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Teacher Had Not Acquired “Tenure by Estoppel”

In reversing Supreme Court, the Second Department determined a teacher had not acquired tenure by estoppel:

“In general, estoppel is a bar which precludes a party from denying [that] a certain fact or state of facts exists to the detriment of another party who was entitled to rely on such facts and had acted accordingly” … . “Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term” … . Although Education Law § 3012(1) provides that certain teachers shall be appointed “for a probationary period of three years,” it “does not contain a provision which would prevent a probationary teacher from knowingly and voluntarily waiving the three-year probationary period” … .

Here, as indicated by the petitioner’s own letter to the principal, the petitioner agreed to extend his probationary period for an additional year. Consequently, the petitioner’s probationary period had not expired when the School District terminated his employment and, thus, he had not acquired a tenured position by estoppel.  Matter of Chishom v Hochman, 2013 NY slip Op 05818, 2nd Dept 9-11-13

 

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Summary Judgment Properly Granted to Out-of-Possession Landlord—Injury Caused by Defect in Floor

The Second Department affirmed the grant of summary judgment to an out-of-possession landlord (Hudson).  Plaintiff alleged a defect in a concrete floor caused his injury.  The Second Department wrote:

An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty … .

Here, the Hudson defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the code provisions relied upon by the plaintiff do not constitute statutes imposing liability, that the lease placed the responsibility to repair the floor defect on Kawasaki, and that the Hudson defendants did not, through a course of conduct, assume any duty to repair the alleged defect in the floor… . Volpe v Hudson View Assoc, LLC, 2013 NY slip Op 05814, 2nd Dept 9-11-13

 

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“Professional Judgment Rule” Did Not Preclude Lawsuit; Plaintiff Bitten by Police Dog While Assisting Police in a Search

The plaintiff was bitten by a police dog while assisting the police in a search.  Supreme Court denied defendants’ motion for summary judgment and the Second Department affirmed, explaining there was a question of fact about whether the “professional judgment rule” applied:

“The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions” … . However, “the immunity afforded a municipality for its employee’s discretionary conduct does not extend to situations where the employee, a police officer, violates acceptable police practice” … .

Here, the defendants did not establish their prima facie entitlement to judgment as a matter of law. A question of fact with respect to whether the conduct of the dog’s handler was consistent with acceptable police practice was presented by the defendants’ evidentiary submissions … . Accordingly, summary judgment was properly denied … .  Newsome v County of Suffolk, 2013 NY Slip Op 05805, 2nd Dept 9-11-13

 

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Summary Judgment Properly Granted to Snow-Removal Contractor—”Espinal” Exceptions Explained

In affirming the grant of summary judgment to defendant snow-removal contractor (Lemp) in a slip and fall case, the Second Department clearly explained the applicable law, including the “Espinal” exceptions to the rule a contractor is not liable to third parties:

As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties … . However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty to maintain the premises safely.

Contrary to the plaintiffs’ contentions, the defendant Lemp Landscapers, Inc. (hereinafter Lemp), made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the injured plaintiff was not a party to its snow removal contract with the defendant Woodland Pond Condominium Association (hereinafter Woodland), and that it thus owed no duty of care to the injured plaintiff … . Since the plaintiffs did not allege facts in their complaint or bill of particulars which would establish the possible applicability of any of the Espinal exceptions, Lemp, in establishing its prima facie entitlement to judgment as a matter of law, was not required to affirmatively demonstrate that these exceptions did not apply … .

In opposition to Lemp’s prima facie showing, the plaintiffs offered no evidence to support their contentions that Lemp launched a force or instrument of harm by creating or exacerbating the icy condition that allegedly caused the plaintiff Ernest Rudloff’s fall … . By merely plowing the snow in accordance with the contract and leaving some residual snow or ice on the plowed area, Lemp cannot be said to have created a dangerous condition and thereby launched a force or instrument of harm. Moreover, a claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them … . Therefore, even if Lemp failed to sand or salt the roadway on which the injured plaintiff fell, the plaintiffs have offered nothing more than speculation that the failure to perform that duty rendered the property less safe than it was before Lemp started its work … . Rudloff v Woodland Pond Condominium Assn, 2013 NY Slip Op 05812, 2nd Dept 9-11-13

 

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Gaps in Treatment Precluded “Continuous Treatment Doctrine” in Medical Malpractice Suit—Action Time-Barred

The Second Department reversed Supreme Court and granted summary judgment to the defendant in a medical malpractice action finding the action was time-barred because the continuous treatment doctrine did not apply:

Although the plaintiffs contend that the statute of limitations was tolled by the continuous treatment doctrine, they failed to raise a triable issue of fact in that regard … . The plaintiffs’ decedent received treatment from the defendant over a 17-year period for recurrent bladder tumors. After his initial diagnosis, in 1991, the decedent typically returned for treatment only when he was symptomatic, experiencing hematuria. Thus, between December 1999 and April 2003, and again, from December 2004 until October 2007, the decedent did not visit with the defendant. As a result of these temporal gaps, because the decedent did not continue to seek a course of treatment, any continuity in treatment that had existed was severed … . Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of medical malpractice and lack of informed consent committed prior to December 22, 2006… . Peykarian v Yin Chu Chien, 2013 NY slip Op 05809, 2nd Dept 9-11-13

 

More than One Possible Cause of Icy Condition Required Grant of Summary Judgment to Defendant

The Second Department affirmed the grant of summary judgment to the defendant in a slip and fall case.  The plaintiff alleged that the black ice which caused the fall was the result of water dripping from a gutter on defendant’s property. It had been drizzling for several days prior to the fall and was drizzling on the day of the fall. The court determined the attempt to link the icy condition to the dripping gutter was too speculative to support the action:

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only if it created the dangerous condition or had actual or constructive notice of the condition … . “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” … .  Morreale v Esposito, 2013 NY Slip Op 05803, 2nd Dept 9-11-13

 

Not Enough Time Passed to Invoke Constructive Notice of Icy Condition Under “Storm Progress Rule”

The Second Department reversed Supreme Court and granted summary judgment to the defendant in a slip and fall case. The court determined not enough time elapsed to invoke constructive notice of the icy condition under the “storm progress rule:”

“A defendant may be held liable for a dangerous condition on its premises caused by the accumulation of snow or ice upon a showing that it had actual or constructive notice of the condition, and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures” … . “Under the storm in progress’ rule, a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm” … . McCurdy v KYMA Holdings, LLC, 2013 NY Slip Op 05802, 2nd Dept 9-11-13

 

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Question of Fact Raised About Whether Snow-Removal Contractor Created or Exacerbated the Dangerous Condition

The Second Department affirmed the denial of summary judgment to a snow-removal contractor (SCS) in a slip and fall case.  The plaintiff fell on a mound of snow between the street and a sidewalk. The court explained:

A contractor may be held liable for injuries to a third party where, in undertaking to render services, the contractor entirely displaces the duty of the property owner to maintain the premises in a safe condition, the injured party relies on the contractor’s continued performance under the agreement, or the contractor negligently creates or exacerbates a dangerous condition … . SCS demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it … by demonstrating that the injured plaintiff was not a party to the snow and ice removal contract, and that it did not owe a duty to him … . In opposition, however, the plaintiffs raised a triable issue of fact as to whether SCS’s alleged negligence created or exacerbated the hazard which was a proximate cause of the accident… . LaGuarina v Metropolitan Trans Auth, 2013 NY Slip Op 05800, 2nd Dept 9-11-13

 

No Demonstrated Connection Between Stair-Related Code Violations and Injury

In affirming the grant of summary judgment to the defendant in a slip and fall case, the Second Department noted that there was evidence the step risers and tread did not meet code requirements, but there was insufficient evidence connecting the defect with the accident:

The defendants made a prima facie showing of entitlement to judgment as a matter of law by establishing 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 submitted expert evidence that the step risers and treads did not comply with various sections of, inter alia, the New York City Building Code. However, the plaintiff’s assertion that these alleged stairway defects proximately caused her accident is based on sheer speculation …, and is, in fact, contradicted by the record. Humphrey v Merivil, 2013 NY Slip Op 05799, 2nd Dept 9-11-13

 

Proximate Cause Can Not Be Based Upon Speculation; Many Possible Causes

In affirming the grant of summary judgment to the defendant, the Second Department explained that, although proximate cause can be established by circumstantial evidence, it cannot be based on speculation:

“Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident; however, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action”.. . Belousov v Warnock, 2013 NY Slip Op 05787, 2nd Dept 9-11-13

 

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