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POWERS GRANTED TO THE GUARDIAN FOR AN INCAPACITATED PERSON SHOULD NOT HAVE EXCEEDED THOSE RECOMMENDED BY THE COURT APPOINTED EVALUATOR (SECOND DEPT).

The Second Department determined Supreme Court properly appointed a guardian for an incapacitated person, but should not have granted powers to the guardian over and above the powers recommended by the court-appointed evaluator:

Mental Hygiene Law § 81.11(f) provides that “[i]f on or before the return date designated in the order to show cause the alleged incapacitated person or counsel for the alleged incapacitated person raises issues of fact regarding the need for an appointment under this article and demands a jury trial of such issues, the court shall order a trial by jury thereof.” Mental Hygiene Law § 81.11(f) further states that “[f]ailure to make such a demand shall be deemed a waiver of the right to trial by jury.” …

Nevertheless, the judgment must be modified since the broad powers granted to the appointed guardian are inconsistent with the statutory requirement that the guardian be granted “only those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention” (Mental Hygiene Law § 81.02[2]; see Mental Hygiene Law § 81.03[d]). Under the circumstances presented, the Supreme Court should have granted the guardian only those limited powers recommended in the report of the court-appointed evaluator. Matter of Heidi B. (Pasternak), 2018 NY Slip Op 06899, Second Dept 10-17-18

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DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation of settlement in this divorce action controlled, and a domestic relations order (DRO) which did not conform to the stipulation could not be enforced:

“A stipulation of settlement that has been incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “A domestic relations order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment'” … .

Contrary to the plaintiff’s contention, the formula set forth in her proposed DRO conflicts with the stipulation of settlement, which provided for a “fifty/fifty division of all pension benefits accumulated from the date of this marriage … through the date of service of the summons and complaint … ,” and that the plaintiff is “to be the recipient of 50 percent of any and all benefits payable to the [defendant] upon his retirement which were accumulated during that period of time” … . The stipulation of settlement made no reference to the formula set forth in Majauskas v Majauskas (61 NY2d 481), nor can such a reference be implied from the unambiguous terms of the stipulation … . Since the stipulation is controlling, the Supreme Court should not have granted the plaintiff’s cross motion for leave to enter her proposed DRO … . McPhillips v McPhillips, 2018 NY Slip Op 06896, Second Dept 10-17-18

FAMILY LAW (DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))/DOMESTIC RELATIONS ORDER (DRO)  (DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))/STIPULATION OF SETTLEMENT (DIVORCE, DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))

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INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT).

The Second Department determined the MetLife was not vicariously liable for an alleged civil assault and battery by a private investigator, who was deemed to be a subcontractor, not an employee of MetLife:

” The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts'” … . ” The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration'” … . However, “[i]ncidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship” … .

Here, the contract between MetLife and Scope provided that Scope’s “affiliates and agents” were “solely personnel of [Scope] and not MetLife,” and that Scope would have “full responsibility for the actions and omissions of all personnel employed by [Scope] or any agents who are involved in performing the Services and for any losses arising therefrom.” The contract likewise contained a clause in which Scope agreed to indemnify MetLife for, inter alia, losses resulting from “negligent or wrongful acts.” Although, as the plaintiffs point out, a rider to the contract sets forth “Minimum Standards” for private investigators employed by Scope, “[t]he requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either” … . McHale v Metropolitan Life Ins. Co., 2018 NY Slip Op 06895, Second Dept 10-17-18

EMPLOYMENT LAW (INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT))/NEGLIGENCE (EMPLOYMENT LAW, INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT))/SUBCONTRACTORS (VICARIOUS LIABILITY, (INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT))/VICARIOUS LIABILITY (EMPLOYMENT LAW, NEGLIGENCE, INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT))THIRD PARTY ASSAULT  (INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT))/BATTERY (EMPLOYMENT LAW, INSURANCE COMPANY NOT VICARIOUSLY LIABLE FOR AN ALLEGED CIVIL ASSAULT AND BATTERY BY A PRIVATE INVESTIGATOR, THE INVESTIGATOR WAS DEEMED A SUBCONTRACTOR, NOT AN EMPLOYEE (SECOND DEPT))

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FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT). ​

The Second Department determined Supreme Court properly searched the record and granted defendant’s summary judgment in this action on a promissory note. The agreement at issue was an illegal contract involving a fee-splitting arrangement between physicians and non-physicians which is prohibited by the Education Law:

We agree with the Supreme Court’s determination to deny those branches of the plaintiff’s motion which were for summary judgment on the causes of action to recover the balance due on the promissory note and for an award of costs and attorney’s fees, and, upon searching the record, to award the defendants summary judgment dismissing those causes of action. Contrary to the plaintiff’s contentions, the evidence submitted by the parties in connection with the motion for summary judgment established, prima facie, that the agreement and the promissory note were a pretext for an unlawful fee-splitting arrangement in violation of the Education Law because they circumvented New York’s prohibition on physicians splitting fees with nonphysicians (see Education Law §§ 6509-a, 6530[19] … ). “It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him [or her] carry out his [or her] illegal object, nor can such a person plead or prove in any court a case in which he [or she], as a basis for his [or her] claim, must show forth his [or her] illegal purpose” … . “Where the parties’ arrangement is illegal the law will not extend its aid to either of the parties . . . or listen to their complaints against each other, but will leave them where their own acts have placed them'” … . Linchitz Practice Mgt., Inc. v Daat Med. Mgt., LLC, 2018 NY Slip Op 06891, Second Dept 10-17-18

CONTRACT LAW (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/DEBTOR-CREDITOR (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/CIVIL PROCEDURE (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/PHYSICIANS (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/FEE-SPLITTING (PHYSICIANS, FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/EDUCATION LAW (PHYSICIANS, FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))

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SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT).

The Second Department determined the defendants demonstrated the storm in progress rule insulated them from liability in this snow and ice sidewalk slip and fall case because the slip and fall occurred less than four hours after the precipitation stopped. The motion to renew was properly denied because the newly submitted evidence did not call into question the applicability of the four-hour rule:

… [T]he defendants demonstrated that, pursuant to Administrative Code of the City of New York § 16-123(a), which requires building owners to clear ice and snow from an abutting sidewalk within four hours after the snow ceases to fall, excluding the hours between 9:00 p.m. and 7:00 a.m., they had no duty to clear the sidewalk until 10:20 a.m., which was several hours after the plaintiff’s accident. The plaintiff moved, in effect, for leave to renew and reargue her opposition to the defendants’ motion for summary judgment. In support of that branch of her motion which was for leave to renew, the plaintiff submitted the deposition testimony of a former employee of the defendants who witnessed the accident. The plaintiff argued that she was unable to present this evidence in opposition to the motion for summary judgment because the defendants deliberately delayed disclosing the identity of the witness until just before they made that motion. …

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion”… . Here, we agree with the Supreme Court’s determination to deny that branch of the plaintiff’s motion which was for leave to renew her opposition to the defendants’ motion for summary judgment. The newly submitted evidence would not have changed the prior determination … . The new facts relied on, consisting of the deposition testimony of the defendants’ former employee, did not raise a triable issue of fact as to whether the defendants had a duty to clear the sidewalk prior to the plaintiff’s accident or whether they created or exacerbated a dangerous condition by engaging in negligent snow removal efforts. Ghoneim v Vision Enters. Mgt., LLC, 2018 NY Slip Op 06884. Second Dept 10-17-18

NEGLIGENCE (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SLIP AND FALL (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/STORM IN PROGRESS RULE  (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CIVIL PROCEDURE (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/RENEW, MOTION TO (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CPLR 2221 (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))

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MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT).

The Second Department determined the motion to serve an amended notice of claim as a late notice of claim in this pedestrian accident case was properly denied. The original notice of claim alleged inadequate street lighting prevented the defendant driver from seeing the infant plaintiff. The amended notice of claim purported to add theories of liability and purported to add mother’s derivative claim. Mother’s claim could not be added because the infancy toll of the statute of limitations did not apply to her:

… [T]he plaintiffs failed to proffer a reasonable excuse for the delay in serving a notice of claim that described the infant plaintiff’s injuries as arising from any negligence on the part of the Town other than that related to the nonfunctioning street lights, as described in the original notice of claim … . The plaintiffs also failed to demonstrate a causal nexus between the infancy of one of the plaintiffs and the delay … . Moreover, the plaintiffs did not demonstrate that, within 90 days after the accident or a reasonable time thereafter, the Town acquired actual knowledge of the essential facts constituting the claim that it was negligent with respect to anything other than the street lights… . The plaintiffs also failed to establish that the Town would not be substantially prejudiced by the delay … .

The proposed amended notice of claim with respect to the mother’s derivative claim is time-barred because the statute of limitations expired before the plaintiffs moved to serve a late notice of claim, and the toll for infancy pursuant to CPLR 208 does not apply to a parent’s derivative cause of action … .

We also agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which was for leave to serve an amended notice of claim. A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability … . The proposed amendments to the notice of claim added new theories of liability related to the Town’s ownership, operation, control, design, planning, study, retention, supervision, maintenance, repair, inspection, and management of the street and sidewalks on Swalm Street. Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Palacios v Town of N. Hempstead, 2018 NY Slip Op 06927, Second Dept 10-17-18

NEGLIGENCE (MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/NOTICE OF CLAIM  (MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, MUNICIPAL LAW, STATUTE OF LIMITATIONS, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/CPLR 208 (NEGLIGENCE, MUNICIPAL LAW, STATUTE OF LIMITATIONS, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants demonstrated it did not have notice of a defective seat in a movie theater and the res ipsa loquitur doctrine did not apply because the seat could have been caused by someone other than the defendants:

The defendants demonstrated, prima facie, that they neither created nor had actual or constructive notice of the defective condition of the subject seat … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants created or had notice of the particular condition … .

The doctrine of res ipsa loquitur was not applicable because the evidence presented did not adequately exclude the chance that the seat had been damaged by someone other than the defendants … . Newisky v United Artists Kaufman Astoria 14 Regal Cinemas, 2018 NY Slip Op 06880, Second Dept 10-17-18

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))/RES IPSA LOQUITUR  (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous treatment doctrine tolled the statute of limitations in this dental malpractice case. The doctrine may apply to one of the dentists (Gold) who retired by imputing to him the continued treatment by other dentists:

“Treatment” does not necessarily terminate upon the last visit, if further care or monitoring of the condition is explicitly anticipated by both physician and patient, as manifested by a regularly scheduled appointment for the near future … . Thus, “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment'” … . Even the monitoring of an abnormal condition may be sufficient to support the application of the continuous treatment toll … . The critical inquiry is not whether the defendant failed to make a diagnosis or undertake a course of treatment during the period of limitation, but whether the plaintiff continued to seek treatment for the same or related conditions giving rise to his or her claim of malpractice, during that period… . Accordingly, a defendant cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, if the defendant treated the plaintiff continuously over the relevant time period for symptoms that are ultimately traced to that condition … .

Here, the plaintiff does not claim merely that the moving defendant failed to diagnose her condition and treat her for it … . Rather, she alleged that between 2009 and 2015, she was treated continuously for symptoms ultimately traced to abnormal and severe periodontal disease. Both the plaintiff’s affidavit and her expert’s affidavit, which referred to numerous specific notations in the plaintiff’s dental records, raised triable issues of fact as to whether a course of treatment for periodontal disease was established and therefore the continuous treatment doctrine would apply to toll the statute of limitations … . Cohen v Gold, 2018 NY Slip Op 06878, Second Dept 10-17-18

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/DENTAL MALPRACTICE (QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/CIVIL PROCEDURE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/CONTINUOUS TREATMENT DOCTRINE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))/STATUTE OF LIMITATIONS (DENTAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED TO TOLL THE STATUTE OF LIMITATIONS IN THIS DENTAL MALPRACTICE ACTION, DOCTRINE MAY APPLY TO A DENTIST WHO RETIRED BASED ON TREATMENT PROVIDED BY OTHER DENTISTS (SECOND DEPT))

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT’S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff could not identify the cause of her fall from a fire escape and defendant's motion for summary judgment should have been granted. The cause of the fall alleged in the opposition papers was deemed a feigned issue of fact:

The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact … . The plaintiff's affidavit, in which she identified the cause of her fall as a “rusted metal shard” from the fire escape ladder, which pierced her hand, presented what appears to be a feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony that her hand was “thrown off” the ladder, but she did not know why … . Under these circumstances, it would be speculative to conclude that any of the alleged statutory and building code violations or dangerous conditions set forth in her expert's affidavit, even if fully credited, proximately caused her accident … . Burns v Linden St. Realty, LLC, 2018 NY Slip Op 06876, Second Dept 10-17-18

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, (PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (FIRE ESCAPE, NEGLIGENCE, LAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT).

The Second Department determined defendant lessor of a vehicle involved in an accident (BCL) did not demonstrate it could not be liable under the Graves Amendment for negligent maintenance of the vehicle:

Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle where the owner proves that it is engaged in the business of renting or leasing motor vehicles and it was not otherwise negligent… . However, “[t]he Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle”… . Accordingly, in order to establish its prima facie entitlement to judgment as a matter of law in this action, BCL was required to prove not only that it is in the business of leasing vehicles, but also, that it did not negligently maintain the BCL vehicle … .

BCL failed to sustain its prima facie burden, since the affidavit of its litigation specialist failed to address the plaintiff's negligent maintenance theory of liability, and the copy of the lease documents it submitted stated that Wesner was obligated to have the subject vehicle serviced “by a BCL partner dealer” according to a service schedule established by BCL. Casine v Wesner, 2018 NY Slip Op 06714, Second Dept 10-10-18

NEGLIGENCE (LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT))/TRAFFIC ACCIDENTS (LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT))/GRAVES AMENDMENT (LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT))

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