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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

 

Criteria for Shareholder’s Derivative Action and Shareholder’s Action to Inspect Corporate Books Explained

The Second Department explained the pleading criteria for a shareholder’s derivative action for inspection of corporation records.  Here the court determined the shareholders failed to first demand that the corporation initiate an action before bringing the derivative action, and the shareholders’ speculative and conclusory allegations were not sufficient to demonstrate a “proper purpose” for the inspection of corporate records:

A plaintiff in a shareholders’ derivative action must demand that the corporation initiate an action before commencing an action on the corporation’s behalf, and the complaint must “set forth with particularity” his or her efforts “to secure the initiation of such action by the board or the reasons for not making such effort” … . Demand may be excused because of futility where the complaint alleges with particularity, inter alia, that a majority of the board of directors is interested in the challenged transaction[s] … . However, “[i]t is not sufficient . . . merely to name a majority of the directors as parties defendant with conclusory allegations of wrongdoing or control by wrongdoers to justify failure to make a demand” … . Here, the plaintiffs’ submissions failed to allege specific facts supporting their contention that the defendant directors were interested, such that demand was not required, and the Supreme Court … properly granted that branch of the defendants’ motion which was to dismiss [the relevant] causes of action on that ground… . * * *

…”[A] shareholder has both statutory and common-law rights to inspect the books and records of a corporation if inspection is sought in good faith and for a valid purpose” (…Business Corporation Law § 624[f]). However, the plaintiffs failed to allege that their demand for an inspection of [the] books and records met the requirements for such relief under the Business Corporation Law (see Business Corporation Law § 624[b]). The plaintiffs also failed to state a cause of action for an inspection of [the] corporate books and records at common law, since a plaintiff asserting his or her common-law right must plead a “proper purpose” for the inspection …. Apart from the claim concerning the nonpayment of profit distributions …, the plaintiffs’ asserted purposes for the inspection were speculative, vague, and conclusory. As such, they were insufficient to establish a proper purpose for the inspection… . JAS Family Trust v Oceana Holding Corp, 2013 NY Slip Op 05734, 2nd Dept 8-28-13

 

Plaintiff Can Not Recover Under Her Own Supplemental Uninsured/Underinsured Motorist Policy When Her Recovery Exceeded the Limit of that Policy

The Second Department explained how plaintiff’s supplemental uninsured/underinsured motorist (SUM) policy related to her recovery of damages under the policy when she, as a pedestrian, was struck by a car and recovered damages in excess of the SUM limit:

When a policyholder purchases supplemental uninsured/underinsured motorist (hereinafter SUM) coverage in New York, he or she is insuring against the risk that a tortfeasor’s underinsurance (or complete lack of insurance) will provide less protection for the policyholder than the policyholder provides to others when at fault in causing bodily injury … . SUM coverage is not a “stand-alone policy to fully compensate the insureds for their injuries” … .

Here, the respondent, who was struck by a car while walking in the street, had an automobile policy of her own. In that policy, she chose to provide coverage in the amount of $100,000 per person in the event she was at fault in causing bodily injuries. By paying for SUM coverage in the amount of $100,000 per person, she also ensured that she was protected for that same amount in the event that an uninsured or underinsured motorist caused her to sustain injuries. Although the respondent was injured, she received $400,000 from the tortfeasors, which is $300,000 more than the coverage she provided to others. Consequently, under paragraph 6 of her SUM endorsement, the amount she was entitled to recover under her SUM coverage was reduced to zero. Matter of Unitrin Auto & Home Ins Co v Gelbstein, 2013 NY Slip Op 05749, 2nd Dept 8-28-13

 

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Criteria for Imposing Order of Protection for Longer than Two Years Based on Family Offense Involving Aggravating Circumstance (Use of Weapon Here) Explained

The Second Department, in a family offense proceeding involving the use of a weapon, explained the criteria for issuing an order of protection for a period longer than two years:

To issue an order of protection with a duration exceeding two years on the ground of aggravating circumstances, the Family Court must set forth “on the record and upon the order of protection” a finding of such aggravating circumstances as defined in Family Court Act § 827(a)(vii) (Family Ct Act § 842). The statutory definition of “aggravating circumstances” includes five distinct situations, set forth in the disjunctive: (1) “physical injury or serious physical injury to the petitioner caused by the respondent,” (2) “the use of a dangerous instrument against the petitioner by the respondent,” (3) “a history of repeated violations of prior orders of protection by the respondent,” (4) “prior convictions for crimes against the petitioner by the respondent,” “or” (5) “the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]…),

A finding of aggravating circumstances under the fifth situation set forth in Family Ct Act § 827(a)(vii) must be supported by a finding of “an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]; …). To the extent that certain language in Matter of Clarke-Golding v Golding (101 AD3d at 1118) might suggest that the “immediate and ongoing danger” requirement pertains to the other four situations enumerated in Family Court Act § 827(a)(vii) as well, it is not to be construed as such. Where the aggravating circumstances involve the use of a dangerous instrument (cf. Penal Law § 10.00[13]…), the “immediate and ongoing danger” requirement does not apply (Family Ct Act § 827[a][vii]… .  Matter of Kondor v Kondor, 2013 NY slip Op 05747, 2nd Dept 8-28-13

 

 

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Wife’s Concealment of Terminal Cancer Did Not Warrant Rescission of Divorce Settlement Agreement

The Second Department determined the wife’s concealment of the condition of her health (terminal cancer) during the negotiation of a divorce did not constitute actionable fraud.  The husband sought to rescind the agreement after learning of his wife’s illness (after her death), alleging he would not have entered the agreement had he been aware of it:

While a party’s health is material to the equitable distribution of marital assets (Domestic Relations Law § 236[B][5][d][2]…), the plaintiff does not challenge the manner in which the parties agreed to distribute the marital assets … . Rather, the plaintiff only claims that he would not have agreed to settle with the wife at all had he known of her condition. Contrary to the plaintiff’s contention, the wife’s alleged misrepresentations or omissions concerning her health were not material to the plaintiff’s decision as to whether to enter into any settlement agreement at all with the wife and, thus, would not warrant the equitable remedy of rescission … . To hold otherwise would be to recognize, contrary to public policy favoring settlement and fair dealing …, that the plaintiff was entitled to a “fair” opportunity to stall in settling the action with the goal of retaining all of the marital assets upon the wife’s death. Equity is not served by permitting the plaintiff to rescind the separation agreement for lack of this opportunity.  Petrozza v Franzen, 2013 NY Slip Op 05739, 2nd Dept 8-28-13

 

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