Feldman, Kronfeld & Beatty Law Blog

Friday, November 6, 2015

2d Judicial Department, Appellate Division Roundup: October 28, 2015 Edition

In this good dozen decisions, we have a basic lesson on hearsay evidence, as well as multiple occasions where cases against municipalities are lost due to proper notice requirements, and some cases laying out the basic law regarding medical malpractice. Also, a foray of teen house parties into the realm of premises and landowner negligence, after the jump . . .

Michelle Brown v. URS Midwest, Inc.

The plaintiff appealed a jury finding of liability in favor of the defendant. On April 1, 2011, the plaintiff testified that the defendant's tractor-trailer entered into her lane and caused the crash. The defendant testified, via his deposition, that he observed the plaintiff talking on her cell phone while driving, and that he did not change lanes when the accident happened. The plaintiff sought to admit into evidence that portion of the police accident report which contained a statement from Hartley that he never observed the plaintiff's vehicle prior to the accident. That request was denied. The Court overturned, finding that because 1) it was admissible against the defendant as an admission, since it tended to inculpate the defendant in connection with a material fact, and 2) it was admissible as a prior inconsistent statement. And since the evidence bore on the ultimate issue to be determined by the jury, the error in precluding the admission was not harmless and the court ordered a new trial.

Rahiym Holmes v. City of New York

This case rightly highlights the difficulties of preserving causes of actions against NYPD officers, especially in an environment where FOIL requests do not apply to certain police records. On July 11, 2010, the plaintiff suffered severe injuries when he was tackled by three police officers. The plaintiffs first learned of the arrest at the criminal trial, which occurred on November 23, 2011. The plaintiff sought to amend the complaint to name the three police officers individually once he had learned their names. The Court denied the application. The plaintiff had to meet a burden of engaging in "pre-action disclosure or made any Freedom of Information Law requests" or "sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run." Therefore, it is important that in actions against the NYPD where individual officers must be named, an application for a pre-action disclosure order in Supreme Court must be done to preserve the right to amend later.

Kyle Heyman v. Raphael Harooni

Right out of a teen comedy, in this case, a teenager throws a house party while her parents are out of town, and someone gets into a fight at the party. The assaulted individual files a lawsuit against the parties alleging, inter alia, negligence per se for violations of Nassau County law and for common-law negligence as landowners of the property. The Court found that, since the parents were out of town and had no notice of their daughter throwing house parties, they could not be on notice that they had to control their daughter's conduct nor were they aware of the necessity therefore. Also, the Nassau County law that prohibits such house parties does not provide a private right of action sounding in negligence. The case against the parents, ostensibly to tap into their homeowner's insurance policy, was dismissed.

Medical Malpractice

Grace Abakpa v. Dean Martin

This case deals with the consequences of medical malpractice actions. In medical malpractice actions, the plaintiff must prove two things: 1) that the provider departed from accepted community standards of practice, and 2) that such departure was a proximate cause of the plaintiff's injuries. In this case, Ms. Abakpa had a hysterectomy on February 25. By February 29, she was filling ill, and complained of having severe pain, cold sweats, and felt like she was burning up. On March 3, the plaintiff burned herself by falling asleep with a hot water bottle on her abdomen to try and ease the pain. On March 5, the plaintiff called the doctor's office again to report the burns and the severe pain, cold sweats, and possible fever. The plaintiff went to the doctor's office that day for an examination, and the plaintiff prescribed an antibiotic to treat the wounds but not an antibiotic to treat the infection. On March 6, the plaitniff was hospitalized at Staten Island University Hospital for an infection. The Court found that the plaintiff had proven the first part of the medical malpractice requirement because the plaintiff testified that she had told the doctor on February 29, 2008, that she felt like she had a fever, which the doctor admitted would mean that she might have symptoms of an infection. However, the Court found that the plaintiff's expert speculated that a post-operative infection could have been diagnosed sooner if the doctor had instructed the injured plaintiff to come in for an examination on February 29. The case was dismissed.

Michelle Lesniak v. Stockholm Obstetrics & Gynecological Services, PC

On August 31, 2010, the Ms. Lesniak was in the emergency room of Wyckoff Heights Hospital complaining of lower abdominal pain. She had just miscarried and had undergone a dilation and curettage. She underwent an ultrasound where they found evidence of an ectopic pregnancy, but her doctors did not note that possibility on her chart. Exploratory laparoscopy revealed a ruptured right ectopic pregnancy, and the plaintiff's right fallopian tube had to be removed. In May 2012, the plaintiff sued the hospital alleging that a failure to diagnose the ectopic pregnancy in a timely fashion caused the ruptured fallopian tube and diminished fertility. On a motion for summary judgment, the plaintiff was able to defeat the defendant's motion based on a submission of her expert that the plaintiff was exhibit symptoms of an ectopic pregnancy when she first arrived at the hospital, and the delay in her treatment caused the injury.

Municipal Liability

John Robert Lahens v. Town of Hempstead

The difficulties of suing municipalities rear its ugly head, and a fair action is dismissed. Mr. Lahens tripped and fell on a raised sidewalk flag in the Town of Hempstead in front of defendant Mark Black's property. But since the Town of Hempstead did not have "prior written notice" of the raised flag by demonstrating, through a search of its records, that it had not received written notice of the raised sidewalk flag prior to the accident. And since the responsibility in Hemsptead for keeping the sidewalks in good repair rests solely on the municipality, Mark Black was also able to win on a motion for summary judgment. In short, in municipalities with strong prior written notice laws, a concerted effort must be made by locals to keep the municipality on notice of dangers or it will not be liable for people who are hurt by them.

Matter of Morris v. City of New York

This case arose out of, again, the difficulty of suing municipalities, in this case the City of New York. Under General Municipal Law 50-e(5), a plaintiff has to request the Court for leave to file a late notice of claim against the City. Three relevant factors are 1) whether there was a reasonable excuse for the failure to timely file the notice of claim, 2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90 days, and 3) whether the delay would substantially prejudice the City. Here, the plaintiff could only offer law office failure as an excuse, which is not an acceptable excuse for the failure to timely file. And although the plaintiff could have used 1) letters that the petitioner allegedly sent to the New York City Department of Health and Mental Hygiene, and 2) two other personal injury actions against the City arising out of the same accident, but since the plaintiff failed to bring it up on their initial motion, the Court denied the use of the new evidence.

Thomas Guerrieri v. New York City Department/Board of Education

This is another case where it demonstrates the difficulty of winning a negligence case against a municipality for a government function. The plaintiff was a school bus driver, employed by an independent contractor. During one of his bus runs, he was attacked and injured by a student and sued the DOE for negligence. However, while a school district owes a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, that duty does not extend to adults. Since the DOE had no special duty to protect the school bus driver, and, most importantly, school bus driving was considered a "governmental function," the case was dismissed.

Trip and Fall/Slip and Fall

Jacob Bleich v. Metropolitan Management, LLC

This case arose from a dispute between the owner and the lessee of a property. On January 31, 2011, Jacob Bleich slipped and fell on ice outside of property owned by Metropolitan Management and leased by Valley National Bank (which was also named as a defendant). Metropolitan and Valley cross-claimed against each other. As part of the lease, Valley agreed to assume responsibility for snow and ice removal on the sidewalks adjacent to the premises. The most interesting part of the case is that, while the Court agreed that "Valley, as lessee, established that no statute or ordinance imposed tort liability on it . . . Valley did not show that it made no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by it, or by persons on its behalf, did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall." Metropolitan, which had tried to get out of the case by asserting a claim of contractual indemnification, failed because it did not "eliminate all triable issues of fact as to whether it caused, created, or exacerbated the ice condition upon which the injured plaintiff allegedly slipped." In short, both Metropolitan and Valley, even though they both are pointing the fingers at each other, remain in the case.

Rawhia Elsayed v. Al Farha Corp.

This is a subway cellar, or sidewalk vault, case, which we have discussed at length here. The plaintiff fell in opened sidewalk cellar doors of a building owned by defendant T&T and leased to defendant Al Farha. T & T moved for summary judgment, claiming that it was an out of possession landlord. The lease that T & T submitted specifically provided that the leased premises did not include the cellar, and the deposition testimony of T & T included that T &T was responsible for repair of the cellar doors and used a portion of the cellar for its own storage purposes. Therefore, T &T failed to establish it was an out of possession landlord for use of the cellar doors. Therefore, it is important when dealing with sidewalk vault or cellar door cases to get the lease between the owner and the lessee and get deposition testimony to find out if the owner used the cellar or had any responsibility for the cellar doors, which would be sufficient to defeat a motion of this kind.

Motor Vehicle Accidents

Donna Leak v. Hybrid Cars, Ltd.

In this case, it demonstrates that in New York the primacy of the rear-end negligence law. The plaintiff was a passenger in a vehicle driven by Saiful Islam, owned by Hybrid Cars, Ltd. when it was struck from the behind by defendants Walters. Both Islam and Hybrid successfully demonstrated that, because the accident was caused by being struck from the behind, they had no fault in the accident and should be dismissed from the case. Even more so, this motion was granted before depositions had even gone forward, demonstrating that there is really very little evidence in a simple rear-end case that would keep the driver of the automobile that is struck in the case.

Mykola Staskiv v. Naum Shlayan

In this three-car pile up, the "middle car" was in a bit of a tough situation. It had tried to win by submitting an affidavit stating that they had come to a full stop prior to being struck in the rear, which caused the car to be propelled forward and strike the first car. However, the police report submitted with the plaintiff's opposition to the summary judgment motion clearly showed that the middle car stated that it struck the plaintiff's car without being propelled into it by the rear car.

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