Stepfather Not “Immediate Family” for “Zone-of-Danger” Claim

            A recent Appellate Division, Second Department decision highlights the law for bringing an emotional distress claim caused by witnessing a family member's serious injury or death as a result of another person's negligent act.  In Thompson v. Dhaiti, et al (2^nd Dept 2013) (Index No. 24951/09), the plaintiff, the decedent’s stepdaughter, was standing in front of a barbershop when cars driven by defendants Dhaiti and Pacific collided.  One of the vehicles jumped onto the sidewalk, struck the decedent, who had been walking on the sidewalk, and crashed through the front window of the barbershop, pushing the decedent through the window and pinning him against a chair in the shop.  The decedent later died of his injuries.  The plaintiff then brought a lawsuit against the defendants, seeking damages for emotional distress caused by having witnessed the decedent’s death while being in the “zone-of-danger.”

            The Appellate Division ultimately held that the plaintiff was not entitled to recover damages under this claim, and as a result her lawsuit was dismissed (by way of defendants’ motion for summary judgment) as the decedent was not the plaintiff’s “immediate family.”  The Court notes that although the decedent was plaintiff’s stepfather, and the plaintiff lived with him since she was four years old and he had financially supported her for the majority of her life and acted as her father, he was not her biological father and therefore not considered to be her "immediate family" member (citing Bovsun v. Sanperi, 61 NY2d 219 and Trombetta v. Conkling, 82 NY2d 549).  The Court stated the following: “There is no blood relationship, even if the plaintiff and the decedent had the same quality of relationship that a parent has with his or her biological child.  In light of the strong public policy limiting liability under the zone-of-danger rule and favoring an objectively defined class of individuals who fall within ‘immediate family’ for purposes such as liability, we concluded that stepchildren are not immediate family members.  Thus, the Supreme Court properly granted the motion of the moving defendants for summary judgment dismissing the complaint insofar as asserted by [plaintiff] against each of them.” 

Salvatore R. Marino, Esq.

Supplemental Vs. Amended Bill of Particulars

           A recent Appellate Division, Second Department decision highlights the difference between an amended and supplemental bill of particulars in a personal injury case.  (A bill of particulars is a written statement that amplifies the allegations or defenses in a lawsuit.)  In Erickson v. Cross Ready Mix, Inc., et al. (2^nd Dept. 2012, Index No. 11947/05), the plaintiff allegedly was injured on a construction site when he was struck by a swinging chute on the back of a cement truck.  In his initial response to a demand for a bill of particulars, the plaintiff claimed that his medical treatment would include “lumbar spinal fusion surgery.”  After the surgery was performed, the plaintiff made a motion to amend his bill of particulars to include, among other things, further injuries which he allegedly sustained during the surgery.

            The Court dismissed plaintiff’s motion as it was unnecessary, holding the following: “pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court, if it alleges ‘no new cause of action . . . or new injury.’  Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars rather than an amended bill of particulars.  Since the document entitled 'Amended Response To Defendant’s Demand For A Verified Bill Of Particulars,' which we deem to be a supplemental bill of particulars, was served more than 30 days prior to trial, leave of court was not required (see CPLR 3043[b]).  Accordingly, the plaintiff’s motion must be denied as unnecessary."

Salvatore R. Marino, Esq.

Defective Gate Claim Against City Dismissed

           In Silvia Durri v. City of New York, et al. (2nd Dept 2012, Index No. 25767/08), the facts are as follows: as the plaintiff was attempting to open a metal gate at the defendants’ parking lot, the hinges of the gate came apart; although the plaintiff tried to hold up the gate with her hands, she was unable to do so, and the gate ultimately fell on top of her, causing her to fall and allegedly sustain injuries.  Thereafter the plaintiff sued the City of New York and other parties alleged to have been responsible for the defective gate.  After discovery was completed, the defendants made a motion for summary judgment, which was granted by the trial court and affirmed by the Appellate Division, Second Department.

The Appellate Division held the following: “[the defendants established] that they did not create or have actual or constructive notice of any hazardous condition...the defendants’ custodian testified at a deposition that he inspected the gate twice a week, never observed any defects in the gate, and never received any complaints about the gate prior to the accident.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition.  [Additionally,] contrary to the plaintiff’s contention, the doctrine of res ipsa loquitur is not applicable here.  The evidence did not show that the defendants were in exclusive control of the gate.”

Salvatore R. Marino, Esq.

Notice of Claim Not Required for Equitable Action

           In Howard Johnson v. City of Peekskill (2d Dept. 2012, Index No. 009-09430, decided on January 24, 2012), the plaintiff commenced a civil action against the City of Peekskill seeking an injunction to compel the City to issue him a building permit for a two-family house and for money damages, both compensatory and punitive, arising from the City’s failure to issue the permit.  The Supreme Court granted the City’s motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to New York General Municipal Law §§ 50-e and 50-i, and denied the plaintiff’s cross-motion for leave to serve a late notice of claim.

            On appeal, the Appellate Division, Second Department reversed the lower court’s decision, holding that a notice of claim did not have to be served because a tort action was not commenced.  The Court stated the following: “General Municipal Law § 50-e mandates that a notice of claim must be served as a condition precedent to the commencement of a tort action against a municipality…[however,] the plaintiff’s claim is not subject to the notice of claim statute because his claim is primarily equitable in nature…although the complaint also demands compensatory and punitive damages for the alleged wrongful act committed by the City, compliance with the notice of claim requirements of section 50-e is not necessary where, as here, the action is brought in equity to restrain a continuing act and where a demand for money damages is merely incidental to the requested injunctive relief.”

Salvatore R. Marino, Esq.

Scooter Not "Dangerous Instrument"

            In Zarilla v. Pennachio (2d Dept., Index No. 100107/10, decided on or around December 27, 2011), the plaintiff lost her negligence case against the mother of a child that injured her. 

The plaintiff was allegedly injured when she was struck by a battery-powered scooter operated by a child.  At the time of the incident, the child was under the care of the plaintiff and her husband.  The defendant, who is the child’s mother, was not present.  The plaintiff and her husband, suing derivatively, commenced a negligence against the defendant alleging, among other things, that the defendant negligently entrusted the child with a dangerous instrument.  The defendant moved for summary judgment dismissing the complaint, but the lower court denied this motion.

On appeal, the Appellate Division reversed the lower court’s decision.  The Court stated the following: “a parent owes a duty to protect third parties from harm that is clearly foreseeable from his or her child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control…[however,] 'items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments' ([citing] Rios v Smith, 95 NY2d at 653).  Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law…[the child] was of a suitable age to use the subject scooter, a toy manufactured for children between the ages of three to six.  Further, [the child’s] operation of the scooter was consistent with its intended use.  In opposition, the plaintiffs failed to raise a triable issue of fact.”

Salvatore R. Marino, Esq.           

No Police "Special Duty" Created

In Valdez v. City of New York, 2011 NY Slip Op 07252, the facts are as follows: in 1996, the plaintiff’s ex-boyfriend called her and threatened to kill her; thereafter, she called the police and informed them of this threat, and also informed them that for her safety she left her apartment with her children and were heading to a family member’s house; in response, a police officer told her to return to her apartment and that the ex-boyfriend would be arrested immediately (though he never ended up being arrested at that time); she then went back to her apartment, and the night went by without incident; the following night, while leaving her apartment to take out garbage, the ex-boyfriend, emerged and shot her several times, resulting in serious personal injuries.

The Plaintiff brought a negligence action against the City of New York, alleging the following: that the City had undertaken a “special relationship” with her that created a duty of care; that the City was negligent in failing to arrest the ex-boyfriend prior to the attack; and that the City’s negligence was a proximate cause of the shooting. 

The matter went to trial, where a jury awarded $9.93 million dollars against the City, finding the ex-boyfriend and the City to be both 50% at fault in causing the plaintiff’s injuries.  However, on appeal, the Appellate Division reversed the verdict, and now the Court of Appeals has affirmed the reversal.  The Court held the following: “[the phone call between the plaintiff and the police officer] did not create a special relationship.  It was not reasonable for her to conclude, based on nothing more than the officer’s statement that the police were going to arrest [the ex-boyfriend] immediately, that she could relax her vigilance indefinitely, a belief that apparently impelled her to exit her apartment some 28 hours later without further contact with the police.”  Also, the Court noted, among other things, that she did not make a follow up call to the police after the threat to confirm that he was arrested, which was her common practice in the past whenever her and her ex-boyfriend had disputes.

Salvatore R. Marino, Esq.

County's Summary Judgment Motion Untimely

In Deberry-Hall v. County of Nassau, 2011 NY Slip Op 06993 (2d Dept.), the plaintiff alleged that she sustained personal injuries on September 9, 2005 when she tripped and fell over a defective portion of the southside walkway to the West Annex of the Nassau County Courthouse in Mineola.  The walkway was situated on property owned by the defendant, the County of Nassau.  The County’s records showed that, from September 7, 2005 through September 9, 2005 its employees were present and in the process of repairing the walkways to the Nassau County Courthouse and its West and East Annexes.

The plaintiff filed her note of issue on June 30, 2009, and pursuant to a certification order, motions for summary judgment were due no later than 60 days from the filing of the note of issue.  The County, however, did not move for summary judgment until September 2, 2009, which was 64 days after the filing of the note of issue.  

Due to the County’s noncompliance with the certification order, and because the County did not demonstrate good cause for its failure to timely file its motion, its motion was denied by the Supreme Court.  The Appellate Division, Second Department affirmed. 

Salvatore R. Marino, Esq.