Latest Decisions from the Appellate Division, Second Department

September 19, 2024 Robert Abruzzese, Courthouse Editor

The latest decisions from the Appellate Division, Second Department address a range of legal issues, including the timeliness of a venue challenge, summary judgment in personal injury cases, the standard for filing a late notice of claim, vicarious liability in transportation cases, amending complaints in medical malpractice suits, the serious injury threshold under New York’s Insurance Law, compliance with discovery orders and deposition limits in litigation, and determining the existence of dangerous conditions in premises liability cases. Brooklyn Eagle photo by Rob Abruzzese

Venue challenge ruled untimely in Kings County tortious interference case

The Appellate Division, Second Department has reversed a Kings County Supreme Court decision that had moved a tortious interference case to Richmond County. In Aguilar v. Reback, the court held that the lower court improperly granted a change of venue based on the plaintiff’s residency.

The case began in October 2019 when Paul Aguilar filed an action in Kings County, citing his residence as the basis for venue. The defendants, Scott Reback and others, later moved to transfer the case to Richmond County, arguing that Aguilar’s deposition testimony revealed he lived in Richmond County. The Supreme Court granted this request in May 2023.

However, the Appellate Division found the defendants’ motion untimely. According to the decision, venue challenges must be made “with the answer or before the answer is served” under CPLR 511(a). Since the defendants did not promptly move after learning of Aguilar’s Richmond County address, the court ruled that the Kings County venue should remain intact. The appellate court ordered the return of all case materials to Kings County and awarded costs to the appellant.

~ Aguilar v. Reback ~

Court allows personal injury lawsuit against contractor to move forward

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision denying a motion for summary judgment in a personal injury lawsuit, allowing the case against contractor John P. Picone, Inc. to proceed.

The case stems from a July 2017 incident where Anabella Barnes allegedly tripped on a bump within a crosswalk, leading to a lawsuit against the City of New York and, later, Picone, Inc., a contractor. The contractor sought to dismiss the claims, arguing it had not performed work in the area that could have caused the defect.

However, the Appellate Division found that Picone failed to meet its burden of proof. The court noted that the contractor did not provide sufficient evidence that it had no involvement in creating the hazardous condition in question. As a result, the court upheld the denial of the motion for summary judgment, allowing the plaintiff’s claims to move forward.

~ Barnes v. City of New York ~

COVID delays justify late filing in MTA accident case

The Appellate Division, Second Department, has reversed a Kings County Supreme Court decision, granting a petition for leave to serve a late notice of claim in a personal injury case. In Ortiz v. New York City Transit Authority, the court found that the lower court improperly denied the petition based on delays caused by the COVID-19 pandemic.

Anibal Ortiz, the petitioner, sought to file a late notice of claim after being injured in January 2020 when his vehicle collided with a bus operated by the New York City Transit Authority. The Supreme Court initially denied his petition, effectively dismissing the case. However, the appellate court ruled that Ortiz had provided a reasonable excuse for the delay, citing the pandemic and related tolling periods. Additionally, the court found that the respondents were not substantially prejudiced by the delay, as the accident was documented in a police report.

As a result, the court held that Ortiz should be allowed to serve the late notice of claim, reversing the lower court’s decision.

~ Mtr of Ortiz v. New York City Transit Authority ~

Vicarious liability claim against MTA to proceed, court rules

The Appellate Division, Second Department upheld a Kings County Supreme Court decision allowing a vicarious liability claim against the New York City Transit Authority and other related entities to move forward. In Pascall v. New York City Transit Authority, the court affirmed the denial of a motion to dismiss the claim based on the doctrine of respondent superior.

Lynette Pascall sued after being injured while a passenger in a vehicle operated by John Doe and owned by Steph Taxi Corp. She alleged that the MTA defendants were vicariously liable because they had hired the taxi service. The MTA defendants sought to dismiss the claim, arguing that they were not responsible under the doctrine of respondent superior, which holds employers liable for employees’ actions within the scope of their employment.

The appellate court ruled that Pascall had alleged sufficient facts to support the vicarious liability claim, allowing the case to proceed.

~ Pascall v. New York City Transit Authority ~

Post-surgery care claim allowed, court dismisses surgery negligence

The Appellate Division, Second Department has modified a Kings County Supreme Court decision in a medical malpractice case involving a knee replacement surgery. In Quinones v. Long Island Jewish Medical Center, the appellate court ruled that the plaintiff could proceed with claims related to postoperative physical therapy and care but upheld the dismissal of new claims related to the surgery itself.

The plaintiff, Charlene Quinones, alleged that she was injured during physical therapy following a 2017 knee replacement surgery performed by Dr. Steven Ravich. She sought to amend her complaint to include claims of negligence in the surgery and preoperative care, which had not been included in her original filing.

The appellate court affirmed the Supreme Court’s decision to strike these new claims, ruling that they could not be introduced in a bill of particulars. However, the court allowed Quinones to amend her claims regarding postoperative physical therapy, finding that these allegations were consistent with the original complaint and could proceed to trial.

~ Quinones v. Long Island Jewish Medical Center ~

Brooklyn plaintiff’s injury case against MTA fails to meet serious injury standard

The Appellate Division, Second Department affirmed a Kings County Supreme Court ruling that dismissed a personal injury lawsuit against the Metropolitan Transportation Authority (MTA) and New York City Transit Authority. In Walker v. Metropolitan Transportation Authority, the court held that the plaintiff, Charlene Walker, failed to prove she sustained a serious injury under New York’s Insurance Law § 5102(d) from a motor vehicle accident.

Walker claimed injuries to her spine, ankle, foot, hand and thumb as a result of the accident. The defendants argued that the injuries were either preexisting or did not meet the legal definition of a serious injury. The court found that the defendants provided sufficient medical evidence showing the injuries were degenerative and not caused by the accident. Walker’s experts failed to raise any triable issues of fact in response. As a result, the court upheld the summary judgment in favor of the defendants and dismissed the complaint.

The “serious injury” standard, under New York’s Insurance Law § 5102(d), sets the criteria for injuries that allow plaintiffs to seek damages in motor vehicle accident cases. It requires proving significant harm, such as permanent loss of use, disfigurement, or an injury that prevents normal daily activities for at least 90 days.

~ Walker v. Metropolitan Transportation Authority ~

Appellate Court upholds denial of motion to strike and limits continued deposition in medical malpractice case

The Appellate Division, Second Department upheld a Kings County Supreme Court ruling in a medical malpractice case, affirming the denial of the plaintiff’s motion to strike the defendants’ answer or preclude them from testifying. In Wanliss v. Retina Associates of New York, P.C., the court also upheld the decision to limit the deposition of one of the defendants, Janet Roen.

The plaintiff, Velda Wanliss, filed a motion seeking to strike the answers of two defendants, Ruth Weichsel and Manhattan Eye, Ear, and Throat Hospital, for failure to comply with court-ordered discovery. She also sought to extend the time to continue Roen’s deposition, which had already lasted over 10 hours. The defendants opposed the motion, seeking a protective order to bar any further deposition of Roen.

The appellate court found that the plaintiff did not prove willful and contumacious conduct by the defendants to justify striking their answers or precluding testimony. Additionally, the court determined that the plaintiff did not show good cause to extend the deposition beyond the seven-hour limit, as required by 22 NYCRR 202.20-b(a)(2).

The Supreme Court’s decision to deny the plaintiff’s requests was upheld, and it granted the defendants’ protective order barring further deposition of Roen.

~ Wanliss v. Retina Associates of New York, P.C. ~

Appellate Court upholds ruling granting summary judgment in Brooklyn bicycle accident case

The Appellate Division, Second Department, affirmed a Kings County Supreme Court decision granting summary judgment in favor of Chadriek Walker in a personal injury case. The court upheld the ruling that the defendants, including the driver of a Federal Express vehicle, were liable for an accident involving Walker’s electric bicycle.

Walker was struck by the vehicle, operated by Lester Edwards when it crossed a double yellow line on Ocean Avenue in Brooklyn to make a U-turn. The court found that this violation of Vehicle and Traffic Law § 1126(a) constituted negligence as a matter of law. The defendants’ claims of comparative negligence and culpable conduct were dismissed, as the court ruled that Walker was not at fault in the accident.

The appellate court rejected the defendants’ argument that the motion for summary judgment was premature, affirming that they had personal knowledge of the facts and failed to show that further discovery would produce relevant evidence.

~ Walker v. Edwards ~

Appellate Court Upholds Denial of Summary Judgment in Premises Liability Case

The Appellate Division, Second Department affirmed a Kings County Supreme Court decision denying a motion for summary judgment in a personal injury case, allowing the plaintiff’s claims to proceed.

Plaintiff Selaine Saunders alleged that she was injured in April 2017 when a door to a garbage area in a building owned by the defendant, Nostrand 1543, LLC, closed on her foot. Saunders claimed the defendant was negligent in maintaining the door, creating a dangerous condition. The defendant sought to dismiss the complaint, arguing that no dangerous condition existed and that it had no notice of any hazard.

The appellate court ruled that the defendant failed to establish, as a matter of law, that the door did not pose a dangerous condition or that the defendant lacked notice of the issue. As a result, the court affirmed the denial of summary judgment, allowing the case to continue.

~ Saunders v. Nostrand 1543, LLC ~