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WHEN CONFRONTED WITH AN ARMED SUSPECT, DEFENDANT POLICE OFFICER FIRED HER WEAPON AND STRUCK PLAINTIFF, ANOTHER POLICE OFFICER; THE TWO POLICE OFFICERS, WHO WORKED FOR DIFFERENT MUNICIPALITIES, WERE DEEMED CO-EMPLOYEES PURSUANT TO A POLICE MUTUAL AID AGREEMENT; THEREFORE PLAINTIFF’S NEGLIGENCE ACTION WAS PRECLUDED BY GENERAL OBLIGATONS LAW 11-106 (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff police officer and defendant police were co-employees pursuant a Police Mutual Aid Agreement between two municipalities, the Town of Glenville and the Village of Scotia. Plaintiff, a Glenville police officer, alleged defendant , a Scotia police officer, was negligent in firing her weapon at a suspect, thereby causing a bullet to strike plaintiff. Because the plaintiff and defendant were deemed co-employees pursuant to the agreement, General Obligations Law 11-106 prohibited plaintiff from suing in negligence:

Pursuant to General Obligations Law § 11-106, a police officer may now assert a cause of action sounding in negligence “for injuries suffered while in the line of duty against entities other than municipal employers and fellow workers” … . The issue thus boils down to whether plaintiff and Peck [defendant] were acting as coemployees at the time of the incident, which would bar plaintiff’s action. Based primarily upon the operative provisions of the Agreement, we find that they were coemployees on the night of the incident, thereby insulating defendants from liability. Ferretti v Village of Scotia, 2021 NY Slip Op 06895, Third Dept 12-9-21

 

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DEFENDANT PROPERTY OWNER DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEFECTS IN THE CEILING THAT FELL ON PLAINTIFFS; THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE DEFENDANTS DID NOT HAVE EXCLUSIVE CONTROL OVER THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this premises liability case should have been granted. Plaintiffs alleged a portion of their bedroom ceiling collapsed on them. Defendant owner of the property demonstrated the lack of actual or constructive notice of any defect in the ceiling. The res ipsa loquitur doctrine did not apply because the condition was not under defendants’ exclusive control:

The owner of property has a duty to maintain its property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . Here, the defendants established their entitlement to judgment as a matter of law by demonstrating, prima facie, that they did not have actual or constructive notice that the bedroom ceiling was in a defective condition … . The evidence submitted by the defendants established that at least one of the plaintiffs had been residing in the third-floor apartment for more than four years, and that prior to the accident, the plaintiffs did not notice any defects in the bedroom ceiling, and had never complained to the defendants about the bedroom ceiling. Moreover, the debris and the ceiling from which it had fallen were dry, and there was no evidence of a leak in the building at or about the time of the accident.

In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the contention of the plaintiffs’ expert, in the absence of a warning about the existence of a latent defect, there was no duty to remove portions of the ceiling plaster to discover what lay behind it … . Additionally, the plaintiffs failed to raise a triable issue of fact as to whether the doctrine of res ipsa loquitur applied to this case since the defendants did not have the requisite exclusive control over the allegedly defective condition … . Matson v Dermer Mgt., Inc., 2021 NY Slip Op 06842, Second Dept 12-8-21

 

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PLAINTIFF WAS DEEMED TO HAVE ASSUMED THE RISK OF PLAYING CRICKET ON A COURT WITH AN OPEN AND OBVIOUS CRACK (SECOND DEPT).

The Second Department determined defendants’ summary judgment motion was properly granted in this slip and fall, assumption of the risk case. Plaintiff alleged he stepped in a hole inside a crack in a tennis court while playing cricket. The crack was deemed open and obvious:

“Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care” … . The defendants’ duty is “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty” … . “This includes risks associated with the construction of the playing surface and any open and obvious condition on it, including less than optimal conditions” . “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . “However, participants 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” … . Further, “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … .

Here, the defendants’ submissions in support of their motion, which included the plaintiff’s deposition testimony and photographs allegedly depicting the accident site, reveal that the crack in the surface of the subject tennis courts, which allegedly caused the plaintiff’s accident, was clearly visible … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the open and obvious crack concealed the depth and extent of the alleged hole … . Maharaj v City of New York, 2021 NY Slip Op 06841, Second Dept 12-8-21

 

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IN THIS SIDEWAIK ICE-AND-SNOW SLIP AND FALL CASE, THE MUNICIPALITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION, AND THE ABUTTING PROPERTY OWNERS FAILED TO DEMONSTRATE THEY DID NOT CREATE THE CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this sidewalk ice-and-snow slip and fall case, determined; (1) the municipality demonstrated it did not have written notice of the ice-and-snow condition and plaintiff did not raise a question of fact about whether the municipality created the condition or benefitted from a special use; and (2), the abutting property-owner defendants did not demonstrate that they did not create the ice-and-snow condition. Summary judgment was properly granted to the municipality, but should not have been granted to the abutting property owners:

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 … . There is an exception to this general rule, however, where the landowner has affirmatively created the dangerous condition … . The [abutting property-owner defendants] failed to demonstrate, prima facie, that their snow removal efforts around the time of the injured plaintiff’s fall did not create or exacerbate the allegedly dangerous condition on the roadway … . Thompson v Nassau County, 2021 NY Slip Op 06878, Second Dept 12-8-21

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT SPECIFICALLY ADDRESS DEFENDANT’S EXPERT’S OPINIONS, THEREBY WARRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (FIRST DEPT).

The Frist Department determined plaintiff’s expert’s affidavit in this medical malpractice action was conclusory and did not address defendants’ expert’s opinions specifically. Therefore defendant’s motion for summary judgment was properly granted:

… [P]laintiff failed to raise an issue of fact. His expert, who is board certified in surgery and thoracic surgery, was qualified to render an opinion … . However, the opinion is conclusory and speculative and fails to address defendant’s expert’s opinions specifically … . In addition, in forming his opinion, plaintiff’s expert disregarded facts and medical evidence in the record, including a post-operative pathology report that indicated that plaintiff had a connective tissue disorder that put him at greater risk for developing serious complications if his aortic aneurysm were left untreated … . Akel v Gerardi, 2021 NY Slip Op 06792, First Dept 12-7-21​

 

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PLAINTIFF ALLEGED THE COLLAPSE OF A CEILING CAUSED A BULGING DISC IN HER SPINE; SUPREME COURT HELD THE SURGERY TO REPAIR THE DISC CONSTITUTED SPOLIATION OF EVIDENCE AND PROHIBITED PLAINTIFF FROM INTRODUCING ANY EVIDENCE OF THE SPINE INJURY; THE 1ST DEPARTMENT REVERSED HOLDING THAT A SPOLIATION ANALYSIS CANNOT BE APPLIED TO MEDICAL TREATMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Scarpulla, determined plaintiff’s surgery to repair a bulging disc in her spine should not have been deemed spoliation of evidence. Plaintiff alleged the bulging disc was caused by the collapse of the ceiling in her apartment. Supreme Court prohibited plaintiff from introducing any evidence of the disc injury:

Spoliation analysis has long been applied to a party’s destruction of inanimate evidence … .

The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies. Gilliam v Uni holdings, 2021 NY Slip Op 06798, First Dept 12-7-21

 

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THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ expert did not sufficiently address the allegations of negligence. Therefore defendant’s motion for summary judgment in this medical malpractice action should have been denied. Plaintiffs alleged defendants did not properly conduct a suicide assessment of plaintiffs’ decedent (Nodor), who committed suicide four weeks after he was seen by defendants. The description of the flaws in the expert’s affidavit reads like a checklist for the required contents of a defense expert’s affidavit in a medical malpractice action:

… [T]he defendants failed to establish, prima facie, that they did not depart from the standard of care, or that any such departure did not proximately cause Nodar’s injuries. With respect to the plaintiffs’ allegations that the defendants failed to conduct a proper suicide risk assessment during a scheduled doctor visit by Nodar, which was just weeks before Nodar attempted suicide by jumping off his roof, the defendants’ expert failed to set forth the standard of care for conducting a suicide risk assessment … . The expert’s conclusory assertion that the suicide risk assessment that was conducted on that date did not deviate from the standard of care was insufficient to refute the plaintiffs’ specific allegations of negligence … . In addition, the defendants’ expert did not address the plaintiffs’ allegation that the defendants failed to schedule or conduct a timely follow-up visit with Nodar after changing one of his antidepressant medications and adding an anti-anxiety medication, or otherwise assert that the one-month follow-up appointment that Nodar was advised to do was appropriate under the circumstances … . Moreover, the defendants’ expert failed to establish, prima facie, that any departure from the standard of care did not proximately cause Nodar’s injuries … . Nodar v Pascaretti, 2021 NY Slip Op 06695, Second Dept 12-1-21

 

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THE PRODUCTS LIABILITY AND BREACH OF WARRANTY CAUSES OF ACTION ALLEGING THE FAILURE OF AN IMPLANTED MEDICAL DEVICE WHICH ASSISTS THE HEART WERE PREEMPTED BY FEDERAL LAW; THE CAUSES OF ACTION ALLEGING NEGLIGENCE ON THE PART OF THE ENGINEERS WHO REPLACED THE LEAD TO THE DEVICE WERE NOT PREEMPTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the products liability and breach of warranty causes action alleging decedent’s death was caused by an implanted medical device which assisted the heart were preempted by the Federal Food, Drug, and Cosmetic Act as amended by the Medical Device Amendments of 1976 (MDA). But the causes of action alleging negligence of the engineers who replaced a lead on the device were not preempted by the MDA:

The MDA … includes an express preemption provision, prohibiting state requirements “with respect to a device intended for human use” (21 USC 360k[a]) which are “different from, or in addition to, any requirement” … applicable under federal law and which “relate[ ] to the safety or effectiveness of the device” … . Pursuant to this provision, it has been held that common-law causes of action which “challenge the safety and effectiveness of a medical device and seek to impose requirements that are ‘different from, or in addition to,’ federal requirements,” such as those sounding in products liability and breach of warranty, are preempted … .

… [P]laintiff  … claims in her first and fifth causes of action that negligent acts or omissions of the engineers … , allegedly committed during the course of their replacement of the lead in the decedent’s LVAD, were a proximate cause of his death. Those claims in those causes of action do not “challenge the safety and effectiveness of a medical device and seek to impose requirements” different or additional to federal law … . Accordingly, they are not preempted. Arnold v Lanier, 2021 NY Slip Op 06666, Second Dept 12-1-21

 

PLAINTIFF, AN EXPERIENCED SKATER, FELL WHEN HIS SKATE HIT A RUT AS HE WAS COACHING HOCKEY; DESPITE THE APPLICABILITY OF THE ASSUMPTION OF RISK DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT “INHERENT COMPULSION;” HE ALLEGED HE WAS DIRECTED TO CONTINUE THE PRACTICE AFTER COMPLAINING OF THE ROUGH ICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of “Inherent compulsion” raised a question of fact, despite the applicability of the assumption of risk doctrine. Plaintiff is an experienced skater who fell while coaching hockey when his skate hit a rut in the ice:

Plaintiff does not dispute that defendants made a prima facie showing that his claims were barred by assumption of the risk … . However, plaintiff raised an issue of fact as to inherent compulsion. Plaintiff testified that he understood that his supervisors were [defendant’s] employees. He further testified that when he informed one of these supervisors of his concerns about the rough ice the supervisor dismissed his concerns and directed him to proceed with the practice. Plaintiff believed that he lacked authority to cancel or reschedule practice on his own initiative … . Stewart v Wollman Rink Operations LLC, 2021 NY Slip Op 06661, First Dept 11-30-21

 

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THERE WAS A QUESTION OF FACT WHETHER THE FORKLIFT ACCIDENT RESULTED FROM A HOLE OR CRACK IN THE SIDEWALK ADJACENT TO THE OUT-OF-POSSESSION LANDLORD’S BUILDING; EVEN OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR MAINTAINING THE ADJACENT SIDEWALK IN A REASONABLY SAFE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this forklift accident case should not have been granted. There was a question of fact whether the forklift struck a hole or a crack in the sidewalk. Under the NYC Administrative Code, an out-of-possession landlord is responsible for maintaining the adjacent sidewalk in a reasonably safe condition:

… [T]he Administrative Code requires owners of real property abutting any public sidewalk to maintain that sidewalk in a reasonably safe condition (Administrative Code § 7-210 …). This duty, on in- and out-of-possession landlords alike, is nondelegable … . The statute does not impose strict liability, and thus a plaintiff must still prove the elements of negligence in order to hold an owner liable … . Administrative Code § 19-101(d) defines “sidewalk” as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines” … . If the area where plaintiff’s accident occurred was either inside the premises or at an entrance that was within defendant’s property, the Administrative Code does not apply … . Vargas v Weishaus, 2021 NY Slip Op 06663, First Dept 11-30-21

 

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