Personal Injury Update January – March 2022

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 2.5 CLE Credit Hours

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 January 1, 2022 and March 30, 2022 which address issues in “Personal Injury.”

The “Personal Injury” 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. Links to the written materials for this course (“Personal Injury Reversal Reports for January, February and March  2022”) are provided below.

As you listen to the course, you will hear verification codes. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification codes, 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 2.5 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 Reversal Reports January, February and March 2022”), 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 Reversal Report January 2022

Negligence Reversal Report February 2022

Negligence Reversal Report March 2022

Attorney Affirmation Personal Injury Update January, February, March 2022

Evaluation Survey Personal Injury Update January, February, March 2022

Topics Covered in the “Personal Injury Update January, February, March 2022” 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 Pages in Each of the Three Negligence Reversal Reports

 

JANUARY 2022 NEGLIGENCE REVERSAL REPORT

ALL-TERRAIN VEHICLE. 4

THE EVIDENCE SUPPORTED THE DEFENSE VERDICT IN THIS ALL-TERRAIN VEHICLE ACCIDENT CASE; TWO DISSENTERS ARGUED THE 14-YEAR-OLD DEFENDANT DRIVER ACKNOWLEDGED HIS NEGLIGENCE ON THE STAND (THIRD DEPT). 4

EDUCATION-SCHOOL LAW, IMMUNITY. 5

SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE ASSAULT (THIRD DEPT). 5

ELEVATORS, CIVIL PROCEDURE, CONTRACT LAW. 7

IN THIS ELEVATOR-ACCIDENT CASE, THE BUILDING OWNERS WERE ENTITLED TO A CONDITIONAL JUDGMENT ON CONTRACTUAL INDEMNIFICATION AGAINST THE ELEVATOR-MAINTENANCE COMPANY BEFORE THE PRIMARY ACTION IS DETERMINED (SECOND DEPT). 7

LABOR LAW-CONSTRUCTION LAW, PASSAGEWAYS. 8

A STAIRWAY CAN BE A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). 8

LABOR LAW-CONSTRUCTION LAW, PASSAGEWAYS. 9

QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT). 9

LABOR LAW-CONSTRUCTION LAW. 10

IN THIS SCAFFOLD-FALL CASE, EVIDENCE PLAINTIFF WAS INSTRUCTED TO USE GUARD RAILS ON THE SCAFFOLD BUT DID NOT REQUIRED DENIAL OF PLAINTFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 10

PLAINTIFF FELL THROUGH A SKYLIGHT HOLE WHEN ATTEMPTING TO REMOVE PLYWOOD WHICH WAS COVERING THE HOLE; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 11

PLAINTIFF WAS IN A TRENCH WHEN HE WAS STRUCK BY THE BUCKET OF AN EXCAVATOR WHICH WAS ON THE EDGE OF THE TRENCH ABOVE HIM IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS THE RESULT OF THE USUAL AND ORDINARY DANGERS OF A CONSTRUCTION SITE AS OPPOSED TO A RISK CONTEMPLATED BY THE LABOR LAW (FOURTH DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

THE DUCT ON THE FLOOR WAS AN INTEGRAL PART OF THE DEMOLITION WORK, THEREFORE LABOR LAW 241 (6) DID NOT APPLY; THE DEFENDANT DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK, THEREFORE LABOR LAW 200 DID NOT APPLY (FIRST DEPT). 12

LABOR LAW-CONSTRUCTION LAW. 13

THE SCAFFOLD BRACING BAR OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION DISMISSED (FIRST DEPT). 13

MEDICAL MALPRACTICE, CIVIL PROCEDURE, JUDGES. 14

SUPREME COURT SHOULD NOT HAVE STRUCK PLAINTIFF’S EXPERT’S TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION ON THE GROUND THE TESTIMONY EXCEEDED THE CPLR 3101 (D) DISCLOSURE; PLAINTIFF’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT). 14

MEDICAL MALPRACTICE, PUBLIC HEALTH LAW. 15

IN THIS MEDICAL MALPRACTICE/PUBLIC HEALTH LAW ACTION AGAINST A NURSING HOME, DEFENDANTS’ EXPERTS’ OPINIONS WERE NOT SUPPORTED BY THE SUBMISSION OF DECEDENT’S MEDICAL RECORDS, RENDERING THE OPINIONS SPECULATIVE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 15

NOTICE OF CLAIM, CIVIL PROCEDURE. 16

THE NOTICE OF CLAIM ACT DOES NOT APPLY TO THE PORT AUTHORITY, WHICH IS A BISTATE ENTITY (NEW YORK AND NEW JERSEY) CREATED BY COMPACT (FIRST DEPT). 16

PRODUCTS LIABILITY. 16

DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT). 16

PROTRUDING SCREW (DANGEROUS CONDITION), HOMEOWNER LIABILITY, EMPLOYMENT LAW. 18

PLAINTIFF WAS AN EMPLOYEE OF THE CONTRACTOR DEFENDANT HOMEOWNER HIRED TO BUILD A NEW STAIRCASE; PLAINTIFF WAS INJURED BY A PROTRUDING SCREW ON THE NEW STAIRCASE; DEFENDANT WAS NOT LIABLE; THE HOMEOWNER DID NOT CREATE THE CONDITION, DID NOT SUPERVISE THE CONTRACTOR’S WORK, AND DID NOT HAVE NOTICE OF THE CONDITION (FIRST DEPT). 18

ROADWAY DEFECT, MUNICIPAL LAW, SPECIAL USE. 19

PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE ROAD WAS CAUSED BY DEFENDANT’S SPECIAL USE OF THE ROAD; TWO DISSENTERS DISAGREED (FOURTH DEPT). 19

SLIP AND FALL, CONTRACT LAW. 20

PLAINTIFF TRIPPED AND FELL ON AN UNEVEN MAT WHEN SHE STEPPED OFF THE DEFENDANT’S SKATING RINK; THE ACTION AGAINST THE COMPANY WHICH SOLD AND INSTALLED THE MAT SHOULD HAVE BEEN DISMISSED; THERE WAS NO CONTRACT BETWEEN THE OWNER OF THE SKATING RINK AND THE SELLER/INSTALLER OF THE MAT AND THERE WAS NO EVIDENCE THE SELLER/INSTALLER OF THE MAT LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT). 20

SUBWAYS, MUNICIPAL LAW, IMMUNITY. 21

PLAINTIFF’S VERDICT IN THIS SUBWAY ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE; PLAINTIFF WAS STRUCK BY A TRAIN AND ALLEGED THE ALLOWED SPEED FOR ENTERING A STATION WAS TOO HIGH; DEFENDANT TRANSIT AUTHORITY SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT SPEED STUDIES HAD BEEN CONDUCTED IN SUPPORT OF THE QUALIFIED IMMUNITY DEFENSE (FIRST DEPT). 21

TRAFFIC ACCIDENTS, CIVIL PROCEDURE, VEHICLE AND TRAFFIC LAW. 22

EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT). 22

TREADMILL. 23

PLAINTIFF ALLEGED SHE WAS INJURED WHEN DEFENDANT’S TREADMILL SUDDENLY ACCELERATED; PLAINTIFF ALLEGED SHE COMPLAINED ABOUT THE TREADMILL-ACCELERATION DAYS BEFORE SHE WAS INJURED, RAISING A QUESTION OF FACT ABOUT DEFENDANT’S ACTUAL NOTICE OF THE DEFECT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 23

WORKERS’ COMPENSATION, CIVIL PROCEDURE. 24

DEFENDANTS ARGUED PLAINTIFF WAS NOT AN EMPLOYEE IN THE WORKERS’ COMPENSATION PROCEEDING; HERE THE DEFENDANTS ARGUED PLAINTIFF WAS AN EMPLOYEE AND HIS REMEDY WAS LIMITED TO WORKERS’ COMPENSATION; THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDED THE WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE IN THIS ACTION (THIRD DEPT). 24

 

FEBRUARY 2022 NEGLIGENCE REVERSAL REPORT

EDUCATION-SCHOOL LAW, EMPLOYMENT LAW, CHILD VICTIM’S ACT. 5

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). 5

EMPLOYMENT LAW, WORKERS’ COMPENSATION. 6

ALTHOUGH THE DOCTOR WAS AT WORK AT THE HOSPITAL WHEN HE WAS SHOT DURING A MASS SHOOTING, HIS INJURY WAS NOT WORK-RELATED WITHIN THE MEANING OF THE WORKERS’ COMPENSATION LAW (THIRD DEPT). 6

EXERCISE EQUIMENT. 7

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). 7

LABOR LAW-CONSTRUCTION LAW. 8

DEFENDANT WAS A PRIME, NOT A GENERAL, CONTRACTOR AND DEMONSTRATED HE DID NOT EXERCISE SUPERVISION OR CONTROL OVER PLAINTIFF’S WORK; THEREFORE DEFENDANT WAS NOT LIABLE UNDER LABOR LAW 240(1) AND 241(6); HOWEVER, DEFENDANT DID EXERCISE SOME CONTROL OVER WORK-SITE SAFETY AND THEREFORE MAY BE LIABLE UNDER LABOR LAW 200 (FOURTH DEPT). 8

LABOR LAW-CONSTRUCTION LAW. 9

DEFENDANTS DEMONSTRATED (1) THE PROTRUDING PIPE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, (2) THEY DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK, AND (3) THE INDUSTRIAL CODE PROVISION PROHIBITING THE ACCUMULATION OF DEBRIS DID NOT APPLY; THE LABOR LAW 200 AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 9

LABOR LAW-CONSTRUCTION LAW. 10

NEITHER THE BUILDING OWNER NOR THE PROSPECTIVE BUILDING OWNER HAD SUPERVISORY CONTROL OVER THE PREMISES OR THE WORK, INCLUDING THE WORK OF PLAINTIFF AND HIS CO-WORKER WHO APPARENTLY MOPPED THE FLOOR WHERE PLAINTIFF SLIPPED AND FELL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION AGAINST THE OWNER AND PROSPECTIVE OWNER SHOULD HAVE BEEN DISMISSED (FIRST DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 11

THE TENANT WHICH SUPPLIED THE ALLEGEDLY DEFECTIVE LADDER TO THE PLAINTIFF IN THIS LADDER-FALL CASE WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT). 11

LEGAL MALPRACTICE, CIVIL PROCEDURE. 12

BECAUSE PLAINTIFF’ DECEDENT COULD NOT COMMENCE A LEGAL MALPRACTICE ACTION WHILE THE DEFENDANTS-ATTORNEYS STILL REPRESENTED HIM, THERE WAS A QUESTION OF FACT WHETHER THE ACTION WAS TIMELY (SECOND DEPT). 12

LEGAL MALPRACTICE, NEGLIGENCE, TRUSTS AND ESTATES. 13

IT WAS ALLEGED DEFENDANTS-ATTORNEYS DID NOT INSTRUCT THE DECEDENT TO REVOKE THE TOTTEN TRUSTS SO THE FUNDS WOULD BE DISTRIBUTED IN ACCORDANCE WITH HER WISHES AS SET OUT IN THE WILL AND TRUST DRAFTED BY DEFENDANTS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 13

MEDICAL (DENTAL) MALPRACTICE, CONTRACT LAW. 14

QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT). 14

MEDICAL MALPRACTICE, CERTIFICATE OF MERIT. 15

THE FAILURE TO TIMELY FILE THE CERTIFICATE OF MERIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT A GROUND FOR DIMSISSAL OF THE COMPLAINT (THIRD DEPT). 15

MEDICAL MALPRACTICE, DISCOVERY, CHILD CUSTODY AND CHILD PROTECTIVE SERVICES RECORDS. 16

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). 16

MEDICAL MALPRACTICE, DELAYED DIAGNOSIS. 17

PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS AFFECTED THE PROGNOSIS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 17

MEDICAL MALPRACTICE, EXPERT AFFIDAVITS. 18

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). 18

PRODUCTS LIABILITY, BAILMENT. 19

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). 19

SLIP AND FALL, FEIGNED ISSUE OF FACT. 20

PLAINTIFF TESTIFIED SHE DID NOT KNOW WHAT CAUSED HER SLIP AND FALL BUT STATED IN HER AFFIDAVIT IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE SLIPPED ON ICE; THE AFFIDAVIT CREATED A FEIGNED ISSUE OF FACT; DEFENDANT’S MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). 20

SLIP AND FALL, MUNICIPAL LAW, PRE-JOINDER DISCOVERY, PRESERVATION OF THE SCENE. 21

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). 21

SLIP AND FALL, MUNICIPAL LAW, SPECIAL USE. 22

PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STEPS ON WHICH SHE SLIPPED AND FELL, ALTHOUGH ON A PUBLIC RIGHT-OF-WAY, WERE SUBJECT TO A SPECIAL USE BY THE ABUTTING PROPERTY OWNER (POTENTIALLY RENDERING THE ABUTTING PROPERTY OWNER LIABLE) (THIRD DEPT). 22

SLIP AND FALL, OPEN AND OBVIOUS, CREDIBILITY OF PLAINTIFF. 23

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). 23

SLIP AND FALL, OPEN AND OBVIOUS. 24

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). 24

SLIP AND FALL. 25

THERE REMAINED QUESTIONS OF FACT WHETHER DEFENDANTS CREATED THE ICY CONDITION AND WHETHER THEY HAD CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 25

TRAFFIC ACCIDENTS, CIVIL PROCEDURE, CONTRACT LAW. 26

LESSOR OF THE VEHICLE INVOLVED IN THE REAR-END COLLISION WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE GRAVES AMENDMENT; SUPREME COURT HAD THE AUTHORITY TO SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT EVEN THOUGH NO MOTION HAD BEEN MADE (FIRST DEPT). 26

TRAFFIC ACCIDENTS, MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW. 27

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). 27

TRAFFIC ACCIDENTS, REAR-END COLLISIONS. 28

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). 28

TRAFFIC ACCIDENTS. MUNICIPAL LAW, NOTICE OF CLAIM. 29

CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 29

WRONGFUL DEATH, PUBLIC HEALTH LAW. 30

THE WRONGFUL DEATH CAUSE OF ACTION AGAINST DEFENDANT NURSING HOME SHOULD NOT HAVE BEEN DISMISSED; CONFLICTING EXPERT OPINIONS RAISED A QUESTION OF FACT (FIRST DEPT). 30

 

MARCH 2022 NEGLIGENCE REVERSAL REPORT

BUS PASSENGERS, MUNICIPAL LAW. 4

THE JURY COULD HAVE FOUND PLAINTIFF BUS PASSENGER’S INJURIES WERE CAUSED BY THE NORMAL JERKS AND JOLTS OF BUS TRAVEL AND NOT BY ANY NEGLIGENCE ON DEFENDANTS’ PART; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 4

BUS PASSENGERS. 5

THERE WAS NO OBJECTIVE EVIDENCE TO SUPPORT PLAINTIFF’S ALLEGATION THAT THE CITY BUS STOPPED “VIOLENTLY,” CAUSING HER TO FALL; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE AS AGAINST THE WEIGHT OF THE EVICENCE (SECOND DEPT). 5

DUTY TO WARN. 6

PLAINTIFF, WHILE ATTENDING A BEACH-FRONT PARTY, SUFFERED SEVERE INJURY WHEN HE DOVE OFF A BULKHEAD INTO SHALLOW WATER; HIS ACTION AGAINST THE PROPERTY OWNER FOR FAILURE TO WARN SHOULD NOT HAVE BEEN DISMISSED; THE PROPERTY OWNER’S INDEMNIFICATION ACTION AGAINST THE PERSON WHO RENTED THE AREA FOR THE PARTY WAS DISMISSED (SECOND DEPT). 6

LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD. 7

DEFENDANT OUT-OF-POSSESSION LANDLORD WAS NOT OBLIGATED BY THE LEASE OR ANY STATUTE TO REPAIR THE FLOOR OF A WALK-IN FREEZER IN THE LEASED PREMISES; PLAINTIFF ALLEGED DENTS IN THE METAL FLOOR CAUSED HIS LADDER TO FALL OVER; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 7

LEGAL MALPRACTICE, REAL ESTATE. 8

PLAINTIFFS’ LEGAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS’ 2010 BREACH OF A CONDOMINIUM-SALE CONTRACT ACTION WAS DISMISSED ON STATUTE OF FRAUDS GROUNDS; WHEN A WRITTEN CONTRACT SUBSEQUENTLY SURFACED, DEFENDANT ATTORNEYS DID NOT MOVE TO RENEW, VACATE OR APPEAL THE ORDER (FIRST DEPT). 8

LEGAL MALPRACTICE, ATTORNEY-CLIENT RELATIONSHIP. 9

PLAINTIFF DID NOT HAVE TO PROVE THE EXISTENCE OF A RETAINER AGREEMENT TO DEMONSTRATE AN ATTORNEY-CLIENT RELATIONSHIP WITH DEFENDANTS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT). 9

LOSS OF SERVICES. 10

PLAINTIFFS-PARENTS’ CAUSE OF ACTION FOR LOSS OF THEIR INJURED DAUGHTER’S SERVICES SHOULD HAVE BEEN DISMISSED; THE PARENTS DEMONSTRATED ONLY THAT THEIR DAUGHTER PERFORMED SERVICES IN HER EMPLOYMENT AT THE COMPANIES OWNED BY THE PARENTS (FIRST DEPT). 10

MEDICAL MALPRACTICE, AMEND ANSWERS, AFFIRMATIVE DEFENSES, PLAINTIFF’S WIEGHT AND SMOKING. 11

CODEFENDANTS’ MOTIONS TO AMEND THEIR ANSWERS IN THIS MED MAL CASE TO ALLEGE PLAINTIFF’S CULPABLE CONDUCT AND COMPARATIVE NEGLIGENCE (RE: HER WEIGHT AND SMOKING) SHOULD HAVE BEEN GRANTED; THE DELAY IN MAKING THE MOTION CAUSED NO PREJUDICE; GOOD CAUSE FOR THE DELAY NEED NOT BE SHOWN; FAILURE TO INCLUDE THE AMENDED PLEADINGS WITH THE MOTION PAPERS AND DEFECTS IN VERIFICATIONS SHOULD HAVE BEEN OVERLOOKED (FIRST DEPT). 11

MEDICAL MALPRACTICE, CATARACT SURGERY. 12

THE DEFENDANT OPHTHALMOLOGICAL SURGEON’S MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY DENIED; CRITERIA EXPLAINED; PLAINTIFF LOST SIGHT IN HER RIGHT EYE AFTER CATARACT-REMOVAL SURGERY (FIRST DEPT). 12

MEDICAL MALPRACTICE, EXPERT AFFIDAVITS. 13

THE EXPERT AFFIDAVITS SUBMITTED ON BEHALF OF THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS OF NEGLIGENCE; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 13

MEDICAL MALPRACTICE, FAILURE TO DIAGNOSE CANCER, STATUTE OF LIMITATIONS. 14

PLANTIFF ALLEGED FAILURE TO DIAGNOSE CANCER IN 2014 IN THIS MEDICAL MALPRACTICE ACTION; DESPITE THE ENACTMENT OF LAVERN’S LAW (CPLR 214-A) IN 2018, WHICH EXTENDED THE STATUTE OF LIMITATIONS FOR FAILURE TO DIAGNOSE CANCER BY VIRTUE OF ITS RETROACTIVE-APPLICATION AND REVIVAL PROVISIONS, THE ACTION WAS TIME-BARRED (FIRST DEPT). 14

MEDICAL MALPRACTICE, VICARIOUS LIABILITY. 15

THE COMPANY WHICH STAFFED THE HOSPITAL EMERGENCY ROOM DID NOT DEMONSTRATE THE PHYSICIANS WHO TREATED PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION WERE INDEPENDENT CONTRACTORS, AS OPPOSED TO EMPLOYEES FOR WHOM THE COMPANY WOULD BE VICARIOUSLY LIABLE (SECOND DEPT). 15

MUNICIPAL LAW, NO-KNOCK WARRANTS. 16

THE TARGETS OF A NO-KNOCK WARRANT ARE OWED A “SPECIAL DUTY” SUCH THAT A MUNICIPALITY MAY BE LIABLE FOR THE NEGLIGENCE OF THE POLICE OFFICERS EXECUTING THE WARRANT (CT APP). 16
PRIVILEGE, PHYSICIAN-PATIENT, BREACH IS A TORT. 18
PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF THE PHYSICIAN-PATIENT PRIVILEGE, A TORT (THIRD DEPT). 18

PRODUCTS LIABILITY, ESCALATORS. 19

ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT IDENTIFY THE CAUSE OF THE ESCALATOR’S SUDDEN START-UP, THE MOTION TO COMPEL HIM TO SUPPLEMENT HIS ANSWERS TO INTERROGATORIES WAS PROPERLY DENIED; PRODUCTS LIABILITY ACTIONS CAN BE PROVEN BY CIRCUMSTANTIAL EVIDENCE; AT THIS STAGE PLAINTIFF CAN TESTIFY UNDER OATH THAT HE DOES NOT KNOW THE CAUSE OF THE UNEXPECTED START-UP (FIRST DEPT). 19

SLIP AND FALL, CAUSE OF FALL. 20

ALTHOUGH THE INFANT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER SLIP AND FALL; MOTHER, FATHER AND THE DEFENDANTS PROVIDED CIRCUMSTANTIAL EVIDENCE THAT THE FALL WAS CAUSED BY AN IDENTIFIED DEFECT IN THE SIDEWALK, RAISING A QUESTION OF FACT (SECOND DEPT). 20

SLIP AND FALL, CONSTRUCTIVE NOTICE. 21

CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT). 21

SLIP AND FALL, MEDICAL RECORDS. 22

AN ENTRY IN A HOSPITAL RECORD INDICATING PLAINTIFF FELL DOWN A FEW STAIRS WAS NOT GERMANE TO TREATMENT OR DIAGNOSIS AND WAS NOT AN ADMISSION BECAUSE THE SOURCE OF THE ENTRY WAS UNKNOWN; NEW TRIAL ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT). 22

SLIP AND FALL, MUNICIPAL LAW. 23

DEFENDANT DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE, PURSUANT TO THE TOWN CODE, FOR MAINTENANCE OF THE AREA OF THE SIDEWALK WHERE PLAINTIFF TRIPPED OVER A PROTRUDING BOLT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 23

SLIP AND FALL, STORM IN PROGRESS. 24

THE METEOROLOGIST’S AFFIDAVIT SUBMITTED TO SHOW THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL WAS NOT ACCOMPANIED BY THE RECORDS RELIED UPON BY THE AFFIANT; THE AFFIDAVIT THEREFORE HAD NO PROBATIVE VALUE (SECOND DEPT). 24

TRAFFIC ACCIDENTS, MUNCIPAL LAW, VEHICLE AND TRAFFIC LAW, POLICE VEHICLE. 25

IN THIS POLICE-CAR TRAFFIC ACCIDENT CASE, THE MUNICIPALITY DID NOT DEMONSTRATE THE POLICE OFFICER’S SPECIFIC CONDUCT WAS EXEMPT FROM THE ORDINARY RULES OF THE ROAD PURSUANT TO VEHICLE AND TRAFFIC LAW 1104, AND DID NOT DEMONSTRATE THE OFFICER WAS NOT LIABLE UNDER THE ORDINARY RULES OF NEGLIGENCE; THE MUNICIPALITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 25

TRAFFIC ACCIDENTS, PEDESTRIANS, VEHICLE AND TRAFFIC LAW, EMERGENCY DOCTRINE, SUN GLARE. 26

SUN GLARE DID NOT CREATE AN EMERGENCY FOR THE BUS DRIVER WHO STRUCK PLAINTIFF PEDESTRIAN (SECOND DEPT). 26

 

Criminal Law Update April – June 2022 – Part 2

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

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 April 1, 2022 and June 30, 2022 which address issues in “Criminal Law.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the May 2022 Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, 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). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. 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 3.5 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 link below for the written materials for Part 1: Criminal Law Reversal Report May 2022).

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

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Criminal Law Reversal Report May 2022

Topics Covered in the “Criminal Law Reversal Report May 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

MAY 2022 REVERSAL REPORT

APPEALS, LAW CHANGED WHILE APPEAL PENDING. 4

ALTHOUGH THE RELEVANT DECISION [PEOPLE VS RUDOLPH] CAME DOWN AFTER DEFENDANT WAS SENTENCED, THE DECISION CAME DOWN BEFORE DEFENDANT’S APPELLATE PROCESS WAS COMPLETE; THEREFORE DEFENDANT WAS ENTITLED TO CONSIDERATION WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; SENTENCE VACATED AND MATTER REMITTED FOR RESENTENCING (SECOND DEPT). 4

APPEALS, SEX OFFENDER STATUS IS NOT PART OF A SENTENCE. 6

SEX OFFENDER CERTIFICATION IS NOT PART OF A SENTENCE AND THEREFORE IS NOT COVERED BY THE UNLAWFUL-SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT; THEREFORE THE UNPRESERVED ISSUE COULD NOT BE CONSIDERED BY THE COURT OF APPEALS; HOWEVER, UPON REMITTAL, THE ISSUE CAN BE (AND WAS) CONSIDERED AT THE APPELLATE DIVISION LEVEL IN THE INTEREST OF JUSTICE (SECOND DEPT). 6

ATTORNEYS, CRIMINAL CONTEMPT. 7

PLAINTIFF’S COUNSEL SHOULD HAVE BEEN HELD IN CRIMINAL CONTEMPT FOR ISSUING SUBPOENAS IN DEFIANCE OF AN ORDER STAYING THE PROCEEDINGS; DIFFERENCE BETWEEN CIVIL AND CRIMINIAL CONTEMPT EXPLAINED (SECOND DEPT). 7

DEFENDANT’S PRESENCE AT SIDEBAR. 8

THE COURT OF APPEALS, WITHOUT EXPLANATION, REVERSED THE FOURTH DEPARTMENT WHICH HAD REVERSED DEFENDANT’S CONVICTION ON THE GROUND THE DEFENDANT WAS NOT PRESENT DURING A SIDEBAR CONFERENCE CONCERNING THE BIAS OF A PROSPECTIVE JUROR; THE MATTER WAS SENT BACK TO THE FOURTH DEPARTMENT FOR CONSIDERATION OF OTHER ISSUES AND FACTS RAISED IN THE APPEAL BUT NOT CONSIDERED BY THE FOURTH DEPARTMENT (CT APP). 8

DISCIPLINARY HEARINGS (INMATES), DUE PROCESS. 9

PETITIONER-INMATE WAS DENIED DUE PROCEES WHEN HE WAS NOT ALLOWED TO VIEW A VIDEO OF THE INCIDENT WHICH RESULTED IN THE MISBEHAVIOR CHARGE; NEW HEARING ORDERED (THIRD DEPT). 9

DISCIPLINARY HEARINGS (INMATES), PRISONERS HAVE DUE PROCESS RIGHTS. 10

DESPITE THE APPARENT FAILURE TO PRESERVE A VIDEO OF A MEETING DURING WHICH PETITIONER ALLEGEDLY PLANNED A DEMONSTRATION AT THE PRISON, THE DETERMINATION FINDING PETITIONER GUILTY OF PLANNING THE DEMONSTRATION WAS CONFIRMED; THE DISSENT ARGUED PETITIONER WAS DEPRIVED OF DUE PROCESS BY THE FAILURE TO TURN OVER THE VIDEO, WHICH HAD BEEN REVIEWED BY THE OFFICER WHO PREPARED THE MISBEHAVIOR REPORT (THIRD DEPT). 10

DNA DATATBASE, FAMILIAL MATCH. 12

PETITIONERS. RELATIVES OF PERSONS IN THE NYS DNA DATABASE, HAD STANDING TO CHALLENGE THE RESPONDENTS’ REGULATIONS ALLOWING THE RELEASE OF “FAMILIAL DNA MATCH” INFORMATION LINKING DNA FROM A CRIME SCENE TO A FAMILY, NOT AN INDIVIDUAL; THE REGULATIONS WERE BASED ON SOCIAL POLICY AND THEREFORE EXCEEDED THE REGULATORY POWERS OF THE RESPONDENT AGENCIES; TWO-JUSTICE DISSENT ARGUED THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE REGULATIONS (FIRST DEPT). 12

EVIDENCE, SCREENSHOTS OF DELETED TEXTS. 13

HERE SCREENSHOTS OF TEXT MESSAGES WHICH HAD BEEN DELETED FROM THE VICTIM’S PHONE WERE SUFFICIENTLY AUTHENTICATED TO BE ADMISSIBLE, EVEN IF THE BEST EVIDENCE RULE APPLIED; THE MESSAGES OF A SEXUAL NATURE ALLEGEDLY WERE SENT BY THE DEFENDANT, A VOLLEY BALL COACH, TO THE VICTIM, A 15-YEAR-OLD PLAYER ON THE TEAM (CT APP). 13

EVIDENCE. 14

EXCLUDING EVIDENCE WHICH CONTRADICTED AN IMPORTANT PROSECUTION-WITNESS’S ACCOUNT OF HIS ACTIONS RIGHT UP UNTIL THE TIME OF THE SHOOTING, AND THREE 911 CALLS WHICH QUALIFIED AS PRESENT SENSE IMPRESSIONS, DEPRIVED DEFENDANT OF HIS RIGHT TO PUT ON A DEFENSE (CT APP). 14

FRAUDULENT ACCOSTING. 16

THE ACCUSATORY INSTRUMENT CHARGING THE DEFENDANT WITH “FRAUDULENT ACCOSTING” WAS FACIALLY SUFFICIENT; IT WAS ENOUGH TO ALLEGE THAT DEFENDANT SPOKE FIRST TO PERSONS PASSING AROUND HIM ON THE SIDEWALK ASKING FOR DONATIONS FOR THE HOMELESS; THERE WAS NO NEED TO ALLEGE DEFENDANT WAS AGGRESSIVE OR PERSISTENT OR TARGETED AN INDIVIDUAL (CT APP). 16

IMMIGRATION LAW, INEFFECTIVE ASSISTANCE, DEPORTATION CONSEQUENCES OF GUILTY PLEA. 17

DESPITE THE STRENGTH OF THE EVIDENCE AGAINST HIM, DEFENDANT DEMONSTRATED A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONALE BECAUSE OF HIS FAMILY OBLIGATIONS; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT ALLEGED HIS ATTORNEY MISADVISED HIM ON THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA (SECOND DEPT). 17

IMMIGRATION LAW, RIGHT TO A B MISDEMEANOR JURY TRIAL. 18

DEFENDANT DID NOT DEMONSTRATE CONVICTION OF THE B MISDEMEANORS WITH WHICH HE WAS CHARGED WOULD RESULT IN DEPORTATION; THEREFORE DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL (CT APP). 18

INDICTMENT JURISDICTIONALLY DEFECTIVE, AMENDMENT IMPROPER, EVIDENCE, SANDOVAL. 19

THE BURGLARY COUNT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT WAS ARMED WITH A “KNIFE” WHICH IS NOT NECESSARILY A “DEADLY WEAPON;” THE ATTEMPT TO AMEND THE COUNT WAS NOT AUTHORIZED; THE SANDOVAL RULING WAS (HARMLESS) ERROR (SECOND DEPT). 19

NEW YORK CITY, CRIMINALIZING COMPRESSION OF THE DIAPHRAGM DURING ARREST. 20

THE NEW YORK CITY ADMINISTRATIVE CODE PROVISION WHICH PROHIBITS “COMPRESSION OF THE DIAPHRAGM” (BY KNEELING, SITTING OR STANDING ON A PERSON) WHEN EFFECTING AN ARREST IS NOT VOID FOR VAGUENESS (FIRST DEPT). 20

REPUGNANT VERDICT. 21

PRESUMABLY THE ROBBERY AND GRAND LARCENY CHARGES STEMMED FROM THE THEFT OF THE TAXI CAB (THE FACTS ARE NOT EXPLAINED); THE ACQUITTAL OF UNAUTHORIZED USE OF A MOTOR VEHICLE RENDERED THE ROBBERY AND GRAND LARCENY CONVICTIONS REPUGNANT (SECOND DEPT). 21

RESTITUTION, OBJECTION TO. 22

BECAUSE DEFENDANT OBJECTED TO THE AMOUNT OF RESTITUTION A HEARING TO DETERMINE THE AMOUNT SHOULD HAVE BEEN HELD (SECOND DEPT). 22

SECOND FELONY OFFENDER, OUT-OF-STATE CONVICTION. 23

WHETHER DEFENDANT’S CONNECTICUT CONVICTION CAN SERVE AS A PREDICATE FOR SECOND FELONY OFFENDER STATUS CANNOT BE DETERMINED WITHOUT THE CONNECTICUT ACCUSATORY INSTRUMENT; THE UNPRESERVED ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE; MATTER REMITTED FOR A HEARING (SECOND DEPT). 23

SEX OFFENDER REGISTRATION ACT (SORA), ONLY ONE SORA RULING FOR THE SAME CONDUCT IN DIFFERENT COUNTIES. 24

THE SEX OFFENDER LEVEL ADJUDICATION IN NEW YORK COUNTY REQUIRED THE DISMISSAL OF THE SORA PROCEEDING IN BRONX COUNTY WHICH WAS BASED ON THE SAME CONDUCT (FIRST DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA), SEALING OF RECORD. 25

AT THE TIME DEFENDANT COMMITTED THE OFFENSE IN 2007, IT WAS NOT A REGISTRABLE OFFENSE UNDER THE SEX OFFENDER REGISTRATION ACT; THEREFORE DEFENDANT’S MOTION TO SEAL THE RECORD SHOULD NOT HAVE BEEN SUMMARILY DENIED; MATTER REMITTED FOR A HEARING (SECOND DEPT). 25

TRAFFIC STOPS, NO PROBABLE CAUSE. 26

THE STOP OF THE TAXI IN WHICH DEFENDANT WAS A PASSENGER WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED A CRIME; BECAUSE DEFENDANT PLED GUILTY TO ALL OFFENSES BASED UPON A PROMISE OF CONCURRENT SENTENCES, ALL CONVICTIONS REVERSED (SECOND DEPT). 26

CLICK HERE TO GO TO PART 3 OF THIS COURSE

Civil Procedure Update April – June 2022 – Part 3

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3 CLE Credit Hours

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 April 1, 2022 and June 30, 2022 which address issues in “Civil Procedure.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the June 2022 Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, 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). The links to the “Attorney Affirmation” and “Evaluation Survey” are below. 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 3 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 link below for the written materials for Part 1: Civil Procedure Reversal Report June 2022).

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

Civil Procedure Reversal Report June 2022

April, May, June 2022 Civil Procedure Update Attorney Affirmation

Civil Procedure Update April, May. June 2022, Evaluation Form

Topics Covered in the “Civil Procedure Reversal Report June 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

JUNE 2022 REVERSAL REPORT

AMENDMENT OF ANSWER. 4

ALTHOUGH DEFENDANT’S MOTION TO AMEND ITS ANSWER (ADDING AFFIRMATIVE DEFENSES) WAS MADE AFTER A TWO-YEAR DELAY, THE DELAY ALONE DID NOT DEMONSTRATE THE PLAINTIFF WAS PREJUDICED; THE MOTION TO

AMEND SHOULD HAVE BEEN GRANTED (FIRST DEPT). 4

AMENDMENT OF COMPLAINT AFTER APPELLATE DISMISSAL. 5
SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND A COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED FOR LACK OF STANDING BY THE APPELLATE DIVISION (FIRST DEPT). 5

AMENDMENT OF COMPLAINT. 7

THE COMPLAINT WAS NEVER PROPERLY AMENDED TO ADD DEFENDANT AS A PARTY PURSUANT TO CPLR 1003 OR CPLR 3025 REQUIRING DISMISSAL (FIRST DEPT). 7

COMPEL INDEPENDENT MEDICAL EXAMINATION, MENTAL CONDITION IN CONTROVERSY. 8

DEFENDANT’S MOTION TO COMPEL PLANTIFF TO APPEAR FOR A PSYCHIATRIC EXAMINATION (INDEPENDENT MEDICAL EXAMINATION [IME]) SHOULD HAVE BEEN GRANTED BECAUSE PLAINTIFF HAD PLACED HER MENTAL CONDITION IN CONTROVERSY; DEFENDANT’S MOTION TO VACATE THE NOTE OF ISSUE SHOULD HAVE BEEN GRANTED BECAUSE DISCOVERY WAS NOT COMPLETE (FIRST DEPT). 8

COVID-RELATED COURT PROCEDURES. 9

PLAINTIFF’S ATTORNEY WAS NOT AWARE OF COVID-RELATED PROCEDURAL CHANGES FOR CONDUCTING COMPLIANCE CONFERENCES; PLAINTIFF’S MOTION TO VACATE DISMISSAL OF THE ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). 9

DOMICILE, FOREIGN WILLS. 10

IF GERMANY WAS DECEDENT’S DOMICILE, NEW YORK MAY RECOGNIZE THE GERMAN HOLOGRAPHIC WILL; MATTER SENT BACK TO SURROGATE’S COURT TO DEVELOP A RECORD ON THE DOMICILE ISSUE (THIRD DEPT). 10
EXPERT DISCLOSURE, TREATING PHYSICIAN, THIRD DEPARTMENT’S UNIQUE REQUIREMENTS. 11
CLAIMANT’S ATTORNEY WAS NOT AWARE OF THE THIRD DEPARTMENT’S UNIQUE REQUIREMENT OF FULL EXPERT-WITNESS DISCLOSURE FOR A TREATING PHYSICIAN; THAT WAS AN ADEQUATE EXCUSE FOR AN UNTIMELY DISCLOSURE (THIRD DEPT). 11

FAMILY LAW, IMMIGRATION LAW, SPECIAL IMMIGRANT JUVENILE STATUS. 12

FAMILY COURT SHOULD HAVE MADE THE FINDING THAT PETITIONER’S REUNIFICATION WITH HER FATHER IN THE IVORY COAST WAS NOT VIABLE TO ENABLE HER TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) AND REMAIN IN THE US (SECOND DEPT). 12

FORECLOSURE, LACK OF STANDING, ACCELERATION OF DEBT. 13

BECAUSE THE PRIOR FORECLOSURE ACTION WAS DISMISSED FOR LACK OF STANDING, THE PRIOR ACTION DID NOT ACCELERATE THE DEBT; THEREFORE DEFENDANT DID NOT DEMONSTRATE THE INSTANT ACTION WAS TIME-BARRED (SECOND DEPT). 13

FORECLOSURE, SEVEN-YEAR DELAY IN MOVING FOR JUDGMENT, INTEREST TOLLED. 14

PLAINTIFF OFFERED NO EXPLANATION FOR THE SEVEN-YEAR DELAY BETWEEN THE ORDER OF REFERENCE AND THE MOTION FOR A JUDGMENT OF FORECLOSURE AND SALE; THE ACCRUAL OF INTEREST DURING THE DELAY SHOULD HAVE BEEN TOLLED (SECOND DEPT). 14

GOVERNMENTAL VERSUS PROPRIETARY FUNCTION, IMMUNITY, HARNESS RACING ACCIDENT. 15

THE NYS GAMING COMMISSION’S DUTIES TO INSPECT HORSES AND EQUIPMENT BEFORE A HARNESS RACE ARE PROPRIETARY, NOT GOVERMENTAL, IN NATURE; THEREFORE ORDINARY NEGLIGENCE PRINCIPLES APPLY AND THE IMMUNITY DEFENSE IS NOT AVAILABLE; DURING THE RACE A HORSE FELL AND CLAIMANT’S HORSE COLLIDED WITH THE FALLEN HORSE; THERE ARE QUESTIONS OF FACT ABOUT THE SAFETY OF THE FALLEN HORSE’S EQUIPMENT AND WHETHER THE HORSE EXHIBITED INDICATIONS HE WAS LAME; THERE ARE QUESTIONS OF FACT ABOUT THE APPLICABILTY OF THE ASSUMPTION OF THE RISK DOCTRINE; REGULATIONS RE: THE INSPECTION OF HORSES AND EQUIPMENT ALLOWED CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION TO BE IMPUTED (THIRD DEPT). 15

JOINT TRIAL, TRAFFIC ACCIDENTS. 17

PLAINTIFF’S TWO SEPARATE TRAFFIC ACCIDENTS SHOULD BE TRIED TOGETHER BECAUSE PLAINTIFF ALLEGED THE INJURIES FROM THE FIRST ACCIDENT WERE EXACERBATED BY THE SECOND ACCIDENT (SECOND DEPT). 17

LATE ANSWER, MOTION TO COMPEL ACCEPTANCE. 18

PLAINTIFF SERVED THE COMPLAINT ON NOVEMBER 27, 2018; DEFENDANT ATTEMPTED TO SERVE AN ANSWER, WHICH WAS REJECTED, ON JANUARY 9, 2019; DEFENDANT’S EXCUSE WAS “THE DELAY WAS CAUSED BY THE INSURANCE CARRIER;” THAT EXCUSE WAS INSUFFICIENT AND DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO ACCEPT THE ANSWER SHOULD HAVE BEEN DENIED (SECOND DEPT). 18

LIS PENDENS. 19

PLAINTIFF WAS SEEKING THE PROCEEDS OF A JOINT VENTURE, WHICH, UNDER PARTNERSHIP LAW, INVOLVES PERSONAL PROPERTY, NOT REAL PROPERTY; PLAINTIFF HAD NO INTEREST IN THE REAL PROPERTY WHICH WAS TO BE USED AS AN INN OPERATED AS A JOINT VENTURE; THERFORE THE LIS PENDENS FILED BY PLAINTIFF SHOULD HAVE BEEN CANCELLED (FOURTH DEPT). 19

LONG-ARM JURISDICTION. 20

PLAINTIFF, A TEXAS RESIDENT WHO WAS A FLIGHT ATTENDANT FOR 30 YEARS WITH MONTHLY STAY-OVERS IN NEW YORK, DEMONSTRATED NEW YORK HAD LONG-ARM JURISDICTION OVER THE NEW JERSEY COMPANY WHICH MANUFACTURED AND DISTRIBUTED TALCUM POWDER PLAINTIFF USED; THE TALCUM POWDER ALLEGEDLY CAUSED PLAINTIFF’S MESOTHELIOMA (FIRST DEPT). 20

MUNICIPAL LAW, CONTRACT LAW, NOTICE OF CLAIM. 21

DEFENDANT DID NOT FILE A NOTICE OF CLAIM AGAINST PLAINTIFF VILLAGE IN THIS CONTRACT ACTION AS REQUIRED BY CPLR 9802; THEREFORE DEFENDANT’S ANTICIPATORY-REPUDIATION COUNTERCLAIM SHOULD HAVE BEEN DISMISSED; THE VILLAGE’S PARTICIPATION IN DISCOVERY WAS NOT DESIGNED TO MISLEAD THE DEFENDANT AND DID NOT TRIGGER THE ESTOPPEL DOCTRINE (SECOND DEPT). 21

MUNICIPAL LAW, GENERAL MUNICIPAL LAW 207-A BENEFITS, ARBITRATION. 22

THE MANNER IN WHICH THE FIREFIGHTER’S GENERAL MUNICIPAL LAW 207-A INJURY CLAIM SHOULD BE PROCESSED IS ARBITRABLE BECAUSE THE ISSUE IS ADDRESSED IN THE COLLECTIVE BARGANING AGREEMENT (CBA); THE PETITION TO STAY ARBITRATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 22

MUNICIPAL LAW, LATE NOTICE OF CLAIM. 23

THE NOTICE OF CLAIM WAS SERVED ONLY FIVE DAYS LATE WHICH WAS DEEMED TIMELY NOTICE OF THE NATURE OF THE ACTION AND A SHOWING OF THE ABSENCE OF PREJUDICE; THE CITY DID NOT AFFIRMATIVELY DEMONSTRATE PREJUDICE; THE ABSENCE OF AN ADEQUATE EXCUSE WAS NOT FATAL; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). 23

PRELIMINARY INJUNCTIONS, EMPLOYMENT LAW, CIVIL PROCEDURE, RESTRICTIVE COVENANTS. 25

THERE ARE SUBSTANTIVE QUESTIONS OF FACT ABOUT THE NATURE OF THE AGREEMENTS BETWEEN PLAINTIFF EMPLOYER AND DEFENDANT EMPLOYEE RE: THE SALE OF DEFENDANT’S TAX PREPARATION BUSINESS TO PLAINTIFF AND WHETHER DEFENDANT SOLD HER CLIENT LIST TO PLAINTIFF; PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION ENFORCING THE RESTRICTIVE COVENANT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 25

REAL PROPERTY TAX LAW, TENANT CAN CHALLENGE TAX ASSESSMENT. 26

THE TENANT (A NET LESSEE), WHICH WAS OBLIGATED BY THE TERMS OF THE LEASE TO PAY PROPERTY TAXES, CAN CHALLENGE A PROPERTY-TAX ASSESSMENT BY FILING A GRIEVANCE PURSUANT TO REAL PROPERTY TAX LAW (RPTL) 524 (3); THE APPELLATE DIVISION HAD RULED ONLY THE PROPERTY OWNER COULD CHALLENGE THE ASSESSMENT (CT APP). 26

RE-COMMENCEMENT OF DISMISSED LAWSUIT. 27

ONLY THE ORIGINAL PLAINTIFF CAN TAKE ADVANTAGE OF CPLR 205 (A) WHICH ALLOWS RE-COMMENCEMENT OF A LAWSUIT WITHIN SIX MONTHS OF A DISMISSAL WHICH WAS NOT ON THE MERITS (CT APP). 27

STATUTE OF LIMITATIONS, INSANITY TOLL. 28

QUESTIONS OF FACT ABOUT WHETHER THE INCAPACITATED PERSON (IP) WAS “INSANE” WITHIN THE MEANING OF THE CPLR WHEN HE WAS REPRESENTED BY THE DEFENDANT ATTORNEY MUST BE DETERMINED AT THE LEGAL MALPRACTICE TRIAL; IF THE IP WAS INSANE, THE MALPRACTICE STATUTE OF LIMITATIONS WILL BE TOLLED; IF NOT THE MALPRACTICE ACTION IS UNTIMELY (FIRST DEPT). 28

WORKERS’ COMPENSATION, INADEQUATE RECORD FOR APPEAL. 29

THE BOARD FAILED TO ADEQUATELY EXPLAIN ITS DECISION TO DENY COVERAGE OF MEDICAL BILLS ON THE GROUND THEY WERE NOT CAUSALLY RELATED TO CLAIMANT’S MEDICAL CONDITION, MAKING APPELLATE REVIEW IMPOSSIBLE; MATTER REMITTED (THIRD DEPT). 29

Personal Injury Update April – June 2022 – Part 3 of 3

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

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 April 1, 2022 and June 30, 2022 which address issues in “Personal Injury,” including Negligence, Medical Malpractice, Products Liability, Labor Law-Construction Law and Workers’ Compensation.

The “Personal Injury” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course consists of three parts, each with its own podcast page. Part 1 is based on the Personal Injury Reversal Report for April, 2022; Part 2 is based on the Reversal Report for May, 2022; and Part 3 is based on the Reversal Report for June 2022. The link to the June 2022 Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, 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). The links to the “Attorney Affirmation” and the “Evaluation Survey” are below. 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 3.5 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 material for Part 3 of this course: Personal Injury Reversal Report June, 2022.

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

Personal Injury Reversal Report June 2022

Attorney Affirmation Personal Injury Update April May June 2022

Evaluation Survey Personal Injury Update April May June 2022

Topics Covered in the “Personal Injury Reversal Report June 2022” (Part 3 of this Course) Are Described Below; The Numbers are the Page Numbers in the Reversal Report 

JUNE 2022 REVERSAL REPORT

ASSUMPTION OF RISK, SLIPPERY BASKETBALL COURT. 6

PLAINTIFF ASSUMED THE RISK OF SLIPPING ON THE BASKETBALL COURT WHICH WAS WET WITH CONDENSATION; PLAINTIFF WAS AWARE OF THE RECURRING CONDITION (SECOND DEPT). 6

COURT OF CLAIMS, HARNESS RACING ACCIDENT. 7

THE NYS GAMING COMMISSION’S DUTIES TO INSPECT HORSES AND EQUIPMENT BEFORE A HARNESS RACE ARE PROPRIETARY, NOT GOVERMENTAL, IN NATURE; THEREFORE ORDINARY NEGLIGENCE PRINCIPLES APPLY AND THE IMMUNITY DEFENSE IS NOT AVAILABLE; DURING THE RACE A HORSE FELL AND CLAIMANT’S HORSE COLLIDED WITH THE FALLEN HORSE; THERE ARE QUESTIONS OF FACT ABOUT THE SAFETY OF THE FALLEN HORSE’S EQUIPMENT AND WHETHER THE HORSE EXHIBITED INDICATIONS HE WAS LAME; THERE ARE QUESTIONS OF FACT ABOUT THE APPLICABILTY OF THE ASSUMPTION OF THE RISK DOCTRINE; REGULATIONS RE: THE INSPECTION OF HORSES AND EQUIPMENT ALLOWED CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION TO BE IMPUTED (THIRD DEPT). 7

EXPERT DISCLOSURE, TREATING PHYSICIAN, THIRD DEPARTMENT’S UNIQUE REQUIREMENTS. 8

CLAIMANT’S ATTORNEY WAS NOT AWARE OF THE THIRD DEPARTMENT’S UNIQUE REQUIREMENT OF FULL EXPERT-WITNESS DISCLOSURE FOR A TREATING PHYSICIAN; THAT WAS AN ADEQUATE EXCUSE FOR AN UNTIMELY DISCLOSURE (THIRD DEPT). 8

GENERAL MUNICIPAL LAW 207-1, FIREFIGHTERS, ARBITRATION. 9

THE MANNER IN WHICH THE FIREFIGHTER’S GENERAL MUNICIPAL LAW 207-A INJURY CLAIM SHOULD BE PROCESSED IS ARBITRABLE BECAUSE THE ISSUE IS ADDRESSED IN THE COLLECTIVE BARGANING AGREEMENT (CBA); THE PETITION TO STAY ARBITRATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 9

GENERAL MUNICIPAL LAW 207-A BENEFITS, FIREFIGHTERS. 11

A FIREFIGHTER INJURED ON THE JOB RETURNED TO THE JOB BUT COULD NOT WORK THE 10 TO 24 HOUR SHIFTS WHICH ARE THE “REGULAR DUTIES” OF A FIREFIGHTER; BECAUSE SHE WAS NOT OFFERED THE FULL-TIME EQUIVALENT OF THE SHORTER SHIFTS OR LIGHT-DUTY WORK, SHE WAS ENITLTED TO GENERAL MUNICIPAL LAW 207-A BENEFITS (FOURTH DEPT). 11

LABOR LAW-CONSTRUCTION LAW, FAILURE TO FOLLOW INSTRUCTIONS, SOLE PROXIMATE CAUSE. 12

QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF WAS INSTRUCTED TO WORK ONLY ON GROUND LEVEL AND NOT TO USE STILTS, AND WHETHER THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PLAINTIFF’S CONTINUED USE OF THE STILTS AFTER HE FELT THEM BECOME UNSTABLE, PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT). 12

LABOR LAW-CONSTRUCTION LAW, INJURY LIFTING A HEAVY OBJECT FOUR OR FIVE INCHES. 13

PLAINTIFF FELT HIS ARM SNAP WHEN ATTEMPTING TO LIFT A 400 POUND ELEVATOR PLATFORM FOUR OR FIVE INCHES TO PLACE A PALLET JACK UNDER IT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). 13

LABOR LAW-CONSTRUCTION LAW, PROXIMATE CAUSE. 14

IF PLAINTIFF, A FOREMAN, HAD THE AUTHORITY TO STOP WORK BECAUSE OF RAIN, THEN HIS CONTINUING TO WORK MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; IF PLAINTIFF HAD BEEN INSTRUCTED TO WORK IN THE RAIN, THEN THE WET PLYWOOD MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; BECAUSE OF THE CONFLICTING OR ABSENCE OF EVIDENCE ON THESE ISSUES, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; TWO JUSTICE DISSENT (THIRD DEPT). 14

LABOR LAW-CONSTRUCTION LAW, HOMEOWNER’S EXEMPTION. 15

HOMEOWNER’S EXEMPTION PRECLUDED THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST THE DEFENDANT PROPERTY OWNER, A RELIGIOUS ORGANIZATION; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION ALLEGING THE HOMEOWNER’S LADDER WAS DEFECTIVE PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT). 15

LANDLORD-TENANT, LIABILITY FOR SHOOTING. 16

ALTHOUGH THE SPECIFIC CRIME, I.E., THE SHOOTING OF PLAINTIFF’S DECEDENT IN DEFENDANTS’ BUILDING, MAY NOT HAVE BEEN FORESEEABLE, THE RELEVANT QUESTION IS WHETHER THE DOOR SECURITY WAS DEFICIENT AND THEREFORE WAS A CONCURRENT FACTOR IN THE SHOOTING (SECOND DEPT). 16

MEDICAL MALPRACTICE, EMOTIONAL DISTRESS, BIRTH. 18

MOTHER’S CAUSES OF ACTION FOR EMOTIONAL DISTRESS WOULD NOT BE AVAILABLE IF HER BABY WAS BORN ALIVE; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE BABY WAS BORN ALIVE OR STILLBORN; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 18

MEDICAL MALPRACTICE, NEGLIGENCE, LIABILITY OF REHABILITATION SERVICE FOR RAPE AND KIDNAPPING BY CLIENT. 19

DEFENDANT REHABILITATION AND RECOVERY SERVICES DID NOT DEMONSTRATE IT DID NOT HAVE A DUTY TO PREVENT A PERSON UNDER ITS SUPERVISION AND CARE FROM HARMING MEMBERS OF THE GENERAL PUBLIC; PLAINTIFF WAS KIDNAPPED AND RAPED BY A PERSON WITH A VIOLENT PAST WHO WAS UNDER DEFENDANT’S CARE AND SUPERVISION (THIRD DEPT). 19

MEDICAL MALPRACTICE, NEGLIGENCE, PRECONCEPTION NEGLIGENCE, WRONGFUL LIFE. 21

IN NEW YORK THERE ARE NO CAUSES OF ACTION FOR “PRECONCEPTION NEGLIGENCE” OR “WRONGFUL LIFE;” HERE MOTHER ALLEGED THE DRUG SHE HAD BEEN TAKING FOR EPILEPSY BEFORE SHE LEARNED SHE WAS PREGNANT CAUSED THE BABY TO BE BORN WITH SPINA BIFIDA (FIRST DEPT). 21

MENTAL CONDITION IN CONTROVERSY, COMPEL INDEPENDENT MEDICAL EXAMINATION. 22

DEFENDANT’S MOTION TO COMPEL PLANTIFF TO APPEAR FOR A PSYCHIATRIC EXAMINATION (INDEPENDENT MEDICAL EXAMINATION [IME]) SHOULD HAVE BEEN GRANTED BECAUSE PLAINTIFF HAD PLACED HER MENTAL CONDITION IN CONTROVERSY; DEFENDANT’S MOTION TO VACATE THE NOTE OF ISSUE SHOULD HAVE BEEN GRANTED BECAUSE DISCOVERY WAS NOT COMPLETE (FIRST DEPT). 22

MUNICIPAL LAW, LATE NOTICE OF CLAIM. 23

THE NOTICE OF CLAIM WAS SERVED ONLY FIVE DAYS LATE WHICH WAS DEEMED TIMELY NOTICE OF THE NATURE OF THE ACTION AND A SHOWING OF THE ABSENCE OF PREJUDICE; THE CITY DID NOT AFFIRMATIVELY DEMONSTRATE PREJUDICE; THE ABSENCE OF AN ADEQUATE EXCUSE WAS NOT FATAL; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). 23

PRODUCTS LIABILITY, LONG-ARM JURISDICTION. 24

PLAINTIFF, A TEXAS RESIDENT WHO WAS A FLIGHT ATTENDANT FOR 30 YEARS WITH MONTHLY STAY-OVERS IN NEW YORK, DEMONSTRATED NEW YORK HAD LONG-ARM JURISDICTION OVER THE NEW JERSEY COMPANY WHICH MANUFACTURED AND DISTRIBUTED TALCUM POWDER PLAINTIFF USED; THE TALCUM POWDER ALLEGEDLY CAUSED PLAINTIFF’S MESOTHELIOMA (FIRST DEPT). 24

SLIP AND FALL, ASSAULT AND BATTERY. 25

PLAINTIFF’S DEPOSITION TESTIMONY THAT HE DID NOT RECALL HOW OR WHERE HE SLIPPED AND FELL AND DID NOT RECALL A FIGHT OR BEING HIT WERE FATAL TO THE SLIP AND FALL AND ASSAULT CAUSES OF ACTION (SECOND DEPT). 25

SLIP AND FALL, EMPLOYMENT LAW, INDEMNITY, CONTRIBUTION. 26

PLAINTIFF’S EMPLOYER’S MOTIONS FOR SUMMARY JUDGMENT ON DEFENDANT’S CONTRACTUAL INDEMNITY, COMMON-LAW INDEMNITY AND CONTRIBUTION CAUSES OF ACTION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT). 26

SLIP AND FALL, EMPLOYMENT LAW, WORKERS’ COMPENSATION. 27

DEFENDANT PROPERTY OWNER FAILED TO DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER OR THAT PLAINTIFF WAS DEFENDANT’S SPECIAL EMPLOYEE; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS NOT PRECLUDED BY THE EXCLUSIVE REMEDY ASPECT OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT). 27

SLIP AND FALL, PROOF OF CAUSE. 29

DESPITE THE FACT THAT PLAINTIFF COULD NOT SAY WHICH OF TWO CRACKS IN THE PAVEMENT CAUSED HIS FALL, THE CAUSE OF THE FALL WAS SUFFICIENTLY IDENTIFIED TO WITHSTAND SUMMARY JUDGMENT (THIRD DEPT). 29

SLIP AND FALL, TREE WELLS. 30

UNDER THE NYC ADMINISTRATIVE CODE, ABUTTING PROPERTY OWNERS ARE LIABLE FOR THE CONDITION OF SIDEWALKS BUT NOT CITY OWNED TREE WELLS, UNLESS THEY AFFIRMATIVELY CREATE THE DANGEROUS CONDITION, NEGLIGENTLY REPAIR THE AREA, OR CREATE THE DANGEROUS CONDITION BY A SPECIAL USE; HERE PLAINTIFF SLIPPED AND FELL BECAUSE OF THE CONDITION OF THE TREE WELL, NOT THE SIDEWALK, AND NONE OF THE OTHER LIABILITY THEORIES APPLIED (SECOND DEPT). 30

SLIP AND FALL. 31

A FLATTENED CARDBOARD BOX ON THE FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (SECOND DEPT). 31
TRAFFIC ACCIDENTS, INSURANCE LAW, RESCISSION OF ARBITRATION AGREEMENT, UNILATERAL MISTAKE. 32
IN THIS VEHICLE ACCIDENT CASE, PLAINTIFF ENTERED AN ARBITRATION AGREEMENT WHICH INDICATED THE AWARD WOULD BE BETWEEN $0 AND $50,000, BUT THE POLICY LIMITS WERE $100,000/300,000; THE UNILATERAL MISTAKE BY PLAINTIFF’S ATTORNEY RE: THE POLICY LIMITS WAS NOT INDUCED BY DEFENDANT OR DEFENDANT’S CARRIER, THEREFORE RESCISSION OF THE AGREEMENT WAS NOT AN AVAILABLE REMEDY (SECOND DEPT). 32

TRAFFIC ACCIDENTS, JOINT TRIAL. 33

PLAINTIFF’S TWO SEPARATE TRAFFIC ACCIDENTS SHOULD BE TRIED TOGETHER BECAUSE PLAINTIFF ALLEGED THE INJURIES FROM THE FIRST ACCIDENT WERE EXACERBATED BY THE SECOND ACCIDENT (SECOND DEPT). 33

TRAFFIC ACCIDENTS, MUNICIPAL LAW, RECKLESS DISREGARD, VEHICLE AND TRAFFIC LAW, POLICE CHASE. 34

PLAINTIFFS RAISED QUESTIONS OF FACT (1) WHETHER THE POLICE ACTED IN RECKLESS DISREGARD OF THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE AND IN FAILING TO NOTIFY THE DISPATCHER OF THE CHASE, AND (2) WHETHER THE CHASE WAS A PROXIMATE OR CONCURRENT CAUSE OF PLAINTFFS’ ACCIDENT (THERE WAS NO CONTACT WITH EITHER VEHICLE INVOLVED IN THE CHASE) (FIRST DEPT). 34

TRAFFIC ACCIDENTS, MUNICIPAL LAW. 35

IN THIS Y-INTERSECTION TRAFFIC ACCIDENT CASE, (1) THE TOWN DEMONSTRATED IT DID NOT HAVE THE REQUIRED WRITTEN NOTICE THAT OVERGROWN FOLIAGE BLOCKED LINES OF SIGHT; (2) QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE CAUSES OF ACTION ALLEGING INADQUATE SIGNAGE AND NEGLIGENT ROADWAY DESIGN (THIRD DEPT). 35

WORKERS’ COMPENSATION, INADEQUATE RECORD FOR APPEAL. 36

THE BOARD FAILED TO ADEQUATELY EXPLAIN ITS DECISION TO DENY COVERAGE OF MEDICAL BILLS ON THE GROUND THEY WERE NOT CAUSALLY RELATED TO CLAIMANT’S MEDICAL CONDITION, MAKING APPELLATE REVIEW IMPOSSIBLE; MATTER REMITTED (THIRD DEPT). 36

WORKERS’ COMPENSATION, SCHEDULE LOSS OF USE (SLU). 37

THE BOARD SHOULD HAVE CONSIDERED WHETHER A PRIOR ELBOW INJURY ADDED TO THE SCHEDULE LOSS OF USE (SLU) ASSOCIATED WITH THE SUBSEQUENT SHOULDER INJURY; THE BOARD DEPARTED FROM PRECEDENT WITHOUT EXPLANATION (THIRD DEPT). 37

WORKERS’ COMPENSATION, SCHEDULE LOSS OF USE (SLU). 38

THE WORKERS’ COMPENSATION BOARD MISINTERPRETED SPECIAL CONSIDERATION 4 TO LIMIT SCHEDULE LOSS OF USE (SLU) OF PLAINTIFF’S LEG TO 10% (THIRD DEPT). 38

Personal Injury Update April – June 2022 – Part 1 of 3

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

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 April 1, 2022 and June 30, 2022 which address issues in “Personal Injury,” including Negligence, Medical Malpractice, Products Liability, Labor Law-Construction Law and Workers’ Compensation.

The “Personal Injury” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course consists of three parts, each with its own podcast page. Part 1 is based on the Personal Injury Reversal Report for April, 2022; Part 2 is based on the Reversal Report for May, 2022; and Part 3 is based on the Reversal Report for June 2022.

As you listen to the course, you will hear verification codes. After finishing the Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, 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). The links to the “Attorney Affirmation” and the “Evaluation Survey” are on the podcast page for Part 3 of this course. 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 3.5 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 link below for the written material for Part 1: Personal Injury Reversal Report April, 2022.

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

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Personal Injury Reversal Report April 2022

Topics Covered in the “Personal Injury Reversal Report April 2022” (Part 1 of this Course) Are Described Below; The Numbers are the Page Numbers in the Report 

APRIL 2022 REVERSAL REPORT

BILLS OF PARTICULAR, SUPPPLEMENTAL VS AMENDED BILL OF PARTICULARS, NEW INJURIES. 6

THE DOCUMENT LABELED A “SUPPLEMENTAL” BILL OF PARTICULARS WAS ACTUALLY AN “AMENDED” BILL OF PARTICULARS BECAUSE IT ADDED NEW INJURIES AFTER THE NOTE OF ISSUE WAS FILED; THE DEFENDANT’S MOTION TO STRIKE THE AMENDED BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT). 6

BUS-PASSENGER INJURY. 7

THERE WAS NO OBJECTIVE SUPPORT FOR PLAINTIFF BUS PASSENGER’S CLAIM THE MOVEMENT OF THE BUS WHICH CAUSED HER TO FALL WAS “UNUSUAL AND VIOLENT” (SECOND DEPT). 7

HUNTING-RELATED SHOOTING, SUMMARY JUDGMENT. 8

PLAINTIFF AND DEFENDANT WERE HUNTING TURKEY WHEN DEFENDANT SHOT PLAINTIFF; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING POSSIBLE COMPARATIVE-NEGLIGENCE ISSUES (FOURTH DEPT). 8

INMATE INJURY, CONTAMINATED WATER, COUNTY LIABILITY FOR JAIL CONDITIONS. 9

PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT). 9

LABOR LAW-CONSTRUCTION LAW, CLEANING AS COVERED ACTIVITY. 10

WHETHER “CLEANING” IS A COVERED ACTIVITY UNDER LABOR LAW 240(1) DEPENDS ON WHETHER THE CLEANING WORK IS “ROUTINE;” “ROUTINE” CLEANING WORK IS NOT COVERED (CT APP). 10

LABOR LAW-CONSTRUCTION LAW, ELEVATORS. 11

PLAINTIFF’S DECEDENT WAS IN THE ELEVATOR SHAFT WHEN THE ELEVATOR, OPERATING NORMALLY, DESCENDED AND CRUSHED HIM; THE ELEVATOR WAS NOT A “FALLING OBJECT” WITHIN THE MEANING OF LABOR LAW 240(1); COMPLAINT DISMISSED (FIRST DEPT). 11

LABOR LAW-CONSTRUCTION LAW, FALLING PEBBLE-SIZED DEBRIS. 12

QUESTIONS OF FACT WHETHER PEBBLE-SIZED DEBRIS WHICH FELL ON PLAINTIFF AND ALLEGEDLY SERIOUSLY INJURED HIS EYE GAVE RISE TO LIABILITY UNDER LABOR LAW 240(1) AND 241(6) (FIRST DEPT). 12

LABOR LAW-CONSTRUCTION LAW, FOLLOWING ORDERS. 13

PLAINTIFF WAS DIRECTED TO LIFT A HEAVY BOX MANUALLY; THE FACT THAT A FORKLIFT WAS AVAILABLE WAS NOT DETERMINATIVE; A WORKER IS EXPECTED TO FOLLOW ORDERS; PLAINTIFFS’ MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS LABOR LAW 240(1) ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 13

LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION. 14

HEAVY BARN DOORS WHICH HAD BEEN TAKEN OFF THE HINGES FELL ON PLAINTIFF AS HE DELIVERED SHEETROCK TO THE BARN WHICH WAS BEING CONVERTED TO A MUSIC STUDIO; THERE WERE QUESTIONS OF FACT WHETHER THE DOORS PRESENTED A DANGEROUS CONDITION AND CONSTITUTED AN ELEVATION-RELATED HAZARD AND WHETHER THIS WAS A COMMERCIAL PROJECT TO WHICH THE HOMEOWNER EXEMPTION DID NOT APPLY (LABOR LAW 200 AND 240(1)) (THIRD DEPT). 14

LABOR LAW-CONSTRUCTION LAW, LADDERS. 15

IN THIS LABOR LAW 240(1) CASE, PLAINTIFF ALLEGED THE LADDER WAS UNSECURED AND SHIFTED; DEFENDANT ALLEGED PLAINTIFF TOLD HIS SUPERVISOR HE LOST HIS BALANCE AND JUMPED FROM THE LADDER, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT). 15

LABOR LAW-CONSTRUCTION LAW, LADDERS. 16

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; APPELLATE DIVISION REVERSED; EXTENSIVE THREE-JUDGE DISSENTING OPINION (CT APP). 16

LABOR LAW-CONSTRUCTION LAW, OBJECT LEANING AGAINST WALL FALLS. 17

A HEAVY PUMP, 3 TO 4 FEET IN HEIGHT, WHICH WAS LEANING AGAINST THE WALL, TIPPED OVER AND STRUCK THE PLAINTIFF; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 17

LABOR LAW-CONSTRUCTION LAW, LADDERS, SUMMARY JUDGMENT MOTION NOT PREMATURE. 18

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT). 18

LABOR LAW-CONSTRUCTION LAW. 19

BOARDING UP A VACANT HOUSE WAS WITHIN THE SCOPE OF LABOR LAW 240(1) AND 241(6) (SECOND DEPT). 19

LABOR LAW-CONSTRUCTION LAW. 20

PLAINTIFF FELL LEAVING AN ELEVATOR HE HAD JUST MODIFIED TO PREVENT ACCESS TO A FLOOR; HIS WORK WAS NOT ROUTINE MAINTENANCE; INDUSTRIAL CODE PROVISIONS ABOUT GUARDING HAZARDOUS OPENINGS APPLIED; ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT; LABOR LAW 200, 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). 20

LABOR LAW-CONSTRUCTION LAW. 21

THE EIGHT-INCH WIDE BEAM CLAIMANT WAS MOVING ALONG WHEN HE FELL WAS THE FUNCTIONAL EQUIVALENT OF A SCAFFOLD, BRINGING THE ACTION WITHIN THE SCOPE OF LABOR LAW 240(1); THE SAFETY LINE PROVIDED TO CLAIMANT DID NOT PROTECT HIM FROM THE FALL; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). 21

MEDICAL MALPRACTICE, CONTRACT LAW, CIVIL PROCEDURE, NURSING HOME ADMISSION AGREEMENT, CHOICE OF VENUE. 22

THE VENUE DESIGNATION IN THE NURSING HOME ADMISSION AGREEMENT, SIGNED BY PLAINTIFF’S DECEDENT’S WIFE, WAS NOT ENFORCEABLE BY THE NURSING HOME (SECOND DEPT). 22

MEDICAL MALPRACTICE, LATE NOTICE OF CLAIM, STATUTE OF LIMITATIONS. 23

ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 23

MEDICAL MALPRACTICE, DISCHARGE INSTRUCTIONS, REVIEW OF PHYSICIAN ASSISTANT’S CHART. 25

IN THIS MEDICAL MALPRACTICE CASE, WHETHER DEFENDANT REGISTERED NURSE AND DEFENDANT PHYSICIAN’S ASSISTANT GAVE PLAINTIFF THE APPROPRIATE DISCHARGE INSTRUCTIONS AFTER DISOVERING A LUMP IN PLAINTIFF’S BREAST CREATED A QUESTION OF FACT; THERE WAS A QUESTION OF FACT WHETHER THE DOCTOR WHO COSIGNED THE PHYSICIAN ASSISTANT’S CHART SHOULD HAVE REVIEWED THE CHART (FIRST DEPT). 25

MUNICIPAL LAW, FIREFIGHTERS, DISABILITY. 26

A PROBATIONARY FIREFIGHTER INJURED WHILE TRAINING TO COMPLETE A FIRE BASIC TRAINING PROGRAM WAS INJURED IN THE PERFORMANCE OF HIS DUTIES, ENTITLING HIM TO GENERAL MUNICIPAL LAW 207-A DISBILITY BENEFITS (THIRD DEPT). 26

NEGLIGENT HIRING, SUPERVISION. 27

PLAINTIFF DANCER STATED CAUSES OF ACTION AGAINST DEFENDANT DANCER AND THEIR EMPLOYER, THE NEW YORK CITY BALLET (NYCB), IN CONNECTION WITH INTIMATE IMAGES ALLEGEDLY DISCLOSED BY THE DEFENDANT DANCER (FIRST DEPT). 2

REBUTTAL EVIDENCE, PLAINTIFF’S TREATING PHYSICIAN PROPERLY ALLOWED TO TESTIFY IN REBUTTAL RE: DEFENDANTS’ EXPERT. 28

THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT). 28

SLIP AND FALL, CORPORATION LAW, OFFICER OR SHAREHOLDER LIABILITY. 29

A CORPORATE OFFICER OR SHAREHOLDER CANNOT BE PERSONALLY LIABLE FOR NONFEASANCE (DOING NOTHING), AS OPPOSED MISFEASANCE (FIRST DEPT). 29

SLIP AND FALL, CREATION OF DANGEROUS CONDITION. 30

IN ORDER TO HOLD A PROPERTY OWNER LIABLE FOR THE CREATION OF A DANGEROUS CONDITION, HERE THE INSTALLATION OF A COMPOSITE MATERIAL AT THE TOP OF A STAIRWELL WHICH ALLEGEDLY BECAME SLIPPERY WHEN WET, A PLAINTIFF MUST SHOW THE DEFENDANT WAS AWARE OF THE DANGER (SECOND DEPT). 30
SLIP AND FALL, INSURANCE LAW, “USE” OF A VEHICLE. 31
PLAINTIFF’S FALLING INTO A HOLE ON THE PREMISES AFTER HIS TRUCK WAS LOADED WAS NOT THE RESULT OF “USE” OF THE TRUCK WITHIN THE MEANING OF THE INSURANCE POLICIES (FIRST DEPT). 31

SLIP AND FALL, EDUCATION-SCHOOL LAW, LATE NOTICE OF CLAIM. 31

THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 31

TRAFFIC ACCIDENTS, DISCOVERY, VEHICLE AND TRAFFIC LAW, MUNICIPAL LAW, SEALING OF RECORDS. 33

ALTHOUGH THE RECORDS OF TRAFFIC INFRACTIONS ARE SEALED PURSUANT TO CPL 160.55, THE RECORDS OF A VIOLATION OF NYC ADMINISTRATIVE CODE 19-190(B), AN UNCLASSIFIED MISDEMEANOR WHICH CRIMINALIZES STRIKING A PEDESTRIAN WHO HAS THE RIGHT OF WAY, ARE NOT SEALED; THEREFORE PLAINTIFF IS ENTITLED TO DISCOVERY OF THOSE RECORDS IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE (FIRST DEPT). 33

TRAFFIC ACCIDENTS, FAILURE TO YEILD. 34

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE EVIDENCE ESTABLISHED DEFENDANT FAILED TO STOP AT A STOP SIGN AND FAILED TO SEE WHAT SHOULD HAVE BEEN SEEN (FIRST DEPT). 34

TRAFFIC ACCIDENTS, LATE NOTICE OF CLAIM. 35

TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW. THE RIGHT LANE WAS FOR RIGHT TURNS ONLY; THE MIDDLE LANE WAS FOR EITHER GOING STRAIGHT OR TURNING RIGHT; HERE THE DRIVER IN THE FAR RIGHT LANE DID NOT TURN RIGHT AND STRUCK THE CAR IN THE MIDDLE LANE WHICH WAS MAKING A RIGHT TURN; THE DRIVER IN THE MIDDLE LANE WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT). 35

TRAFFIC ACCIDENTS, LATE NOTICE OF CLAIM. 36

IN THIS TRAFFIC ACCIDENT CASE INVOLVING THE DEFENDANT NYC TRANSIT AUTHORITY’S BUS, THE AUTHORITY GAINED TIMELY KNOWLEDGE OF THE POTENTIAL CLAIM WHEN IT INVESTIGATED THE ACCIDENT AND WAS NOT PREJUDICED BY THE DELAY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT). 36

WORKERS’ COMPENSATION, INJURED ON THE WAY TO WORK. 37

ALTHOUGH CLAIMANT WAS STRUCK BY A VEHICLE WHILE HE WAS RIDING HIS BICYCLE TO WORK (USUALLY NOT COMPENSABLE), HIS INJURY WAS FOUND COMPENSABLE BY THE WORKERS’ COMPENSATION LAW JUDGE (WCLJ) UNDER THE “SPECIAL ERRAND” EXCEPTION; BECAUSE THE WORKERS’ COMPENSATION BOARD DID NOT ADDRESS THAT ISSUE, THE MATTER WAS REMITTED (THIRD DEPT). 37

WORKERS’ COMPENSATION, SUCCESSIVE INJURIES. 38

A SUBSEQUENT INJURY TO THE SAME BODY “MEMBER” WHICH WAS THE SUBJECT OF A PRIOR SCHEDULE LOSS OF USE (SLU) AWARD NEED NOT BE REDUCED BY THE PERCENTAGE LOSS OF THE PRIOR AWARD (CT APP). 38

WORKERS’ COMPENSATION. 39

BECAUSE CLAIMANT WAS NOT ENTITLED TO A NONSCHEDULE AWARD DUE TO RETIREMENT, HE WAS ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD (THIRD DEPT). 39

WORKERS’ COMPENSATION. 40

THERE WAS NO INDICATION ON THE FORM AND NO REGULATION REQUIRING CLAIMANT TO SUBMIT A SEPARATE RB-89 FORM FOR EACH CLAIM; THE BOARD THEREFORE ABUSED ITS DISCRETION WHEN IT REFUSED TO REVIEW THE WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION ON THAT GROUND (THIRD DEPT). 40

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