Fourth Department – Page 153 – New York Appellate Digest

IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the city’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged that work done on the area (between the curb and the sidewalk) where she fell created a dangerous condition. The work was done a year before the fall. The city would be liable only if the dangerous condition was immediately created by the work, not if the condition developed over time:

Although plaintiff submitted evidence that defendant may have created the sinkhole by improperly excavating and backfilling the excavated area, we agree with defendant that plaintiff failed to proffer evidence that the depression “was present immediately after completion of the work” … . Indeed, it is well settled that the affirmative negligence exception ” does not apply to conditions that develop over time’ ” … . Burke v City of Rochester, 2018 NY Slip Op 00769, Fourth Dept 2-2-18

MUNICIPAL LAW (IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, (IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SIDEWALKS (IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

February 2, 2018

Municipal Law, Negligence

CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this drainage-system maintenance case should not have been granted. Plaintiff alleged the city’s failure to maintain a storm drainage system caused flooding. The city argued the flooding was caused by an “act of God.” The Fourth Department noted that city’s own papers raised a question of fact whether the failure to clean the system regularly caused the flooding:

Defendant submitted the affidavits of its commissioner of public works and its senior engineer, who averred that there is a “trash rack” located in the rear of plaintiff’s property that is used to filter debris from the water entering the underground drainage system from a nearby ravine. If too much debris builds up in the trash rack, it will block the flow of water into the drainage system and flood plaintiff’s premises. According to the deposition testimony of a member of plaintiff limited liability company, which testimony defendant also submitted, such flooding occurred previously in 2006 and caused severe property damage. The senior engineer averred that, to prevent flooding on plaintiff’s property, defendant’s employees periodically inspect and maintain the ravine. Plaintiff’s member, however, testified that defendant’s employees rarely came to the property to clear debris from the trash rack. 2305 Genesee St., LLC v City of Utica, 2018 NY Slip Op 00745, Fourth Dept 2-2-18

MUNICIPAL LAW (NEGLIGENCE, DRAINAGE SYSTEM, CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/NEGLIGENCE (MUNICIPAL LAW, DRAINAGE SYSTEM, CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/STORM DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

February 2, 2018

Municipal Law, Negligence

VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this traffic accident case, noted that verbal notice to the city about potholes, even if reduced to writing, does not satisfy the written notice prerequisite for the city’s liability:

Defendant established that it lacked prior written notice of a defective or unsafe condition in the road, and plaintiff failed to meet its burden of demonstrating that an exception to the general rule is applicable… . Contrary to plaintiff’s contention, it is well established that “verbal or telephonic communication to a municipal body that is reduced to writing [does not] satisfy a prior written notice requirement” … . Tracy v City of Buffalo, 2018 NY Slip Op 00704, Fourth Dept 2-2-1

MUNICIPAL LAW (TRAFFIC ACCIDENTS, POTHOLES, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/NEGLIGENCE (MUNICIPAL LAW, TRAFFIC ACCIDENTS, POTHOLES, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, POTHOLES, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/POTHOLES (MUNICIPAL LAW, NEGLIGENCE, TRAFFIC ACCIDENTS, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, NEGLIGENCE, TRAFFIC ACCIDENTS, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))

February 2, 2018

Animal Law, Negligence

PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this car-animal accident case should not have been granted. Although, based upon the doctrine of res ipsa loquitur, the presence of defendants’ black angus bull in the roadway may have constituted negligence, plaintiff did not demonstrate she could not have avoided the accident by lowering her speed on that dark and rainy night:

Cattle are classified as “domestic animal[s]” in Agriculture and Markets Law § 108 (7), and it is well established that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept” … . Here, “defendants were in exclusive control of the [bull] and the fences surrounding the pasture where [it was] kept” and, because cattle “do not generally wander unattended on public streets in the absence of negligence”… , we conclude that the court properly inferred defendants’ negligence as a starting point in determining their motion.

We further conclude that defendants failed to rebut the inference of negligence inasmuch as they failed to submit proof that “the animal’s presence on the [road] was not caused by [their] negligence” … , or “that something outside of [defendants’] control” allowed the bull to escape … . …

Plaintiff’s burden on her motion was to establish both that defendants were negligent as a matter of law, and that she was free of comparative fault … . Even assuming, arguendo, that plaintiff met her burden with respect to defendants’ alleged negligence, we conclude that she failed to meet her burden with respect to her own alleged comparative negligence. … [T]here is an issue of fact whether slower travel would have enabled plaintiff to avoid the collision, and that issue must be determined by a jury … . Catalano v Heiden Val. Farms, 2018 NY Slip Op 00759, Fourth Dept 2-2-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ANIMAL LAW (TRAFFIC ACCIDENTS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/RES IPSA LOQUITUR (ESCAPED ANIMALS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (ESCAPED ANIMALS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

February 2, 2018

Civil Procedure, Evidence, Negligence

PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, reinstated the jury’s damages award in this personal injury case. Plaintiffs moved to set aside the damages award unless the defendant stipulated to an increased amount and Supreme Court granted the motion. The Fourth Department explained that the jury was free to disregard expert opinion and the jury could have concluded that plaintiff had exaggerated her injuries or that the injuries were preexisting:

“It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury . . . , the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony” … .. Thus, “even in cases where there is evidence which could support a conclusion different from that of a jury, its verdict will still be accorded great deference and respect so long as there is credible evidence to support its interpretation” … . In addition, ” a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ “… . In short, “[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … . Mecca v Buffalo Niagara Convention Ctr. Mgt. Corp., 2018 NY Slip Op 00735, Fourth Dept 2-2-18

NEGLIGENCE (DAMAGES, PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EVIDENCE (EXPERT OPINION, DAMAGES, PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EXPERT OPINION (DAMAGES, LAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/DAMAGES (PERSONAL INJURY, PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CPLR 4404 (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))

February 2, 2018

Court of Claims, Negligence

TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, modifying (reversing) the Court of Claims, determined the “dangerous condition” cause of action brought on behalf of plaintiff’s decedent should not have been dismissed. The driver passed two signs indicating the bridge ahead was closed, drove through a sign that was in the middle of the road flanked by barricades, and then struck a beam at the entrance to the bridge which spanned the width of the bridge. The driver was killed instantly but the car continued and struck another similar beam spanning the other end of the bridge, injuring plaintiff’s decedent (who died the next day). The plaintiff alleged, under a “second impact” theory, the beams, which were welded at a height which allowed a vehicle to pass under under them, constituted a dangerous condition which was the proximate cause of death. The Fourth Department held the beams constituted a dangerous condition as a matter of law:

… [T]he court erred in dismissing the claim insofar as it alleges that defendants created a dangerous condition that constituted a proximate cause of decedent’s injuries. We therefore modify the judgment accordingly. Although defendant State of New York is not an insurer of its roads and highways … , it “has an obligation to provide and maintain adequate and proper barriers along its highways” … . Here, we conclude that defendants’ decision to weld a steel box beam across the front of the Bridge, at a height that allowed a motor vehicle to proceed under the beam, constituted the creation of a dangerous condition as a matter of law … .

… [C]aimant proceeded under a “second-impact theory whereby she contended, not that [defendants] caused the accident, but that [their] negligence . . . was [a] proximate cause of . . . decedent’s injury”… . The fact that no negligent act of defendants caused the vehicle to collide with the steel box beam is irrelevant. The point to be addressed is whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death … . Reames v State of New York, 2018 NY Slip Op 00713, Fourth Dept 2-2-18

NEGLIGENCE (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/COURT OF CLAIMS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/SECOND IMPACT THEORY (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))

February 2, 2018

Evidence, Negligence

POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT).

The Fourth Department determined defendants’ motion for summary judgment in this car-bicycle accident case was properly denied. The police report was not authenticated and was not submitted in admissible form, so it could not be considered. The defendant driver failed to eliminate a question of fact whether she was comparatively negligent for failing to see what should have been seen:

Although “reports of police officers made upon their own observation and while carrying out their police duties are generally admissible in evidence”… , the report in this case was inadmissible because it was “not authenticated” and, “[b]ecause the report was not submitted in evidentiary form, it should not have been considered on the summary judgment motion” … . Here … the parties failed to “provide[] an acceptable excuse” for failing to tender the evidence in admissible form … .

With respect to the merits, ” [w]hether a plaintiff [or defendant] is comparatively negligent is almost invariably a question of fact and is for the jury to determine in all but the clearest cases’ ” … . In support of their motion, defendants submitted the deposition testimony of defendant, which raised a question of fact regarding her attentiveness as she drove her vehicle… . It is well settled that every driver of a motor vehicle has “the common-law duty to see that which he [or she] should have seen . . . through the proper use of his [or her] senses’ ” … , and that “a motorist is required to keep a reasonably vigilant lookout for bicyclists, . . . and to operate the vehicle with reasonable care to avoid colliding with anyone on the road” … . Here, the evidence submitted by defendants established that defendant had an unobstructed view of the street as plaintiff’s bicycle approached her vehicle, yet she failed to see him or his bicycle prior to the collision. Thus, we conclude that defendants “failed to establish that there was nothing [defendant] could do to avoid the accident and therefore failed to establish that she was free of comparative fault” … . Chilinski v Maloney, 2018 NY Slip Op 00744, Fourth Dept 2-2-18

NEGLIGENCE (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/EVIDENCE (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/POLICE REPORTS (EVIDENCE, POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/TRAFFIC ACCIDENTS (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/BICYCLES (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))

February 2, 2018

Employment Law, Municipal Law, Negligence

CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an off-duty police officer (Rodriguez) working security at a bar was not acting within the scope of his employment during the encounter with plaintiff. Therefore the causes of action against the city based upon vicarious liability or respondeat superior, alleging negligence, assault and false imprisonment, should have been dismissed:

… [W]here there are no material disputed facts and there is no question that the employee’s acts fall outside the scope of his or her employment, the determination is one of law for the court and not one of fact for the jury … . A municipality may be held vicariously liable for the conduct of a member of its police department if the officer was engaged in the performance of police business… . Here, in support of their motion, the City defendants established that Rodriguez was at all relevant times off-duty, was engaged in other employment as a private citizen, was not in uniform, did not arrest plaintiff, and did not display his police badge. We thus conclude that the City defendants met their prima facie burden of establishing that Rodriguez was not acting within the scope of his employment as a police officer during the encounter with plaintiff … . In opposition, plaintiff failed to raise a triable issue of fact … . We reject plaintiff’s contention that Rodriguez’s identification of himself as a police officer during the encounter raised an issue of fact sufficient to defeat the motion with respect to the issue of scope of employment … . Maloney v Rodriguez, 2017 NY Slip Op 08993, Fourth Dept 12-22-17

NEGLIGENCE (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/MUNICIPAL LAW (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))

December 22, 2017

Municipal Law, Negligence

IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the village’s motion for summary judgment in this slip and fall case should have been granted. Where a municipality has a written notice requirement which has not been met, it still can be liable for a dangerous condition it created. However a defect which develops gradually over time, as opposed to immediately after some act by the municipality, is not actionable. Here the collapse of pavement near a storm drain was caused by water over time:

There is no dispute that defendant established that it lacked prior written notice, thus shifting the burden to plaintiff to demonstrate that an exception to the general rule is applicable … . Such an exception exists where “the municipality affirmatively created the defect through an act of negligence” … . That exception, however, applies only “to work by the [municipality] that immediately results in the existence of a dangerous condition” … . Here, plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work … . Malek v Village of Depew, 2017 NY Slip Op 08998, Fourth Dept 12-22-17

NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/MUNICIPAL LAW (SLIP AND FALL, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))

December 22, 2017

Medical Malpractice, Negligence

PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

The Fourth Department determined plaintiffs’ battery and medical malpractice causes of action properly survived summary judgment. The court noted that the defendants had submitted plaintiff’s testimony in support of summary judgment and thereby demonstrate triable issues of fact. With respect to the battery cause of action, the court wrote:

It is “well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, plaintiffs allege in the complaint that “defendant physician knew that . . . she was exceeding the scope of . . . plaintiff’s consent by performing a medical procedure that . . . plaintiff had not authorized” … and, inasmuch as defendants do not challenge the battery claim with respect to the element of causation, we conclude that plaintiffs have stated such a claim. Tirado v Koritz, 2017 NY Slip Op 08954, Fourth Dept 12-22-17

NEGLIGENCE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’s TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)/BATTERY (MEDICAL MALPRACTICE, (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

December 22, 2017

Tag Archive for: Fourth Department

IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT).

PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT).

CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT).

IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT).

PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

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