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Defendant in Medical Malpractice Action Should Have Been Allowed to Amend His Answer to Add Statute of Limitations Affirmative Defense

The Second Department reversed Supreme Court’s denial of defendant’s motion to amend his answer by adding the passing of the statute of limitations as an affirmative defense.  The Second Department explained:

Here, it is undisputed that the two-year statute of limitations applicable to a cause of action alleging wrongful death began to run on August 14, 2007, the date of the decedent’s death (see EPTL 5-4.1), and that the plaintiff commenced the second action, in which Lehman was a named defendant, more than two years after the decedent’s death. Accordingly, Lehman’s proposed affirmative defense of the statute of limitations as to so much of the complaint as sought to recover damages for wrongful death was not palpably insufficient nor patently devoid of merit on its face, and the plaintiff’s contentions regarding the relation back doctrine (see CPLR 203[b]) did not warrant the denial of Lehman’s motion. Consequently, as there was no evidence that the amendment would unfairly prejudice the plaintiff, the Supreme Court should have granted Lehman’s motion for leave to amend his answer without conducting a further examination into the ultimate merits of the proposed amendment … . “If [the plaintiff] wishes to test the merits of the proposed added . . . defense, [the plaintiff] may later move for summary judgment upon a proper showing” … . Carroll v Motola, 2013 NY Slip Op 05728, 2nd Dept 8-28-13

 

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School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury

Plaintiff was assaulted on an athletic filed owned by defendant school district while in a group which was on the field without permission at 9:30 pm. The plaintiff alleged the school district was negligent in not providing security and in not locking the gates to the field. The Second Department determined the school district owed no special duty to the plaintiff and the failure to lock the gates was not the proximate cause of the injury:

The “provision of security against physical attacks by third parties . . . is a governmental function . . . and . . . no liability arises from the performance of such a function absent a special duty of protection” … . This special duty arises when a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies on the direct assurances of the municipality’s agents … .

… The mere provision of security does not give rise to a special duty of protection …. The District established that it did not make direct assurances regarding security to the infant plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field. * * *

A public entity may not escape liability for negligent acts which it performs in a proprietary capacity and which are a proximate cause of an injury which was sustained as the result of a foreseeable act by a third party … . However, the District demonstrated, prima facie, that the failure to lock the gates accessing the field was not a proximate cause of the infant plaintiff’s injuries, since the assault here was not a foreseeable act. In opposition, the plaintiffs failed to raise a triable issue of fact. Weisbecker v West Islip Union Free Sch Dist, 2013 NY slip Op 05743, 2nd Dept 8-28-13

 

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Snow Removal Contractor Owed Duty to Slip and Fall Plaintiff

The Second Department determined plaintiff in a slip and fall case was owed a duty of care by a snow-removal contractor.  The Second Department explained the relevant law and its application to the facts of the case as follows:

“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), the Court of Appeals identified three situations where a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches an instrument of harm or creates or exacerbates a hazardous condition, (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 the other party’s duty to maintain the premises safely (id. at 140)” … .

Here, the plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the issue of liability… [—-] the defendant’s oral agreement with the property owner constituted a comprehensive and exclusive contractual obligation for the defendant to maintain the exterior of the subject premises and to clear the parking lot and walkways of snow and ice. This was sufficient to support a duty of care running from the defendant to the plaintiff based on the defendant’s displacement of the property owner’s duty to maintain the premises safely… . Sarisohn v Plaza Realty Servs Inc, 2013 NY Slip Op 05741, 2nd Dept 8-28-13

 

Where Plaintiff’s Vehicle Repaired to Pre-Accident Condition, No Additional Recovery for Diminution in Resale Value

Plaintiff’s brand new Mercedes was damaged in an accident but was fully repaired, and the repairs were paid for by the defendants’ insurance carrier.  Plaintiff sought damages based upon the diminution in resale value resulting from the fact that potential buyers would be made aware of the car’s involvement in the accident.  The Second Department affirmed Supreme Court’s dismissal of the complaint explaining that diminution in resale value is not to be taken into account:

The defendants established that the plaintiff has no cause of action to recover the damages he seeks herein. “The measure of damages for injury to property resulting from negligence is the difference in the market value immediately before and immediately after the accident, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is the lesser” … . “Where the repairs do not restore the property to its condition before the accident, the difference in market value immediately before the accident and after the repairs have been made may be added to the cost of repairs” … . However, where, as here, there is no dispute that the repairs fully restored the vehicle to its condition before the accident, and the only basis of the claim made by the plaintiff for the difference in value immediately before and immediately after the accident is not that his automobile could not be fully repaired, but, rather, that after repair the resale value would be diminished because the car had been in an accident, “the diminution in resale value is not to be taken into account” … . Parkoff v Stavsky, 2013 NY slip Op 05737, 2nd Dept 8-28-13

 

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Questions of Fact Raised Whether Negligent Diversion of Water by Private Property Owner and Negligent Repair by Town Caused Dangerous Icy- Road-Condition; Defendant Driver Lost Control of Her Car on the Ice and Collided with Plaintiffs

The Second Department determined that questions of fact existed about whether defendant abutting property owner (Gromley) and the defendant town created the icy road condition that caused defendant driver to lose control of her car, thereby allegedly injuring the plaintiffs in a collision with the school bus in which plaintiffs were riding:

A private landowner may be liable for injuries sustained in a car accident that is proximately caused by an ice condition occurring on an abutting public roadway, where that ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway… . … [T]he plaintiffs raised a triable issue of fact as to whether the artificially diverted water from the Gormley defendants’ property contributed to the ice condition on the subject roadway that caused [defendant driver] to lose control of her car and collide with the school bus… . * * *

…[T]he plaintiffs raised a triable issue of fact as to whether the Town affirmatively created the condition through an act of its own negligence, and whether the Town’s negligence at the time the road was repaired immediately resulted in the existence of the hazardous condition … . Cebron v Tuncoglu, 2013 NY slip Op 05729, 2nd Dept 8-28-13

 

Question of Fact Whether Defect in Basketball Court Was Concealed Precluded Summary Judgment Based upon Doctrine of Assumption of the Risk

In reversing Supreme Court, the Second Department determined there was a triable issue of fact whether plaintiff, who was injured when he tripped on part of a defunct sprinkler system while playing basketball on defendant-town’s court, assumed the risks associated with using the court.  The Second Department wrote:

Here, the Town failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law by eliminating all triable issues of fact as to the applicability of the doctrine of primary assumption of the risk … . The evidence submitted in support of its motion, including the plaintiff’s deposition testimony and photographs of the basketball court and metal cap, demonstrated that the metal cap was small, was raised only slightly above ground level, was painted the same color as the basketball court, and was difficult to see from more than a few feet away. Under these circumstances, a triable issue of fact exists as to whether the condition was concealed, and it cannot be said as a matter of law that the plaintiff assumed the risks associated with it … .  Bunn v Town of North Hempstead, 2013 NY Slip Op 05727, 2nd Dept 8-28-13

 

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Fraud Sufficiently Pled; Six-Year Statute of Limitations Applied

In reversing Supreme Court, the Second Department determined plaintiff had adequately pled a cause of action sounding in fraud and that, therefore, the six-year statute of limitations applied to both the fraud and the related breach of fiduciary duty causes of action.  In explaining the pleading requirements for fraud, the Second Department wrote:

To state a cause of action sounding in fraud, a plaintiff must allege that “(1) the defendant made a representation or a material omission of fact which was false and the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury”… . “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… .

In assessing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the facts pleaded are accepted as true and the plaintiff is accorded every possible favorable inference … . The court is then to “determine only whether the facts as alleged fit within any cognizable legal theory” … . Pursuant to CPLR 3016(b), a cause of action alleging fraud must be pleaded with particularity so as to inform the defendant of the alleged wrongful conduct and give notice of the allegations the plaintiff intends to prove .. . This pleading requirement “should not be confused with unassailable proof of fraud,” and “may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct.” … .  McDonnell v Bradley, 2013 NY Slip Op 05681, 2nd Dept 8-21-13

 

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Overriding Village Legislative Cap on Number of Taxicab Licenses Not a Proper Subject of Mandamus Action—Applicability of Mandamus Explained

In reversing Supreme Court, the Second Department determined the Article 78 proceeding which sought to override a legislative cap on the number of taxicab licenses which could be issued by the village was not a proper subject of a mandamus action:

“The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated” .. . “A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . Thus, mandamus may be employed “to compel acts that officials are duty-bound to perform” … . However, mandamus will not lie to compel the performance of a purely legislative function … . “[T]he courts must be careful to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches”… .  Matter of Gonzalez v Village of Port Chester, 2013 NY slip Op 05691, 2nd Dept 8-21-13

 

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Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense.  The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified someone other than the defendant as the perpetrator of the crime.  Two crucial pieces of such evidence, an entry in the victim’s diary and a statement made to a third party by the victim, were hearsay.  The court found that the People’s hearsay objection was waived because it wasn’t raised before the appeal. Concerning the failure to allow evidence of the victim’s identification of another as the perpetrator, the Second Department wrote:

“Before permitting evidence that another individual committed the crime for which a defendant is on trial, the court is required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” … . “Then, the court must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” … . Although a trial court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” …, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … .

Here, the evidence that the victim identified Uppal as the perpetrator was exculpatory evidence that was directly relevant to the fundamental issue in this case—the identity of the attacker. Furthermore, such evidence of third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as “rest[ing] on mere suspicion or surmise”… People v Thompson, 2013 NY Slip Op 05707, 2nd Dept 8-21-13

 

Injury from Falling Piece of Concrete-Pour-Form Raised Question of Fact About Liability Under Labor Law 240 (1)

The Second Department affirmed the denial of summary judgment in favor of defendants on plaintiff’s Labor Law 240 (1) claim. Plaintiff was removing wooden forms used to pour concrete. After removing one piece of a form, the piece above it fell and struck plaintiff. The Second Department explained:

Labor Law § 240(1) requires property owners and contractors to provide workers with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection” to the workers (Labor Law § 240[1]). The purpose of the statute is to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” .. . However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) …. Thus, in order to recover damages for violation of the statute, the “plaintiff must show more than simply that an object fell causing injury to a worker” .. . A plaintiff must show that, at the time the object fell, it was “being hoisted or secured” … or “required securing for the purposes of the undertaking” … . The plaintiff must also show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute”… .  . The evidence submitted by the defendants in support of their motion did not establish “the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240(1)”.. . Ross v DD 11th Ave LLC, 2013 NY Slip Op 05686, 2nd Dept 8-21-13

 

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