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Defendant Did Not Demonstrate Lack of Constructive Notice in Slip and Fall Case—Slip and Fall Cause of Action Should Not Have Been Dismissed.

In a slip and fall involving snow and ice, the defendant, in seeking summary judgment, did not demonstrate a lack of constructive notice by offering “some evidence as to when the area in question was last cleaned or inspected relative to the time when plaintiff fell….”.  Specifically, the defendant “offered no evidence as to what, if any, cleaning procedures or inspection procedures were performed from December 9 … when the parking lots … were plowed, until the time of the injured plaintiff’s accident on December 12 …”.  Without such evidence, the Second Department held, the defendant did not meet its prima facie burden and the cause of action should not have been dismissed by the trial court.  Feola v City of New York, et al, 2011-06933, Index No. 101006/07, Second Dept. 1-23-13

 

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Damages for Worry About Baby’s Health Not Recognized in New York.

The Second Department held that plaintiff could not recover for purely emotional damages.  The complaint alleged plaintiff’s doctor knew plaintiff was pregnant, but allowed her to undergo a CT-scan without informing her of the pregnancy. Plaintiff sought damages for “the emotional distress arising from her fear that the CT-scan might have harmed her unborn child.”  The Second Department determined defendant’s motion to dismiss the complaint should have been granted because “[n]o such claim is recognized under New York law…”. Nadal v Jaramillo, 2012-04006, Index No. 30748/08 Second Dept.1-23-13

 

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At Will Employee Can Not Use “Fraudulent Inducement” Theory Re: Acceptance-of-Employment Offer.

Plaintiff brought a cause of action for “fraudulent inducement” alleging she accepted employment with defendant hospital based on a false claim the hospital had “passed” a survey related to accreditation when, in fact, it had received only a “conditional accreditation status.”  The Second Department determined that the fraudulent inducement cause of action must be dismissed because plaintiff was an at-will employee.  “The at-will employment doctrine … bars a cause of action sounding in fraudulent inducement, even where the circumstances pertain to a plaintiff’s acceptance of an offer of a position rather than his or her termination …”.  The Second Department agreed with the trial court that the breach of contract cause of action should not be dismissed, but the Court dismissed the punitive damages aspect of the breach of contract cause of action because punitive damages do not attach to purely private wrongs.  Guido v Orange Regional Medical Center, 2011-08527, Index No. 13123/10 Second Dept. 1-23-13

 

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Waiver of Right to Appeal Unenforceable.

A waiver of the right to appeal is unenforceable where there is “no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [her] plea…”.  For that reason the Second Department determined defendant’s waiver of appeal was invalid and she could appeal her sentence.  People v Brady-Laffer, 2011-11051, Ind. No. 1783-11 Second Dept. 1-16-13

 

 

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Duty to Defend Broader than Duty to Indemnify.

The Second Department applied the rule that an insurer’s duty to defend under a policy is broader than its duty to indemnify.  Because the language of the policy was broad enough to cover the cause of action for unfair competition, the insurer was obligated to defend, in spite of the fact that the related breach of contract cause of action was excluded from coverage under the terms of the policy.  Natural Organics, Inc v OneBeacon America Insurance Co., 2011-03268, 2011-05298, Index No. 12763/10 Second Dept. 1-16-13

 

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Damages Related to Improvements Made on Condemned Property Allowed.

In a condemnation case where a portion of a sand and gravel quarry was taken, the Second Department affirmed the lower court’s valuation of the condemned property.  The quarry owner argued that an income-based analysis, rather than a sales-comparison (land-value) approach, should be employed.  The Second Department determined that the income-based analysis (projected profits minus projected expenses) was not appropriate. The Second Department also affirmed the lower court’s determination that the quarry should be compensated for damages related to the improvements made on the condemned property, as opposed to damages related to the taking itself. Matter of Metropolitan Transportation Authority and Washed Aggregate Resources, Inc., 2011-03-14, Index No. 2674/98 Second Dept. 1-16-13

 

Right to Call and Question Witnesses.

In an inmate’s disciplinary hearing, the hearing officer’s refusal to allow an inmate to call witnesses, without providing the inmate with a written statement explaining the reasons for the refusal, together with the hearing officer’s refusal to allow the inmate to question witnesses, required a new hearing before a new hearing officer.  In the Matter of Benito v Calero, 2011-06219, Index No. 10-00715 Second Dept. 1-16-13

 

 

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Late Notice of Claim Allowed.

The Second Department allowed plaintiff to serve a late notice of claim against the defendant School District because: (1) the School District was made aware of the facts constituting the claim within the 90-day statutory period (shown by a medical claim completed by the school principal); (2) there was a reasonable excuse for the delay (mother was unaware of the severity of the child’s injury and had relied on the School District’s prior willingness to pay for the child’s medical treatment); (3) there was no prejudice to the School District’s ability to defend the action.  In the Matter of Funkhouser v Middle Country Central School District, et al, 2011-08142, Index No. 2333/11 Second Dept. 1-9-13.

 

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Assault in Medical Facility, Spoliation of Evidence.

Plaintiff, a patient at defendant medical center, was assaulted by another patient.  Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape.  The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was overwritten in the ordinary course of business.  The trial court, pursuant to CPLR 3126, sanctioned the defendant by striking the defendant’s answer “to the extent of precluding the defendant from introducing evidence at trial that the alleged perpetrator was being supervised by its employees at the time of the incident.”  The Second Department discussed the sanctions available for spoliation of evidence and held that, because the plaintiff was not prevented from establishing her case by the spoliation, the imposed sanction was too harsh.  The appropriate sanction was an adverse inference charge to the jury.  Jennings v Orange Regional Medical Center, 2012-00209, Index No. 5601/10 Second Dept. 1-9-13

 

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Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital.  Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

 

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