Negligence Update June 2020

Negligence Update June 2020

Course #TRT0869 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

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 June 1, 2020 and June 30, 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 June 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 June 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 June 2020

Negligence Update June 2020 Attorney Affirmation

Negligence Update June 2020 Evaluation Survey

Topics Covered in the “Negligence Update June 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 June 2020”

ARCHITECTURAL MALPRACTICE, CONTINUOUS REPRESENTATION.

THE COMPLAINT ADEQUATELY ALLEGED THE TOLLING OF THE STATUTE OF LIMITATIONS PURSUANT TO THE CONTINUOUS REPRESENTATION DOCTRINE AND THE EXISTENCE OF THE FUNCTIONAL EQUIVALENT OF PRIVITY BETWEEN PLAINTIFF AND THE DEFENDANT ARCHITECT; SUPREME COURT REVERSED (SECOND DEPT). 4

MEDICAL MALPRACTICE, EXPERTS.

ALTHOUGH PLAINTIFF’S EXPERT, A GENERAL SURGEON, PROVIDED AN OPINION IN THE AREA OF INTERNAL MEDICINE, THE EXPERT’S AFFIRMATION DEMONSTRATED THE EXPERT WAS QUALIFIED TO OFFER THE OPINION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 5

MEDICAL MALPRACTICE, MUNICIPAL LAW.

THE MEDICAL RECORDS DID NOT PROVIDE NOTICE TO THE HOSPITAL OF A POTENTIAL MEDICAL MALPRACTICE ACTION AND PETITIONER FAILED TO SHOW THE HOSPITAL WOULD NOT BE PREJUDICED BY THE DELAY IN SERVING A NOTICE OF CLAIM; LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 6

MEDICAL MALPRACTICE, MUNICIPAL LAW.

THE MEDICAL RECORDS SUBMITTED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED BECAUSE RESPONDENTS ADDRESSED THE RELEVANT ISSUES AT ORAL ARGUMENT; THE MEDICAL RECORDS DEMONSTRATED RESPONDENTS HAD TIMELY NOTICE OF THE NATURE OF THE CLAIM; ALTHOUGH THE EXCUSE FOR DELAY WAS NOT ADEQUATE, THE DEFECT DID NOT REQUIRE DENIAL OF THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM; THE APPLICATION SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT). 7

RES IPSA LOQUITUR, MUNICIPAL LAW.

JURY SHOULD HAVE BEEN CHARGED ON THE RES IPSA LOQUITUR DOCTRINE AND INSTRUCTED THAT THE VIOLATION OF THE NYC ADMINISTRATIVE CODE IS SOME EVIDENCE OF NEGLIGENCE IN THIS FALLING OBJECT CASE, NEW TRIAL ORDERED (FIRST DEPT). 8

RES IPSA LOQUITUR, SPOLIATION.

SUMMARY JUDGMENT PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR WAS NOT WARRANTED BECAUSE EXCLUSIVE CONTROL WAS NOT DEMONSTRATED; SANCTIONS FOR THE LOSS OF THE LIGHT FIXTURE WHICH FELL ON PLAINTIFF WERE NOT WARRANTED BECAUSE THE BENT PIPE TO WHICH THE FIXTURE WAS ATTACHED WAS PRESERVED (SECOND DEPT). 9

SLIP AND FALL, LANDLORD-TENANT.

DEFENDANT OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED; THE LEASE DID NOT OBLIGATE THE LANDLORD TO MAINTAIN THE AREA AND NO STATUTORY VIOLATION WAS ALLEGED (SECOND DEPT). 10

SLIP AND FALL, MUNICIPAL LAW.

VILLAGE DID NOT DEMONSTRATE IT DID NOT CREATE THE DEFECT IN THIS SIDEWALK/TREE-WELL SLIP AND FALL CASE; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 10

SLIP AND FALL, MUNICIPAL LAW.

WHETHER THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL IS SHOWN ON A BIG APPLE MAP MUST BE RESOLVED BY A JURY (SECOND DEPT). 11

SLIP AND FALL.

LABOR LAW 200 CAUSE OF ACTION BASED UPON A DANGEROUS CONDITION PROPERLY SURVIVED SUMMARY JUDGMENT, APPELLANTS DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION; JUDGE SHOULD NOT HAVE, SUA SPONTE, DENIED A MOTION ON A GROUND NOT RAISED BY A PARTY (SECOND DEPT). 12

SUMMARY JUDGMENT RE: NEGLIGENCE.

RARE CASE WHERE PLAINTIFF’S SUMMARY JUDGMENT MOTION ON LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION WAS APPROPRIATELY GRANTED (FIRST DEPT). 13

TOXIC TORTS, ASBESTOS.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ASBESTOS-INJURY CASE SHOULD NOT HAVE BEEN GRANTED, PROPER BURDEN OF PROOF EXPLAINED (FIRST DEPT). 13

TOXIC TORTS, MUNICIPAL LAW, LEAD PAINT.

PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT-LANDLORD VIOLATED NYC LOCAL LAW NO. 1 BY FAILING TO TAKE REASONABLE MEASURES TO ADDRESS THE HAZARDOUS LEAD-PAINT CONDITION IN PLAINTIFFS’ APARTMENT; HOWEVER DEFENDANTS RAISED A QUESTION OF FACT WHETHER DEFENDANTS’ NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE CHILD’S INJURIES (FIRST DEPT). 14

TRAFFIC ACCIDENTS, MUNICIPAL LAW, INTERSECTIONS.

DESPITE EVIDENCE THAT BOTH DRIVERS WERE FAMILIAR WITH THE INTERSECTION WHERE THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFFS’ EXPERT RAISED A QUESTION OF FACT WHETHER PROPER SIGNAGE COULD HAVE PREVENTED THE ACCIDENT; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT). 15

UTILITIES, ELECTROCUTION.

PLAINTIFF WAS WORKING ON A ROOF WHEN HE ALLEGEDLY CONTACTED AN ELECTRIC WIRE LEADING TO THE HOME AND WAS KILLED; THE UTILITIES’ (CON EDISON’S) MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION ON THE GROUND IT OWED NO DUTY TO PLAINTIFF’S DECEDENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 16