Rehabilitation Center's Lawsuit Against Former Caretaker Dismissed

In Santoro v. Poughkeepsie Crossings LLC (2019 NY Slip Op 08883, decided on December 11, 2019), the Appellate Division, Second Department dismissed a lawsuit brought by a rehabilitation center against a former caretaker of a decedent suing the rehabilitation center.  Particularly, the plaintiff's mother was a patient at the rehabilitation center of Poughkeepsie Crossing (hereinafter referred to as "PC"), after the mother was hospitalized after a heart attack.  While at PC, however, in March 2015, she was caused to fall, sustaining injuries including fractured ribs and punctured lungs.
In May 2015 she passed away, and her former caretaker, and eventual executor of her estate, commenced a lawsuit against entities including PC for claims alleging negligence and inadequate treatment (as it was claimed that the March 2015 fall at PC ultimately resulted in her mother's passing).  In response to this lawsuit, however, PC sued the executor plaintiff for indemnification and contribution, alleging that negligent supervision of the former caretaker/executor's mother and failing to follow PC's discharge instructions resulted in the plaintiff's fatal injuries.

The lower court granted PC's motion, but the Appellate Division, Second Department reversed, thereby dismissing PC's action, and holding, among other things, the following: "The defendant [PC] would impose a new duty on those who live with infirm individuals 'to use reasonable care' and 'be liable for harm caused by the failure to use reasonable care by affirmative act or omission'...A lower court has recognized such a duty, but would define it as a duty owned by 'a child who assumes responsibility for the care of a parent who is limited by age or illness, or both'...The imposition of such an obligation carriers with it public policy considerations of possible negative consequences, such such a general obligation could discourage persons from residing with the infirm, discourage children and inform parents from living together, and discourage the infirm from attempting to resume independent living...The circumstances alleged here 'provide no justification for creating' such a duty...."

Salvatore R. Marino, Esq.

Jury Verdict Set Aside as Driver's Negligence was Substantial Factor in Causing Injuries

In Nieves v. 8 Avenue Furniture, Inc. (Index No. 24506/12, decided on March 20, 2019), the plaintiff, a pedestrian, was injured after being struck by a vehicle in Brooklyn.  During the trial of the matter in Kings County Supreme Court, the defendant owner of the vehicle denied any knowledge of, or involvement in, the incident, and insisted that the plaintiff had identified the wrong vehicle.  The jury returned a verdict holding that the defendant was liable for the incident, but that it was not a substantial factor in causing plaintiff's injuries.  As a result, the plaintiff timely moved pursuant to CPLR 4404(a) to set aside the verdict, contending that it was contrary to the weight of the evidence.  The Supreme Court granted the motion, and the defendant thereafter appealed.

The Appellate Division, Second Department, affirmed the trial court's ruling, holding, among other things, the following: "A jury finding that a party was negligent but that the negligence was not a proximate cause of the accident is contrary to the weight of the evidence 'only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'...Here, the defendant made no attempt to present a nonnegligent explanation for the accident; instead, it contended only that the plaintiff misidentified the van that struck her.  The jury, having rejected the defendant's theory and found not only that the defendant's van was involved in the accident but also that the driver of the van was negligent in its operation, lacked a sufficient factual basis upon which to conclude that the defendant's negligence was not a substantial factor in causing the accident...."

Salvatore R. Marino, Esq.

Village's Motion Denied as Prior Written Notice Exists

In Bochner v. Town of Monroe, et al (Index No. 8529/14, decided on or around February 8, 2019), a defendant municipality's motion for summary judgment was denied by the Appellate Division, Second Department, as that defendant submitted evidence in support of its motion that demonstrated that it received prior written notice of the subject defective condition.  Particularly, the case arose in August 2013, when the plaintiff was injured in the Village of Kiryas Joel, as she stepped off a curb and into a pothole in the roadway of Carter Lane, thereafter suffering injuries and commencing a lawsuit against entities including the Village of Kiryas Joel.  At some time during the pre-trial litigation process, the defendant Village of Kiryas Joel moved for summary judgment (seeking to dismiss the plaintiff's case) contending that it did not receive the requisite written notice of the subject dangerous condition prior to the date of the plaintiff's incident.

The Supreme Court of Orange County denied the defendant's motion, and the Appellate Division, Second Department affirmed the trial court's decision, holding, among other things, as follows: "In supports of its motion, the Village submitted evidence that itself demonstrated the existence of triable issues of fact as to whether it had received the requisite prior written notice of the alleged defect.  This evidence established that in the weeks before the plaintiff allegedly was injured, an officer designated by the Village Code as a recipient of written notice, the Village Superintended of Public Works, himself drafted two worksheets detailing defects in the roadway of Carter Lane.  Additionally, the Village submitted evidence that the Village Superintendent of Public Works emailed those worksheets to the Village Clerk - the other officer designated under the Village Code as a proper recipient of written notice - weeks before the date on which the plaintiff was allegedly injured...."

The Court also noted that although it was not clear whether the worksheets identified the precise defect that allegedly caused the plaintiff's injuries, the documents still presented a triable issue a fact (thereby warranting a denial of the motion) as, "'A recent prior written notice that does not provide an exact location, but which nevertheless reasonably identifies the area of the purported defect, may give rise to a question of fact for the jury as to the sufficiency of the notice' [citing Massey v. City of Cohoes, 35 AD3d 996; Blanc v. City of Kingston, 68 AD3d 1525; and Delaney v. Town of Islip, 63 AD3d 658]."

Salvatore R. Marino, Esq.