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PLAINTIFF WAS INJURED WHEN THE ARM AND FOOT PEDAL OF AN ELLIPTICAL MACHINE AT DEFENDANT’S GYM BROKE OFF; DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEFECT OR THE APPLICABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant gym was not entitled to summary judgment in this personal injury action. Plaintiff alleged the arm and foot pedal of the elliptical machine she was using detached. Defendant did not demonstrate that it did not have constructive notice of the defect or that plaintiff assumed the risk of injury:

Although the defendants submitted a transcript of deposition testimony from their employee regarding the defendants’ general practice of testing exercise equipment each weekday, they failed to present any specific evidence as to when the subject elliptical machine was last inspected relative to the subject incident. Mere reference to general practices, with no evidence regarding any specific inspection of the equipment in question, is insufficient to establish lack of constructive notice … . …

… [P]articipants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport or recreational activity … . Here, the risk of the left arm and foot pedal of an elliptical machine detaching or hinging out is not inherent in the recreational activity of exercising on an elliptical machine in a gym. Rather, the alleged defective condition of the elliptical machine enhanced the risk of injuries … . Buffalino v XSport Fitness, 2022 NY Slip Op 00998, Second Dept 2-16-22

 

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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment:

… [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … . In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … . Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent … . Ojeda v Barabe, 2022 NY Slip Op 00870, Second Dept 2-9-22

 

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PLAINTIFF ALLEGEDLY TRIPPED OVER AN ELECTRICAL BOX AS SHE STEPPED OFF A TREADMILL; DEFENDANTS RAISED QUESTIONS OF FACT ABOUT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND ABOUT THE CREDIBILITY OF THE PLAINTIFF AND HER WITNESSES, INCLUDING HER EXPERT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this premises liability case should not have been granted. Plaintiff alleged she tripped over an electrical box when she stepped off a treadmill at defendant fitness center. Defendants raised questions of fact about whether the condition was open and obvious and about the credibility of plaintiff and her witnesses, including the expert:

… [T]he defendants cited to the evidence submitted in support of their motion for summary judgment dismissing the complaint, which included photographs allegedly depicting the subject electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous … . The defendants’ opposition also raised triable issues of fact relating to “[the] plaintiff’s credibility” … , and the credibility of her other witnesses, including her expert witness … . Sebagh v Capital Fitness, Inc., 2022 NY Slip Op 00892, Second Dept 2-9-22

 

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CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimants’ application to file a late notice of claim against the county in this traffic accident case should not have been granted. Claimants alleged ice and snow had been allowed to accumulate on the road causing the driver to lose control and strike a tree. Claimants’ eight-year-old son was injured. The Fourth Department, in a comprehensive discussion, went through each “late-notice-of-claim” factor and found only one (county not prejudiced by the delay) favored the claimants:

… [O]f all the relevant circumstances evaluated—infancy, reasonable excuse, actual knowledge, and substantial prejudice—only one, lack of substantial prejudice, favored granting claimants’ application. Despite the well-settled principle that “actual knowledge of the claim is the factor that is accorded ‘great weight’ in determining whether to grant leave to serve a late notice of claim” … and instead “weigh[ed] heavily” the lack of substantial prejudice, even though claimants’ showing in that regard, while adequate, was not particularly strong. Under these circumstances—which include the nearly 22-month period between the accident and claimants’ application for leave to serve a late notice of claim, the improper weighing of the substantial prejudice factor at the expense of the actual knowledge factor, and claimants’ failure to demonstrate a nexus between the son’s infancy and the delay or to otherwise proffer a reasonable excuse for the delay—we conclude that the court abused its discretion in granting that part of the application seeking leave to serve a late notice of claim on the County … . Matter of Antoinette C. v County of Erie, 2022 NY Slip Op 00776, Fourth Dept 2-4-22

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STEPS ON WHICH SHE SLIPPED AND FELL, ALTHOUGH ON A PUBLIC RIGHT-OF-WAY, WERE SUBJECT TO A SPECIAL USE BY THE ABUTTING PROPERTY OWNER (POTENTIALLY RENDERING THE ABUTTING PROPERTY OWNER LIABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this slip and fall case should have been allowed to present evidence of defendant synagogue’s special use of steps which were part of the public right-of-way but which lead to the synagogue entrance. Plaintiff slipped on ice on the “public right-of-way” portion of the steps and broke her ankle:

… [D]efendant proffered evidence in support of its motion for summary judgment that plaintiff’s fall occurred on public property, thereby shifting the burden to plaintiff to raise an issue of fact as to defendant’s liability as an abutter … . With respect to its special use theory of recovery, plaintiff points to the deposition testimony of defendant’s secretary and bookkeeper, who testified that she was unaware of who initially built the subject set of steps, or when, but that defendant rebuilt them prior to plaintiff’s fall. Photographs submitted by both parties make clear that the subject steps are not only directly in line with the synagogue’s main entrance, but match that entrance’s width with near exactitude, the entrance notably being wide enough to encompass two sets of double doors. There is proof that congregants attending Sabbath services and holiday services would access the synagogue via this entrance only. In addition, photographic evidence reveals that the portion of the raised sidewalk between the two sets of steps is constructed of more decorative pavers or cobblestones, laid by defendant, setting that area apart from the otherwise concrete sidewalk, arguably improving the overall appearance of the main entrance and visually linking the two sets of steps up to the synagogue.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every available inference, as we must, the foregoing was adequate to raise a triable issue of fact as to whether the subject steps were constructed or altered for defendant’s benefit. Podhurst v Village of Monticello, 2022 NY Slip Op 00707, Third Dept 2-3-22

 

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ALTHOUGH THE DOCTOR WAS AT WORK AT THE HOSPITAL WHEN HE WAS SHOT DURING A MASS SHOOTING, HIS INJURY WAS NOT WORK-RELATED WITHIN THE MEANING OF THE WORKERS’ COMPENSATION LAW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the shooting of a doctor, Justin Timperio, although it occurred while Timperio was working at the hospital, was not a work-related injury within the meaning of the Workers’ Compensation Law. Timperio had brought a negligence lawsuit against the hospital in federal court and, in the context of the hospital’s motion for summary judgment, the federal court ruled the injuries did not arise from Timperio’s employment. The federal ruling did not colaterally estop the Workers’ Compensation Board from considering the claim in the first place (because it was not a final ruling), but the Board’s ultimate conclusion the injury was work-related was reversed by the Third Department:

The undisputed facts in the record demonstrate that the attack was perpetrated by an individual who was not employed by the hospital at the time of the attack (and had not worked there for over two years), was not and never was Timperio’s coworker, did not know Timperio and provided no reason for the attack prior to taking his own life. Nor did Timperio know the attacker, and there is no evidence that the attack was based upon an employment-related animus between the two individuals or that the attack had any nexus to Timperio’s employment or “performance of h[is] job duties” … . Such proof was sufficient to rebut the presumption articulated in Workers’ Compensation Law § 21 (1) and to establish that the assault on Timperio resulted exclusively from arbitrary, broad-sweeping and gravely maligned personal animosity and not from work-related differences with Timperio … . Matter of Timperio v Bronx-Lebanon Hosp., 2022 NY Slip Op 00711, Third Dept 2-3-22

 

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THE WRONGFUL DEATH CAUSE OF ACTION AGAINST DEFENDANT NURSING HOME SHOULD NOT HAVE BEEN DISMISSED; CONFLICTING EXPERT OPINIONS RAISED A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the wrongful death cause of action against defendant nursing home should not have been dismissed. Conflicting expert opinions raised a question of fact:

Defendant made a prima facie showing that it was not liable for the decedent’s injuries and death under Public Health Law § 2801-d(1) through the affirmation of its nursing expert, who opined that defendant did not violate the various federal and state regulations set forth in plaintiff’s bill of particulars. In opposition, plaintiff failed to raise an issue of fact, because her expert did not address any rules or regulations that were violated … .

As for the wrongful death cause of action, the parties’ nursing experts had similar credentials in gerontology and nursing, and both were qualified to opine on the applicable standard of care for residential nursing facilities … . Thus, the experts’ conflicting opinions present an issue of fact as to whether defendant was liable for the decedent’s injuries.  Jackson v Northern Manhattan Nursing Home, Inc., 2022 NY Slip Op 00723, First Dept 2-3-22

 

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there was a question of fact whether the continuous treatment doctrine applied making this dental malpractice action timely; and (2) plaintiff’s breach of contract action against defendant dentist (Irlin) should not have been dismissed:

… [T]he plaintiff submitted an affirmation of her current treating dentist, who opined that the plaintiff initially sought treatment from Irlin in order to obtain a permanent prosthetic replacement for the missing teeth in her upper jaw. The plaintiff’s dentist further opined that the numerous surgeries that the plaintiff underwent on her upper jaw to repair and replace implants and prostheses were related to Irlin’s initial alleged malpractice in failing to diagnose the bone condition that caused the implants and prostheses to become loose and need replacement. The record otherwise presents questions of fact as to whether the plaintiff timely initiated return visits to complain and seek corrective treatment from Irlin … . …

… [T]he individual defendants’ own submissions, which included the transcript of the plaintiff’s deposition testimony and numerous signed consent forms written in English, demonstrated that the plaintiff has a cause of action to recover damages for breach of contract against Irlin. The plaintiff testified at her deposition that she agreed to the installation of dental implants and a permanent prosthetic device in her upper jaw because Irlin verbally promised her that it would “last a lifetime,” that she would “treat [the prosthesis] as if” it was her “own teeth,” and that she would only need follow-up appointments for cleanings once every 6 to 12 months, among other things. The individual defendants’ evidence could support the conclusion that the treatment Irlin rendered did not achieve these allegedly promised results. Chvetsova v Family Smile Dental, 2022 NY Slip Op 00650, Second Dept 2-2-22

 

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IN THIS MEDICAL MALPRACTICE/PUBLIC HEALTH LAW ACTION AGAINST A NURSING HOME, DEFENDANTS’ EXPERTS’ OPINIONS WERE NOT SUPPORTED BY THE SUBMISSION OF DECEDENT’S MEDICAL RECORDS, RENDERING THE OPINIONS SPECULATIVE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant nursing home’s motion for summary judgment in this medical malpractice, Public Health Law action should not have been granted. The defendant’s experts’ opinions were not supported by the submission of decedent’s medical records:

… [D]efendant’s experts proffered opinions about decedent’s care at the nursing home facility that were not based on facts in the record because defendant failed to submit any of decedent’s medical records, certified or otherwise, to support those opinions. Additionally, those opinions were not based on facts personally known to the experts. Thus, the experts’ affidavits are ” ‘speculative or unsupported by any evidentiary foundation’ ” … . Ritts v Gowanda Rehabilitation & Nursing Ctr., 2022 NY Slip Op 00578, Fourth Dept 1-28-22

 

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PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE ROAD WAS CAUSED BY DEFENDANT’S SPECIAL USE OF THE ROAD; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant demonstrated it did not create a dangerous condition in the street by a special use. Plaintiff alleged defendant created the dangerous condition by storing heavy materials in the street. Plaintiff alleged a steel beam fell on his foot from a forklift when the forklift struck a defect in the road (Simmons Avenue):

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality, and not on the owner or lessee of abutting property, unless the landowner or lessee has either affirmatively created the dangerous condition, voluntarily but negligently made repairs, caused the condition to occur through a special use, or violated a statute or ordinance expressly imposing liability on the landowner or lessee for a failure to maintain the abutting street” … . Defendant met its initial burden on the motion by establishing, as relevant here, that “[it] neither owned nor made special use of [Simmons Avenue], and that [it] had no connection to the condition” that caused the accident … .

From the dissent:

In our view, defendant failed to establish as a matter of law that it did not make special use of Simmons Avenue or affirmatively create the defective condition on Simmons Avenue that allegedly caused plaintiff’s injuries. Beck v City of Niagara Falls, 2022 NY Slip Op 00563, Fourth Dept 1-28-22

 

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