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DEFENDANT NYC DEPARTMENT OF EDUCATION DID NOT OWE A DUTY TO A SCHOOL ADMINISTRATOR WHO WAS ATTACKED BY A STUDENT IN A SCHOOL HALLWAY; THERE WAS NO “SPECIAL RELATIONSHIP” BETWEEN DEFENDANTS AND PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the absence of a special relationship between plaintiff high school administrator and defendant NYC Department of Education precluded recovery for an attack on the administrator by a student in the school’s hallway:

“Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public” … . To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care … .

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality “voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty,” or that “the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation” … . A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: “‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking'” … .

… The defendants’ submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions … . Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation … . Villa-Lefler v Department of Educ. of the City of N.Y., 2024 NY Slip Op 02343, Second Dept 5-1-24

Practice Point: Absent a “special relationship’ between plaintiff school administrator and defendant NYC Department of Education, defendant is not liable for an attack on the administrator by a student in a school hallway.

 

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THE NEARLY $10 MILLION VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS SUPPORTED BY SUFFICIENT EVIDENCE OF PROXIMATE CAUSE; IT WAS ALLEGED DEFENDANT DOCTOR SHOULD HAVE SENT PLAINTIFF’S DECEDENT TO THE EMERGENCY ROOM AND THE FAILURE TO DO SO PLAYED A ROLE IN PLAINTIFF’S DECEDENT’S SUICIDE THE NEXT DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nearly $10 million verdict should not have been set aside on the ground the evidence of proximate cause was insufficient. Plaintiff alleged defendant doctor (Strange) should have sent plaintiff’s decedent to the emergency room the day before plaintiff’s decedent committed suicide. The matter was remitted for consideration of other grounds for setting aside verdict:

… Supreme Court erred in granting that branch of Strange’s motion which was to set aside the verdict on the issue of proximate cause and for judgment as a matter of law dismissing the complaint insofar as asserted against him, since the jury reasonably concluded, based on the evidence presented at trial, that Strange’s alleged departures were a proximate cause of the decedent’s death. The plaintiff’s expert witness testified that the decedent’s suicide was preventable and that a referral to the emergency room would have allowed the decedent to be admitted to the hospital. Such testimony was sufficient to allow a reasonable person to conclude that it was more probable than not that Strange’s conduct, under these circumstances, diminished the decedent’s chance of a better outcome … . Shouldis v Strange, 2024 NY Slip Op 02340, Second Dept 5-2-24

Practice Point: Proximate cause in a medical malpractice case is demonstrated if the doctor’s conduct “diminished the … chance of a better outcome.”

 

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A NOTICE OF VIOLATION FROM THE CITY TO THE ABUTTING PROPERTY OWNER REGARDING THE DETERIORATED CONDITION OF THE SIDEWALK RAISED A QUESTION OF FACT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT (A PROTRUDING METAL BAR) WHICH CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the city had notice of the condition of the sidewalk which allegedly caused her slip and fall; Plaintiff demonstrated a notice of violation had been issued to the abutting property owner concerning the deterioration of the sidewalk. Plaintiff had alleged she tripped over a metal bar protruding from the sidewalk. The notice of violation raised a question of fact whether that specific defect was encompassed by the notice:

The plaintiff submitted … a Notice of Violation from the Department of Public Works, Office of the Commissioner, to the purported owner of the property abutting the sidewalk on which the plaintiff fell. The Notice of Violation was issued by the Commissioner of the Department of Public Works, the very individual who was statutorily designated to receive written notice of sidewalk defects. The Notice of Violation stated that an inspection, which … found … that “deteriorated and hazardous conditions” existed on the abutting sidewalk. Under the circumstances, the plaintiff raised a triable issue of fact as to whether the City did, in fact, have prior written notice of the alleged defect … . Whether the Notice of Violation “encompassed the particular condition which allegedly caused the subject accident is an issue of fact which should await resolution at trial” … . Douglas v City of Mount Vernon, N.Y., 2024 NY Slip Op 02173, Second Dept 4-24-24

Practice Point: Here a notice of violation issued by the city to the abutting property owner concerning the deteriorated condition of the sidewalk raised a question of fact whether the city had prior written notice of the specific defect, a protruding metal bar, which caused plaintiff’s fall.

 

IF THE ORIGINAL PROCESS SERVER’S AFFIDAVIT OF SERVICE FAILS TO INCLUDE A STATEMENT THAT A MAILING IN COMPLIANCE WITH CPLR 308(2) WAS DONE, THE OMISSION CANNOT BE CURED BY AMENDMENT; THE AMENDED AFFIDAVIT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the amended affidavit of the process server to add the mailing requirement should not have been accepted by the court. Failing to aver the complaint was mailed in the original affidavit cannot be cured by amendment:

CPLR 308(2) provides that personal service upon a natural person may be acquired “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business” within 20 days. CPLR 308(2) requires strict compliance and the plaintiff has “the burden of proving, by a preponderance of the credible evidence, that service was properly effected” … .* * *

… [C]ertain defects in an affidavit of service, which are related to “a defendant’s substantial right to notice of the proceeding against him or her, . . . may not be corrected by an amendment” … . These defects include an erroneous address … and an erroneous mailing date … . The omission from an affidavit of service of a statement that a mailing in compliance with CPLR 308(2) was effectuated also is not amenable to correction pursuant to CPLR 305(c) … . Accordingly, the plaintiff’s amended affidavit of service should not have been considered. John Doe v Mesivtha, Inc., 2024 NY Slip Op 02172 Second Dept 4-24-24

Practice Point: A process server’s affidavit which does not include a statement that a mailing in compliance with CPLR 308(2) was done, the omission cannot be cured by amendment of the affidavit of service.

 

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PLAINTIFF WAS INJURED WHEN A PIECE OF WIRE STRUCK HIS EYE WHEN HE WAS USING A NAIL GUN; PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK HE WAS DOING REQUIRED EYE PROTECTION WITHIN THE MEANING OF THE RELEVANT INDUSTRIAL CODE PROVISION; THEREFORE PLAINTIFF SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant was required to provided eye protection for the work plaintiff was engaged in at the time his eye was injured:

The plaintiff allegedly was injured while operating a nail gun to attach wood plates to a building roof when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control … . “In order to establish liability under Labor Law § 241(6), a plaintiff must ‘establish the violation of an Industrial Code provision which sets forth specific safety standards,’ and which ‘is applicable [to the facts] of the case'” … . Industrial Code (12 NYCRR) § 23-1.8(a) requires the furnishing of eye protection equipment to employees who, inter alia, are “engaged in any . . . operation which may endanger the eyes.”

Here, the plaintiff’s submissions failed to eliminate a triable issue of fact as to whether, at the time of his accident, the plaintiff was engaged in work that “may endanger the eyes” so as to require the use of eye protection pursuant to Industrial Code (12 NYCRR) § 23-1.8(a) … . Chuqui v Cong. Ahavas Tzookah V’Chesed, Inc., 2024 NY Slip Op 02166, Second Dept 4-24-24

Practice Point: Although plaintiff was struck in the eye by a piece of wire when using a nail gun, he did not eliminate questions of fact about whether the work he was doing triggered the eye-protection requirement in the Industrial Code. Therefore plaintiff was not entitled to summary judgment on his Labor Law 241(6) cause of action.

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT DRIVER WAS DEFENDANT COMPANY’S EMPLOYEE AND WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT; DEFENDANT COMPANY FAILED TO DEMONSTRATE THE DRIVER WAS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THE FACT THAT THE EMPLOYMENT CONTRACT USES THE TERM “INDEPENDENT CONTRACTOR” IS NOT DISPOSITIVE OF THE ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant employer in this traffic accident case did not demonstrate the defendant driver was an independent contractor as opposed to an employee acting within the scope of employment:

… [Plaintiff] allegedly was injured when a vehicle he was operating collided with a vehicle owned and operated by the defendant Luis F. Leal. * * * The plaintiffs alleged … that Leal was [defendant] Publishers’ employee, and that Leal was acting within the scope of his employment at the time of the accident. …

“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” … . “[T]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … . “Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” … . “The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive” … . Whether an actor is an independent contractor or an employee is usually a factual issue for a jury … . Brielmeier v Leal, 2024 NY Slip Op 02163, Second Dept 4-24-24

Practice Point: An employer may be responsible for the negligence of an employee, but is not responsible for the negligence of an independent contractor. The fact that the employment contract uses the term “independent contractor” is not dispositive. The relevant criteria are explained.

 

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CHARTER SCHOOLS ARE NOT SUBJECT TO THE NOTICE OF CLAIM REQUIREMENTS IN THE EDUCATION LAW AND GENERAL MUNICIPAL LAW; PLAINTIFF-STUDENT, WHO HAD BEEN BULLIED AND WAS PUSHED TO THE FLOOR BY ANOTHER STUDENT, RAISED QUESTIONS OF FACT SUPPORTING THE NEGLIGENT SUPERVISION CAUSE OF ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined (1) charter schools are not subject to the notice of claim requirements of the Education Law and the General Municipal Law, and (2) plaintiff student, who allegedly had been bullied and was pushed to the floor by another student when the hallway was unsupervised, raised questions of fact supporting the negligent supervision cause of action:

Since charter schools are independent from school districts with respect to civil liability, financial obligations, and liability insurance coverage, it stands to reason that the extraordinary safeguards of prelitigation notification of claims applicable to school districts, municipalities and other wholly public entities would not apply to charter schools. * * *

The evidence presented triable issues of fact as to whether there were monitors present in the hallway at the time of the incident as required by the School’s policies and procedures and whether the presence of such monitors could have prevented the alleged pushing incident … . A. P. v John W. Lavelle Preparatory Charter Sch., 2024 NY Slip Op 02205, Second Dept 4-24-24

Practice Point: Charter schools are not subject to the notice-of-claim requirement in the Education Law and General Municipal Law; i.e., a plaintiff suing a charter school for negligence need not file or serve a notice of claim as a condition precedent.

 

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WHERE ALLEGATIONS IN A PETITION TO MODIFY CUSTODY ARE CONTROVERTED, THE PETITION SHOULD NOT BE RULED UPON WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this modification of parental access proceeding. Family Court granted father’s petition without a hearing, despite the parties’ controverted allegations:

“Although [a] parent seeking a change of custody is not automatically entitled to a hearing, custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry” … . “‘This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child'” … . “Accordingly, [w]hen the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing” … .

Here, the Family Court erred in granting the father’s modification petition to the extent of awarding him certain parental access without a hearing and without inquiring into the best interests of the children, especially in light of the parties’ controverted allegations … . Matter of Valedon v Naqvi, 2024 NY Slip Op 02059, Second Dept 4-17-24

Practice Point: As a general rule, controverted allegations in a petition to modify custody require a hearing.

 

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BECAUSE A CONTEMPORARY REPORT PROVIDED THE CITY WITH NOTICE OF THE NATURE OF THE SLIP AND FALL, THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE THE LACK OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. The line-of-duty report provided the city with timely knowledge of the nature of the claim and demonstrate the city would not be prejudiced by the delay in filing the notice. Where a defendant has timely knowledge of the incident, the lack of a reasonable explanation for failing to timely file is often overlooked:

The line-of-duty injury report’s specificity regarding the location and circumstances of the incident, permitted the City to readily infer that a potentially actionable wrong had been committed … .

Further, as the petitioner has shown the City’s actual knowledge of the essential facts underlying the claim, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim was not fatal to her claim … .

… [A]s the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response …, the City has failed to provide particularized evidence establishing that the late notice substantially prejudiced its ability to defend the claim on the merits … . Matter of Steward v City of New York, 2024 NY Slip Op 02058, Second Dept 4-17-24

Practice Point: If the municipal defendant has timely notice of the nature of the incident (here by virtue of a contemporary report) and the city cannot demonstrate prejudice, a petition for leave to file a late notice of claim should be granted, even in the absence of a reasonable excuse for failing to timely file.

 

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THE SECOND DEPARTMENT JOINED THE FIRST AND THIRD DEPARTMENTS IN HOLDING THAT THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT APPLIES TO A NEW YORK RESIDENT WHO WAS ABUSED OUT-OF-STATE (SECOND DEPT).

The Second Department, joining the First and Third Departments, determined an action brought under the Child Victims Act by a person who was a resident of New York at the time the cause of action accrued can take advantage of the extended statute of limitations (CPLR 214-g) even where the wrongful conduct occurred out-of-state:

The plaintiff alleges that, when he was a resident of New York, he was the victim of childhood sexual abuse committed against him by Philip Foglietta, a football coach, while attending summer football camp in Vermont in 1972 and in Massachusetts in 1973 and 1975. * * *

… [W]e agree with the Appellate Division, First and Third Departments, that a plaintiff’s residence in New York at the time his or her claims or causes of action accrued is sufficient to bring those claims or causes of action within the purview of CPLR 214-g, even where, as here, the wrongful conduct underlying the New York resident’s causes of action occurred out-of-state … . * * *

The appellants’ focus on the location of the alleged wrongdoing is misplaced in this context, because the subject of CPLR 214-g is not the wrongful conduct itself, but rather the statute of limitations or notice of claim requirements that barred some New Yorkers from recovering damages for the underlying wrongdoing. CPLR 214-g did not criminalize or penalize behavior that was previously lawful, nor did it create a new private right of action. Rather, the statute revived prior claims or causes of action that already existed but were barred either because of the expiration of the applicable statute of limitations or the plaintiff’s failure to file a timely notice of claim (see id. § 214-g). Smith v Pro Camps, Ltd., 2024 NY Slip Op 02074, Second Dept 4-17-24

Practice Point: The Child Victims Act extends the statute of limitations for a plaintiff who was a New York resident at the time the cause of action accrued, even if the abuse took place in another state.

 

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