Negligence – Page 86 – New York Appellate Digest

THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT).

The First Department noted that the trial judge properly allowed plaintiff to call her treating physician to rebut the testimony of defendants’ expert, even though the doctor’s testimony could have been presented in her case-in-chief:

The trial court providently exercised its discretion in permitting plaintiff to call her treating radiologist as a rebuttal witness … . While plaintiff’s radiologist’s testimony could have been offered as part of her case-in-chief, and her failure to offer the testimony at that time deprived her of the right to make use of it as affirmative evidence, she still had the right to offer the testimony in order “to impeach or discredit” the testimony of defendants’ expert radiologist … . Reinoso v New York City Tr. Auth., 2022 NY Slip Op 02242, First Dept 4-5-22

Practice Point: In a civil case, a judge has the discretion to allow a plaintiff to present rebuttal evidence which could have been presented in the case-in-chief.

April 5, 2022

Appeals, Civil Procedure, Medical Malpractice, Negligence

PLAINTIFFS STATED A CAUSE OF ACTION FOR MEDICAL MALPRACTICE BY ALLEGING THE TREATMENT OF PLAINTIFF’S DECEDENT AGAINST THE WISHES OF DECEDENT AND DECEDENT’S HEALTH-CARE AGENTS PROLONGED DECEDENT’S PAIN AND SUFFERING; THE “WRONGFUL LIFE” LINE OF CASES DOES NOT APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined plaintiff stated a cause of action sounding in medical malpractice by alleging the treatment of plaintiff’s decedent against decedent’s wishes and the wishes of his health-care agents prolonged his pain and suffering. This action was distinguished from the “wrongful life” line of case which held that being born alive with disabilities does not constitute an injury in New York [therefore a medical malpractice lawsuit alleging the parents should have been advised to terminate the pregnancy does not state a cause of action]. Supreme Court had based its dismissal of the complaint on a Second Department case (Cronin) which followed the “wrongful life” line of reasoning. The First Department refused to follow the Second Department:

… [In] Cronin, it appears that plaintiff sought damages based on a claim “that the defendant wrongfully prolonged the decedent’s life by resuscitating him against the express instructions of the decedent and his family” (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent’s pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent’s wishes expressed in his advance directives as reaffirmed by his health care agents … .Greenberg v Montefiore New Rochelle Hosp., 2022 NY Slip Op 02194, First Dept 3-31-22

Practice Point: A decision in one appellate-division department does not bind another department. Here the “wrongful life” line of cases did not preclude a medical malpractice action alleging the treatment of plaintiff’s decedent against decedent’s wishes and against the wishes of decedent’s health-care agents prolonged decedent’s pain and suffering.

March 31, 2022

Evidence, Medical Malpractice, Negligence

PLAINTIFFS’ EXPERT DID NOT ADDRESS THE OPINION OF DEFENDANTS’ EXPERT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the complaint in this medical malpractice case, determined the defendants’ motion for summary judgment should have been granted because plaintiffs’ expert did not address the defendants’ expert’s opinion. The defense expert averred plaintiff’s problems were caused by cancer. Plaintiffs’ expert took the position plaintiff never had cancer, a position contradicted by the record:

Defendants made a prima facie showing of entitlement to summary judgment through their expert, who averred that defendants’ treatment of plaintiff was within the standard of care and any difficulties with the treatment were caused by plaintiff’s underlying cancer. Plaintiffs’ expert failed to address that opinion, and thus failed to rebut defendants’ showing of entitlement to summary judgment … . Instead, the expert took the position that plaintiff never had cancer, a fact contradicted by the record … .. While plaintiff’s cancer had an unusual presentation, and pathologists initially disagreed as to whether she had an invasive jaw cancer, she was ultimately successfully treated by oncologists with surgery, radiation, and gene therapy. Plaintiffs’ expert entirely ignored plaintiff’s treatment from 2016 to 2017 for a rare variant of squamous cell carcinoma, as well as her 2018 treatment for a reoccurrence … . Given those omissions, plaintiffs did not rebut defendants’ prima facie showing of entitlement to summary dismissal of the negligence and medical malpractice claims against them…. . Mulroe v New York-Presbyt. Hosp., 2022 NY Slip Op 02204, First Dept 3-31-22

Practice Point: If the defendants’ expert in a med mal case makes a prima facie showing defendants’ treatment was within the standard of care and the plaintiffs’ expert does not address that opinion, defendants’ motion for summary judgment will be granted. Med mal cases, at the summary judgment stage, turn on the experts’ affidavits. Every argument raised by the movant’s expert must be addressed by the plaintiff’s expert to raise a question of fact.

March 31, 2022

Municipal Law, Negligence

ALTHOUGH THE MUNICIPALITY PROVED IT DID NOT HAVE WRITTEN NOTICE OF THE ICY SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, IT DID NOT PROVE THAT PILING SNOW ALONG THE EDGE OF THE SIDEWALK DID NOT CREATE THE ICY CONDITION; THE MUNICIPALITY WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality did not demonstrate it did not create the icy condition on the sidewalk where plaintiff slipped and fell by piling snow along the sidewalk which melted and froze:

“While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence, a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement” … . Pirrone v Metro N. Commuter R.R., 2022 NY Slip Op 02144, Second Dept 3-30-22

Practice Point: Here the municipality did not prove it did not create the icy-sidewalk condition by piling snow removed from the sidewalk along the edge of the sidewalk where it melted and froze. Therefore, even though the municipality did not have written notice of the icy condition, there was a question of fact whether the municipality created the condition. The municipality’s motion for summary judgment should not have been granted.

March 30, 2022

Evidence, Negligence

THE METEOROLOGIST’S AFFIDAVIT SUBMITTED TO SHOW THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL WAS NOT ACCOMPANIED BY THE RECORDS RELIED UPON BY THE AFFIANT; THE AFFIDAVIT THEREFORE HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the parking-lot-owner’s (RGP’s) motion for summary judgment in this slip and fall case should not have been granted under the storm-in-progress rule. The meteorologist’s affidavit was not accompanied by the records the affidavit relied upon:

… RGP failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule. In support of its motion, RGP relied upon an affidavit and report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value … . Canciani v Stop & Shop Supermarket Co., LLC, 2022 NY Slip Op 01986, Second Dept 3-23-22

Practice Point: An affidavit submitted to prove the contents of records which are not attached has no probative value.

March 23, 2022

Employment Law, Medical Malpractice, Negligence

THE COMPANY WHICH STAFFED THE HOSPITAL EMERGENCY ROOM DID NOT DEMONSTRATE THE PHYSICIANS WHO TREATED PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION WERE INDEPENDENT CONTRACTORS, AS OPPOSED TO EMPLOYEES FOR WHOM THE COMPANY WOULD BE VICARIOUSLY LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant NES, which staffed the hospital emergency room, should not have been granted summary judgment in this medical malpractice action. NES alleged the emergency room physicians who treated plaintiff (Perez) were independent contractors, not employees, and therefore NES was not vicariously liable for the acts or omissions of the physicians:

… [T]he evidence submitted in support of NES’s motion did not eliminate all triable issues of fact as to whether the emergency room physicians who treated Perez were independent contractors … . Although the physician agreement between NES and one of the physicians who treated Perez designated the physician an independent contractor, among other things, NES’s contract with Lutheran [the hospital] raises triable issues of fact regarding NES’s involvement in the training of the physicians with whom it contracted and the extent of NES’s obligation to participate in quality assurance and peer review activities and implement quality improvement plans … . Additionally, NES failed to submit any evidence regarding how the physicians with whom it contracted were paid … . Perez v NES Med. Servs. of N.Y., P.C., 2022 NY Slip Op 02031, Second Dept 3-23-22

Practice Point: In this medical malpractice action, the plaintiff sued the company which staffed the emergency room under a contract with the hospital. The staffing company moved for summary judgment arguing the treating physicians were independent contractors, not employees, and, therefore, the company was not vicariously liable for the acts or omissions of the physicians. The motion should not have been granted. The decision lays out the criteria for the independent-contractor versus employee analysis.

March 23, 2022

Attorneys, Contract Law, Legal Malpractice, Negligence

PLAINTIFFS’ LEGAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS’ 2010 BREACH OF A CONDOMINIUM-SALE CONTRACT ACTION WAS DISMISSED ON STATUTE OF FRAUDS GROUNDS; WHEN A WRITTEN CONTRACT SUBSEQUENTLY SURFACED, DEFENDANT ATTORNEYS DID NOT MOVE TO RENEW, VACATE OR APPEAL THE ORDER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed. Plaintiffs, apparently represented by defendant attorneys, brought a 2010 action for breach of a condominium-sale contract which was dismissed on statute of frauds grounds (no written contract). When the written contract for the condominium sale surfaced, the defendants did not move to renew, vacate or appeal the order:

Regardless of whether the dismissal on statute of frauds grounds was ultimately correct, defendants should have known that the condominium claims, which involved the sale of real property, would be subject to the statute of frauds and thus would require reference to a written contract (General Obligations Law § 5-703[2]); that the statute of frauds could be raised and adjudicated on a motion to dismiss under CPLR 3211(a)(5); and that a dismissal under the statute of frauds would be on the merits, thus precluding any future claim for damages on the sale of the condominium … . As a result, with respect to the condominium sale, it cannot be determined as a matter of law that plaintiffs failed to plead a claim for legal malpractice based upon defendants’ actions in litigating the breach of contract claim. Komolov v Popik, 2022 NY Slip Op 01966, First Dept 3-22-22

Practice Point: The defendant attorneys apparently represented plaintiffs in their 2010 action for breach of a condominium-sale contract. The 2010 action was dismissed on statute of frauds grounds. Subsequently a written contract surfaced and defendant attorneys did not move to renew, vacate or appeal the order. Plaintiffs’ legal malpractice complaint should not have been dismissed.

March 22, 2022

Municipal Law, Negligence

THE TARGETS OF A NO-KNOCK WARRANT ARE OWED A “SPECIAL DUTY” SUCH THAT A MUNICIPALITY MAY BE LIABLE FOR THE NEGLIGENCE OF THE POLICE OFFICERS EXECUTING THE WARRANT (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge Singas, over a two-judge dissent, determined the police owe a “special duty” to those targeted by a no-knock warrant such that liability may be imposed on a municipality for the negligence of the police during execution of the warrant.. Here plaintiff alleged he was shot by a police officer who entered the apartment where he was sleeping.. The certified question from the Second Circuit asked if the “special duty” requirement applies in this situation, or whether it is triggered only when the municipality fails to protect the plaintiff from injury by a third party who is not a municipal employee. The opinion lays out the confusing interplay between the “special duty” requirement and the “governmental-function immunity” affirmative defense, which can defeat a plaintiff’s action even if a “special duty” is deemed to exist. The dissent argued the “special duty” requirement itself is invalid and the “ordinary negligence” standard should apply to governmental actors:

Our precedent dictates that a plaintiff must establish a special duty when suing a municipality in negligence. However, because the underlying premise of the certified question appears to be that a special duty could not be established in a scenario like the one presented, we take this opportunity to clarify that this is not the case: a special duty may be established where the police plan and execute a no-knock search warrant on a targeted residence. Although we have not yet had an occasion to address application of the special duty rule to the execution of no-knock search warrants, that situation fits within the existing parameters of our special duty precedent.

From the dissent:

The majority’s principal error, which infects its entire analysis, is embodied in the following statement: “Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that a municipality owed them a special duty when they assert a negligence claim based on actions taken by a municipality acting in a governmental capacity” … . That statement: (1) is not consistent with our precedent, in which we have repeatedly evaluated negligence claims against governmental actors by asking whether an ordinary duty exists; and (2) improperly incorporates the governmental/proprietary distinction from immunity law into negligence law … . Ferreira v City of Binghamton, 2022 NY Slip Op 01953, CtApp 3-22-22

Practice Point: This opinion lays out in detail the confusing interplay between the “special duty” requirement for a negligence suit against a municipality and the “governmental-function immunity” affirmative defense which can defeat a negligence suit even where a special duty is deemed to exist. Here the Court of Appeals determined those targeted by a no-knock warrant are owed a special duty such that a party injured in the warrant-execution may sue the municipality for the negligence of a police officer. The dissent argued the “special duty” requirement is itself invalid and an ordinary negligence standard should apply.

March 22, 2022

Employment Law, Negligence

ALTHOUGH THE PERSON WHO ALLEGEDLY ASSAULTED PLAINTIFF AT JFK AIRPORT WAS AN EMPLOYEE OF AMERICAN AIRLINES, HE WAS NOT ON DUTY AT THE TIME OF THE INCIDENT; THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this vicarious liability, negligent hiring and supervision and premises liability action should have been granted. Plaintiff was allegedly assaulted by Miles, who worked for American Airlines, at JFK airport (owned by defendant Port Authority). Plaintiff sued under respondeat superior and negligence theories. Miles testified he was not on duty at the time of the incident:

Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were “generally foreseeable and a natural incident of the employment” … . Where the material facts are not in dispute, the question whether respondeat superior liability attaches is one of law and can be determined on a motion for summary judgment … . Here the threshold question is whether Miles was even working, or under the direction of American, at the time of the incident. … [D]efendants attached the deposition transcript of Miles, who testified that he was not working at the time of the incident. This was sufficient to at least satisfy defendants’ prima facie burden … .

Because the testimony of Miles, who, notably, is not a party to this action, was that he was not on duty when the altercation occurred, defendants shifted the burden on the issue of respondeat superior. Moreover, Miles’s testimony about his job responsibilities — escorting planes in and out, and loading and unloading luggage — established prima facie that the foreseeability element of respondeat superior liability was not present. The alleged assault bore no connection to plaintiff’s work duties, and thus was not “in furtherance of any employer-related goal whatsoever” Summors v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01891, First Dept 3-17-22

Practice Point: An American Airlines employee allegedly assaulted plaintiff at JFK airport. The defendants demonstrated the American Airlines employee was not on duty at the time of the incident, which was deemed fatal to respondeat superior (vicarious) liability.

March 17, 2022

Evidence, Negligence

CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendants in this ice slip and fall case did not eliminate questions of fact about whether they had constructive notice of the icy condition:

Supreme Court found that plaintiffs’ testimony, submitted by defendants, showed that the allegedly dangerous condition “was neither visible nor had it existed for a significant period of time,” and “plaintiffs have not submitted any evidence to prove . . . constructive notice.” Although [plaintiff] testified that the parking lot appeared wet, not icy, when viewed from her husband’s truck, she also stated that she saw the ice once she had fallen; further, the affidavit of a witness states that “[t]he ice in the parking lot that morning was clearly visible.” Thus, the record contains conflicting accounts as to the visibility of the ice. “When considering a summary judgment motion, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations” … . Applying this standard, we find a triable issue of fact as to constructive notice. Carpenter v Nigro Cos., Inc., 2022 NY Slip Op 01857, Third Dept 3-17-22

Practice Point: Where there is conflicting evidence of constructive notice of a dangerous condition, here whether the ice which caused plaintiff’s slip and fall was visible, summary judgment is not appropriate.