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UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was unduly harsh and severe. The defendant, a persistent violent felony offender, was convicted of criminal possession of a weapon and sentenced to 25 years to life:

The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree. * * *

… [T]he sentence imposed, an indeterminate term of imprisonment of 25 years to life as a persistent violent felony offender, is unduly harsh and severe. Defendant did not fire or even directly possess the weapon, and there is no evidence that he knew that his codefendant intended to use it unlawfully. Although defendant has multiple prior felony convictions, several of which are for weapon offenses, he has no history of violence on his record, and his conduct in this case does not in our view warrant the maximum sentence permitted by law. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to an indeterminate term of imprisonment of 16 years to life … . People v Ray, 2018 NY Slip Op 01796, Fourth Dept 3-16-18

CRIMINAL LAW (UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))/HARSH AND SEVERE SENTENCE  (UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))

DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and ordered a new trial because defendant was not included in the Sandoval conference (re: whether defendant could be cross-examined about prior convictions):

Defendant appeals from a judgment convicting him after a jury trial of, inter alia, burglary in the second degree … . As the People correctly concede, reversal is required. The record establishes that defendant was excluded from Supreme Court’s Sandoval conference …  and, because “[t]he court’s Sandoval ruling in this case was not wholly favorable to defendant, . . . it cannot be said that defendant’s presence at the hearing would have been superfluous’ ” … . People v Cooper, 2018 NY Slip Op 01823, Fourth Dept 3-16-18

CRIMINAL LAW (DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT))/SANDOVAL CONFERENCE (CRIMINAL LAW, DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT))/PRESENCE OF DEFENDANT (CRIMINAL LAW, PRESENCE OF DEFENDANT AT MATERIAL STAGES, DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT))

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PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the duty to keep a state park safe is a proprietary function, not a governmental function. The governmental immunity doctrine does not apply. Therefore the claimant’s motion for summary judgment based upon his being bitten by a rabid fox in a park was properly granted:

“The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine . . . the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ ” … .

Here, claimant’s injuries allegedly resulted from defendant’s negligent failure to take adequate steps to protect park patrons from reasonably foreseeable danger, despite having actual notice of a potentially rabid animal on the park premises hours before the incident. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function”… . Further, “a municipality is under a duty to maintain its park . . . facilities in a reasonably safe condition” … . That “duty goes beyond the mere maintenance of the physical condition of the park . . . and, although strict or immediate supervision need not be provided, the municipality may be obliged to furnish an adequate degree of general supervision which may require the regulation or prevention of such activities [or other conditions] as endanger others utilizing the park” … . Thus, we conclude that the court properly determined that claimants’ allegations that defendant failed “to minimize the risk posed with a relevant warning and effective notification to the [p]ark [p]olice” implicated defendant’s proprietary, not governmental, duties. Agness v State of New York, 2018 NY Slip Op 01747, Fourth Dept 3-16-18

COURT OF CLAIMS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/IMMUNITY (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/ANIMAL LAW  (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PROPRIETARY FUNCTION  (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PARKS (COURT OF CLAIMS, PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/RABID ANIMALS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))

THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, in a complex decision covering many issues not summarized here, determined that the language of the contracts and agreements re: the construction of new schools precluded the City of Buffalo Joint Schools Construction Board (Board) from learning the program manager’s (LPC’s) construction and administrative costs. The Board entered construction agreements with LPC as an agent of the City of Buffalo School District (District):

In 2014 and 2015, after operating under the [relevant contracts and agreements] for over 12 years, the Board and the District refused to process or pay the last four payment requisitions until LPC provided them with documentation concerning LPC’s actual construction and administrative costs, information that LPC contended was confidential, proprietary and not subject to disclosure under the [relevant contracts and agreements]. * * *

[The relevant agreements provide] the District with audit and examination rights to any and all records related to the ” construction contingency’ ” portion of the stipulated sum. Nevertheless, that section further provides that, “[n]otwithstanding anything to the contrary contained herein, the foregoing audit and examination rights do no[t] apply to any records maintained by [LPC] (or . . . on behalf of [LPC]) with respect to any Project Administration Costs or Construction Costs other than records directly related to the expenditure of the construction contingency.’ ” …

The contract is a stipulated-sum construction contract. In such contracts, “[t]he owner is obligated to pay the contractor the fixed amount no matter what it costs to finish the work” and, generally, “the owner is not entitled to review the costs that the contractor incurs during the project” … . Considering the general purpose of the contract and the fact that the [related agreements] specifically provide that the audit rights for construction contingency funds did not apply to records concerning LPC’s “Project Administration Costs or Construction Costs” unrelated to the construction contingency, we conclude that the only reasonable way to interpret [the applicable contract] is to determine that it applies to the District’s actual costs only. City of Buffalo City Sch. Dist. v LPCiminelli, Inc., 2018 NY Slip Op 01832, Fourth Dept 3-16-18

CONTRACT LAW (THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT))/CONSTRUCTION CONTRACTS (THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT))/STIPULATED SUM CONTRACTS (THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT))

ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT).

The Fourth Department, over an extensive two-justice dissent which addresses many substantive procedural issues not summarized here, determined plaintiff’s attempt to file and serve an amended complaint was untimely and the relation-back doctrine did not apply:

Pursuant to CPLR 203 (f), “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” It is well established that “the linchpin’ of the relation back doctrine [is] notice to the defendant within the applicable limitations period”… . Here, it is undisputed that the original complaint was never served on defendants. The original complaint thus did not give defendants notice of the transactions or occurrences to be proved pursuant to the amended complaint. The claims in the amended complaint, therefore, are measured for timeliness by service (or filing in this case) of the amended complaint … . “Because no one was served until [after the statute of limitations expired], there is no basis to conclude that defendant[s] had any idea that a lawsuit was pending, much less that [they] would be . . . named [as] defendants,” within the applicable limitations period … . Vanyo v Buffalo Police Benevolent Assn., Inc., 2018 NY Slip Op 01827, Fourth Dept 3-16-18

CIVIL PROCEDURE (ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT))/RELATION-BACK DOCTRINE (ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT))

BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT).

The Fourth Department affirmed Surrogate’s Court’s finding that there was only one original will, a finding made upon remittal from the Court of Appeals. Because no will was found upon decedent’s death, and because, in the initial Surrogate’s Court proceeding, there was conflicting evidence about whether there was one will, with three copies, or four original wills, the presumption of revocation by the decedent had not been rebutted (the decedent could have possessed an original will). In the post-remittal proceeding, Surrogate’s Court determined petitioner, the sole beneficiary of the will, had proven there was only one will, not multiple original wills. Because, upon remittal, Surrogate’s Court found there was only one original will, the presumption of revocation by the decedent did not arise (because the decedent could not have possessed an original). The wills were drawn for decedent and her ex-husband. Petitioner, the ex-husband’s father, was made alternate beneficiary. When decedent and her ex-husband were divorced, the will as it related to the ex-husband was revoked by operation of law, triggering the petitioner’s alternate beneficiary status. The objectants are decedent’s parents and brothers:

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Contrary to objectants’ contention, it cannot be said that the Surrogate erred in crediting the ex-husband’s testimony that he and decedent each signed one original will, one original power of attorney, and one original health care proxy, and that the attorney’s office made three photocopies of each of those estate planning documents. Despite the uncertainty with respect to the ex-husband’s testimony at the initial hearing, his testimony at the hearing upon remittal unequivocally clarified that there was only one original of each of six estate planning documents, i.e., his will, power of attorney, and health care proxy, and decedent’s will, power of attorney, and health care proxy. We conclude that the other instances of inconsistent testimony alleged by objectants have no bearing on the issue whether decedent executed only one original will and were otherwise adequately clarified by the ex-husband. Matter of Lewis, 2018 NY Slip Op 00941, Fourth Dept 2-9-18

TRUSTS AND ESTATES (BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT))/WILLS (PRESUMPTION OF REVOCATION, BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT))/REVOCATION, PRESUMPTION OF (WILLS, BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT))

ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT).

The Fourth Department determined Supreme Court properly granted petitioner a license pursuant to Real Property Actions and Proceedings Law (RPAPL) 881 to enter respondent’s property to paint petitioner’s fence. The fact that petitioner built the fence too close to the property line did not preclude the granting of the license:

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… [W]e conclude that, in the absence of a statutory definition, the usual and commonly understood meaning of the words “improvement” and/or “repair” encompasses the painting of the wooden fence in this case … .That interpretation is supported by the legislative history, which establishes that the legislature—in recognition that the nature of abutting properties often requires property owners to access the neighboring property in order to make improvements or repairs to their own—intended to encourage such improvements or repairs by removing unreasonable obstacles to efforts to prevent blight and deterioration … . Stuck v Hickmott, 2018 NY Slip Op 01013, Fourth Dept 2-9-18

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))/FENCES (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))/LICENSE (RPAPL 881) (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))/REAL PROPERTY  (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))

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PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the hospital’s (Crouse Hospital’s) motion for summary judgment in this medical malpractice action should have been granted. The defendant doctor was not a hospital employee and no hospital employee was named in the complaint or bill of particulars. The plaintiff, in answering the hospital’s summary judgment motion, claimed for the first time that two nurses were negligent. That new theory of recovery could not defeat the motion:

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Following discovery, the hospital moved for summary judgment dismissing the complaint against it, contending that the physician defendant was not its employee and that the hospital therefore could not be held vicariously liable for his alleged negligence. In opposing the motion, plaintiff did not address the hospital’s contention with respect to the physician defendant’s employment status and instead argued for the first time that two of the hospital’s nurses were negligent and that the hospital was vicariously liable for their actions. In our view, that is a new theory of recovery and thus could not be used by plaintiff to defeat the hospital’s motion … . We note that plaintiff did not move to amend the bill of particulars to allege that the hospital was vicariously liable for the nurses’ negligence. Inasmuch as plaintiff did not dispute that the hospital was not vicariously liable for the alleged negligence of the physician defendant, there was no basis to deny the motion, which we now grant. DeMartino v Kronhaus, 2018 NY Slip Op 00974, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (ANSWERING PAPERS,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the medical malpractice against the resident (O’Donnell) who assisted the plaintiff’s surgeon (Weise) should have been dismissed. Although the resident severed a nerve during the bone drilling procedure, the resident was under the supervision of the surgeon and exercised no independent judgment. Therefore the action against the resident and the hospital (Crouse Hospital), as the resident’s employer, should have been dismissed:

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It is well settled that a “resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” … . Even where a resident “play[s] an active role in [plaintiff’s] procedure,” the resident cannot commit malpractice unless he or she was shown to have exercised some ” independent medical judgment’ ” … . Here, it is undisputed that plaintiff was Wiese’s patient, and Wiese determined the type of surgery to be performed on plaintiff. The deposition testimony of O’Donnell and Wiese establishes that O’Donnell was acting as a resident under Wiese’s direction and supervision during the procedure. Indeed, Wiese testified at his deposition and averred in his affidavit that he supervised O’Donnell’s selection of the location and angle of the drill, and that he made the decision to stop drilling. We therefore conclude that O’Donnell and Crouse Hospital met their burden on the motion by establishing that O’Donnell did not exercise independent medical judgment with respect to his operation of the drill, and plaintiff failed to raise an issue of fact … . Blendowski v Wiese, 2018 NY Slip Op 00973, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/MEDICAL MALPRACTICE (ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/INDEPENDENT JUDGMENT (MEDICAL MALPRACTICE, ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))

PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT).

The Fourth Department determined plaintiff lacrosse player’s action was not barred by a waiver or the doctrine of assumption of the risk. Plaintiff was in a ground ball drill when a coach through a ball at her head, injuring her. The coach’s act was arguably grossly negligent, reckless or intentional, and therefore not covered by the waiver or the doctrine of assumption of the risk:

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Here, plaintiff’s complaint and affidavit include allegations that the actions of defendants were grossly negligent and extremely reckless. Contrary to defendants’ contention, the written waiver does not bar plaintiff’s action inasmuch as a waiver is not enforceable with respect to allegations of grossly negligent conduct … .

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… [I]t is well settled that a person who voluntarily participates in a recreational activity such as lacrosse “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”… . “Such a person, however, will not assume the risks of reckless or intentional conduct, nor will a claim be barred where the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent’ in the activity” … . Tauro v Gait, 2018 NY Slip Op 00952, Fourth Dept 2-9-18

NEGLIGENCE (PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))/ASSUMPTION OF RISK  (PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT)/WAIVER (LACROSSE INJURY, PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))/LACROSSE (ASSUMPTION OF THE RISK, PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))

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