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ALTHOUGH THE ELECTRIC BICYCLE WAS SOLD BY A THIRD-PARTY THROUGH AMAZON AND WAS ASSEMBLED BY AN APPROVED AMAZON PROVIDER, THERE IS NO THEORY UNDER WHICH AMAZON CAN BE HELD LIABLE FOR AN INJURY CAUSED BY IMPROPER ASSEMBLY OF THE BICYCLE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined Amazon could not be held liable for an injury caused by an electric bicycle purchased through Amazon which apparently was not assembled properly. Eshion, a China-based company, listed the bicycle on Amazon. The purchaser, plaintiff’s father, elected to have the bicycle assembled. Codefendant Tri-State Assembly offers its assembly services on Amazon and was an Amazon approved service provider. Plaintiff alleged the bicycle was not assembled properly (by Tri-State) and plaintiff fell because the handlebars loosened while he was riding it:

The Uniform Commercial Code clearly provides that implied warranties only extend to sellers (see UCC 2-314 [1]; 2-315 … ). Plaintiff’s breach of warranty claim fails because Amazon submitted sufficient documentary evidence and unrefuted affidavits from its representatives to establish prima facie that it did not sell, manufacture, distribute or assemble the bicycle.

The supporting affidavits indicate that, pursuant to contract, third-party sellers such as Eshion are responsible for all aspects of their sales, such as setting a price, describing the product being sold, and offering any warranties. In this case, Eshion sold the bicycle and shipped it directly to plaintiff. At no time was the bicycle ever in Amazon’s possession or control, nor did it ever obtain title to the bicycle (see UCC 2-106 [1]). Further, when placing orders all Amazon.com users agree to its Conditions of Use, wherein Amazon disclaims all warranties for products sold by third-party sellers.

In opposition, plaintiff failed to raise an issue of fact. Wallace v Tri-State Assembly, LLC, 2021 NY Slip Op 06664, First Dept 11-30-21

 

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ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner’s motion to amend the notice of claim in this medical malpractice action against the New York City Health and Hospitals Corporation should not have been granted. Although the court has the power to allow amendment of a notice of claim based upon evidence given at the 50-h hearing, the amendment cannot substantively change the facts and add a new theory of liability:

After a hearing was conducted pursuant to General Municipal Law § 50-h … , the petitioner served an amended notice of claim … expanding the dates of alleged malpractice from January 2, 2014, through September 6, 2018, based on the petitioner’s testimony at the hearing that the decedent had stomach pains since 2016, had been diagnosed with paralytic ileus, and had been treated for that condition by a physician affiliated with Coney Island Hospital since approximately 2016. …

“‘A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability'” … . “[W]hile a court has the discretion to permit a plaintiff to serve an amended notice of claim, amendment is permitted only where the error in the original notice of claim was made in good faith, the municipality is not prejudiced, and the amendment does not substantively change the nature of the claim” … . “A court may consider evidence adduced at a 50-h hearing to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim. However, the evidence adduced at the 50-h hearing cannot be used to substantively change the nature of the claim or the theory of liability” … . Matter of Lesaine v New York City Health & Hosps. Corp., 2021 NY Slip Op 06617, Second Dept 11-24-21

 

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of plaintiff’s motion to set aside the defense verdict and ordering a new trial in this slip and fall case, determined the defense verdict was against the weight of the evidence:

“A jury verdict should not be set aside as contrary to the weight of the evidence unless ‘the jury could not have reached the verdict on any fair interpretation of the evidence'” … . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors … . Where, as here, “a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence” … .

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiffs’ motion which was, in effect, to set aside the jury verdict as contrary to the weight of the evidence, as the finding that the defendants’ negligence was not a proximate cause of the accident was not supported by a fair interpretation of the evidence … . The infant plaintiff testified that she slipped on a step that was cracked, sloped down, and uneven. That testimony was consistent with the testimony of the plaintiffs’ expert engineer. The defendants failed to adduce any evidence to refute the testimony of the infant plaintiff and the plaintiffs’ expert witness. Middleton v New York City Tr. Auth., 2021 NY Slip Op 06613, Second Dept 11-24-21

 

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THE PLAINTIFF BICYCLIST COULD NOT IDENTIFY THE CAUSE OF HIS FALL AND THE CITY DID NOT HAVE WRITTEN NOTICE OF ANY ROADWAY DEFECTS IN THE AREA; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this bicycle-fall case should have been granted. Plaintiff could not identify the cause of his fall and the city did not have written notice of any roadway defects:

“In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgement as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” without resorting to speculation … . Here, the injured plaintiff acknowledged at the General Municipal Law § 50-h hearing that he had no recollection of what caused his accident. He testified that he remembered riding his bicycle downhill somewhere on Forest Park Drive and waking up in an ambulance—but nothing in between. Given this lack of information, “it is just as likely that the accident [was] caused by some . . . factor [other than the conditions of the road], such as a . . . loss of balance” or control … . Accordingly, a finding that the City’s negligent maintenance of the roadway, if any, was responsible for the accident would be impermissibly based on speculation … . …

… [T]he defendants established their … entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against the City by presenting evidence that the City Department of Transportation had not received prior written notice of the defective roadway condition that allegedly caused the injured plaintiff’s accident  … . Xin Zheng Zhan v City of New York, 2021 NY Slip Op 06646, Second Dept 11-24-21

 

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THE OUT-OF-POSSESSION LANDLORD IN THIS SLIP AND FALL CASE DEMONSTRATED (1) THE LEASE DID NOT REQUIRE IT TO MAINTAIN A DRAIN WHICH PERIODICALLY BECAME CLOGGED CAUSING GARBAGE TO FLOAT TO THE SIDEWALK, AND (2) IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE GARBAGE ON THE SIDEWALK WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the out-of-possession landlord, SMHS, was not responsible for the fish skin on the sidewalk which allegedly caused plaintiff to slip and fall. The tenant, Lobster, a wholesale seafood company, had contracted with defendant Sanitation to remove garbage, including fish parts, from the tenant’s premises. There was a question of fact whether Sanitation was liable under a contract-based Espinal theory for launching an instrument of harm. But SMHS demonstrated the lease did not require SMHS to maintain the sidewalk or the drains which at times became clogged with garbage and that it did not have actual or constructive knowledge of the dangerous condition:

SMHS, an out-of-possession landlord, was not contractually obligated to maintain the premises … .Although its lease with Lobster did not demise to Lobster “the pipes, ducts, conduits, wires, fixtures and equipment, the structural elements which serve the Demised Premises,” SMHS and Lobster’s course of conduct establishes that Lobster was responsible for maintaining and repairing the trench drain … . Moreover, although the lease afforded SMHS a contractual right of reentry to make needed repairs, liability would not be predicated on “‘a significant structural or design defect that is contrary to a specific statutory provision'” … .

Nor can SMHS be held liable for plaintiff’s injuries under Administrative Code of City of NY § 7-210, which imposes a nondelegable duty on land owners to maintain their sidewalks in a reasonably safe condition … . SMHS established … that it neither created the hazardous condition nor had actual notice of it or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Arias v Sanitation Salvage Corp., 2021 NY Slip Op 06534, First Dept 11-23-21

 

QUESTIONS OF FACT ABOUT DEFENDANT’S KNOWLEDGE THE ICE AND SNOW WHERE PLAINTIFF SLIPPED AND FELL WAS A RECURRING CONDITION (CONSTRUCTIVE NOTICE), AS WELL AS DEFENDANT’S ROLE IN CREATING THE CONDITION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there were questions of fact about defendant’s (Ryco’s) “constructive notice” and “creation” of the snow and ice condition in the are where plaintiff slipped and fell:

With respect to constructive notice, it is well settled that a “defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition” … . Here, the Ryco defendants’ own submissions raise a triable issue of fact whether they had actual knowledge of a recurring dangerous condition in the parking lot in front of the entrance where plaintiff fell, thereby placing them on constructive notice … .

… [T]he Ryco defendants’ own submissions “failed to eliminate the existence of a triable issue of fact as to whether the ice on which . . . plaintiff allegedly slipped and fell was formed when snow piles created by the [Ryco] defendant[s’] snow removal efforts melted and refroze” … . Britt v Northern Dev. II, LLC, 2021 NY Slip Op 06486, Fourth Dept 11-19-21

 

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EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

The Fourth Department, over a strong dissent, determined the expert affidavit submitted by plaintiff was conclusory on the issue of proximate cause and therefore could not overcome defendants’ motion for summary judgment. Karen S. Simko (plaintiff) suffered from Guillain-Barré Syndrome (GBS) and alleged defendants failed to timely diagnose and treat the condition:

… [P]laintiffs’ theory of causation is predicated on the allegation that defendants’ failure or delay in diagnosing plaintiff’s GBS “diminished [her] chance of a better outcome” … . Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert “states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever” … , and, in this case, … the opinion of plaintiffs’ expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs’ expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome … .

From the dissent:

… [T]his appeal implicates the “loss of chance” theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an “omission” theory of negligence … . In such cases, proximate cause is not analyzed under the ordinary “substantial factor” approach … , but rather according to whether the alleged delay in diagnosis diminished the plaintiff’s “chance of a better outcome or increased the injury” … . Although I have expressed concern “that a loss of chance concept reduces a plaintiff’s burden of proof on the element of proximate cause” … this Court has nonetheless adopted that causation standard in this type of medical malpractice action. Simko v Rochester Gen. Hosp., 2021 NY Slip Op 06470, Fourth Dept 11-19-21

 

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PROOF THE ELEVATOR DOOR MALFUNCTIONED WHEN PLAINTIFF ATTEMPTED TO ENTER THE ELEVATOR DID NOT SUPPORT A PRODUCTS LIABILITY CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s proof demonstrated that the elevator door malfunctioned at the time plaintiff attempted to enter the elevator. A malfunction is not enough to support a products liability cause of action:

Plaintiff Patricia Booth was injured when she was knocked to the ground when the doors to an elevator closed as she was attempting to enter the elevator; Otis had modernized the elevator eight years earlier. Otis established prima facie entitlement to summary judgment dismissing the strict products liability claim by submitting evidence that the elevator door at issue was not defective … .

… Crediting the testimony of plaintiff’s daughter that she was holding the door open button and that plaintiff had crossed the elevator threshold when the doors began to close, this establishes nothing more than a malfunction at the time of the accident, which is insufficient to maintain a strict products liability cause of action … . The fact that Otis “both supplied the elevator and serviced it after installation would not impose upon [it] strict liability for a defect which developed after installation was completed” … . Booth v Otis El. Co., 2021 NY Slip Op 06433, First Dept 11-18-21

 

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PURSUANT TO THE DOCTRINE OF LACHES, THE DEFENDANT CITY WAS NOT ENTITLED TO THE LOWER 5.76% INTEREST RATE ON THE MULTIMILLION DOLLAR JUDGMENT; THE TRIAL JUDGE PROPERLY IMPOSED THE 9% INTEREST RATE PURSUANT TO CPLR 5004 (FIRST DEPT).

The First Department reduced the multimillion dollar damages award in this lawsuit by a student severely burned during a chemistry demonstration at his public high school. The trial judge properly imposed a 9% interest rate on the judgment because the defendant city was late (laches) in seeking the lower interest rate (5.75%) authorized by law:

[The judgment] awarding the principal sums of $29,585,000 million for past pain and suffering and $29,585,000 for future pain and suffering over 54 years, plus 9% interest, unanimously modified, on the facts, to vacate the awards … , and remand for a new trial of those issues, unless plaintiff stipulates … to reduce the awards for past pain and suffering to $12,000,000 and for future pain and suffering to $17,000,000 … . * * *

… [D]efendants … should have formally moved to compute interest on the verdict at a lower rate than 9% … . This way, plaintiff would have had the opportunity to submit proof to the contrary, and the court could have ordered a hearing if necessary … . Given defendants’ laches in seeking to avail themselves of a lower interest rate authorized by law, Supreme Court providently declined to depart from CPLR 5004’s presumptive 9% interest rate … . Yvonne Y. v City of New York, 2021 NY Slip Op 06468, First Dept 11-18-21

 

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DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WET LOADING DOCK WHERE PLAINTIFF SLIPPED AND FELL; GENERAL OBLIGATIONS LAW 5-322.1 (1) APPLIES ONLY TO NEGLIGENT MAINTENANCE ASSOCIATED WITH THE INTEGRITY OF A BUILDING, NOT TO CLEANING SERVICES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate a lack of constructive notice of the wet loading dock. Therefore defendants’ motion for summary judgment should not have been granted. As to the action against the maintenance company charged with keeping the loading dock clean (ABM), General Obligations Law 5-322.1 (1), which imposes liability for negligent maintenance, applies only to maintenance associated with the integrity of a building, not cleaning services:

The defendants failed to establish, prima facie, that they did not have constructive notice of the allegedly dangerous condition in that they failed to offer evidence as to when the loading dock was last cleaned or inspected before the plaintiff’s fall. A security guard hired by the defendants testified that, while he would typically perform a “security walk around” twice every 30 to 60 minutes, on the day of the accident, he did not pay attention to the area where the plaintiff later fell. Further, the testimony of witnesses employed by the defendants and ABM as to general cleaning and inspection procedures for the loading dock area was insufficient to establish lack of constructive notice … . Skerrett v LIC Site B2 Owner, LLC, 2021 NY Slip Op 06386, Second Dept 11-17-21​

 

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