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PLAINTIFF’S DISCOVERY REQUESTS IN THIS CHILD VICTIM’S ACT ACTION ALLEGING SEXUAL ABUSE BY A CATHOLIC SCHOOL GYM TEACHER WERE PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s discovery requests in this Child Victim’s Act action against the Archdiocese of New York were palpably improper and should have been denied (the requests were not described in the decision). Plaintiff alleged sexual abuse by a gym teacher when he was a child in the 1960’s:

Notices for discovery and inspection and interrogatories are palpably improper if they are overbroad or burdensome, fail to specify with reasonable particularity many of the documents demanded, or seek irrelevant or confidential information (see CPLR 3120[2] …). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it … . “The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one” …

Here, the plaintiff’s discovery demand and interrogatories were palpably improper in that they were overbroad and burdensome, sought irrelevant or confidential information, or failed to specify with reasonable particularity many of the documents demanded … .Fox v Roman Catholic Archdiocese of N.Y., 2022 NY Slip Op 01148

 

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WILLIAMS, THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER, WAS NOT NEGLIGENT IN SLOWING DOWN FOR A WORK CREW AHEAD; THE WILLIAMS CAR WAS STRUCK FROM BEHIND BY A POLICE CAR PURSUING ANOTHER VEHICLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. A police officer pursuing another vehicle rear-ended the vehicle in which plaintiff was a passenger as the driver (Williams) was slowing down for a work crew:

Williams’s evidence in support of his motion demonstrated prima facie that he was operating his vehicle in a lawful, reasonable manner given the circumstances on the expressway at the time, and that he was not otherwise culpable in causing the police car to strike the rear of his vehicle. The burden having shifted, plaintiff and the City defendants each failed to offer evidence as would raise a factual issue regarding Williams’s comparable negligence in the cause of the accident … . The City defendants failed to proffer a nonnegligent explanation for rear-ending Williams’s vehicle, and the claim that the rear-ended vehicle stopped short, standing alone, is insufficient as a nonnegligent explanation for an accident … . Regardless of whether the actions of the police in this incident are to be considered under the reckless standard set forth in Vehicle and Traffic Law § 1104, the nonliability of Williams, given the unrefuted evidence of his nonculpable role in this accident, remains unchanged … . Grant v City of New York, 2022 NY Slip Op 01121, First Dept 2-22-22

 

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DEFENDANT, BASED ON ITS STATUS AS BAILOR OF THE MACHINE WHICH ALLEGEDLY INJURED PLAINTIFF, MAY BE LIABLE UNDER BREACH OF WARRANTY AND STRICT PRODUCTS LIABILITY CAUSES OF ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decisions addressing many issues not summarized here, noted that breach of warranty and strict products liability causes of action can arise from a bailment. Here plaintiff alleged she was injured by a machine (called a “table”) and defendant was the “owner” of the table by virtue of its status as bailor:

In light of … material issues of fact as to whether defendant owned and/or was bailor of the table, we find that Supreme Court erred in granting defendant’s motion for summary judgment as to the breach of implied warranty cause of action. As “[t]here is, in fact, no substantive distinction between [the theories of breach of implied warranty and strict products liability] in the context of this case” … , we reach this same conclusion as to the strict products liability cause of action. Reese v Raymond Corp., 2022 NY Slip Op 01077, Third Dept 2-17-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

THE ROLLED UP MAT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS KNOWN TO THE PLAINTIFF AND WAS OPEN AND OBVIOUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the rolled up map which caused plaintiff’s slip and fall was open and obvious and therefore nonactionable:

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” … . “A condition is open and obvious if it is ‘readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the rolled-up mat, which was known to the plaintiff prior to the accident, was open and obvious, and was not inherently dangerous … . Williams v E & R Jamaica Food Corp., 2022 NY Slip Op 01065, Second Dept 2-16-22

 

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PETITIONER’S NOTICE OF CLAIM DEMONSTRATED HE HAD SUFFICIENT INFORMATION TO FORMULATE A COMPLAINT IN THIS SLIP AND FALL CASE; HIS REQUEST FOR PRE-JOINDER DISCOVERY AND PRESERVATION OF THE ACCIDENT SCENE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined pre-joinder discovery and preservation of the accident site was not necessary in this slip and fall case:

The petitioner alleges … he slipped and fell due to an accumulation of water leaking from the ceiling onto the landing at the top of an escalator in a subway station. The petitioner commenced this proceeding against the New York City Transit Authority (hereinafter the Transit Authority) seeking to direct the Transit Authority to preserve and produce any surveillance videos or records prepared in the regular course of business concerning the accident, or to provide an affidavit explaining the absence of any such videos or records. The petitioner also moved pursuant to CPLR 3102(c), in effect, to compel the Transit Authority to permit an inspection of the location of the accident upon certain conditions and to refrain from performing alterations or modifications to the location pending that inspection. …

CPLR 3102(c) provides, as relevant, that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Here, the petitioner’s notice of claim demonstrates that the petitioner possessed sufficient information to enable him to formulate his complaint and commence an action … . Therefore, under the circumstances, the only purpose of the pre-action discovery sought by the petitioner would be to “explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102(c)” … . Moreover, considering, inter alia, the evidence already in the petitioner’s possession, the order directing the Transit Authority to preserve the condition of the site of the accident until completion of an inspection was unduly burdensome …”. Matter of Neham v New York City Tr. Auth., 2022 NY Slip Op 01026, Second Dept 2-16-22

 

QUESTIONS OF FACT WHETHER THE DEFENDANT BUS DRIVER SAW WHAT SHOULD HAVE BEEN SEEN AND WHETHER THE EMERGENCY DOCTRINE APPLIED TO THIS REAR-END COLLISION CASE; THE BUS WAS BEHIND PLAINTIFF’S SCOOTER AND BOTH THE BUS AND THE SCOOTER APPARENTLY CHANGED LANES AT THE SAME TIME (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant bus driver (Payne) failed to see what should have been seen and whether the emergence doctrine applied to this rear-end collision case. Plaintiff was on a motor scooter in front of the bus and both the bus and the scooter changed lanes at approximate the same time:

… [E]ven if Payne had the right of way, she testified at her deposition that she did not see the plaintiff on his motor scooter until “seconds” before the accident. Since the video recording taken from the bus seems to show that the bus was following the plaintiff’s motor scooter for approximately two blocks prior to the accident, Payne’s testimony raised a triable issue of fact as to whether Payne failed to see what was there to be seen through the proper use of her senses, and thus whether she exercised reasonable care to avoid the accident and whether her actions were a proximate cause of the accident … . …

… [T]he evidence failed to eliminate the existence of triable issues of fact as to whether Payne’s actions contributed to or caused the emergency, in light of, inter alia, her failure to observe the motor scooter earlier … . Fergile v Payne, 2022 NY Slip Op 01008, Second Dept 2-16-22

 

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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