March 29, 2022 | Vol. 306

(6 summaries)

Special Duty   Police   Governmental Function   Governmental Immunity  

Court of Appeals
On a certified question from the Second Circuit, the Court rejected argument of plaintiff injured during no-knock warrant that special duty requirement is inapplicable where municipal employees instead of non-municipal persons inflict the injury, holding the special duty applies for any negligence claim of nonfeasance or malfeasance by municipal actions taken in a governmental capacity. The Court found, however, that the police assume a special duty to the class of people inside the location when executing a no-knock warrant as the municipality is taking “positive control of a known and dangerous safety condition.” The Court did not need to address determination of governmental immunity for discretionary acts.

The 2-judge dissent extensively reviewed the history of cases involving direct harm by municipalities, including police, which have never expressly required a special duty. Ferreira v City of Binghamton    

Comment: While the majority stated the special duty rule has always applied where municipalities directly cause harm through negligence, this appears to be the first case where it announces that rule. In the context of police actions causing direct harm, such as negligent shootings, the “positive control of a known and dangerous safety condition” criteria for establishing a special duty may be sufficient but different fact patterns in police and other direct harm municipal cases are likely to test the viability of such a broad rule.

Labor Law §241   Industrial Code  

Court of Appeals
Port Authority granted summary judgment of Labor Law §241(6) claim based on industrial code §23-9.9(a)(prohibiting all but “a trained and competent operator designated by the employer” to operate power buggies) where power buggy that struck worker was driven by untrained/undesignated worker after the trained/designated work left the vehicle as the terms “a trained and competent operator,” and “designated” are not sufficiently specific to form a §241 predicate.

The copious dissent by 3-judges points to instances where similar language held to be sufficiently specific was logically indistinguishable when reviewed within the extensive history of worker protection under NY Labor Law. Toussaint v Port Auth. of N.Y. & N.J.    

Comment: The First Department’s 3/2 decision that held the word “designated” sufficiently specific was reported in Vol. 161.

Premises Liab   Snow/Ice   Storm in Progress   Experts   3rd Party Contractor   Espinal   Duty  

Second Department
Expert’s failure to attach meteorological records relied on in forming opinion of a storm in progress when plaintiff slipped on snow/ice in parking lot left the opinion with no probative value and owner’s motion for summary judgment denied. Tenant-supermarket granted summary judgment on proof lease required owner, not supermarket, to maintain parking lot and tenant did not create the condition. Snow removal contractor granted summary judgment as plaintiff was not a party to its contract and plaintiff did not plead any Espinal exceptions. Canciani v Stop & Shop Supermarket Co., LLC    

Malpractice   Respondeat Superior   Control  

Second Department
Medical service that staffed hospital ER denied summary judgment of respondeat superior claim where plaintiff was seen in the ER several times over 8-months for back pain and claimed the doctors failed to diagnose a spinal epidural abscess, even though it’s agreement listed one of their treating doctors as an “independent contractor,” as its contract with the hospital raised issues of whether it’s involvement in training the doctors, requirement to participate in quality assurance and peer reviews, and to implement quality improvement plans was sufficient control to make it the doctors’ employer. Medical service failed to submit evidence of how the doctors were paid. Perez v NES Med. Servs. of N.Y., P.C.    

Vacate Default   Service   Notice  

Second Department
Motion to vacate order granting default judgment against 2-defendants in wrongful death action denied as mere denial of receipt of the Summons and Complaint served through the Secretary of State, without proof the Secretary of State had the incorrect address, was insufficient to show lack of notice for CPLR §317 vacatur of default. Andrews v Wartburg Receiver, LLC    

Strike Answer   Vacate Default   Discovery   Willful/Contumacious   Reasonable Excuse   Meritorious Defense  

Second Department
County’s motion to vacate order conditionally striking its Answer if discovery was not provided to subsequently added plaintiff within 15-days, which became absolute upon noncompliance, denied where it failed to show a meritorious defense without which the court did not have to consider whether noncompliance was willful/contumacious or whether it provided a reasonable excuse. Langona v Village of Garden City    

(16 summaries)

Labor Law §240   Labor Law §241   Collateral Estoppel   Workers Comp   Amend Answer  

Second Department
Defendants granted summary judgment dismissing plaintiff’s Labor Law and negligence claims on collateral estoppel by workers comp decision that found plaintiff was injured when he jumped from a moving vehicle on date he testified he fell from a ladder at work. Lower court providently granted motions of defendants to amend their Answer to add collateral estoppel as it was not devoid of merit and granted them summary judgment. Denisco v 405 Lexington Ave., LLC    

Notice of Claim   Motion to Dismiss   Court of Claims  

First Department
While identification of location in Notice of Claim and Claim under Court of Claims act §11 is to be strictly complied with, state’s motion to dismiss for inadequate description of accident location in plaintiff’s Notice of Claim denied where highway viaduct under construction had no addresses or intersections to describe the precise location, claimant immediately reported the accident, state’s carrier conducted an investigation within 2-days, spoke with claimant, visited the site, and took a nonparty witness statement and photographs of the broken plank that cause plaintiff’s fall establishing state was able to investigate cause of the accident. Mindley v State of New York    

Construction Liab.   Duty   Reargument   Espinal   Labor Law §240   Set Aside Verdict   Directed Verdict   Sole Cause  

Second Department
Subcontractor that installed construction site barricade which eventually fell on plaintiff granted summary judgment of claim it negligently failed to follow architectural plans as it owed no duty to plaintiff and did not launch an instrumentality of harm under Espinal where condition was created by another subcontractor who removed and replaced the barricade bracing. Argument that first subcontractor should have corrected condition created by subsequent subcontractor rejected as requiring a duty to come to the aid of another. Reargument proper where court overlooked question of duty. Petersen v Forest City Ratner Cos., LLC    

Comment: Motion to set aside defense verdict in favor of remaining defendants or for judgment as a matter of law denied where there was a rational path for jury to find accident was caused solely by manner in which plaintiff removed the bracing and not any violation of Labor Law §240(1). Petersen v Forest City Ratner Cos., LLC.

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to deem late Notice of Claim timely served denied as failure to identify proper municipal party is not a reasonable excuse, plaintiff did not claim village had actual knowledge within 90-days, or present some evidence or plausible argument the village was not prejudiced by delay. Matter of McDonald v Village of Great Neck Estates    

Notice of Claim   Actual Knowledge   Prejudice   Speculation   NYC  

First Department
Without reports or records showing NYC employees acquired actual knowledge of essential facts, petitioner could not show actual knowledge without speculation. As petitioner failed to show NYC was not prejudiced by 11-month delay, NYC was not required to make a particularized showing of prejudice. Bornschein v City of New York    

Premises Liab   Negligent Supervision   Assumption of Risk   Raised For First Time  

Second Department
Defendants failed to show assumption of risk where infant swim team member dove from starting block into 4’ section of pool during a competition, hitting her head on the bottom of the pool, where testimony she was a novice competitive swimmer with little or no experience and inadequate training for diving from a starting block into shallow water established she could not appreciate the risks posed. Argument that parental consent form signed by father was express assumption of risk improperly raised for first time in Reply without opportunity for plaintiffs to respond. Issue remained of whether 10 NYCRR 6-1.29(15.6)(6’ minimum pool depth for staring blocks) was some evidence of negligence.

One school granted summary judgment dismissing contractual indemnity claim by school that hosted swimming meet on proof it owed no duty to plaintiff as different school was responsible for her training. A.L. v Chaminade Mineola Socy. of Mary, Inc.    

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Safety Devices   Industrial Code   Control   Notice   Raised For First Time   Indemnity  

Second Department
Building owner and manager granted summary judgment of Labor Law §240(1) claim where pieces of sheet-metal fell on worker while he was moving cart with the sheet-metal as injuries were not result of failure to provide safety device to protect against a gravity or elevation risk, and industrial code §23-2.1(a)(2)(storage of material and equipment) was not applicable on Labor Law §241(6) claim. Although defendants made prima facie showing that they did not have authority to control plaintiff’s work for summary judgment of Labor Law §200 and negligence claims, they failed to show they lacked constructive notice of debris on floor that caused the cart to tip and argument condition was inherent in work was not considered where raised for first time on appeal. Defendants’ denied summary judgment on contractual indemnity claim against plaintiff’s employer where questions of defendants’ negligence remained. Chuqui v Amna, LLC    

Labor Law §240   Labor Law §241   Scaffold   Causation   Preclusion   NYC  

First Department
Plaintiff’s and coworker’s testimony that plaintiff fell when scaffold he was descending suddenly shifted, was unsecured, and missing handrails in places made out entitlement to summary judgment on Labor Law §240(1) but defendants’ affidavits stating they inspected the scaffold immediately after the accident finding it properly secured with no missing handrails raised issues in opposition. Defendants’ motion for summary judgment on Labor Law §241(6) denied where plaintiff testified photographs submitted by defendants did not show portion of scaffold plaintiff fell from and question existed of whether inadequate lighting was a cause of the accident. Plaintiff not precluded from raising lighting as a cause where he was not asked that question at EBT. Muco v Board of Educ. of the City of N.Y.    

Premises Liab   Dangerous Condition   Duty   Foreseeability   Speculation  

Second Department
Homeowner granted summary judgment where plaintiff tripped on base of basketball hoop she claimed defendant placed between trees she used as path to access defendant’s property on defendant’s testimony basketball hoop was moved to the location 1-year before trees were planted, base of basketball hoop was then filled with water and too heavy to move, and he never saw plaintiff come on his property through the trees establishing it was not a foreseeably dangerous condition that would give rise to a duty and was not unreasonably dangerous. Plaintiff’s claims defendant moved the basketball hoop between the trees at some unspecified time and was aware she used path to come on his property was speculative. Aloi v Dubriske    

MVA   Pedestrian   Assumption of Risk   Emergency Doctrine   Comparative Fault  

First Department
Defendant’s testimony that he left car unattended in neutral at gas station proved negligence as a matter of law where car rolled forward and struck plaintiff on sidewalk. Claim parking lot was flat irrelevant. Defendant offered no evidence plaintiff was negligently walking on sidewalk or contributed to the accident for culpable conduct or emergency doctrine defenses and assumption of risk does not apply to walking on the sidewalk. Kwipu v Sontag    

MVA   Emergency Doctrine  

Second Department
Ambulance driver and company granted summary judgment on proof plaintiff backed into street between 2-double-parked trucks and was hit within 1-2 seconds of being visible to defendant-driver. Plaintiff failed to show defendant-driver was driving negligently. Arango v Sandhaus    

Premises Liab   Sidewalk   Open/Obvious   Inherently Dangerous  

First Department
Building owner and tenant granted summary judgment where garbage piled against curb was clearly visible as shown in photographs taken by plaintiff’s wife, was open/obvious and not inherently dangerous, and plaintiff could have asked people on sidewalk to move rather than walk closer to the garbage bags where he slipped on a garbage bag tie. There was no evidence that commingling of residential/commercial garbage contributed to the accident and a previous violation for cardboard strewn on the sidewalk was irrelevant. Leung v Madison St. Partners, LLC    

Premises Liab   Stairs   Create Condition   Notice   Last Inspection   Reargument  

Second Department
Lower court improvidently granted building owners’ motion to reargue and granted summary judgment where they did not show last time stairs where plaintiff slipped on debris were cleaned or inspected and they cannot meet that burden by pointing to gaps in plaintiff’s evidence. Padel v Nisanov    

MVA   Pedestrian   Bus   Turning Vehicle   Motion to Dismiss   Comparative Fault   Emergency Doctrine   Survelliance Video  

First Department
Video of bus making an abrupt left hand turn trying to squeeze behind plaintiff while driver had an unobstructed view, bus driver’s guilty plea to failing to yield right-of-way, and testimony of her safety coordinator conclusively showed plaintiff was not comparatively at fault and bus driver was not responding to an emergency and those affirmative defenses dismissed. Pai v Reliant Transp., Inc.    

MVA   Rear End   Pileup   Nonnegligent Explanation  

First Department
Second car in 4-car pileup denied summary judgment on that driver’s testimony his car was rear-ended when stopped and propelled into lead vehicle which was also stopped where that defendant submitted lead car driver’s conflicting testimony that he was driving at 50 mph when he was rear ended by moving defendants’ car. Parker v Johns    

False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause   Police   NYC  

First Department
NYC and police officers granted summary judgment dismissing false arrest, false imprisonment, and malicious prosecution claims where identification of plaintiff by victim and neighbor, placement of plaintiff near scene, and existence of protective order requiring plaintiff to stay away from victim provided probable cause for arrest which was a complete defense to the claims. DelGrosso v McCann    

(1 summaries)

Malpractice   Set Aside Verdict   Experts  

Second Department
Plaintiff’s motion for summary judgment denied based on conflicting expert opinions and motion to set aside verdict as against weight of evidence denied where jury could reach verdict finding medical center not negligent by crediting their expert. The Court does not give the details of the proofs. Metz v Peconic Bay Med. Ctr.    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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