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Ordinary Negligence Standard Applied Where Ambulance (Responding to an Emergency) Struck Plaintiff Who Was Lawfully in the Crosswalk/Questions of Fact Whether There Was a “Special Relationship” Between the City’s Crossing Guard and the Plaintiff, and Whether the Crossing Guard Was Performing Ministerial, Rather than Discretionary, Functions (Such that the City Could Be Held Liable)

In a case involving a pedestrian who was lawfully crossing a street when struck by an ambulance responding to an emergency, in the presence of a city employee acting as a crossing guard, the Second Department determined that ordinary negligence standards applied to the ambulance (not the “emergence” “reckless disregard” standard of Vehicle and Traffic Law 1104) and that there were questions of fact whether the city was liable based upon a “special relationship” with the plaintiff and whether the city was liable because the crossing guard was performing ministerial, rather than discretionary, functions:

Failure to abide by the provisions set forth in Vehicle and Traffic Law §§ 1111 (duty to yield to pedestrians in crosswalk) and 1112 (pedestrian has right of way), which was the injury-causing conduct at issue here, is not privileged conduct pursuant to Vehicle and Traffic Law § 1104(b). As the injury-producing conduct was not specifically exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the principles of ordinary negligence apply … . * * *

“To impose liability [upon a municipality], there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity” … . One of the ways that a special relationship arises is when the municipality “assumes a duty that generates justifiable reliance by the person who benefits from the duty” … . * * *

Further, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff apart from any duty to the public in general” … . Here, the City defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the basis that the crossing guard’s actions were discretionary. Based on their submissions in support of their cross motion, and under the circumstances here, the City defendants failed to eliminate all triable issues of fact as to whether the crossing guard’s actions constituted ministerial governmental functions … . Benn v New York Presbyt Hosp, 2014 NY Slip Op 05615, 2nd Dept 8-6-14

 

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Criteria Re: Counties’ and Foster Care Agencies’ Liability for the Acts of Foster Parents Explained

In dismissing a complaint against a foster care agency based upon the alleged failure of the foster parent to seek medical care for the foster child, the Second Department explained the relevant law:

Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers … .

However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home … . In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant’s injuries … . In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated … . Keizer v SCO Family of Servs, 2014 NY Slip Op 06630, 2nd Dept 8-6-14

 

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Drug Treatment and Drug Testing Facilities Do Not Have a Duty to Provide the Test Results With a Disclaimer Indicating the Tests Were Done According to “Clinical,” Not “Forensic,” Standards—Here the “Clinical” Results Were Disseminated and Used In Court Proceedings

The Second Department, in a full-fledged opinion by Justice Skelos, with a concurring memorandum, determined that a substance abuse treatment facility (Daytop) and a drug testing laboratory (Bendiner) could not be liable for damages stemming from the dissemination of the results of drug tests (affecting Family Court and Drug Court proceedings).  The plaintiffs did not claim that the testing procedures were flawed or that the test results were false.  Rather, they claimed that, because the tests were done for “clinical,” not “forensic,” purposes, the results should have included a disclaimer indicating that they should not be used in court proceedings.  The Second Department refused to extend the duty owed to the plaintiffs by the defendants beyond the duty to ensure accurate test results:

Landon (91 AD3d 79, aff’d 22 NY3d 1) makes clear that there is a duty running from a drug testing laboratory to the subject of a drug test despite the lack of a contractual relationship between those parties. Further, it cannot be gainsaid that Daytop owes some duty of reasonable care to individuals it treats. The question presented here, as to both defendants, concerns the proper scope of that duty. More particularly, the question is whether the defendants’ duty of reasonable care includes the duty to label or place a disclaimer on a report, so as to indicate that the results are to be used only for clinical purposes. * * *

We conclude … that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only.  Braverman v Bendiner & Schlesinger Inc, 2014 NY Slip Op 05618, 2nd Dept 8-6-14

 

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Failure to Submit Management Agreement Required Dismissal of Property Managing Agent’s Motion for Summary Judgment in a Slip and Fall Case—the Terms of the Agreement Determine the Agent’s Liability

The Second Department determined that the property managing agent, in a slip and fall case, did not eliminate all triable issues of fact concerning liability for plaintiff’s fall on black ice because it did not submit a copy of the managing agreement with its motion for summary judgment:

As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property … . A duty of care on the part of a managing agent may arise where there is a comprehensive and exclusive management agreement between the agent and the owner that displaces the owner’s duty to safely maintain the premises … . Here, in moving for summary judgment, the … defendants failed to submit a copy of the written management agreement. Consequently, they failed to establish, prima facie, that the managing agent owed no duty of care to the plaintiff … . Calabro v Harbour at Blue Point Home Owners Assn Inc, 2014 NY Slip Op 05620, 2nd Dept 8-6-14

 

Supplemental Uninsured/Underinsured Motorist (SUM) Provision Triggered When an Individual Would Be Afforded More Coverage by the Policy with the SUM Provision

The Second Department determined that the supplementary uninsured/underinsured motorist (SUM) provision was triggered when the policy with the provision (the GEICO policy) had a $300,000 single limit liability and the policy which paid out the claim (the Allstate policy) was a “split limit” policy with a $300,000 per accident limit and a $100,000 per person limit. The injured party was paid the $100,000 limit under the Allstate policy:

Benefits under a SUM policy, when SUM coverage is purchased at the option of the insured, are available “if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage” provided by the insured’s policy (Insurance Law § 3420[f][2][A]…). “The necessary analytical step, then, is to place the insured in the shoes of the tortfeasor and ask whether the insured would have greater bodily injury coverage under the circumstances than the tortfeasor actually has” … . The determination of whether SUM benefits are available “requires a comparison of each policy’s bodily injury liability coverage as it in fact operates under the policy terms applicable to that particular coverage” … . “Only by doing that comparison is it possible to make the required determination: whether the tortfeasor has less bodily injury liability coverage than the insured” … .

Here, a comparison of the two policies at issue, in light of the particular circumstances of this case, demonstrates that an individual … would be afforded greater per-person bodily liability injury coverage under the GEICO policy than under the Allstate policy. Matter of Government Empls Ins Co v Lee, 2014 NY Slip Op 05642, 2nd Dept 8-6-14

 

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Closed Box Properly Seized and Searched Under the Plain View Doctrine

The Second Department determined a police officer properly seized evidence under the plain view doctrine.  The box that was seized and opened had the words “Smith & Wesson” on it:

Here, the evidence at the suppression hearing established that a police officer was lawfully present in the apartment building where the defendant resided … . The officer discovered the challenged physical evidence, a handgun and ammunition, in a gun box located in a common storage area accessible to anyone in the building. The box was not locked, and there was no indication that the defendant’s name or other personal identification, such as his apartment number, was on the box which would lead one who observed it to understand that it belonged to the defendant or a person living in his apartment … . The box was clearly marked “Smith and Wesson.” Under these circumstances, the distinctive label on the outside of the box “proclaimed [its] contents” and, as such, made it immediately apparent to the officer that the box contained a firearm …, thus authorizing the officer to seize the box without a warrant … . Furthermore, since the gun box, “by its very nature, could not support any reasonable expectation of privacy because its content could be inferred from its outward appearance” … , the officer lawfully opened the box, and discovered the handgun and ammunition inside. People v John, 2014 NY Slip Op 05653, 2nd Dept 8-6-14

 

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Grand Jury Testimony Given a Year After the Relevant Event Should Not Have Been Admitted as “Past Recollection Recorded”—New Trial Ordered

After noting that the defendant, who refused to sign a written waiver of his right to remain silent, waived the right by agreeing to speak to the police, the Second Department determined grand jury testimony, given a year after the relevant event, should not have been allowed in evidence as past recollection recorded:

“The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . In light of the one-year gap between the time the witness allegedly heard the defendant’s alleged inculpatory statements and the witness’s grand jury testimony, the People failed to establish that the witness’s recollection of the matter was “fairly fresh when recorded or adopted” during the grand jury proceeding … . People v Wilkinson, 2014 NY Slip Op 05661, 2nd Dept 8-6-14

 

Criteria for Standing to Contest Zoning Variances Explained

The Second Department determined the petitioners did not have standing to contest zoning variances granted for property .69 miles from where the petitioners live:

To establish standing, a petitioner must show that he or she “would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted” … . “Injury-in-fact may arise from the existence of a presumption established by the allegations demonstrating close proximity to the subject property or, in the absence of such a presumption, the existence of an actual and specific injury” … . Here, the appellants failed to satisfy these requirements.

The appellants live .69 miles away from the subject beach club. Thus, they are not entitled to a presumption of injury … . Their allegations of injury-in-fact due to overcrowding and congestion are purely speculative … . Moreover, the alleged injuries are not specific to the appellants and distinguishable from those suffered by the public at large… . Matter of Radow v Bpoard of Appeals of Town of Hempstead, 2014 NY Slip Op 05645, 2nd Dept 8-6-14

 

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Corporation Dissolved for Failure to Pay Franchise Taxes Can Be Sued On Its Pre-Dissolution Obligations

The Second Department explained that a corporation that has been dissolved by the Secretary of State for failure to pay franchise taxes continues to exist for winding up its affairs and may be sued on its pre-dissolution obligations:

Pursuant to Tax Law § 203-a, a corporation can be dissolved by proclamation of the Secretary of State for failure to pay its franchise taxes. A dissolved corporation may not carry on new business (see Business Corporation Law § 1005[a][1]) and no longer has the right to commence an action in the courts of this State, except in specific circumstances permitted by statute … . Business Corporation Law § 1006 provides, in relevant part, that a dissolved corporation “may continue to function for the purpose of winding up the affairs of the corporation . . . The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution, except as provided in sections 1007 . . . or 1008.”

A corporation therefore “continues to exist after dissolution for the winding up of its affairs, and a dissolved corporation may sue or be sued on its obligations, including contractual obligations and contingent claims, until its affairs are fully adjusted” … . The Business Corporation Law requires that the claim was to have existed before dissolution … . MMI Trading Inc v Nathan H Kelman Inc, 2014 NY Slip Op 05632, 2nd Dept 8-6-14

 

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Prejudice to County Investigation Stemming from Plaintiff’s Describing the Wrong Location of the Slip and Fall in the Notice of Claim Precluded Plaintiff from Amending the Notice

The Second Department determined that the failure to correctly describe the location of the slip and fall in the initial notice of claim prejudiced the investigation of the incident by the county.  Therefore, Supreme Court should not have granted plaintiff’s motion to amend the notice of claim:

A court may, in its discretion, grant a motion for leave to amend a notice of claim which has been served where it determines that two conditions have been met: first, the mistake, omission, irregularity, or defect must have been made in good faith; and second, it must appear that the public corporation has not been prejudiced thereby … . Since bad faith by the plaintiff was not asserted, the only issue presented here is whether service of the amended notice of claim would prejudice the County. The record indicates that the plaintiff’s incorrect information as to the accident location prejudiced the County in its ability to conduct a prompt and meaningful investigation of the accident site … . Murtha v Town of Huntington, 2014 NY Slip Op 05633, 2nd Dept 8-6-14

 

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