New law on leave to amend to add a cause of action in wrongful death.

The Second Department has held that a motion seeking leave to amend a complaint to add a cause of action alleging wrongful death must be decided as would any motion to amend, pursuant to CPLR 3025(b), and should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, in Lucido v. Mancuso, which was decided on February 1, 2008.

The court expressly overruled a line of authority requiring a plaintiff to make an evidentiary showing by competent medical proof that defendant's conduct caused decedent's death. In effect, the holding means that, in the absence of prejudice or surprise, the motion for leave to amend will be denied only if the new cause of action would not withstand a motion to dismiss for legal insufficiency under CPLR 3211(a)(7).

Plaintiff's infant daughter slipped and fell at a roller-rink while participating in an after-school program sponsored by defendant-Goodwill Industries of Greater New York & Northern New Jersey, when she says she was "pushed from the side." The complaint alleged that the accident was proximately caused by defendant's negligent supervision and by overcrowding at the facility.

The Second Department dismissed the complaint, in Gaspard v. Board of Education of the City of New York, which was decided on January 22, 2008. Based on record evidence, including the injured daughter's deposition testimony, the court rejected the negligent supervision claim. Why? Since the accident occurred as the result of a sudden and abrupt action by an unknown skater or skaters, it could not have been prevented by even the most intense supervision, and so liability based on negligent supervision cannot be imposed. In addition, the facility general manager's deposition testimony established, prima facie, that the facility was not overcrowded at the time of the accident.

Late Notice of Claim.

The First Department determined that the motion court properly exercised its discretion in letting petitioner file a late notice of claim more than seven months after expiration of the 90-day filing requirement, pursuant to General Municipal Law § 50-e[1][a]; [5]), in Caridi v. New York Convention Operating Corp., which was decided on January 24, 2008.

The court said there is no prejudice to defendant since the State Police were on the scene at the time of the accident and immediately conducted an investigation that included interviewing witnesses and taking photographs of the location as it was at the time of the accident, which culminated in an accident report which is readily available to defendant.

In addition, the allegedly defective condition that caused petitioner to fall and injure his knee was highly transitory and defendant would have been unable to investigate even if the notice of claim had been served within the prescribed statutory period.

Plaintiff allegedly slipped and fell on a ramp at Shea Stadium. After plaintiff fell, he saw a reddish streak on the ramp and a ketchup-like substance on his shoes. Plaintiff's wife alleged that, about an hour before the accident, she saw a messy white condition consisting of a portion of a crushed hotdog bun, ketchup, and mustard on the ramp, as well as a hotdog, a hotdog bun, and two napkins. Plaintiff's wife did not witness the accident, but she alleged that plaintiff must have slipped on the remnants of the mess that she had seen.

Seeking damages for his alleged injuries, plaintiff commenced this action against, among others, the City of New York, the New York City Department of Parks and Recreation, the New York Mets National League Baseball Club, Sterling Enterprises, which leased the premises from the City, and Harvard Maintenance, which had a cleaning management contract at the stadium.

The Second Department dismissed the complaint, in Frazier v. City of New York, which was decided on January 22, 2008. Defendants met their initial burden by submitting evidence to establish, prima facie, that they neither created nor had actual or constructive notice of the alleged defect for a sufficient length of time to discover and remedy it. In opposition, plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The court rejected plaintiff's contention that the defect which had caused him to fall was the remnant of the mess that his wife had seen an hour before his accident as purely speculative.

Alleged jurisdictional defects.

In an action to recover damages for legal malpractice, defendant cross-moved to dismiss for lack of jurisdiction, pursuant to CPLR 3211(a)(8). The Second Department denied the motion, in Day v. Davis, which was decided on January 22, 2008.

Contrary to defendant's contention, the summons with notice was not jurisdictionally defective merely because it omitted a specific dollar amount of money damages sought by plaintiff. In addition, since defendant held out as his business address the address where process was served, including maintaining it as his business address on his registration as an attorney with the Office of Court Administration, and thereby induced plaintiff's reliance on that address, he cannot now disclaim that this was his actual place of business for purposes of service of process.

Plaintiff was a passenger who had just entered a double-parked Access-a-Ride van which then was struck in the rear by another vehicle whose driver admits he feel asleep at the wheel. Defendant-van driver testified at deposition that he double parked in front of plaintiff's building to wait for her because there were no available spots at the curb and he did not see the entrance to the building's parking lot. He said he waited five minutes with his hazard lights on before plaintiff arrived, although plaintiff testified that she was standing at the building door waiting for the van when he pulled up, and got in immediately. In either event, after plaintiff got in, but before she was able to put on her seat belt,the accident occurred.

Following discovery, defendants-van driver and owner moved for summary judgment, arguing that since their van was struck in the rear while stopped, the accident was proximately caused solely by the negligence of the other driver, and that their van's presence in the traveling lane merely furnished the condition or occasion for the accident.

The First Department rejected that argument and denied the motion, in White v. Diaz, which was decided on January 24, 2008. The court concluded that a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double-parking for five minutes on a busy Manhattan street. Noting that the precise manner of the accident need not be foreseeable, the court said it was not necessary to find it foreseeable that a driver asleep at the wheel would hit the van; it is enough that it is foreseeable that, with the flow of traffic disrupted by the double-parked van, an inattentive, careless or distracted driver might not stop in time to avoid the van. Therefore, there is a triable issue of fact as to whether defendant-van driver's double-parking proximately caused the accident.

The court also said that summary judgement would be inapprpriate because of the dispute as to whether plaintiff was unable to put on her seat belt because it was stuck, as she claimed, or because the accident occurred too quickly to allow defendant-van driver time to help plaintiff with her seat belt.

Age discrimination and retaliation.

The First Department dismissed the complaint sounding in age discrimination and retaliation, in Edwards v. Jamaica Medical Center, which was decided on January 24, 2008. The court found that defendants had offered valid, nondiscriminatory reasons for plaintiff's termination, and, in response, plaintiff had offered nothing to raise a triable issue as to whether defendant's reasons were merely pretextual.

The record demonstrates that plaintiff's termination resulted from her misuse of sick days, specifically in her not reporting for work at defendant-hospital facility while reporting for her evening shift at another job on those very same days. Plaintiff had been repeatedly warned that excess absences could lead to termination. Plaintiff's conclusory allegations of a discriminatory practice did not give rise to an inference that defendants engaged in a pattern or practice of attempting to replace older employees with younger, less qualified ones who were willing to work on a per diem basis.

Plaintiff alleged injuries sustained by walking into a forklift parked in front of defendant's premsises, but the First Department dismissed the complaint, in Pinto v. Selinger Ice Cream Corp., which was decided on January 22, 2008.

Plaintiff testified at deposition that he was very familiar with the premises, including defendant's custom of parking the forklift on the sidewalk, which defendant used as a driveway and loading bay for its ice cream distribution business. As plaintiff turned the corner just before the incident, he saw the forklift from 100 feet away. As he walked closer, he heard someone call to him from across the street, and turned his head toward the voice, and then walked squarely into the forklift, and fell.

Noting evidence that the forklift was bright yellow, the court concluded that, under these circumstances, the forklift was readily observable by the reasonable use of one's senses, and that plaintiff's inattentiveness was the sole proximate cause of the accident.

The court gave short shrift to plaintiff's deposition testimony that the sidewalk was cluttered with crates, noting its inconsistency with his other deposition testimony that he didn't notice anything other than the forklift and another parked vehicle, which he could only say was either a car or a truck, and disregarding it as a generic statement calculated to create a feigned issue.

In a personal injury action, defendants appealed an adverse interlocutory judgment, upon a jury verdict, on the issue of liability. The Second Department affirmed, in Coogan v. Torrisi, which was decided on January 15, 2008.

Defendants' contention that they were deprived of a fair trial because of the alleged prejudicial effect of testimony regarding alcoholic beverages at their home on the day of the accident was unpreserved for appellate review. The court opined that reversal would not be warranted anyway since defendants failed to establish that this limited testimony diverted the jurors' attention from the issues to be decided.

It was not error for the trial court to charge the jury that a defendant's violation of the Vehicle and Traffic Law was negligence per se, pursuant to Vehicle Traffic Law §§ 501[5][a], 509[3], 1129[a] and 1180[a]. The fact that this defendant's learner's permit required him to have a licensed adult driver supervising his actions when driving related directly to the actual operation of the vehicle. The statute sets a standard of care, and its unexcused violation is negligence per se.

A pedestrian accident and comparative negligence.

The Second Department denied plaintiff's summary judgment motion, in Cator v. Filipe, which was decided on January 15, 2008. Plaintiff-pedestrian was crossing the street within a crosswalk, with the traffic light, when she was struck by defendant's vehicle as it was making a left turn. While defendant failed to yield the right of way to plaintiff, in apparent violation of Vehicle and Traffic Law § 1112(a), plaintiff testified at her deposition that she had not looked to her left or right while crossing the street. On these facts, plaintiff failed to meet her burden of demonstrating her entitlement to judgment as a matter of law on the issue of liability, since a triable issue of fact exists as to her comparative negligence.

CPLR 3011, collateral estoppel and res judicata.

Plaintiffs alleged legal malpractice stemming from defendants' representation of them in a real estate transaction in which plaintiffs were the purchasers, and the First Department reinstated their complaint, in Kahn v. Taub, which was decided on January 15, 2008.

The court said that, although plaintiffs could have interposed their claims as cross claims in a prior action in which they and defendants were co-defendants, they were not required to do so either by CPLR 3011 or by the doctrines of collateral estoppel and res judicata.

The only issue litigated in that prior action was whether the tenants of the premises purchased by plaintiffs herein had a valid right of first refusal to purchase the premises themselves. While plaintiffs' claims of legal malpractice arose from the sale of the premises, they relate solely to the legal representation plaintiffs received and whether their attorney and his law firm were negligent or unethical in the handling of the matter due to an alleged conflict of interest. There is no identity of issue which was necessarily decided in the prior action and which would be dispositive of the instant action, as is required to invoke collateral estoppel; nor do plaintiffs' claims arise solely from the single transaction that was at issue in the prior litigation, as is required to bar the instant litigation on the basis of res judicata.