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Wednesday, January 6, 2016

Appellate Division, 2d Department Roundup: November 18, 2015 Edition

In this edition of the Roundup, employees at a local psychiatric hospital are attacked by a patient, and a dialysis patient falls off the scale during a weigh-in, as well as several motor vehicle accidents. The most exciting element was that the City was found to have constructive notice of expansion joists that were not flush with the pavement on the bike path of the Manhattan Bridge, allowing plaintiff's practitioners to sidestep at least one aspect of the prior written consent law.

Molly Stephen v. State of New York

Molly Stephen, Allie Hickenbottom, and Sarah Smith were working at the Milestone Residence, a medical facility. At Milestone, Mss. Stephen, Hickenbottom, and Smith were attacked by an individual who was receiving outpatient psychiatric treatment at Milestone because a court had ordered him or her to undergo that treatment. The plaintiffs sued the state for injuries they suffered when they were attacked. The case went to trial, where they lost. In an appeal, they sought for the Court to determine that the State of New York failed to protect them from this attack. The Court found that the plaintiffs failed to establish “by a preponderance of the evidence,” which is the standard in civil court trials, that New York State had the ability to exercise control over the mental health patient’s conduct so as to give rise to a duty to protect the employees of Milestone.

Nimesh Patel v. American Medical Response, Inc.

In 2009, Mr. Patel was suffering from end-stage kidney disease. Three times a week, employees from Winthrop University Hospital and a local ambulance company would pick up Mr. Patel from his home and transport him to Winthrop for his dialysis treatment. On October 19, 2009, the two emergency medical technicians that brought Mr. Patel to Winthrop left him unattended on a scale, and Mr. Patel lost his balance and fell, suffering injuries. While hospitals are not an insurer of patient safety or require them to keep each patient under constant surveillance, they have a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, if they are reasonably foreseeable. Since Winthrop supplied a facility for dialysis treatment, and that Mr. Patel was transported on a stretcher, it was reasonably foreseeable that a patient could fall while being weighed-in at the dialysis unit. Therefore, the defendant’s motion for summary judgment was dismissed.

Aleksey Podobedov v. East Coast Construction Group, Inc.

Aleksey Podobedov was a construction worker working on a project in August of 2006. At the time of his accident, he was working outside the building on the ground level, about five to right feet from a building, cleaning two-by-four wooden frames that had been used as forms into which wet cement had been poured. The frames, after being plucked out of the cement, were lowered to him on ropes by workers on the sixth floor. Upon receiving the frames, the plaintiff untied them and washed off the hardening cement that sometimes remained stuck to them when they were being lifted out of the wet cement. As he was working, he was struck in the head by a falling piece of cement. After the accident, he saw pieces of cement on the ground that had not been there before the accident. However, because he could not demonstrate from where the cement had come from, whether it was from the sixth floor or from the two-by-four frames lowered to him or from somewhere else, he couldn’t prove that his injuries were proximately caused by the absence or inadequacy of a safety device. While this case could go to trial, it means that a common tactic of the plaintiff’s, a summary judgment motion on liability, was not successful in this case.

Asher Oser v. City of New York

Mr. Osher was riding his bicycle in the bicycle lane of the Manhattan Bridge when he rode over a metal expansion joint cover plate that was not flush with the surrounding surface. He was caused to fall, and suffered injuries. The City, filing a motion for summary judgment, claimed that because they did not have prior written notice of the defect, they could not be held liable for any defects or hazards. But since the City could not prove that the subject metal expansion joint cover plate did not present a hazardous or defective condition, and while the City did not have prior written notice, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition.

Chad Ryan v. Rocking Horse Farms

Mr. Ryan was a passenger in a vehicle operated by Mr. Chappell when it was rear ended by a vehicle owned by Rocking Horse Farms and driven by Mr. Durand. In this case, Mr. Chappell moved for summary judgment dismissing the complaint and claims against him, asserting that since Mr. Durand rear-ended him, that he was solely at fault in the happening of the accident. The Supreme Court granted that motion, but the Appellate Division reversed. It found that, because Mr. Durand testified that Mr. Chappell’s vehicle began to move forward when the light turned green, but then stopped suddenly and without warning in the intersection despite the fact that it was clear of traffic and pedestrians, Mr. Chappell may have contributed to the fault of the accident and his motion for summary judgment was dismissed.

Nicolette Ann Iacone v. Sal Passanisi, Jr.

Ms. Iacone was injured in a motor vehicle accident at an intersection in Oceanside. One of the entities she sued in this lawsuit was the County of Nassau, for obstructing the view of oncoming traffic at the subject intersection with a sensor station cabinet and untrimmed hedges. Normally, a governmental body cannot be sued for negligent actions arising out of a highway safety planning decision. However, it owes a duty to keep its streets in a reasonably safe condition. It can only use this immunity determination if it can prove that the relevant discretionary determination (here, the placement of the sensory station cabinet) was the result of a deliberative decision-making process. Since it could not prove that, it couldn’t get the protection of qualified immunity and it was not able to win on its summary judgment motion.

Sheena Jackson v. Jorge Georgalos

Ms. Jackson was a postal worker delivering mail to the defendant’s house in Mount Vernon. After she walked up the steps to the front door, the defendants’ dog, who was barking, jumped on the screen door, the door flew open, and the dog ran out of the house. As the plaintiff turned to get away from the dog her ankle twisted, causing her to fall on the steps. The plaintiff’s case was dismissed via a motion for summary judgment at the Supreme Court, and the Appellate Division affirmed. As we’ve seen before, in order to recover upon a theory of strict liability in tort for a dog bite or attack, the plaintiff must prove that the dog had vicious propensities. And in fact, the standard that the Appellate Division used is whether the defendant was aware of the dog’s alleged propensity to run out of the house and chase after people, not whether the dog displayed those propensities.


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