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Late Notice of Claim Should Not Have Been Deemed Timely (Sua Sponte, Nunc Pro Tunc)—the 90 Days Started Running When Plaintiff’s Asthma Symptoms Worsened, Not When a Doctor Connected the Symptoms to Mold in the Apartment—the Plaintiff Did Not Make a Motion for Permission to File a Late Notice of Claim

The First Department determined Supreme Court should not have, sua sponte (in the absence of a motion by the plaintiff), deemed plaintiff’s late notice of claim timely filed nunc pro tunc. The claim alleged mold resulting from a leak in plaintiff’s New York City Housing Authority (NYCHA) apartment exacerbated plaintiff’s asthma.  The First Department found that the cause of action accrued when plaintiff’s symptoms worsened, no later than February, 2011, not when a connection between the mold and plaintiff’s symptoms was suggested by a doctor in March 2011:

[Plaintiff] was required to file a notice of claim within 90 days after “the date of [her] discovery of the injury” or the date on which “through the exercise of reasonable diligence the injury should have been discovered” (CPLR 214-c[3]; see General Municipal Law § 50-e[1][a]…). NYCHA established that plaintiff’s claim accrued no later than February 2011, by relying on plaintiff’s testimony that her asthma symptoms worsened, resulting in more frequent attacks and hospital visits, starting in September or December of 2010, or January or February of 2011, when she was prescribed additional medications, as reflected in her hospital records. Thus, the notice of claim, filed over 90 days later in June 2011, without leave of court, was late and without effect … .

Plaintiff argues that her claim did not accrue until March 2011, when a doctor noted a connection between her symptoms and the mold in her apartment. However, a “cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e.[,] when the injury is apparent, not when the specific cause of the injury is identified” … .

The court lacked authority to deem the late notice of claim timely filed nunc pro tunc, since plaintiff never moved for such relief and the statutory time limitation for bringing the claim had already expired when NYCHA moved for summary judgment … . Vincent v New York City Hous. Auth., 2015 NY Slip Op 04767, 1st Dept 6-9-15

 

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Injury While Lowering a Heavy Tank Entitled Plaintiff to Summary Judgment on His Labor Law 240 (1) Claim—Party’s Cross Motion Should Not Have Been Denied for Failure to Attach Pleadings—the Pleadings Had Been Provided to the Court by Other Parties

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) claim.  A rope attached to a heavy tank being lowered down some stairs by plaintiff severed one finger and a portion of another (“grave injury”). The court found that the incident was gravity-related, plaintiff was not provided with adequate safety devices, and plaintiff’s actions were not the sole proximate cause of his injury. The court noted that another party’s cross-motion for summary judgment should not have been denied on the ground the pleadings were not attached to the motion papers.  The pleadings had been provided to the court by other parties. Serowik v Leardon Boiler Works Inc., 2015 NY Slip Op 04773, 1st Dept 6-9-15

 

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Hearsay Statement Did Not Meet the “Reliability” Requirement for Admissibility as a Statement Against Penal Interest

The First Department determined defendant’s friend’s alleged hearsay statement that he, not defendant, assaulted the victim was properly precluded. The statement did not meet the “reliability” requirement for admissibility as a statement against penal interest (an exception to the hearsay rule):

This hearsay evidence did not satisfy the reliability requirement for admissibility under the exception for declarations against penal interest …, or under a due process theory … . Defendant’s friend told defense counsel that he neither committed the assault nor made the alleged statements, the statements were contradicted by trial witnesses who testified that the friend was nearby but did not participate in the assault, the statements were allegedly made to persons closely aligned with defendant, and recorded phone calls raised suspicion that defendant had made efforts to manufacture exculpatory evidence. All these factors undermined any reliability this hearsay evidence may have had … . People v Jones, 2015 NY Slip Op 04781, 1st Dept 6-9-15

 

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Pursuant to the Public Authorities Law, Interest on a Judgment To Be Paid by the New York City Transit Authority Cannot Exceed 3%

The First Department noted that, although plaintiff procured a judgment (after trial) for past lost earnings against the city, the judgment will ultimately be paid by non-party New York City Transit Authority.  Therefore, pursuant to Public Authorities Law 1212(6), the interest on the judgment cannot exceed 3 %.  Soltero v City of New York, 2015 NY Slip Op 04770, 1st Dept 6-9-15

 

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New York City Taxi and Limousine Commission (TLC) Did Not Have the Authority to Promulgate “Health Care Rules” and Mandate Deductions from Taxi Fares to Pay for Healthcare Services and Disability Coverage for “Medallion” Taxi Cab Drivers

The First Department determined the New York City Taxi and Limousine Commission (TLC) exceeded its authority and acted arbitrarily and capriciously when it promulgated “Health Care Rules” and determined six cents per taxi-fare could be deducted for the purpose of providing healthcare services and disability coverage for “medallion” taxi cab drivers.

TLC’s “expansive mandate to develop and improve taxi and limousine service” notwithstanding …, we find that TLC exceeded its authority in promulgating the Health Care Rules … .

First, the record demonstrates that, in its attempt to establish a cost-effective structure for promoting driver health, TLC, motivated by broad “economic and social concerns,” was making policy, and therefore was “operating outside of its proper sphere of authority” … . Second, TLC manufactured a “comprehensive set of rules without benefit of legislative guidance” … . TLC has certain delineated powers to ensure that drivers are capable of driving safely (see New York City Charter § 2300; Administrative Code of City of NY §§ 19-505[b][3], [d], [h], [l]; 19-512.1[a]). However, nothing in the Charter or the enabling Code provisions contemplates the establishment and outsourcing of a miniature health insurance navigation and disability insurance department. Third, no expertise in the field of health care services or disability insurance was involved in the development of the rule (indeed, this is not TLC’s area of expertise), a fact highlighted by the lack of technical discussion at the hearings on the proposed rule amendments … . Matter of Ahmed v City of New York, 2015 NY Slip Op 04733, 1st Dept, 6-4-15

 

Question of Fact Whether It Was Foreseeable that Overbooking a Theater Could Cause Crowd-Related Injury (Plaintiff Alleged Injury in a “Stampede”)

The First Department determined there was a question of fact whether it was foreseeable that overbooking a movie theater would result in crowd-related problems. Here plaintiff alleged she was injured in a “stampede” which occurred when she and the group she was with were told to turn around and go back downstairs:

… [T]he motion court properly concluded that defendants did not establish entitlement to judgment as a matter of law. It is well settled that landowners and permittees owe those “on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition,” and “to minimize foreseeable dangers on their property” … . Under the circumstances presented, involving the deliberate overbooking of a theater for a free film screening, defendants were required to show that they took adequate crowd control measures to address the foreseeable risks to those attending in order to meet their prima facie burden of demonstrating entitlement to summary judgment … . Here, defendants knew that the screening was deliberately overbooked, and it was, therefore, foreseeable that overcrowding could be a problem … . Deposition testimony from both plaintiff and Regal’s manager demonstrated that the staircase on which plaintiff fell was crowded, and that the crowd had formed a “stampede” after being redirected downstairs to find available seats in the crowded theater. Since defendants failed to present evidence that adequate crowd control measures were in place, the motions for summary judgment were properly denied. Sachar v Columbia Pictures Indus., Inc., 2015 NY Slip Op 04717, 1st Dept 6-4-15

 

Doctrine of Primary Assumption of Risk Applies to Informal Game of Catch on a Paved Handball Court

The First Department determined the doctrine of primary assumption of risk applied where plaintiff tripped on the raised, cracked, uneven edge of a sidewalk adjacent to the paved handball court where he was playing catch with a friend:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with the construction of the playing surface, including risks involving less than optimal conditions .. . “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

The assessment of awareness must take place against a particular plaintiff’s skill and experience … . Here, the 26-year-old plaintiff was familiar with the risks inherent in the sport of football, such as the risk of falling while running to catch a ball. He had been to Jerome Playground South to play football or baseball at least 15 times previously and was generally aware of defects in the park. Although plaintiff alleges that he did not see the particular defect that caused him to trip before he fell, cracks in the concrete were visible to a person walking by and nothing covered or concealed the open and obvious condition. Given these circumstances, the primary assumption of risk doctrine is applicable “because plaintiff was involved in an athletic activity at a designated venue and was aware of the perfectly obvious risk of playing on the cracked court”… . Latimer v City of New York, 2014 NY Slip Op 03954 1st Dept 6-3-14

 

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Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants

The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action.  The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require “good tissue support:”

Plaintiff … failed to rebut defendants’ showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information … disclosed to her … .

There is no basis in the law for the dissent’s conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer’s representative in response to her general query. The dissent mistakenly equates that representative’s conclusory email with a product’s written manufacturer warning or a consulting doctor’s opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14

 

Cumulative Effect of Several “Suggestive” Factors Rendered the Show-Up Identification Inadmissible

The First Department, in a full-fledged opinion by Justice Gische, over a dissent, determined the show-up identification of the defendants was unduly suggestive and should have been suppressed. While none of the “suggestive” factors alone would have been sufficient to invalidate the identification, the cumulative effect of all the factors rendered the identification inadmissible. The defendants were handcuffed and standing together in a well-lit garage, surrounded by police officers.  The driver of the police car carrying the complainant, who had been assaulted an hour before by “three or four black teens,” shown the car’s headlights and “takedown” lights on the defendants. The defendants, none of whom were “teens,” and one of whom was light-skinned, were covered in soot. The complainant looked at the defendants through the police car’s mesh divider and windshield.  In addition to noting there were no “exigent circumstances” mandating the show-up procedure, the court described the factors which cumulatively rendered the show-up inadmissble at trial as follows:

Here, the three suspects were standing side by side after the complainant had described her attack by multiple attackers. Defendants were flanked by as many as eight officers and, apart from the complainant, they were the only civilians present. Defendants were visibly restrained. This was obvious, not only from the fact that their hands were behind their backs, but also from the fact that defendant Santiago, who had visible physical injuries to his face indicative of a recent scuffle, was being physically restrained by one of the officers as the complainant made her identification. Defendants were covered in soot, such that it affected their appearance, particularly as to skin color. Previously, the complainant had described her assailants’ “black” skin color as a prominent identifying feature, along with their ages. As the complainant was driven from the precinct to the location of the showup identification, she was told that she would be looking at people, and that she should tell the officers if she had seen them before. When defendants were shown to the complainant, they were illuminated by the patrol car’s headlights and takedown flood lights, even though the garage lighting itself was good.

We recognize that some of these factors, either alone or even in combination do not necessarily make a showup identification unduly suggestive. A showup identification may be acceptable, even where a defendant is handcuffed and guarded by police officers when shown to the complainant … . Nor is the fact that remarks are made to a complainant before being taken to a lineup itself a basis for a prohibited showup identification … . This is because a person of ordinary intelligence would realize that the police are showing them someone suspected of having committed a crime … . Even shining lights on a suspect is not by itself unduly suggestive … . It is the cumulative effect of what otherwise might be individually permissible that makes this particular showup identification unduly suggestive. The showup was clearly beyond the high water mark set forth by the Court of Appeals… . People v Cruz, 2015 NY Slip Op 04597, 1st Dept 6-2-15

 

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City Was Not Required to Consider the Petitioners’ Preferred Scenario for Development—City Was Required Only to Consider the “No Action” Alternative

The First Department determined the city (NYC) took the requisite “hard look” at a development project and provided a “reasoned elaboration” of the basis for its approval of the project. The court noted that, although the City Environmental Quality Review (CEQR) requires that the Final Environmental Impact Statement (FEIS) include an analysis of a “No Action” alternative (an analysis based on the assumption the project will not be constructed), the CEQR does not require the FEIS to consider the petitioners’ preferred alternative development scenario. Matter of Residents for Reasonable Dev. v City of New York, 2015 NY Slip Op 04560, 1st Dept 5-28-15

 

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