Negligence Update July 2020

Negligence Update July 2020

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between July 1, 2020 and July 31, 2020 which address issues in “Negligence.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Negligence” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Negligence Update Pamphlet July 2020”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Negligence Update Pamphlet July 2020”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Negligence Update Pamphlet July 2020

Negligence Update July 2020 Attorney Affirmation

Negligence Update July 2020 Evaluation Survey

Topics Covered in the “Negligence Update July 2020” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Negligence Update Pamphlet July 2020”

ARCHITECTURAL MALPRACTICE.

QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS ARCHITECTURAL MALPRACTICE/BREACH OF CONTRACT ACTION (SECOND DEPT). 7

MEDICAL MALPRACTICE.

DEFENDANT DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED; ONE DOCTOR DID NOT DEMONSTRATE HE DID NOT PARTICIPATE IN THE RESUSCITATION OF THE NEWBORN; THERE WAS A QUESTION OF FACT WHETHER A SECOND DOCTOR EMPLOYED THE PROPER RESUSCITATION METHOD (SECOND DEPT). 8

MEDICAL MALPRACTICE.

MOTHER CANNOT RECOVER DAMAGES FOR EMOTIONAL DISTRESS FOR INJURY IN UTERO WHERE, AS HERE, THE CHILD WAS BORN ALIVE (SECOND DEPT). 9

MEDICAL MALPRACTICE.

NEW THEORY PRESENTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LACK-OF-INFORMED-CONSENT CAUSE OF ACTION SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT). 10

MEDICAL MALPRACTICE.

PLAINTIFF’S DECEDENT’S MEDICAL MALPRACTICE AND WRONGFUL DEATH ACTIONS WERE NOT TIME-BARRED, SUPREME COURT REVERSED (SECOND DEPT). 11

MEDICAL MALPRACTICE.

THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 12

NEGLIGENT SUPERVISION, MUNICIPAL LAW.

INFANT PLAINTIFF WAS APPARENTLY INJURED BY HOT COALS LEFT AFTER A FIRE IN A COUNTY PARK; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE COUNTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 13

POWER-OPERATED DOOR.

THE LANDLORD AND PROPERTY MANAGER DEMONSTRATED THE POWER-OPERATED DOOR WHICH ALLEGEDLY STRUCK PLAINTIFF WAS NOT DEFECTIVE AND THEY HAD NO NOTICE OF ANY DEFECTS (SECOND DEPT). 13

SLIP AND FALL, MUNICIPAL LAW.

WATER VALVE CAP OVER WHICH INFANT PLAINTIFF TRIPPED AND FELL WHILE PLAYING BASKETBALL IN THE STREET WAS A TRIVIAL DEFECT AS A MATTER OF LAW (SECOND DEPT). 14

SLIP AND FALL.

ALTHOUGH THERE WAS A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL, THERE WERE QUESTIONS OF FACT WHETHER THE ICE FORMED AFTER A PRIOR STORM AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SIDEWALK; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 15

SLIP AND FALL.

CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT). 16

SLIP AND FALL.

CONTRACTOR WHICH WAXED THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL DID NOT OWE PLAINTIFF A DUTY OF CARE BECAUSE IT WAS NOT DEMONSTRATED THE CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM (SECOND DEPT). 17

SLIP AND FALL.

DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 18

SLIP AND FALL.

DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON A GROUND NOT RAISED BY THE PARTIES, I.E., FINDING THE DEFECT TRIVIAL (SECOND DEPT). 19

SLIP AND FALL.

DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT). 20

SLIP AND FALL.

EVIDENCE THE AREA WAS INSPECTED ONCE A MONTH DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DRIVEWAY IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 21

SLIP AND FALL.

QUESTIONS OF FACT ABOUT THE OWNERSHIP OF A SIDEWALK UTILITIES GRATE PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT). 22

SLIP AND FALL, MUNICIPAL LAW.

THE DEFENDANTS DEMONSTRATED THE CITY DID NOT NOTIFY THEM OF THE NEED TO REPAIR THE ABUTTING PUBLIC SIDEWALK AND THEREBY DEMONSTRATED THEY HAD NO STATUTORY DUTY TO REPAIR THE SIDEWALK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERTY GRANTED (SECOND DEPT). 23

THIRD-PARTY ASSAULT, EDUCATION-SCHOOL LAW.

PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT SUPERVISION AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACTION AGAINST THE DEPARTMENT OF EDUCATION STEMMING FROM THE ALLEGED RAPE OF PLAINTIFF ON SCHOOL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT). 24

THIRD-PARTY ASSAULT.

THE CASINO WHERE PLAINTIFF WAS DRINKING WITH THE MAN WHO ASSAULTED HER AFTER SHE LEFT THE CASINO DID NOT OWE A DUTY TO PLAINTIFF AFTER SHE LEFT THE PREMISES (SECOND DEPT). 25

TOXIC TORTS, MUNICIPAL LAW.

MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT). 25

TRAFFIC ACCIDENTS.

THE DEMONSTRATION THAT THE APPELLANTS’ VEHICLE WAS STOPPED WHEN IT WAS STRUCK FROM BEHIND WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN APPELLANTS’ FAVOR (SECOND DEPT). 26

TRAFFIC ACCIDENTS, INSURANCE LAW.

ALTHOUGH DEFENDANTS’ INSURER OBTAINED A DECLARATORY JUDGMENT (BY DEFAULT) THAT IT WAS NOT OBLIGATED TO PAY NO-FAULT BENEFITS TO PLAINTIFF PEDESTRIAN IN THIS TRAFFIC ACCIDENT CASE, THE DECLARATORY JUDGMENT DID NOT PRECLUDE, UNDER EITHER CLAIM OR ISSUE PRECLUSION, PLAINTIFF’S PERSONAL INJURY ACTION AGAINST DEFENDANTS (FIRST DEPT). 27

TRAFFIC ACCIDENTS, MUNICIPAL LAW.

ALTHOUGH THE EMERGENCY HAD DIMINISHED AND THE POLICE OFFICER HAD TURNED OFF HIS SIREN AND LIGHTS WHEN THE ACCIDENT OCCURRED, THE OFFICER WAS STILL ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, SUPREME COURT REVERSED (SECOND DEPT). 28

TRAFFIC ACCIDENTS, MUNICIPAL LAW.

QUESTION OF FACT WHETHER THE POLICE OFFICER, ANSWERING A CALL, ACTED RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT). 29

TRAFFIC ACCIDENTS, MUNICIPAL LAW.

WHETHER THE TRAFFIC ACCIDENT INVOLVING A SALT-SPREADING TRUCK OCCURRED ON A PUBLIC OR PRIVATE PARKING LOT AFFECTED THE APPROPRIATE STANDARD OF CARE UNDER THE VEHICLE AND TRAFFIC LAW, PROOF ON THAT ISSUE SHOULD HAVE BEEN ALLOWED; DEFENDANTS’ ACCIDENT RECONSTRUCTIONIST SHOULD HAVE BEEN ALLOWED TO TESTIFY; THE $12 MILLION VERDICT WAS PROPERLY SET ASIDE AS EXCESSIVE (FIRST DEPT). 30

TRAFFIC ACCIDENTS.

ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 31

TRAFFIC ACCIDENTS.

ALTHOUGH THE MOTION TO DISMISS FOR FAILURE TO SERVE A DEFENDANT SHOULD HAVE BEEN DENIED AND THE MOTION TO EXTEND TIME TO SERVE GRANTED, THE MOTION TO DISMISS ON FORUM NON COVENIENS GROUNDS WAS PROPERLY GRANTED (SECOND DEPT). 32

TRAFFIC ACCIDENTS.

DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT). 33

TRAFFIC ACCIDENTS.

PLAINTIFF-PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; ALTHOUGH A PLAINTIFF NEED NOT DEMONSTRATE THE ABSENCE OF COMPARATIVE NEGLIGENCE IN SUPPORT OF SUMMARY JUDGMENT, THE COURT CAN CONSIDER COMPARATIVE NEGLIGENCE WHERE, AS HERE, THE PLAINTIFF MOVES TO DISMISS THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT). 34

TRAFFIC ACCIDENTS.

WHETHER THE DEFENDANT FIRST STOPPED AT THE STOP SIGN OR DROVE THROUGH THE STOP SIGN DOESN’T MATTER BECAUSE EITHER WAY THE VEHICLE AND TRAFFIC LAW WAS VIOLATED; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 35

TRAFFIC ACCIDENTS, INSURANCE LAW.

PLAINTIFF’S SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST (SUM) COVERAGE WAS GREATER THAN THE BODILY INJURY COVERAGE IN THE TORTFEASOR’S POLICY; SO THE SUM PROVISION OF PLAINTIFF’S POLICY WAS TRIGGERED (FOURTH DEPT). 35