and fell on a flattened cardboard box that was lying on the floor in an aisle of the defendant’s grocery store. At her deposition, the plaintiff testified that she saw the cardboard box prior to the accident, as well as an employee of the defendant stocking shelves in the aisle close by. The plaintiff testified that, prior to her fall, it was her intention to step onto the cardboard in order to reach a product on a nearby shelf. …

While a possessor of real property has a duty to maintain that property in a reasonably safe condition … , “there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence demonstrating that the flattened cardboard box, which was readily observable to the plaintiff prior to her fall, was open and obvious, and not inherently dangerous … . DiScalo v Mannix Family Mkt. @ Forest & Richmond Ave, LLC, 2022 NY Slip Op 03708, Second Dept 6-8-22

Practice Point: A flattened cardboard box on the floor was not actionable in this slip and fall case because it was “open and obvious.”

 

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CLAIMANT’S ATTORNEY WAS NOT AWARE OF THE THIRD DEPARTMENT’S UNIQUE REQUIREMENT OF FULL EXPERT-WITNESS DISCLOSURE FOR A TREATING PHYSICIAN; THAT WAS AN ADEQUATE EXCUSE FOR AN UNTIMELY DISCLOSURE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined claimant’s treating physician (Hopson) in this personal injury case should have been allowed to testify as an expert, despite the failure to comply with full expert disclosure pursuant to CPLR 3101. The Third Department is the only department which requires such full expert disclosure by a treating physician and claimant’s attorney had not practiced in the Third Department:

There is no dispute that claimant failed to comply with the expert disclosure requirements of CPLR 3101 (d) (1) (i) in identifying Hopson as a witness. Nevertheless, we disagree with the Court of Claims’ finding that claimant’s excuse was unreasonable. The situation here mirrors that in Schmitt v Oneonta City Sch. Dist. (151 AD3d 1254), where we accepted the explanation of the plaintiffs’ attorney that he was “unaware of this Court’s interpretation of CPLR 3101 (d) (1) (i) and the corresponding need to file an expert disclosure for a treating physician, and the record [was] otherwise devoid of any indication that counsel’s failure to file such disclosure was willful” … . The same holds true here, as claimant’s attorney revealed that she practices law in a different judicial department and candidly conceded that she was unaware of this Court’s interpretation that the statute requires expert disclosure for treating physicians. There is nothing in the record calling into question the veracity of counsel’s representations and no basis to conclude that the noncompliance with CPLR 3101 (d) (1) (i) was willful. As such, the court erred in precluding Hopson’s testimony as an expert witness…. . Freeman v State of New York, 2022 NY Slip Op 03559, Third Dept 6-2-22

Practice Point: Only the Third Department requires full expert-witness disclosure for a treating physician.

 

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PLAINTIFF’S EMPLOYER’S MOTIONS FOR SUMMARY JUDGMENT ON DEFENDANT’S CONTRACTUAL INDEMNITY, COMMON-LAW INDEMNITY AND CONTRIBUTION CAUSES OF ACTION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant property-owner’s indemnity claims against plaintiff’s employer (Sodexo) in this slip and fall case should have been dismissed. Defendant, as the property-owner, was responsible for the structural maintenance of the stairwell where plaintiff fell. The fall was not caused by debris on the stairwell, which was Sodexo’s only responsibility under its contract with defendant:

While defendant argued … that Sodexo’s responsibility to “provide basic housekeeping to all areas of operation during the course of the operating day” included the subject stairs, it is clear from the incident report and post incident/accident root cause analysis form that the staircase was clear of obstructions, objects, substances and debris of any sort. Accordingly, defendant failed to raise a triable issue of fact regarding whether [the] accident was caused by Sodexo’s sole negligence, so Sodexo was entitled to summary judgment dismissing defendant’s cause of action for contractual indemnity. * * *

Defendant has not alleged any scenario under which it could be held vicariously or statutorily liable for any negligence of Sodexo. Accordingly, Sodexo was entitled to summary judgment dismissing defendant’s cause of action for common-law indemnification … .

… Inasmuch as defendant failed to raise an issue of fact as to Sodexo’s negligence, defendant is not entitled to contribution from Sodexo, and Sodexo’s motion for summary judgment dismissing defendant’s contribution cause of action should have been granted. O’Toole v Marist Coll., 2022 NY Slip Op 03560, Third Dept 6-2-22

Practice Point: Defendant property owner’s actions against plaintiff’s employer for contractual and common law indemnity and contribution should have been dismissed because plaintiff’s slip and fall was not the result of any act or omission on plaintiff’s employer’s part. The criteria for indemnity and contribution causes of action are explained.

 

DESPITE THE FACT THAT PLAINTIFF COULD NOT SAY WHICH OF TWO CRACKS IN THE PAVEMENT CAUSED HIS FALL, THE CAUSE OF THE FALL WAS SUFFICIENTLY IDENTIFIED TO WITHSTAND SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted on the ground plaintiff could not identify the cause of his fall. Plaintiff alleged that one of two cracks in the pavement caused the fall:

Plaintiff testified that, on the day of the incident, the weather was clear and there was no snow or debris on the surface of the parking lot. He had parked his car in the parking lot and was approaching the front door of the store when his foot suddenly “hit something along the pavement and . . . stopped,” causing him to fall to the ground. An individual who was walking behind plaintiff came to his aid, helping plaintiff up off the ground and assisting him back to his vehicle. At the time of his fall, plaintiff did not look at the ground to determine the cause. However, he recalled that, after being helped back to his vehicle, he looked back and noticed a cracked area of the pavement where he had fallen. Plaintiff was shown photographs of the parking lot and identified the location of his fall by circling in one of the photographs an uneven area of the pavement with two cracks in close proximity to one another. Upon further questioning, plaintiff was unable to identify which of the two cracks caused the fall, but repeatedly testified that he knew it was one of those two cracks based upon where he landed when he fell.

… Although plaintiff’s statements were not without some inconsistencies, he was steadfast in his testimony that he tripped on one of the two identified cracks in the pavement of the parking lot. Despite Supreme Court’s suggestion to the contrary, plaintiff was not required to state for certain which particular crack caused him to fall in order to withstand summary judgment … . Bovee v Posniewski Enters., Inc., 2022 NY Slip Op 03561, Third Dept 6-2-22

Practice Point: Plaintiff was able to testify that one of two cracks in the pavement was the cause of his fall. The cause was sufficiently identified to withstand summary judgment.​

 

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IN THIS Y-INTERSECTION TRAFFIC ACCIDENT CASE, (1) THE TOWN DEMONSTRATED IT DID NOT HAVE THE REQUIRED WRITTEN NOTICE THAT OVERGROWN FOLIAGE BLOCKED LINES OF SIGHT; (2) QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE CAUSES OF ACTION ALLEGING INADQUATE SIGNAGE AND NEGLIGENT ROADWAY DESIGN (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Y-intersection traffic accident case, determined:(1) the cause of action against the town alleging overgrown foliage blocked drivers’ line of sight should have been dismissed because the town demonstrated it did not have written notice of the condition; (2) the written-notice requirement does not apply to the causes of action alleging inadequate signage and negligent design, which properly survived summary judgment:

By its submission of the affidavits of its Town Clerk and Superintendent of Highways who both averred that, after review of the pertinent records, no written notice was received pertaining to any alleged defective or dangerous condition caused by or from overgrown trees … , the Town successfully shifted the burden to plaintiffs to establish an issue of fact as to prior written notice, which plaintiffs failed to do … .

As to plaintiffs’ claims pertaining to inadequate signage and negligent design of the intersection, we agree that prior written notice requirements do not apply to these alleged defects … . * * *

… [T]he record demonstrates that, at the very least, at some point in the modern era the roads were paved and signage was installed. The Town has provided no proof as to when or how often these activities have been undertaken or that they were completed in compliance with the standards in place at the time … .

We further agree that Supreme Court properly rejected the Town’s contention that plaintiffs’ allegations of negligence by the Town were negated by [the drivers’] familiarity with the intersection. …  … [I]t cannot be said that this Y intersection was reasonably safe as a matter of law, nor did the Town conclusively demonstrate that placing the stop sign in a different location would have resulted in the same conduct by [the drivers]. … [T]riable issues of fact exist as to whether the signage at the intersection was a proximate cause of the accident … . Read v Bell, 2022 NY Slip Op 03563, Third Dept 6-2-22

Practice Point: In a traffic accident case, a municipality will not be liable for overgrown foliage which blocks lines of sight if the town has not been provided with written notice of the condition. The written-notice requirement does not apply to causes of action alleging the accident was caused by inadequate signage or negligent roadway design.

 

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