May 30, 2023 | Vol. 367

(2 summaries)

Building Security   Duty   Intervening Cause   Foreseeability   Notice  

Court of Appeals
The Court of Appeals resolved the uncharacteristically vocal split between the First and Second Departments, holding that a ‘targeted’ assault is not as a matter of law an ‘unforeseeable superseding intervening cause’ that breaks the chain of causation between a defendant’s failure to provide working exterior locks as the risk of intruders gaining access to harm residents ‘is the very same risk which renders the actor negligent.’ The Court affirmed the Second Department and reversed the First Department, making clear the question is one of fact for a jury, not a matter of law for a court, and a jury could find that even a delay in gaining access through a locked entrance could have saved the victim.

In the First Department case, the Court found inconsistencies in NYCHA’s records left questions on notice and, in any event, plaintiff raised issues of fact on notice by the affidavits of the victim’s mother and a locksmith. Scurry v New York City Hous. Auth.    

Comment: The First Department case was reported in Vol. 258 and the Second Department case in Vol. 247.

Malpractice   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Lower court providently granted plaintiff’s motion to deem late Notice of Claim timely served nunc pro tunc where medical records showing the insufficiency of respiratory support given to the premature newborn after being transferred to the hospital provided actual knowledge that ‘the medical staff, by its acts or omissions, inflicted an injury on plaintiff,’ the delay in serving the Notice of Claim was at least in part attributable to infancy where the extent of the child’s permanent brain injury was not apparent until after the 90-day period expired, and the medical records showed the hospital was not prejudiced by the delay. Hospital failed to make an evidentiary showing of prejudice by fact that 4-of-6 of the treating doctors were no longer employed by the hospital without proof that they were actually unavailable. Santos v Westchester Med. Ctr.    

(6 summaries)

Negligent Supervision   Motion to Dismiss   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Plaintiff’s motion to serve late Notice of Claim denied and school’s cross-motion to dismiss for failure to serve the Notice of Claim granted where school incident report and fact 14-year-old plaintiff returned to school using crutches gave only knowledge of an injury, not claim of inadequate supervision during gym class where another student collided with plaintiff. Plaintiffs failed to provide a reasonable excuse for the more than 2-year delay in seeking leave to serve a late Notice of Claim or show the delay was related to infancy, and failed to give some evidence or a plausible argument that the defendant was prejudiced by the delay. C.A. v Academy Charter Sch.    

Child Victims Act   Motion to Dismiss   Court of Claims  

Second Department
State’s motion to dismiss Child Victims Act action for failure to satisfy the “when” pleading requirement of Court of Claims Act §11(b) for sexual assault at a psychiatric center denied as to sexual assault of 10-year-old by another infant-resident where plaintiff alleged she was assaulted within the first year she was at the facility but granted as to the second sexual assault by a cook at the facility where she did not specify any timeframe for the assault. Wimbush-Burkett v State of New York    

Premises Liab   Foreseeability   Espinal  

First Department
Building owner/manager and plumbing subcontractor granted summary judgment dismissing claim of plaintiff injured by steam from defective radiator valve in unit being renovated where GC’s employee allowed plaintiff to stay overnight in the unit without the knowledge or consent of the building owner/manager or plumbing subcontractor, making plaintiff’s presence in the unit unforeseeable. GC granted summary judgment as it did not launch an instrumentality of harm and failure to make the area safer did not fit within an Espinal exception. Pacheco v Alma Realty Corp.    

MVA   Pedestrian   Admission   Hearsay  

First Department
Plaintiffs granted summary judgment on deposition testimony and certified police report establishing they were within crosswalk (which includes unmarked crosswalks) when defendants’ vehicle struck them. Lower court properly applied the statement against interest rule to defendant-driver’s statement to the police that he did not see the plaintiff’s until he felt the impact, which was a business record. Martin v Gelco Corp.    

Attorney Fees   Motion to Dismiss   CPLR § 3126   BP   Willful/Contumacious   Preclusion  

First Department
Defendant-law-firm’s motion to dismiss under CPLR §§3126(3), 3042(b) providently denied where plaintiffs timely served the BP and provided documents showing which referral fees were not paid under a fee-sharing agreement. Even if the BP and discovery responses were defective and some untimely, defendant failed to show those defects were willful/contumacious. Absent a conditional order of preclusion, plaintiffs were not required to provide an affidavit of merit.

Plaintiffs’ motion for a conditional order of preclusion providently granted where defendants failed to respond to plaintiffs’ discovery demand despite 2-follow-up letters. Marvin E. Goldberg, P.C. v Law Offs. of Raymond Schwartzberg & Assoc., PLLC    

Attorney Fees  

First Department
Lower court providently awarded law firm that investigated case for 3-months, obtained one of plaintiff’s multiple medical records, filed no-fault and Worker’s Compensation papers $300 where subsequent firm commenced lawsuit, conducted discovery and EBT’s, engaged in motions, and negotiated settlement. Simpson v Mackendrick    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendants’ motion for summary judgment on serious injury denied where they failed to provide competent medical proof that plaintiff’s cervical injuries did not meet the serious injury threshold or were not caused by the accident. The Court does not give the details of the proofs. Shriki v New York City Tr. Auth.    

About Matt McMahon

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