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ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT ON LIABILITY, IT IS A VALID AFFIRMATIVE DEFENSE WHICH IS RELEVANT TO DAMAGES; THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s comparative-negligence affirmative defense should not have been dismissed. Although plaintiff’s comparative negligence is no longer a bar to summary judgment on liability, it is relevant to damages:

Plaintiff was injured when he was struck by the wheelchair ramp of a bus. That bus was owned by defendants and operated by an employee of defendants. The bus operator testified that he deployed the ramp and saw it hit plaintiff. He testified that he gave warnings in a loud voice before lowering the ramp, which made a “very loud” beeping noise that was “excruciating.”

Plaintiff met his prima facie burden by submitting evidence, including his deposition testimony, that the operator was negligent in lowering the ramp onto the sidewalk when it was not reasonably safe to do so … . In opposition, defendants did not offer any nonnegligent explanation for the accident … . This accident was not within plaintiff’s exclusive knowledge, because it occurred in the presence of a potential witness, namely the operator … . Defendants’ remaining arguments effectively assert comparative negligence by plaintiff, which he was not required to disprove to be entitled to partial summary judgment … .

Supreme Court should not, however, have dismissed the affirmative defense of comparative negligence. At summary judgment, issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party … . Prendergast v New York City Tr. Auth., 2023 NY Slip Op 05378, First Dept 10-24-23

Practice Point: Even where a plaintiff is entitled to summary judgment on liability, a defendant’s comparative-negligence affirmative defense remains relevant to damages.

 

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PETITIONER FIREFIGHTER WAS INJURED WHEN HE BECAME DEHYDRATED DURING TRAINING; HE WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS BECAUSE THE INJURY DID NOT OCCUR AS A RESULT OF AN UNEXPECTED EVENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined petitioner NYC firefighter was not entitled to accidental retirement (ADR) benefits because he was injured performing routine duties and not when responding to an unexpected event. Petitioner suffered an injury to his leg due to dehydration during training:

ADR benefits are awardable only where the individual’s disability was the natural and proximate result of a service-related accident, i.e., “a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'” … . Petitioner’s injury was the result of an incidental — not accidental — event … because the injury was sustained while petitioner was performing routine duties, not as a result of an unexpected event … . Dehydration suffered by petitioner while running in hot weather in heavy gear was a foreseeable risk of the firefighting training exercise … . Matter of Rivera v Board of Trustees of N.Y. Fire Dept., 2023 NY Slip Op 05379, First Dept 10-24-23

Practice Point: Here a NYC firefighter was injured during training, not as a result of an “unexpected event.” Therefore he was not entitled to accidental disability retirement benefits.

 

IN A FALLING OBJECT CASE WHERE INADEQUATE SAFETY EQUIPMENT IS ALLEGED, THE FACT THAT THE PLAINTIFF DOES NOT KNOW WHAT THE OBJECT WAS DOES NOT PRECLUDE SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this falling object case. Plaintiff did not see or know what struck him. There was a hole in the protective netting:

… [T]he fact that the injured plaintiff could not identify the object that struck him or its origin did not preclude summary judgment in plaintiffs’ favor. A plaintiff’s prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him … . Further, a plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries … . Here, plaintiff testified that he was struck on the head and neck by an unknown object while working on an outrigging platform on the 25th floor of the building under construction. He also testified that he heard workers stripping wood on the floors above him at the time of the accident, and submitted photographs depicting a large hole in the safety netting that served as overhead protection. This evidence was sufficient to establish prima facie that the accident was the result of a violation of Labor Law § 240(1) … . In opposition, defendants failed to provide any version of the accident under which they could not be held liable, making summary judgment appropriate … . Harsanyi v Extell 4110 LLC, 2023 NY Slip Op 05313, First Dept 10-19-23

Practice Point: Here plaintiff alleged he was struck by a falling object and the safety netting was inadequate. The fact that he did not know what the object was did not preclude summary judgment on his Labor Law 240(1) cause of action.

 

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A JUDGE CANNOT ENTER A JUDGMENT WHICH DOES NOT CONFORM TO THE ORDER; HERE THE JUDGMENT ELIMINATED MILLIONS OF DOLLARS IN DAMAGES AND EXTINGUISHED A DEFENDANT’S LIABILITY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the judge did not have the power to, sua sponte, enter an judgment which did not conform to its order. The judgment eliminated millions of dollars in damages and extinguished liability with respect to a defendant:

“A written order [or judgment] must conform strictly to the court’s decision, and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . A court exceeds its authority when it sua sponte vacates its prior order, as it “has no revisory or appellate jurisdiction, sua sponte, to vacate its own order” … . Here, the court exceeded its authority in entering the judgment, which effectively reversed or vacated its prior confirmation order without notice. Accordingly, the court is directed to enter a revised judgment that conforms to the confirmation order with respect to damages and liability. Magna Equities II, LLC v Writ Media Group Inc., 2023 NY Slip Op 05320, First Dept 10-19-23

Practice Point: A judge cannot effectively vacate a prior order by entering a judgment which does not conform to the order.

 

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MALPRACTICE TREATING THE INITIAL MEDICAL INJURY AT ANOTHER HOSPITAL IS A FORESEEABLE CONSEQUENCE OF THE INITIAL MEDICAL INJURY (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the medical malpractice action, noted that malpractice in treating an injury is a foreseeable consequence of the injury. Plaintiff’s decedent was injured during surgery and the injury was subsequently treated at another hospital (The Valley Hospital). Defendants’ expert opined that a delay in treatment at The Valley Hospital was the cause of decedent’s injuries:

Although defendants’ expert opined that the cause of decedent’s injuries was negligent delay by The Valley Hospital, any such delay “does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury” … . Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort … . Therefore, regarding these injuries, defendants’ expert “never actually opined that [decedent’s] claimed injuries were not causally related to defendants’ alleged malpractice” … . Murphy v Chinatown Cardiology, P.C., 2023 NY Slip Op 05321, First Dept 10-19-23

Practice Point: If the initial medical injury leads to subsequent treatment at another hospital, any malpractice in the subsequent treatment is a foreseeable consequence of the initial medical injury.

 

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​ THE MOTION TO AMEND THE COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES SHOULD HAVE BEEN GRANTED; ADDING ALLEGATIONS WHICH INCREASE A DEFENDANT’S EXPOSURE TO LIABILITY DOES NOT CONSTITUTE PREJUDICE TO THE DEFENDANT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the motion to amend the complaint to add a claim for punitive damages did not prejudice defendant (Eldridge) and should have been granted:

The court improvidently exercised its discretion and should have granted plaintiffs’ motion to amend the complaint to add a claim for punitive damages against Eldridge based on his deposition testimony that he knowingly drove a truck on a public roadway with defective brakes, horn, and one inoperable windshield wiper, and was reaching for his cell phone that had fallen to the floor of the car when his truck collided with the rear of plaintiffs’ vehicle. A jury might find that such conduct sufficiently demonstrated a conscious and willful disregard of the interests of others … .

The court denied plaintiffs’ motion to reargue their … order upon a finding that the amendment would prejudice Eldridge because it subjected him to personal exposure in the accident. However, greater exposure to liability does not constitute prejudice. There must be some indication that defendant has been hindered in the preparation of its case or has been prevented from taking some measure to support its position, and the burden of demonstrating prejudice is on the party opposing amendment … . Eldridge failed to sustain his burden of showing prejudice. Owens v STD Trucking Corp., 2023 NY Slip Op 05323, First Dept 10-19-23

Practice Point: Here the fact that the proposed amendment to the complaint exposed the defendant to greater exposure to liability does not constitute prejudice. The motion to amend the complaint to add a claim for punitive damages should have been granted.

 

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THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:

The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e. Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23

Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.

 

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FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT). ​

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

 

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DEFENDANT, IN THE PLEA COLLOQUY, SAID SHE ACTED IN SELF DEFENSE; AT THAT POINT THE JUDGE SHOULD HAVE MADE SURE SHE WAS AWARE SHE WAS WAIVING THE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the judge, based on the plea colloquy, should have questioned the defendant about her waiver of her right to present a justification defense:

The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea colloquy, “I had to defend myself” and “I wasn’t just the aggressor in the situation” (see People v Muniz-Cayetano, 186 AD3d 1169, 1171-1172 [1st Dept 2020] …). The People concede that the particulars of this case are indistinguishable from those of Muniz-Cayetano and that defendant’s guilty plea should be vacated. People v Williams, 2023 NY Slip Op 05195, First Dept 10-12-23

Practice Point: Here the defendant said she acted in self defense during the plea colloquy. At that point the judge should have made sure she knew about and was waiving the justification defense.

 

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THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).

The First Department, vacating defendant’s plea and dismissing the indictment, determined defendant’s plea was invalid because it was not clear he made an informed decision to waive a viable insanity defense:

As the People concede, the circumstances of this unique case warrant vacating the plea and dismissing the indictment. The plea allocution did not address whether defendant was making an informed decision to waive a potentially viable insanity defense … , and the record as a whole casts significant doubt on defendant’s mental competence and ability to understand the proceedings or the terms of his plea … .

Under these circumstances, the appropriate remedy is dismissal rather than a remand for further proceedings. Among other things, this 68-year-old, severely mentally ill defendant lives in a secured unit of an assisted living facility under a civil guardianship order. People v Cosme, 2023 NY Slip Op 05207, First Dept 10-12-23

Practice Point: Here it was apparent defendant suffered from mental health issues. The plea was vacated and the indictment dismissed because the allocution did not make it clear that defendant had made an informed decisions to waive a viable insanity defense. Defendant was returned to an assisted living facility under a civil guardianship order.

 

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