CHILD WELFARE NOT IMMUNE FROM LIABILITY FOR PERSONAL INJURIES TO FOSTER CHILD

PD v. County of Suffolk, 2024 NY Slip Op 3405 - NY: Appellate Div., 2nd Dept. 2024:

"WOOTEN, J.

APPEAL by the defendant County of Suffolk, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (David T. Reilly, J.), dated April 6, 2023, and entered in Suffolk County. The order, insofar as appealed from, denied that branch of the motion of the defendant County of Suffolk which was for summary judgment dismissing the complaint insofar as asserted against it.

This appeal concerns the novel issue of whether a municipality is immune from liability for personal injuries allegedly sustained by a foster child during visitation supervised by a department of social services caseworker. We hold that under such circumstances, a municipality may assume a special duty to the foster child and be subject to liability.

I. Background

The plaintiff father (hereinafter the father) and nonparty mother (hereinafter the mother) have two children together, including the infant plaintiff, who was born in 2017. In 2017, the children were removed from their parents' custody and placed in kinship foster care with their paternal grandmother (hereinafter the foster parent).

On September 21, 2019, the foster parent drove the infant plaintiff, then two years old, and the infant plaintiff's four-year-old sister to Mashashimuet Park in Sag Harbor for a supervised visit with the mother. After leaving the children in the care of Kevin Byrne, the assigned caseworker for the Suffolk County Department of Social Services (hereinafter the DSS), the foster parent left the park to go to work. Byrne testified at his deposition that it was the policy and procedure of the DSS that no visit could start until an employee of the County was present to supervise. After the foster parent dropped off the children, Byrne walked them to the playground for the visit with the mother, who had brought a 10-year-old daughter who was in the mother's custody.

During the supervised visit, the infant plaintiff allegedly was injured when she fell on a slide while attempting to walk up the portion intended for children to slide down. The slide on which the accident occurred was in an area of the playground designated with a sign as intended for children 5 to 12 years old. The foster parent testified at her deposition that she believed that the slide was "[w]ay too big for [the infant plaintiff]." Byrne acknowledged that he did not observe the accident or the infant plaintiff walking up the slide prior to the accident, and that he learned of the accident shortly thereafter from the mother's 10-year-old daughter. Byrne estimated that the infant plaintiff was playing on the slide for approximately four to five minutes prior to the accident. According to Byrne, at the time of the accident, the mother was standing by the top of the slide. The mother testified at her deposition that after the accident, Byrne told her to "give [the infant plaintiff] a couple of minutes" because there was no visible redness or swelling.

The foster parent testified that when she arrived at the playground, she learned that Byrne had not called for an ambulance because he was "fumbled for words." She also indicated that Byrne was "not in good health" and, therefore, was "[p]hysically unable" to pick up the infant plaintiff, who was unable to walk following the accident.

Byrne testified that his role during the supervised visit was to "[b]asically observe," although he acknowledged that he could intervene if he observed anything during the visit that he believed "might be inappropriate or dangerous for the child" or if the mother permitted the infant plaintiff to engage in an activity that he felt was inappropriate.

In 2020, the infant plaintiff, by the father, and the father individually (hereinafter together the plaintiffs), commenced this action, inter alia, to recover damages for personal injuries against, among others, the County of Suffolk. The plaintiffs alleged, among other things, that the accident was caused by the negligent supervision of Byrne.

After joinder of issue, the County moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In support of the motion, the County argued, among other things, that it was immune from liability, since Byrne was performing a governmental function involving the exercise of discretion and did not owe a special duty to the infant plaintiff. The County asserted that Byrne's role was "simply to observe that the children in fact visit with their parent in an effort to maintain and strengthen the parental bond," and that the accident took place "under the direct supervision of [the infant plaintiff's] biological mother." The County also argued that there was no evidence that any action or inaction by Byrne proximately caused the accident.

In an order dated April 6, 2023, the Supreme Court, inter alia, denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it. The court determined, among other things, that the County failed to establish, prima facie, that it was immune from liability based on discretionary conduct and that Byrne's alleged negligent supervision was not a proximate cause of the infant plaintiff's injuries. The County appeals.

On appeal, the County argues, inter alia, that it did not owe a special duty to the infant plaintiff. The County also contends that even assuming, arguendo, a special duty existed, it is immune from liability for the performance of a governmental function involving the exercise of discretion. In any event, the County argues that its alleged negligent supervision was not a proximate cause of the accident.

II. Analysis

A. Governmental Immunity

"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425; see Marino v City of New York, 223 AD3d 888, 889). "If the municipality is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence" (Trenholm-Owens v City of Yonkers, 197 AD3d 521, 523; see Applewhite v Accuhealth, Inc., 21 NY3d at 425). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" (Applewhite v Accuhealth, Inc., 21 NY3d at 425 [internal quotation marks omitted]).

"Once it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a duty to the injured party" (Santaiti v Town of Ramapo, 162 AD3d 921, 924; see Applewhite v Accuhealth, Inc., 21 NY3d at 426). "In order to sustain liability against a municipality engaged in a governmental function, `the duty breached must be more than that owed the public generally'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Lauer v City of New York, 95 NY2d 95, 100). "Indeed, `although a municipality owes a general duty to the public at large . . . this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Valdez v City of New York, 18 NY3d 69, 75). The issue of whether a special duty exists "`is generally a question for the jury'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Coleson v City of New York, 24 NY3d 476, 483). A special duty can arise where, as relevant here, "`the [municipality] voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally'" (Koyko v City of New York, 189 AD3d 811, 812, quoting Applewhite v Accuhealth, Inc., 21 NY3d at 426). "A municipality will be held to have voluntarily assumed a special duty where there is: `(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking'" (Koyko v City of New York, 189 AD3d at 812, quoting Cuffy v City of New York, 69 NY2d 255, 260).

Further, "[u]nder the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Kralkin v City of New York, 204 AD3d 772, 772; see McLean v City of New York, 12 NY3d 194, 203). "Discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results, whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Kralkin v City of New York, 204 AD3d at 773; see Tango v Tulevech, 61 NY2d 34, 41). Additionally, a municipality is not immune from liability based upon the exercise of discretionary authority "`unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated'" (Ferreira v City of Binghamton, 38 NY3d 298, 311, quoting Valdez v City of New York, 18 NY3d at 76).

1. Governmental Function

Here, with regard to the threshold issue of whether the County acted in a proprietary or governmental function, the plaintiffs do not dispute that Byrne was engaged in a governmental function at the time of the accident. "The function of dealing with children in need of foster care is deemed best executed by government and is undertaken without thought of profit or revenue" (Kochanski v City of New York, 76 AD3d 1050, 1052). Since Byrne was supervising visitation as part of his duties for the DSS on behalf of a child in foster care at the time of the accident, he was engaged in a governmental function. Thus, the inquiry turns to whether the County owed a special duty to the infant plaintiff.

2. Special Duty

Contrary to the County's contention, it failed to establish, prima facie, that it did not owe a special duty to the infant plaintiff.

The issue of whether a municipality owes a special duty to children placed in foster care has generally arisen in the context of actions involving children who were subjected to sexual or physical abuse while in foster care. For instance, in Bartels v County of Westchester (76 AD2d 517, 522), this Court determined that a county may be liable for physical injuries suffered by an infant in a foster home, as the county "undertook to care for the infant plaintiff, and this duty, once assumed, had to be carried out with due regard for the child's safety."

Similarly, in G.F. v Westchester County (2024 NY Slip Op 30447[U] [Sup Ct, Westchester County]), which involved allegations that a child in foster care was sexually abused, the Supreme Court determined that a county assumed a special duty to the infant plaintiff. The court explained that "[i]n contrast to its general population, the [c]ounty seized responsibility for plaintiff's care and upbringing," as the county had custody of the child in foster care and "exercised its parens patriae function to safeguard the best interests of plaintiff and had control over him during the time of the abuse" (id. at *5).

By contrast, in Weisbrod-Moore v Cayuga County (216 AD3d 1459), the Appellate Division, Fourth Department, determined that a complaint alleging that the plaintiff was subjected to sexual and physical abuse while in foster care was insufficient to allege the existence of a special duty owed by a county to the plaintiff. The court explained that the allegations in the complaint pertained specifically to the county's failure to meet its obligations to foster children pursuant to the Social Services Law, and that "`[t]he failure to perform a statutory duty, or the negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed'" (id. at 1462, quoting Estate of M.D. v State of New York, 199 AD3d 754, 757).

The circumstances of the case at bar are distinguishable from the aforementioned cases, as the infant plaintiff did not sustain injuries while in a foster home, but rather during visitation with the mother at a public location under supervision by a caseworker for the DSS. It is an issue of first impression whether the municipality assumed a special duty to the foster child in such instance. We hold that under these circumstances, a municipality may owe a special duty to the foster child.

It is well settled that a school owes a special duty to provide its students with adequate supervision, which "derives from the fact that the school, in assuming physical custody and control of the students, takes the place of the parents or guardians, and therefore acts in loco parentis" (Hauburger v McMane, 211 AD3d 715, 716; see Pratt v Robinson, 39 NY2d 554, 560; Ferguson v City of New York, 118 AD3d 849, 849-850). This special duty of a school to its students is temporary in nature and ceases once a student "has passed out of the orbit of its authority" (Pratt v Robinson, 39 NY2d at 560).

Here, the infant plaintiff was injured under circumstances analogous to a child injured on a playground while at school. At the start of the visit, the foster parent surrendered physical custody and control of the infant plaintiff to Byrne and then left the park for the duration of the visit. While the mother was present during the visit, it is undisputed that she was not the custodial parent and, indeed, was not even permitted to interact with the infant plaintiff outside the presence of the assigned caseworker. Notably, Byrne acknowledged that it was the policy and procedure of the DSS that no visit could start until an employee of the County was present to supervise, and that he was empowered to intervene if he observed anything he believed "might be inappropriate or dangerous for the child" or if the mother permitted the infant plaintiff to engage in an inappropriate activity. Therefore, the mother did not possess an unfettered degree of control over the infant plaintiff such that she could be deemed the party in physical custody of the infant plaintiff during the supervised visit. Rather, by assuming physical control over the infant plaintiff in the parking lot when the foster parent dropped off the infant plaintiff for the visit, Byrne acted in loco parentis during the visit.

Thus, the County's contention that the mother was the individual responsible for supervising the infant plaintiff is not supported by the record. Moreover, the County cannot reasonably take the position that it was entitled to rely on the mother to ensure the safety of the infant plaintiff during visitation when the mother was not permitted to have unsupervised visitation with the infant plaintiff. If the presence of a caseworker was deemed necessary to ensure that the mother acted appropriately during visitation, then it necessarily follows that the caseworker was obligated to ensure that the mother did not permit the infant plaintiff to engage in any unsafe behavior.

Consequently, we hold that the County may assume a special duty to a foster child during the course of visitation supervised by a DSS caseworker. We also determine that the County's conclusory assertions regarding the lack of a special duty were insufficient to meet its burden of establishing, prima facie, that it did not owe a special duty to the infant plaintiff (see Stevens v Town of E. Fishkill Police Dept., 198 AD3d 832, 833; Morgan-Word v New York City Dept. of Educ., 96 AD3d 1025, 1026).

3. Discretionary Conduct

Although discretionary governmental action, as opposed to ministerial governmental action, may not be a basis for liability even if a special duty exists (see Ferreira v City of Binghamton, 38 NY3d at 311-312; Kralkin v City of New York, 204 AD3d at 772-773), the County's bare assertion that Byrne's conduct was discretionary was insufficient to meet its prima facie burden, as "`a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion'" (Coleson v City of New York, 125 AD3d 436, 437, quoting Valdez v City of New York, 18 NY3d at 79).

To the extent the County contends that Byrne's conduct was discretionary because "New York State guidelines set forth by the Office of Children and Family Services" provide for "the least restrictive level of supervision necessary for children in foster care," the County's contention is improperly raised for the first time on appeal (see Shahid v City of New York, 144 AD3d 1127, 1129-1130).

Moreover, even assuming, arguendo, that the County established, prima facie, that Byrne's authority to supervise visitation was discretionary in nature, the County failed to demonstrate that such discretion "`was in fact exercised in relation to the conduct on which liability is predicated'" (Ferreira v City of Binghamton, 38 NY3d at 311, quoting Valdez v City of New York, 18 NY3d at 76). Since Byrne acknowledged that he did not observe the infant plaintiff walking up the portion of the slide intended for children to slide down prior to the accident, it cannot be said that he made a discretionary decision whether or not the infant plaintiff's behavior warranted his intervention. Thus, any exercise of discretion by Byrne during visitation bore no relation to the conduct on which liability is predicated.

Consequently, the County failed to establish, prima facie, that it was immune from liability for a claim of negligent supervision for the subject accident.

B. Proximate Causation

Generally, the adequacy of a defendant's supervision of children on a playground and whether inadequate supervision was a proximate cause of an accident are questions of fact for a jury (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d 708, 709-710). "However, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant is warranted" (id. at 710; see R.B. v Sewanhaka Cent. High Sch. Dist., 207 AD3d 607, 610).

Contrary to the County's contention, it failed to establish, prima facie, that Byrne provided adequate supervision to the infant plaintiff, or that a lack of adequate supervision was not a proximate cause of the accident (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d at 710; B.T. v Bethpage Union Free Sch. Dist., 173 AD3d 806, 808). Viewing the evidence in the light most favorable to the plaintiffs (see Rodriguez v American Airlines, Inc., 219 AD3d 948), there were triable issues of fact as to whether the infant plaintiff was engaged for an extended period of time in a dangerous activity given her young age, which warranted more heightened supervision, and if so, whether such supervision would have prevented the accident (see SM v Plainedge Union Free Sch. Dist., 162 AD3d 814, 817; DiGiacomo v Town of Babylon, 124 AD3d 828, 829). The mother testified that the infant plaintiff and her sister were playing on the big slide where the accident occurred—which was intended for older children ages 5 to 12—for approximately 10 to 15 minutes prior to the accident, and Byrne estimated that they were playing on that slide for 4 to 5 minutes. Thus, the County's evidentiary submissions were insufficient to establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it (see M.P. v Mineola Union Free Sch. Dist., 166 AD3d 953, 955).

III. Conclusion

In light of the foregoing, the County failed to establish its prima facie entitlement to judgment as a matter of law, and thus, we need not consider the sufficiency of the plaintiffs' submissions in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The parties' remaining contentions either were improperly raised for the first time in reply papers, and thus, are not properly before this Court, or are without merit.

Accordingly, the Supreme Court properly denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the order is affirmed insofar as appealed from.

BARROS, J.P., WARHIT and VENTURA, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with costs."

PARENT LIMITED IN RIGHT TO USE CHILD'S PERSONAL INJURY SETTLEMENT

David M. v. DM, 2022 NY Slip Op 51045 - NY: Supreme Court, Rensselaer 2022:

"In this personal injury action, and following an October 21, 2021 Infant Compromise Order — which resolved and settled all claims for personal injuries sustained by the Infant arising out of a dog bite incident that occurred in February 2019 — the Infant's parent now petitions the Court for an Order authorizing him to withdraw $7,763.00 from the settlement funds to pay for the Infant's tuition a private Catholic school.

For the reasons that follow the Court denies Petition in its entirety.

As background, on February 1, 2019 the Infant, then age 10 months, sustained a dog bite injury, including bites to her right forehead and eyebrow, and now has two permanent facial scars as a result of the dog bite. The Infant's claim was settled before trial, with the balance of the settlement ($102,849.14) paid to the Infant's parent "to be held for the sole use and benefit of said infant, jointly with an officer of Pioneer Bank, Troy, New York . . . subject to the Order of this Court . . . (and paid over to the Infant) without further Court Order when the infant reaches the age of 18 years."

Now, the Infant's parent asks the Court to authorize the payment to him of $7,763.00 from the settlement funds so that he may pay his daughter's first year tuition for full day pre-school at a private Catholic school. He also tells the Court that he does "not wish to send her to public school . . . (and wishes) to send her to a private Catholic school that will give her a good base education while teaching her religion as well."

To be clear, the Court takes no issue with the petitioner's wish to send his child to a private religious school, and certainly credits his goal of advancing her best interests.

This said, the Court is mindful that an infant's settlement funds "belong to the child alone. . . . awarded to compensate for (her) pain, (her) suffering and (her) incapacity . . . (and are not a substitute) for the necessities of life for which parents are responsible, absent specific proof of financial distress . . . (and a parent's) duty should not be shifted to the Infant" (Joyner-Pack v State of New York, 30 Misc 3d 903, 9135 [Ct Cl, 2012], quotations and citations omitted). Further, any application for approval of an expenditure of an infant's settlement funds must comply with Uniform Rule 202.67(f) — which must include "a statement that the family of the infant is financially unable to afford the proposed expenditures."

However viewed, the record simply does not support the petitioner's request to shift the cost of pre-school to the Infant, however well intended the private religious education maybe. Particularly absent is any plan for the continuing costs of the private education post the proposed pre-school, or a statement of net worth or admissible proof setting out the petitioner's inability to meet his parental obligations.

Lastly, given the nature of the injuries sustained by the Infant, including facial scarring, in the Court's view the Infant's settlement funds are better preserved and should remain intact until she attains majority, rather than be expended by a likely series of continuing requests to spend her moneys for the necessities of life (Serrant v Mossi, 40 Misc 3d 1224(A) [Sup Ct, Bronx County 2013]) — here defined by the petitioner as a private school education."

THE LAW OF SNOW REMOVAL

Porter v. MASON AVE. HOLDING CORP., 2022 NY Slip Op 51195 - NY: Supreme Court, Richmond 2022:

"Under common law, a property owner has a duty to maintain their property in a reasonably safe condition. See Buffalino v. XSport Fitness, 2022 NY Slip Op. 00998 (2d Dept. 2022); see also Mowla v. Baozhu Wu, 195 AD3d 706 (2d Dept. 2021). A property owner will be held liable for a slip and fall accident involving snow and ice on its property when they created the dangerous condition which caused the accident or had actual or constructive notice of its existence. See Anderson v. Landmark at Eastview, Inc., 129 AD3d 750 (2d Dept. 2015). However, under the storm-in-progress rule, a property owner, tenant in possession, or snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. See Henenlotter v. Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116 (2d Dept. 2022). If said landowner elects to begin the snow removal process during the continuing storm it must do so with reasonable care, or it could be held liable for creating a hazard or exacerbating the hazardous condition. See Petrocelli v. Marrelli Dev. Corp., 31 A.D 3d 623 (2d Dept. 2006). The mere failure of a property owner to remove all of the snow and ice, without more, does not establish that the risk of harm was increased. See Aronov v. St. Vincent's House. Dev. Fund. Co., Inc. 145 AD3d 648 (2d Dept. 2016). The question of whether a reasonable time has passed may be decided by the court as a matter of law, based upon the circumstances of the case. See Acocal v. City of Yonkers, 179 AD3d 630 (2d Dept. 2020).

.......

After considering the Defendants respective motions the Court finds that they have met their initial burden of establishing a prima facie entitlement to summary judgment. The Expert Affidavit of Mr. Roberts indicates that the wintery mix of precipitation began at 12:45 p.m. (before the incident) and continued until 8:00 or 8:40 p.m. (after the incident). Thus, the storm was "in progress" at 6:00 or 6:30 p.m. when the Plaintiff slipped and fell. As the storm was continuing at the time of the incident the Defendants had no duty to being cleaning operations. See Fitzsimons v. North Shore Univ. Hosp., 205 AD3d 684 (2d Dept. 2022). The fact that the precipitation was not continuous snow is irrelevant as a "wintery mix" is sufficient to satisfy the storm-in-progress doctrine. See Sherman v. New York State Thruway Auth., 27 NY3d 1019 (2016); see also Cohen v. A.R. Fuel Inc., 290 AD2d 640 (3rd Dept. 2002). A property owner is not liable for slip and fall injuries caused by "accumulated snow, rain, ice, sleet, or hail." See Solazzo v. New York City Tr. Auth., 21 AD3d 735 (1st Dept. 2005), affd, 6 NY3d 734 (2005).

As the Defendants have met their burden of establishing an entitlement to summary judgment on the storm-in-progress doctrine, the burden shifts to the Plaintiff to raise a triable issue of fact as to whether there was a storm in progress or whether defendant created or exacerbated the naturally occurring hazardous condition by negligent snow removal efforts. See Lewis v. 311 Realty, LLC, 201 AD3d 591 (1st Dept. 2022); see also DeStefano v. City of New York, 41 AD3d 528 (2d Dept. 2007). Here Plaintiff argues that the storm had ceased by the time of the incident and thus that the storm in progress rule is inapplicable. However, according to the meteorological report provided by Defendants the storm did not cease until hours after the alleged incident. While Plaintiff may have fell during a "lull" in the storm, a lull in a continuing storm does not impose a duty to remove the accumulation of ice and snow before the storm ceases in its entirety. See Johnson v. Pawling Cent. Sch. Dist., 196 AD3d 686 (2d Dept. 2021); see also Fenner v. 1011 Rte. 109 Corp., 122 AD3d 669 (2d Dept. 2014). Plaintiff has offered no evidence to refute the meteorological report which indicates that the storm was ongoing at the time of the incident. While counsel makes certain observations regarding alleged "inconsistencies" in the supporting meteorological data, he has not offered his own expert report to contradict Mr. Robert's expert analysis of that data. Interpretation of meteorological data is beyond the ken of an ordinary person and should be explained by an expert. See Wadsworth Condos LLC v. Dollinger Gonski & Grossman, 114 AD3d 487 (1st Dept. 2014).

Plaintiff's contention that an issue of fact exists as to whether Defendant MDP's snow and ice removal created or exacerbated a dangerous condition is directly refuted by his own deposition testimony that he saw no one shoveling or plowing at the time of the incident and that the snow in the area in which he fell was undisturbed. See Giron v. New York City Hous. Auth., 187 AD3d 603 (1st Dept. 2020). The deposition testimony of Mason Ave.'s Superintendent, Mr. Coyoy, that MDP arrived to clean the snow in the large parking lot at approximately 5:00 or 5:30 p.m., standing alone, is insufficient to establish that they cleaned the specific area where the Plaintiff fell by 6:30, especially considering the Plaintiff's testimony to the contrary. Moreover, even assuming that they did clean the area where the Plaintiff fell, there is simply no evidence, other than mere speculation, that the Defendants' did anything to make naturally occurring condition worse. Speculation and surmise are insufficient to defeat a motion for summary judgment. See Skouras v. New York City Tr. Auth., 48 AD3d 547 (2d Dept. 2008); see also Myrow v. City of Poughkeepsie, 3 AD3d 480 (2d Dept. 2004); Ross v. Lewis, 181 AD3d 423 (1st Dept. 2020).

The storm in progress rule provides a sufficient ground to grant both Defendant's motions. However, Defendant MDP also argues that they owed no legal duty to Plaintiff, a claim only briefly discussed in Plaintiff's opposition. MDP contracted with Mason Ave. to perform snow removal services. A limited contractual undertaking to provide snow removal generally does not render the snow removal contractor liable in tort for the personal injuries of third parties. See Canciani v. Stop & Shop Supermarket Co., LLC, 203 AD3d 1011 (2d Dept. 2022). There are three exceptions to this rule: (1) where the contracting party, in failing to exercise due care, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the performance of the contracting party's duties or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. See Espinal v. Melville Snow Contrs., 98 NY2d 136 (2002). Exceptions two and three clearly do not apply, especially considering Plaintiff's allegations that Mason Avenue's agents historically participated in snow removal. Therefore, the only exception that could apply would be if MDP's attempts at snow removal launched the instrument of harm, or in other words, exacerbated the naturally occurring hazardous condition. See Cohen v. City of New York, 209 AD3d 830 (2d Dept. 2022). As discussed above, Plaintiff fails to offer any evidence that MDP cleaned the specific area where the accident occurred. Even assuming they did, Plaintiff fails to allege that MDP undertook any actions that made the naturally occurring hazard worse. See Santos v. Deanco Servs., Inc., 142 AD3d 137 (2d Dept. 2016). Speculation and conjecture are insufficient to defeat a motion for summary judgment. See Crosthwaite v. Acadia Realty Trust, 62 AD3d 838 (2d Dept. 2009)."

GRIEVING FAMILY ACT AWAITING GOVERNOR SIGNATURE

June 3 saw the passing in both house of the bill which would permit the New York families of wrongful death victims to recover compensation for their emotional anguish.

See https://www.nysenate.gov/legislation/bills/2021/S74

WRONGFUL LIFE CLAIM OR DAMAGES DUE TO MALPRACTICE

Greenberg v. MONTEFIORE NEW ROCHELLE HOSPITAL, 2022 NY Slip Op 2194 - NY: Appellate Div., 1st Dept. 2022:

"On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), courts treat the allegations in the complaint as true (Leon v Martinez, 84 NY2d 83, 87 [1994]). The relevant facts alleged in the complaint are as follows. On December 21, 2011, plaintiff's husband (decedent) executed a health care proxy and a living will (Public Health Law § 2981; 10 NYCRR 400.21). The living will provides that, if decedent has an "incurable or irreversible mental or physical condition with no reasonable expectation of recovery" or is "a) in a terminal condition; b) permanently unconscious; or c) if . . . conscious but ha[s] irreversible brain damage and will never regain the ability to make decisions and express [his] wishes," then he directed that his treatment be limited to measures to keep him comfortable and relieve pain, and specified that he did not consent to cardiac resuscitation, mechanical respiration, tube feeding, or antibiotics. The health care proxy and living will both identify plaintiff as decedent's health care agent to act in accordance with decedent's wishes in the event that he was unable to make his own health care decisions, with their two adult sons designated to act as substitute health care agents. Both documents were properly witnessed and comply with the applicable statutory requirements.

In 2016, decedent was 63 years old, suffering from advanced Alzheimer's disease, residing in a residential treatment facility, and unable to recognize his wife and children or communicate in any meaningful manner. On November 3, 2016, he was admitted to defendant Montefiore New Rochelle Hospital after being found lying on the floor at his residential facility. Hospital staff had copies of decedent's living will and health care proxy. Hospital staff also provided decedent's son, the only health care agent present at the hospital, with a Medical Order for Life-Sustaining Treatment (MOLST) form, which he completed and executed. The MOLST provided that decedent was to receive comfort measures only, and that decedent was not to receive intravenous fluids or antibiotics.

The physician who first evaluated decedent at the hospital determined that he was suffering from sepsis. She noted in decedent's chart under "Advance directives," "DNR; DNI; No tube feeds; No antibiotics; No IV fluids . . . (refer to MOLST form)." The examining physician contacted plaintiff by telephone, who confirmed that these directives were correct and also verbally directed that decedent was not to receive interventional medical treatment, including antibiotics, and that he was only to be provided with measures to alleviate pain, so that his suffering would end as quickly as possible.

Shortly after the first physician completed her examination, the attending physician, defendant Dr. Escobar, examined decedent. Dr. Escobar noted that decedent's hospital record indicated that he was not to receive antibiotics or intravenous fluids, and that there was a MOLST in place, executed just the day before. Nevertheless, on November 4, 2016, Dr. Escobar directed that decedent be treated with intravenous antibiotics and ordered a brain CT, chest X ray, ECG, blood tests, and the administration of other medications that were not necessary to alleviate pain.

Plaintiff has retained an expert who opines that, had decedent not received treatment contrary to decedent's wishes and his health care agents' instructions, he likely would have died from sepsis within a few days. Instead, decedent endured pain and suffering over a period of approximately 30 days, until he died on December 5, 2016.

Plaintiff filed this medical malpractice action on January 9, 2019. The complaint alleges that defendants departed from the standard of care by failing to abide by decedent's wishes expressed in his advance directives, the directives of his health care agents, and the MOLST, and, as a result, decedent endured pain and suffering for over a month.

On October 21, 2020, defendants moved to dismiss the complaint for failure to state a cause of action. Their sole argument before the motion court was that plaintiff's claim is one for "wrongful life," and is thus disallowed under Cronin v Jamaica Hosp. Med. Ctr. (60 AD3d 803 [2d Dept 2009], lv granted 12 NY3d 715 [2009], appeal withdrawn 13 NY3d 857 [2009]). As there was no binding precedent from this Department, the motion court found that it was bound to follow Cronin (see D'Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014]) and granted the motion. We now reverse.

At the outset, I note that, in Cronin, it appears that plaintiff sought damages based on a claim "that the defendant wrongfully prolonged the decedent's life by resuscitating him against the express instructions of the decedent and his family" (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent's pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent's wishes expressed in his advance directives as reaffirmed by his health care agents and in the MOLST. Defendants do not address these allegations at all, arguing only that plaintiff asserts a "wrongful life" claim like the one asserted in Cronin. Since I find that plaintiff has adequately stated a medical malpractice claim that is not barred by Cronin, defendants are not entitled to dismissal of the complaint.

In any event, this Court is not bound by Cronin (see D'Alessandro, 123 AD3d at 6), and I find that the reasoning in that case, and in the Court of Appeals cases on which it relies, do not apply here. The award of summary judgment to defendant in Cronin was based on the Second Department's determination that "the status of being alive does not constitute an injury in New York" (60 AD3d at 804), based on its citation to Alquijay v St. Luke's-Roosevelt Hosp. Ctr. (63 NY2d 978, 979 [1984]) and Becker v Schwartz (46 NY2d 401, 412 [1978]). In each of those cases, the Court of Appeals dismissed causes of action, made on behalf of infants, which alleged that, "had plaintiffs been properly advised by defendants of the risks of abnormality, their infants would never have been born" (Becker, 46 NY2d 401, 410; see also Alquijay, 63 NY2d at 979). The holdings in Becker and Alquijay rely on two premises, neither of which is applicable here.

First, the Court of Appeals stated that there is no precedent recognizing "the fundamental right of a child to be born as a whole, functional human being. . . ." (Becker, 46 NY2d at 411 [internal quotation marks omitted]; see also Alquijay, 63 NY2d at 979). However, in contrast, a competent adult's right to refuse medical treatment, even where refusal may result in death, is well established by case law (see Cruzan v Director, Missouri Dept. of Health, 497 US 261, 281 [1990]; Myers v Schneiderman, 30 NY3d 1, 14 [2017]) and statute (see Public Health Law article 29-C [health care proxies]; Public Health Law article 29-CCC [non hospital orders not to resuscitate]; 10 NYCRR 400.21 [advance directives]).

Second, the Court found that the type of claim at issue in Becker and Alquijay is unsuited to judicial determination, since "a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence" (Becker, 46 NY2d at 412; see also Alquijay, 63 NY2d at 979) and because "[w]hether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians" (Becker, 46 NY2d at 411). In contrast, courts can and regularly do determine damages for pain and suffering. Moreover, when a competent adult has executed advance directives specifying the conditions under which they refuse certain life-sustaining treatments, and there has been a medical determination that those conditions are present, no philosophical guesswork is required as to what is best for such a patient. Accordingly, I find that the holdings in Becker and Alquijay do not bar plaintiff from proceeding with the medical malpractice claim set forth in the complaint on the theory that the failure to follow decedent's directives was a departure from the standard of care.

Accordingly, the judgment of the Supreme Court, Bronx County (John R. Higgitt, J.), entered February 16, 2021, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about February 9, 2021, which granted defendants Montefiore New Rochelle Hospital and Diego Escobar, M.D.'s CPLR 3211(a)(7) motion to dismiss the complaint, should be reversed, without costs, the judgment vacated, and the appeal from aforesaid order should be dismissed, without costs, as subsumed in the appeal from the judgment.

Judgment, Supreme Court, Bronx County (John R. Higgitt, J.), entered February 16, 2021, dismissing the complaint vacated, the complaint reinstated and the appeal from the order, same court and Justice, entered on or about February 9, 2021, dismissed, without costs, as subsumed in the appeal from the judgment.

Opinion by Gesmer, J. All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT."

WRONGFUL PROLONGATION OF LIFE?

Wrongful death is recognized as a cause of action in New York. But what if a decedent's wishes as to cessation of health care is not followed. 

Lanzetta v. Montefiore Med. Ctr., 2021 NY Slip Op 21026 - NY: Supreme Court February 16, 2021:

".....

A "wrongful life" claim typically refers to a medical malpractice or negligence claim by a parent (or other guardian) on behalf of an impaired child based on the theory that the child would have been better  off had he or she never come into being (see B.F. v Reproductive Medicine Assocs. of New York, LLP, 136 AD3d 73, 76 [1st Dept 2015], affd 30 NY3d 608 [2017]). A "wrongful life" claim is not cognizable in New York "because, as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all" (30 NY3d at 614). As the Court of Appeals stated in its seminal "wrongful life" decision, Becker v Schwartz (46 NY2d 401, 412 [1978]), "a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make."^[3]

In Cronin v Jamaica Hosp. Med. Ctr. (60 AD3d 803 [2009]), the Second Department concluded that a plaintiff's action for medical malpractice and negligence premised on the theory that the medical personnel of the defendant hospital wrongfully prolonged the plaintiff's decedent's life by resuscitating him twice in violation of do-not-resuscitate orders essentially sounded in "wrongful life." The CroninCourt stated that the defendant, which had moved for summary judgment dismissing the complaint, made a prima facie showing of entitlement to judgment as a matter of law on the ground that the plaintiff's decedent had not sustained any legally cognizable injury as a result of the defendant's conduct, and that the plaintiff had failed to raise a triable issue of fact (id. at 804). Notably, the Cronin Court held that "the status of being alive does not constitute an injury in New York" (id., citing Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978, 979 [1984]; Becker v Schwartz, 46 NY2d at 412). The claim pursued by the plaintiff in Cronin has been characterized as one for wrongful prolongation of life (see Hodge, Wrongful Prolongation of Life — A Cause of Action That May Have Finally Moved Into the Mainstream, 37 Quinnipiac L. Rev. 167, 183-191 [2019]; Saitta & Hodge, Wrongful Prolongation of Life — A Cause of Action That Has Not Gained Traction Even Though a Physician Has Disregarded a "Do Not Resuscitate" Order, 30 Temp. J. Sci. Tech & Envtl. L. 221, 235 [Winter 2011]; 77 CJS Right to Die § 39).

Cronin, which is binding on this court (see People v Turner, 5 NY3d 476, 482 [2005]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664-666 [2d Dept 1984]), compels the conclusion that plaintiff's decedent did not sustain a legally cognizable injury as a result of defendant Hochster's alleged failure to provide treatment in conformity with the directives in the 1993 living will and the directions of decedent's health care agent.

Plaintiff does not address Cronin; rather, plaintiff contends that defendant Hochster may be liable in tort under two statutes: Public Health Law §§ 2982 and 2994-f.

Public Health Law § 2982 is part of article 29-C of the Public Health Law ("the health care agents and proxies act"), which governs health care agents and proxies (see Public Health Law §§ 2980-2994). Under the health care agents and proxies act, an adult (i.e., the principal) may execute a health care proxy designating an agent to make health care decisions for the principal should he or she lose the capacity to make those decisions him- or herself (see Public Health Law §§ 2981-2983). A health care provider who is provided with a health care proxy relating to a patient must place the proxy in the patient's medical record, and, subject to certain exceptions, comply in good faith with the health care decisions of the health care agent (see Public Health Law § 2984[1], [2], [3], [4], [5]).

The health care agents and proxies act does not expressly create a private right of action in favor of a principal (or his or her estate) against a health care provider for violating the statutory duty to comply in good faith with the health care decisions of the principal's health care agent. Therefore, plaintiff can seek damages based on a violation of the health care agents and proxies act only if a private right of action is fairly implied in the act or its legislative history (see Cruz v TD Bank, N.A., 22 NY3d 61, 70 [2013]). The following three factors must be evaluated in gauging whether a private right of action is fairly implied from a statutory scheme: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" (id., quoting Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]).

Plaintiff satisfies the first two factors relevant in determining whether a private right of action is fairly implied in the health care agents and proxies act because plaintiff's decedent was one of the class for whose particular benefit the act was enacted — adults who wish to appoint health care agents to make health care decisions for those adults should they lose the capacity to make health care decisions (seeGovernor's approval mem., 1990 New York State Legislative Annual, at 364; mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 361-363) — and recognition of a private right of action would arguably promote a legislative purpose of the act — ensuring that an adult's medical treatment wishes will be honored if he or she loses the capacity to make medical treatment decisions (see Governor's approval mem., 1990 New York State Legislative Annual, at 364; mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 361-363). However, plaintiff does not satisfy the third factor, which is the most important in determining whether an implied right of action exists: whether creation of such a right would be consistent with the legislative scheme (Cruz v TD Bank, N.A., 22 NY3d at 70).

The health care agents and proxies act was rooted in research by and discussions of a task force that had been convened by then-Governor Mario M. Cuomo to study "the ethical and legal issues raised by the process by which medical care decisions are made in cases involving persons without decision-making capacity" (mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 362). The health care agents and proxies act, which was "based on th[e] [task force's] effort," was designed to accomplish the following goals: (1) protect and enhance the ability of competent adults to have their medical treatment wishes honored in the event that they lost their capacity to make medical treatment decisions; (2) provide guidance to patients, their families, and health care providers regarding health care proxies and their enforceability; and (3) establish important safeguards concerning the appointment of health care agents and the exercise of authority by them (id.; see Governor's approval mem., 1990 New York State Legislative Annual, at 364). Ultimately, the health care agents and proxies act "establish[ed] a process for the appointment of an agent, se[t] out the parameters of the agent's authority, and provide[d] standards for the exercise of that power" (mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 363).

While the health care agents and proxies act "provides a whole range of procedural safeguards to ensure that the patient's rights and best interests are protected" (id.),^[4] neither Senator Tully, who sponsored the act, nor the Governor suggested in their respective legislative memoranda that a damages action was an appropriate remedy for a health care provider's failure to honor a health care agent's directives, which failure prolonged a patient's life. Moreover, at the time the Legislature passed the act, the common law in New York provided that the status of being alive did not constitute an injury (see Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d at 979; Becker v Schwartz, 46 NY2d at 412), and the Court of Appeals has cautioned against inferring a significant alteration to existing law from legislative silence (Cruz v TD Bank, N.A., 22 NY3d at 72). If the Legislature had intended to impose new liability on health care providers for failing to comply with the directives of health care agents, it would have provided so in the health care agents and proxies act (see generally id.).

Plaintiff's reliance on Public Health Law § 2994-f, which is part of the Family Health Care Decisions Act ("FHCDA") in article 29-CC of the Public Health Law, is misplaced. The FHCDA, which provides a procedure for the selection of a surrogate health care decisionmaker for a hospitalized individual who lacks the capacity to make his or her own treatment decisions, is inapplicable when, as here, the hospitalized individual has, by way of a duly-executed health care proxy, designated a health care agent (see Public Health Law § 2994-b[2] ["Prior to seeking or relying upon a health care decision by a surrogate for a patient under this article [i.e., 29-CC], the attending practitioner shall make reasonable efforts to determine whether the patient has a health care agent appointed pursuant to article [29-C]. If so, health care decisions for the patient shall be governed by such article, and shall have priority over decisions by any other person except the patient or as otherwise provided in the health care proxy."] [emphasis added]).^[5]

Ultimately, the right of a competent adult to have his or her medical treatment wishes honored in the event that he or she loses the capacity to make medical treatment decisions is important, and the law recognizes that right and provides substantial processes that allow a competent adult to exercise that right. New York law does not, however, recognize a cause of action seeking damages for wrongful prolongation of life. Whether the law ought to do so under our common law is a matter for the appellate courts; whether it ought to do so by statute is a matter for the Legislature."

DANGEROUS PLAY AT SCHOOL?

People's perception of what is school age appropriate activity and what is dangerous play can differ.

Chiauzzi v Sewanhaka Cent. High Sch. Dist., 2019 NY Slip Op 02310, Decided on March 27, 2019, Appellate Division, Second Department:

"On April 27, 2011, at approximately noon, the plaintiff, who was then in the eighth grade, allegedly sustained injuries on the exterior grounds of the defendant's school during her lunch recess. A short fence, approximately the same height as the plaintiff's knees, separated a grass area from a concrete walkway. The plaintiff and two of her friends took turns running and jumping over this fence. The incident occurred approximately 10 to 15 minutes into this activity, after the plaintiff and her friends had each taken five or six turns jumping over the fence. As the plaintiff attempted to jump over the fence, the middle of her right shin struck the fence, causing her to fall on the concrete walkway. The plaintiff testified at a General Municipal Law § 50-h hearing and her deposition that she did not see any school personnel outside the school building either before or at the time of the incident. The plaintiff subsequently commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49; see Santos v City of New York, 138 AD3d 968, 969). However, "[s]chools are not insurers of safety, . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Mirand v City of New York, 84 NY2d at 49; see Paca v City of New York, 51 AD3d 991, 992). Here, the defendant established, prima facie, that the plaintiff was engaged in an age-appropriate activity that did not constitute dangerous play, and that the alleged lack of supervision was not a proximate cause of the accident (see Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650, 651-652). In opposition, the plaintiff failed to raise a triable issue of fact."

BUSINESS OWNER LIABILITY FOR THIRD PARTY ASSAULTS TO PATRONS

For a business, sometimes what happens outside the premises can be a liability. This was discussed in an earlier blog post with respect to landlords. See https://jmpattorney.blogspot.com/2018/08/is-landlord-liable-for-3rd-party.html

This photo of Table Talk Diner is courtesy of TripAdvisor - this case does not involve Table Talk Diner.

Oblatore v 67 W. Main St., LLC, 2019 NY Slip Op 00892, Decided on February 6, 2019, Appellate Division, Second Department:

"On the early morning hours of August 25, 2007, the plaintiff and his friends allegedly were attacked from behind by a group of individuals in a parking lot located adjacent to an establishment owned and/or operated by the defendants 67 West Main Street, LLC, Havens Brewery, LLC, Brick House Brewery & Restaurant, Brick House Brewing Co., and Havens Brewery, LLC, doing business as Brick House Brewery & Restaurant, also known as Brick House Brewing Co. (hereinafter collectively the defendants). The plaintiff subsequently commenced this action alleging, inter alia, that the defendants were negligent in failing to control the conduct of persons on their property. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiff appeals.

"Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property" (Kranenberg v TKRS Pub, Inc., 99 AD3d 767, 768; see D'Amico v Christie, 71 NY2d 76, 85; Hegarty v Tracy, 125 AD3d 804, 805). "However, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control" (Kranenberg v TKRS Pub, Inc., 99 AD3d at 768 [internal quotation marks omitted]; see Afanador v Coney Bath, LLC, 91 AD3d 683, 683-684; Giambruno v Crazy Donkey Bar & Grill, 65 AD3d 1190, 1192). "Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" (Giambruno v Crazy Donkey Bar & Grill, 65 AD3d at 1192; see Kranenberg v TKRS Pub, Inc., 99 AD3d at 768; Afanador v Coney Bath, LLC, 91 AD3d at 683-684).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the attack on the plaintiff was unforeseeable and unexpected (see Hegarty v Tracy, 125 AD3d at 805; Kranenberg v TKRS Pub, Inc., 99 AD3d at 768; Giambruno v Crazy Donkey Bar & Grill, 65 AD3d at 1192). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557). Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them."

MOTOR VEHICLE ACCIDENTS - THEGRAVES AMENDMENT

Casine v Wesner, 2018 NY Slip Op 06714, Decided on October 10, 2018, Appellate Division, Second Department:

"The plaintiff was involved in a vehicular collision with an automobile operated by the defendant Paul Wesner and owned by the defendant BAMA Commercial Leasing (hereinafter BCL). The plaintiff subsequently commenced this action to recover damages for his injuries, alleging, inter alia, that the defendants were negligent in their operation, ownership, and maintenance of the BCL vehicle. Following joinder of issue, and before discovery was conducted, the defendants moved for summary judgment dismissing the complaint insofar as asserted against BCL, relying on the bar against vicarious liability for commercial lessors of vehicles set forth in 49 USC § 30106 (hereinafter the Graves Amendment). The Supreme Court denied the motion, and the defendants appeal. We affirm.

Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle where the owner proves that it is engaged in the business of renting or leasing motor vehicles and it was not otherwise negligent (see Gluck v Nebgen, 72 AD3d 1023; Graham v Dunkley, 50 AD3d 55). However, "[t]he Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle" (Olmann v Neil, 132 AD3d 744, 745; see Terranova v Waheed Brokerage, Inc., 78 AD3d 1040, 1041; Collazo v MTA-New York City Tr., 74 AD3d 642, 643). Accordingly, in order to establish its prima facie entitlement to judgment as a matter of law in this action, BCL was required to prove not only that it is in the business of leasing vehicles, but also, that it did not negligently maintain the BCL vehicle (see e.g. Pacelli v Intruck Leasing Corp., 128 AD3d 921, 925; Ballatore v HUB Truck Rental Corp., 83 AD3d 978, 979-980; see generally Antoine v Kalandrishvili, 150 AD3d 941, 942; Khan v MMCA Lease, Ltd., 100 AD3d 833, 834).

BCL failed to sustain its prima facie burden, since the affidavit of its litigation specialist failed to address the plaintiff's negligent maintenance theory of liability, and the copy of the lease documents it submitted stated that Wesner was obligated to have the subject vehicle serviced "by a BCL partner dealer" according to a service schedule established by BCL. Accordingly, in the absence of a showing that BCL did not negligently maintain the vehicle, the motion for summary judgment dismissing the complaint insofar as asserted against BCL was properly denied (see Olmann v Neil, 132 AD3d at 746; see generally Anglero v Hanif, 140 AD3d 905), regardless of the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

IS LANDLORD LIABLE FOR 3RD PARTY CRIMINAL ACT

Muzafarov v Casallas-Gonzalez ,2018 NY Slip Op 05771, Decided on August 15, 2018, Appellate Division, Second Department:

"The plaintiff Anvar Muzafarov (hereinafter the injured plaintiff), a patron of a movie theater owned by the defendant Regal Cinemas, Inc. (hereinafter Regal), allegedly was injured in the parking lot of the theater. The injured plaintiff allegedly was punched in the face by the defendant Eduardo Casallas-Gonzalez (hereinafter Casallas-Gonzalez) during an argument over a parking spot. The injured plaintiff and his wife, Svetlana Tokareva, suing derivatively (hereinafter together the plaintiffs), commenced this personal injury action alleging, inter alia, that Regal breached its duty to the injured plaintiff by failing to provide adequate security, and that the breach was a proximate cause of his injuries. After the completion of discovery, Regal moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion.

A landlord is under a duty to take minimal precautions to protect its tenants and invitees from foreseeable harm, "including the harm caused by a third party's foreseeable criminal conduct on the premises" (Johnson v City of New York, 7 AD3d 577, 577; see Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878; Granata v City of White Plains, 120 AD3d 1187, 1189). "To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" (Karim v 89th Jamaica Realty Co., L.P., 127 AD3d 1030, 1030; see Jacqueline S. v City of New York, 81 NY2d 288, 295). Knowledge of ambient neighborhood crime, standing alone, is insufficient to establish foreseeability (see Novikova [*2]v Greenbriar Owners Corp., 258 AD2d 149, 153).

Here, Regal established its prima facie entitlement to judgment as a matter of law through the submission of evidence demonstrating that the physical altercation between the injured plaintiff and Casallas-Gonzalez was a sudden and unforeseeable event that could not have been anticipated or prevented by the provision of greater security measures (see Roberts v Nostrand Hillel Food, Inc., 90 AD3d 1011; Katekis v Naut, Inc., 60 AD3d 817, 818). Regal also established prima facie that the alleged criminal acts committed by Casallas-Gonzalez were not reasonably predictable (see Karim v 89th Jamaica Realty Co., L.P., 127 AD3d at 1030). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."

A SNOW CASE

Hutchings v. GARRISON LIFESTYLE PIERCE HILL, LLC, 2018 NY Slip Op 57 - NY: Appellate Div., 3rd Dept. 2018:

"On January 4, 2012, plaintiff Carole A. Hutchings was injured when she fell on ice in a parking lot on property managed by defendant Levin Management Properties and/or defendant Levin Properties, L.P. (hereinafter collectively referred to as Levin) and owned by defendants Garrison Lifestyle Pierce Hill, LLC and/or defendant Garrison Investment Group, LP. Levin contracted with defendant Cenova, Inc. to perform snow and ice removal services and, on January 3, 2012, defendant A Great Choice Lawncare and Landscaping, LLC applied salt to the parking lot pursuant to its subcontract with Cenova for snow and ice removal. Hutchings and her spouse, derivatively, commenced this negligence action seeking damages for the injuries she sustained. Following joinder of issue, Cenova moved for summary judgment dismissing the complaint and granting a cross claim that it asserted against Great Choice for indemnification. Great Choice cross-moved for summary judgment dismissing the complaint and Cenova's cross claim. Supreme Court granted Cenova's motion and Great Choice's cross motion and granted summary judgment in Cenova's favor on its indemnification claim against Great Choice. Plaintiff and Great Choice now appeal.

It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless "(1) . . . the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties launche[d] a force or instrument of harm; (2) . . . the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties; [or] (3) . . . the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] [internal quotation marks and citation omitted]; see Baker v Buckpitt, 99 AD3d 1097, 1098 [2012]). Supreme Court determined that Cenova and Great Choice (hereinafter collectively referred to as defendants) were entitled to summary judgment in their favor. On this appeal, plaintiffs do not dispute the court's determination with regard to the sufficiency of defendants' submissions; instead, they contend that the court erred because plaintiffs raised questions of fact with regard to the first and third exceptions described in Espinal.

In opposition to defendants' submissions, plaintiffs claimed that Hutchings slipped and fell on a patch of ice that formed when snow and ice melted and refroze in a depression on the surface of the parking lot. In our view, Supreme Court properly determined that the third Espinal exception was not applicable. On this issue, plaintiffs rely on certain provisions in the agreement between Cenova and Levin that granted Cenova independent authority with regard to aspects of its snow and ice removal services, including, specifically, a provision that obligated Cenova to "report to the property without request . . . when icy, sleet or slush conditions exist," and a provision that encouraged "spot applications" of salt and sand when necessary. The agreement also stated that Levin retained authority over Cenova's work, inasmuch as it prioritized its plowing schedule, told Cenova where to pile snow, detailed the ice removal materials and methods that Cenova was to use and required Cenova to seek Levin's approval before it applied salt and sand in certain circumstances. Accordingly, while Cenova retained some independent authority, we cannot conclude that the agreement "displaced entirely" Levin's duty to maintain the property (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584 [1994]; see Gibson v Dynaserv Indus., Inc., 88 AD3d 1135, 1136 [2011]; Parker v Rust Plant Servs., Inc., 9 AD3d 671, 673-674 [2004]; compare Karac v City of Elmira, 14 AD3d 842, 844 [2005]).

With respect to the first Espinal exception, plaintiffs alleged that defendants "created and/or increased and exacerbated the hazardous condition" in the parking lot. Further, by their bill of particulars, plaintiffs alleged that defendants "fail[ed] to remove the snow and ice" and "creat[ed] the buildup of ice, dirt and frozen slush, which had accumulated on the ground." Further, plaintiffs alleged that the condition that caused Hutchings' injury was the "slippery and uneven mixture of compacted snow, ice and dirt, and a generally slippery condition including elevation and depression on the surface, which accumulated on the ground in the rear parking area." We find that Supreme Court properly determined that defendants met their initial burdens by establishing that there was no affirmative negligence (see Fung v Japan Airline Co., Ltd., 9 NY3d 351, 361 [2007]).

In opposition to Cenova's motion and Great Choice's cross motion, plaintiffs submitted an affidavit by Howard G. Altschule, a forensic meteorologist. Based on his review of, among other things, the meteorological records and photographs of the parking lot and area where Hutchings fell, Altschule opined that, if the lot had been treated with materials to melt the snow and ice on the day before she fell, "areas of standing water and wet surfaces would have formed, and melt would have pooled at low points on the surface of the parking lot" and, if not treated overnight, these areas would have "frozen and turned to ice" by the time that Hutchings fell the next day. In our view, Altschule's affidavit fails to raise a material question of fact, inasmuch as the evidence demonstrates only that defendants may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition (see id.; DiGrazia v Lemmon, 28 AD3d 926, 928 [2006], lv denied 7 NY3d 706 [2006]; compare Hannigan v Staples, Inc., 137 AD3d 1546, 1550 [2016] [where contractor may have created dangerous condition by piling chunks of ice which melted then ran downhill and refroze within a depressed area of the parking lot]). Accordingly, Supreme Court properly granted Cenova's motion and Great Choice's cross motion for summary judgment dismissing the complaint against them."