A collision with an unmarked police car.

Practice point:  The Appellate Division affirmed the granting of the municipal defendant's motion for summary judgment in this action involving a collision between an unmarked police vehicle and a taxi.

The police vehicle was an authorized emergency vehicle performing an emergency operation, namely, pursuing a traffic violator, and its operator was authorized to proceed through the red light, once it slowed down, pursuant to Vehicle and Traffic Law §§ 101, 114-b), and 1104 [a],[b][2]. In order to hold the municipal defendants liable, a plaintiff must demonstrate that the officer driving the police vehicle acted with reckless disregard for the safety of others, which requires a showing that he has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.

Here, the officer's uncontroverted testimony was that he came to a complete stop prior to entering the intersection. The fact that he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless.

Student note:  Issues of fact as to whether the police lights were on or whether the siren was activated do not require a different result. A police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light, pursuant to Vehicle and Traffic Law § 1104[c].

Case:  Flynn v. Sambuca Taxi, LLC, NY Slip Op 08723 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A physician's motion to dismiss a medical malpractice claim.

A rear-end collision and a negligence claim.

Practice point:  One of several nonnegligent explanations for a rear-end collision may be a sudden stop of the lead vehicle.  However, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the following driver, who is under a duty to maintain a safe distance between the following car and the car ahead.

Student note:  A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Le Grand v. Silberstein, NY Slip Op 08608 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A collision with an unmarked police car.

A school bus company's liability for a fight on the bus.

 Practice point:  The bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant.  The assailant's act of punching the infant plaintiff was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries.

Student note:  Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances. However, schools and school bus companies are not insurers of their students' safety. For liability to attach, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it.

Case:  Braun v. Longwood Jr. High School, NY Slip Op 08595 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A rear-end collision and a negligence claim.

Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Practice point:  Plaintiff failed to establish a prima facie case of discrimination under either the State or City Human Rights Laws because he failed to allege that defendants, who rejected plaintiff's screenplay submissions, were actually aware of his race. Instead, the complaint merely alleges that plaintiff sent defendants a link to a social networking site that contained his photograph, and that his photo was also available on the internet. In fact, the complaint itself suggests that defendants did not reject his screenplay submissions because of his race, but because defendants reviewed such submissions only when they were referred by a movie industry insider, and plaintiff did not know such an insider. The complaint also fails to allege discrimination under a disparate impact theory because it fails to allege any facts showing that defendants' insider-referral policy falls more harshly on black screenwriter applicants than other groups.

Student note:  Plaintiff does not adequately allege that he sought employment with defendants, as is required to support a State or City claim for unlawful discriminatory practices in employment by employers, and discrimination in an employment agency's referrals to an employer, pursuant to Executive Law §§ 296[1][a], [b] and Administrative Code §§ 8-107[1][a], [b].

Case:  Samuels v. William Morris Agency, NY Slip Op 08562 (1st Dept. 2014)

Here is the decision.

Monday's issue:  A school bus company's liability for a fight on the bus.

A motion to strike the testimony of defendant's expert.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to strike the testimony of defendant's expert concerning the cause of the decedent's death. Upon receipt of defendant's 3101(d) statement expert disclosure statement, plaintiff's only objection was that the expert's qualifications failed to include the dates of his residency, which deficiency defendant then cured. Plaintiff neither rejected the document nor made any objection to the lack of specificity regarding the cause of death.

The Appellate Division determined that, having failed to timely object to the lack of specificity in defendant's expert disclosure statement regarding the cause of the decedent's death, plaintiff was not justified in assuming that the defense expert's testimony would comport with the conclusion reached by the autopsy report. The Appellate Division further determined that  plaintiff cannot now be heard to complain that defendant's expert improperly espoused some other theory of causation for which there was support in the evidence.

There was, however, a dissent.

Student note:  CPLR 3101(d)(1) requires reasonably detailed expert disclosure of the substance of the facts and opinions on which each expert is expected to testify in order to provide the plaintiff with the defendant's theories of the case in advance of trial.

Case:  Rivera v. Montefiore Med. Ctr., NY Slip Op 08469 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

The denial of defendant's summary judgment motion in a Labor Law § 200 action.

Practice point:  Where, as here, a plaintiff contends that an accident occurred because of a dangerous condition at the work-site, an owner moving to dismiss Labor Law § 200 and common-law negligence claims has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it. Defendant failed to meet that burden and the Appellate Division affirmed the motion's denial

Student note:  The failure to make a prima showing requires the motion's denial, regardless of the sufficiency of the opposition papers.

Case:  Costa v. Sterling Equip., Inc., NY Slip Op 08391 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to strike the testimony of defendant's expert.

Reviewing a Court of Claims determination in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the Court's determination that claimant failed to establish that the State created, or had actual or constructive notice of, the icy condition on a walkway at the state facility where claimant fell. The State had no more than a general awareness that icy conditions had developed on the hospital grounds, which was insufficient to constitute notice of the specific condition that caused the fall.

Student note:  In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts. In a close case, the Appellate Division will bear in mind that the trial judge had the advantage of seeing the witnesses.

Case:  Atkins v. State of New York, NY Slip Op 08387 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue:  The denial of defendant's summary judgment motion in a Labor Law § 200 action.

A Labor Law § 240(1) claim.

Practice point:  Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).

Student note:  Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks.

Case:  Garcia v. Market Assoc., NY Slip Op 08400 (2d Dept. 2014)

Here is the decision.

Monday's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Setting aside a jury verdict.

Practice point:  The Appellate Division affirmed plaintiff's motion, pursuant to CPLR 4404, to set aside the verdict as contrary to the weight of the evidence, and for a new trial. The Appellate Division determined that a fair interpretation of the evidence does not support the jury's finding that the defendant was not negligent. The defendant testified that, when she was stopped at the intersection, her view to her left, the direction from which the injured plaintiff was coming, was obstructed, and yet she proceeded. The fact that the defendant proceeded into the intersection without having a clear view of the traffic and without yielding the right-of-way after a stop sign demonstrated that she violated Vehicle and Traffic Law §§ 1142(a) and 1172(a). The jury could not properly disregard these violations, as they constitute negligence as a matter of law.

Student note: A jury verdict will not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence. It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.

Case:  Zhubrak v. Petro, NY Slip Op 08332 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Reviewing a Court of Claims determination in a slip-and-fall action.

A training injury where plaintiff had signed a release.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action where plaintiff allegedly sustained injuries while engaged in a personal training program, under a trainer's supervision and instruction, at a one-on-one training facility owned and operated by defendant. Plaintiff alleges that the personal trainer negligently instructed and supervised him in the lifting of an excessive amount of weight.

Plaintiff had executed a release wherein he acknowledged that there were "inherent risks in participating in a program of strenuous exercise" and released defendant from "all claims . . . which [plaintiff]...may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program."

However, the Appellate Division found that the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence. While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not exempt defendant from liability for injury which may result from its failure to use due care in its training methods.

Student note:  General Obligations Law § 5-326 does not bar enforcement of this release, as defendant's facility is an instructional, and not a recreational, one.

Case:  Kim v. Harry Hanson, Inc., NY Slip Op 08229 (1st Dept. 2014)

Here is the decision.

Monday's issue: Setting aside a jury verdict.

A CPLR 4404(a) motion.

Practice point:  The motion here raises issues of errors in the trial court's charge and verdict sheet. In its instructions, the trial court must state the law relevant to the particular facts in issue. A set of instructions that confuses or incompletely conveys the appropriate legal principles to be applied in a case requires a new trial.

Student note: In considering such a motion, the court will decide whether substantial justice has been done, and must look to common sense, experience, and sense of fairness in deciding the motion.

Case:  Ali v. City of New York, NY Slip Op 08310 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A training injury where plaintiff had signed a release.