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New York Law Digest
Volume 1, Issue 1
Special points of in-
terest:
• Winter Torts
• Storm In Progress
• Recurring Condition
• Black Ice and Snow
• Sking Accidents
• Landlord Getting Off Though
Negligent
• Police Responding to 911 Call
• Sports
• Camps for Kids
• Enhancing Risk of Play
• Highway Design
• Summary Judgment in Rear End
Cases
• IME as Missing Witness
• Excluding BAC Results
• Restoring An Action
• tenance personnel. Fourth
Inside this issue:
Liability Developments
Evidence Developments
Civil Procedure Develop-
ments
Workers Compensation
Developments
Venue
John E. Durst, Jr., Editor-In-Chief
Liability Developments
WINTER TORTS
STORM IN PROGRESS
EXCUSES FAILURE TO
CLEAR ICE AND
SNOW
A slip and fall must
have occurred due to ice or
snow that was present and
noticeable long enough for
the defendant to have
cleaned it up.
The sources of evidence
to prove how long the icy
conditions existed are lim-
ited. First is the plaintiff.
Second are any witnesses
who were there at the time
of the fall. Third are wit-
nesses who were there be-
fore the fall, such as main-
are post fall witnesses, like
ambulance attendants.
Fifth are public records
establishing weather condi-
1 tions. The Department of
Transportation keeps log
1
2 Evidence
MISSING WITNESS
3 posing party and is under
CHARGE
4 A party is entitled to a
missing witness charge
only where an uncalled
witness bearing informa-
tion on a material issue
would be expected to pro-
vide noncumulative testi-
January 2004
books in which they
record weather and
road conditions, usu-
ally on an hourly
basis. A meteorolo-
gist also has access
to such weather re-
cords.
Once a defendant
puts forth prima fa-
cie evidence that
there was a storm in
progress at the time
of the fall, the bur-
den shifts to the
plaintiff to rebut that evi- Evidence of an ongoing
dence, or raise a triable is- and recurring dangerous
sue of fact as to whether condition in the area of the
the slip was the product of slip and fall, which was
a climatic condition prior routinely left unaddressed
to the storm. by the owners, may defeat
a motion for summary
Cohen v. A.R. Fuel, Inc., 2002 N.
Y. App. Div. LEXIS 31 (3d Dep't
judgment on notice
Jan. 2002). grounds.
Schneider v. 17 Battery Place N.
ONGOING OR RECUR- Assocs. II, 2001 N.Y. App. Div.
RING DANGEROUS LEXIS 12754 (1st Dep’t Dec.
CONDITION 2001).
(Continued on page 2)
mony favorable to the op- the witness wasn't called.
Placakis v. City of New York,
the control of and available
2001 N.Y. App. Div. LEXIS
to that party.
13019 (2d Dep't Dec. 2001).
Failure of a defendant to
call the physician who ex-
EVIDENCE OF BLOOD
amined the plaintiff on de-
fendant's behalf requires a ALCOHOL LEVEL
missing witness charge,
unless the defendant ex- Expert evidence regard-
plains during the trial why ing the plaintiff's blood
PAGE 2 N EW YO RK LAW DIGE S T V OLU ME 1, ISSU E 1

Liability Developments
(Continued from page 1)
BLACK ICE AND SNOWY
FORECAST NOT ENOUGH TO
SHOW CONSTRUCTIVE NOTICE
A plaintiff who fell on “black ice”
in a defendant’s driveway did not es-
tablish notice by proving
the defendant knew
early in the morning that
it was snowing and that
plaintiff would be visit-
ing her later in the day.
A general awareness
that snow or ice might
accumulate is not suffi-
cient, standing alone, to
constitute notice of a
particular condition.
Smith v. David M. Smith, 2001 N.Y. App. Div.
LEXIS 12625 (3d Dep’t Dec. 2001).
SKING ACCIDENTS
The degree that a voluntary partici-
pant in an athletic game can sue fel-
low participants or the
game sponsor or site owner
is a constant source of liti-
gation in New York.
The general rule is that
each participant consents to
the risk of injuries that are
'known, apparent or rea-
sonably foreseeable conse-
quences of the participation
in such events." You don't
assume the risks of reckless or inten-
tional conduct or concealed or unrea-
sonably increased risks.
Whether the operator of a ski lift
should have shut down the lift when a
skier fell getting off onto the unload
ramp was held to be a question of fact.
Another skier was injured getting off
the lift and running into the fallen
skier. A motion for summary judg-
ment was held properly denied.
Morgan v. Ski Roundtop, Inc., 2002 N.Y. App.
Div. LEXIS 2 (3d Dep't 2002).
(Continued on page 3)

Evidence
(Continued from page 1)
alcohol content ("BAC") at the time
of the accident is inadmissible in the
absence of proof as to when the BAC
measurement was taken. There must
be a basis for the expert's "relation
back" testimony. Absent evidence of
when the blood test was taken, any
conclusion as to the plaintiff's BAC
level at the time of the occurrence
would be purely speculative.
Shea v. New York City Transit Auth., 2001 N.
Y. App. Div. LEXIS 13032 (2d Dep't Dec.
2001).
“Absent evidence of when
the blood test was taken,
any conclusion as to the
plaintiff's BAC level at the
time of the occurrence would
be purely speculative.”

Labor Law

COMMON LAW INDEMNIFI- tional basis upon which the

CATION
Building owners and general
contractors may include an in-
demnification clause in any sub-
contract. But even without a
contract, common law indemnifi-
cation exists where there is a ra-
jury could find that the injured
plaintiff was supervised and
controlled by his employer on
the date of the accident.
Pugliese v. Paneorama Italian Bakery
Corp., 2001 N.Y. App. Div. LEXIS
13012 (2d Dep't Dec. 2001).
V OLU ME 1, ISSU E 1
Liability Developments
(Continued from page 2)
LANDOWNERS MAY NOT BE
LIABLE, EVEN THOUGH NEGLI-
GENT
General Obliga-
tions Law § 9-103
provides that own-
ers, lessees and oc-
cupiers of land are
shielded from li-
ability for injuries
resulting from ordi-
nary negligence
when such injuries
occur from use of
the property for any
of the 18 enumer-
Workers Compensation Developments
C4 FILED BY DR. FILES CLAIM
Filing of the C-4 medical report by
claimant's treating physician consti-
tutes the filing of a claim within the
meaning of Workers' Compensation
Law § 28.
The form filed by the doctor not
only commences a claim for medical
expenses, but also for lost wage bene-
fits. It is not necessary that the claim-
Civil Procedure
RESTORING ACTION
A plaintiff may restore an
action within one year of it be-
ing "marked off" without dem-
onstrating a reasonable excuse,
a meritorious action, a lack of
intent to abandon, and a lack of
prejudice to the defendants.
To restore an action more
N EW YO RK LAW DIGE S T PAGE 3
ated recreational activities. The ac-
tivities are hunting, fishing, canoeing, DEFECTIVE SIDEWALK IN
boating, trapping, hiking, cross-
country skiing, tobogganing, sledding, FRONT OF STORE
speleological activities, horseback
riding, bicycle riding, hand gliding, In the absence of an obligation cre-
motorized vehicle ated by statute or ordinance, an abut-
operation for rec- ting landowner will not be liable to a
reational purposes, pedestrian on a public sidewalk for
snowmobile opera- injuries suffered as a result of a side-
tion, cutting or walk defect unless the landowner cre-
gathering of wood ated the defective condition or caused
for non-commercial the defect to occur because of some
purposes or training special use of the sidewalk.
of dogs. A driveway is not a special use
making a store owner liable for a de-
White v. City of Troy, fect in an abutting sidewalk, unless
2002 N.Y. App. Div. the driveway caused or contributed to
LEXIS 26 (3d Dep’t
2002). (Continued on page 4)
ant formally file a claim within the 2 N.Y. App. Div. LEXIS 84 (3d Dep’t 2002).
year statute of limitations.
The C-4 must only contain enough
facts of the injury and
from which it might
be reasonably in-
ferred that a claim for “The filing by a doctor of a C-4
compensation was for medical payment satisfies
being made'.
the workers compensation two
year Statute of Limitations”
McCutcheon v. Public
Service Department, 2002
than one year after it was marked off,
it is necessary to make such The Court should excuse failure to
a showing. comply with a ninety day notice, where
the failure was due to law office failure,
D'Ecclesiis v. Manna, 2001 N.Y. and the affidavit of merit sufficiently
App. Div. LEXIS 13026 (2d Dep't
establishes a meritorious cause of ac-
Dec. 2001).
tion.
Reyes v. Ross, 2001 N.Y. App. Div. LEXIS
EXCUSING FAILURE TO
13056 (2d Dep't Dec. 2001)
HONOR NINETY DAY
NOTICE
PAGE 4
Liability Developments
(Continued from page 3)
the defect.
Moschillo v. The City of New York, 2002 N.Y.
App. Div. LEXIS 110 (1st Dep’t 2002).
RESPONDING TO 911 CALL IS
AN EMERGENCY OPERATION
BY A POLICE CAR
A police officer who
was driving a patrol car
in response to a 911 dis-
patch call to investigate
a family dispute was, as
a matter of law and re-
gardless whether the po-
lice officer consider the
call an emergency, en-
Venue Selection
FORUM SHOPPING
Choosing the best forum for an ac-
tion is half the case. A case before a
jury in the Bronx or Brooklyn is
much more likely to favor a plaintiff
than a jury in many other counties.
The methods of forum selection
should be carefully considered be-
fore commencing a case. One such
method may be if the plaintiff moves
after the accident.
Civil Procedure
HEARSAY EVIDENCE MAY
BE CONSIDERED IN OPPO-
SITION TO SUMMARY
JUDGMENT
A police report which is not
certified is hearsay, but it may be
considered in opposition to a mo-
tion for summary judgment, as
N EW YO RK LAW DIGE S T V OLU ME 1, ISSU E 1
gaged in the "emergency operation" of
a vehicle as defined in Vehicle and Camp counselors who permitted
Traffic Law § 114-b. The police offi- young campers to run a race on a wet
cer is not liable for ordinary negli- grass field were not liable, as a matter
gence in operating his vehicle. There of law, for negligent supervision to a
must be proof of reckless disregard child who slipped and broke his arm,
for the safety of others. since to expect counselors to refuse to
allow campers to play on a wet field
Criscione v. City of New York, 2001 N.Y.
would "so sterilize camping . . . as to
LEXIS 3738 (Ct App. Dec 2001
render it sedentary".
The law is that "organizers of
sporting or recreational events owe a
duty to exercise only reasonable care
SPORTS
to protect participants from injuries
arising out of unassumed, concealed,
CAMP NOT REQUIRED or unreasonably increased risks." The
TO "STERILIZE" CAMP Court of Appeals reversed the trial
"RENDERING IT SED- court's denial of summary judgment.
(Continued on page 6)
ENTARY."
CHANGING RESIDENCE FROM moved to change venue from Bronx
ORANGE CO. TO BRONX CO. County to Orange County three years
after the commencement of the action,
A medical malpractice plaintiff one year after the filing of the Note of
was treated by the defen- Issue.
dant while she lived in “Choosing the best forum
Orange County. She for an action is half The Appellate Divi-
then moved to Bronx the case. The methods of sion reversed an Order
County and commenced forum selection should be changing the venue,
a medical malpractice carefully considered holding that it was un-
action. The defendant before commencing a timely.
case.”
long as it is not the only proof
submitted.”
Pelkey v. Viger, 2001 N.Y. App. Div.
LEXIS 12548 (3d Dep’t Dec. 2001).
V OLU ME 1, ISSU E 1 N EW YO RK LAW DIGE S T PAGE 5

Damages
UPSTATE COUNTY STRIKES The court noted that appellate courts bow when he was 15 years old, which
AGAIN had previously increased verdicts for required two surgical procedures over
similar injuries to at least $200,000 a four-year period, and involves con-
A Warren County jury awarded a and $250,000. tinuing limitation of motion and a
generous $35,000 to a 72 year old likelihood of, inter alia, arthritis in the
man who suffered multiple fractures Perkins v. McAlonen, 2001 N.Y. App. Div. elbow at a relatively young age.
LEXIS 12622 (Dec.
of his left hip and a 2001).
comminuted frac- The Bronx trial court properly in-
ture of his left fe- creased the verdict from $25,000 to
mur, requiring an $400,000.
open reduction and FRACTURED
internal fixation Chisholm v. Madison Square Garden
with screws, a plate
ELBOW WORTH Ctr., 2001 N.Y. App. Div. LEXIS
and wires. AT LEAST 12752 (1st Dep’t Dec. 2001).
$400,000
The Third De-
partment affirmed
the trial court’s Plaintiff suffered
granting of a new a comminuted frac-
trial on damages. ture of the right el-
PAGE 6
Products Liability Developments
PRODUCT NOT DEFECTIVE
JUST BECAUSE IT EVENTU-
ALLY FALLS APART
Proof that a product was poorly
maintained by plaintiff's employer and
virtually "falling apart" by the time of
the accident does not address the
safety of the product as
designed, and cannot
defeat a motion for sum-
mary judgment by the
manufacturer.
Evans v. Biro Mfg. Co., 2001
N.Y. App. Div. LEXIS 12841
(1st Dep’t Dec. 2001).
Liability Developments
(Continued from page 4)
Fintzi v. New Jersey YMHA-YWHA Camps,
2001 N.Y. LEXIS 3791 (Ct. Ap. Dec. 2001).
DF’S LIABLE FOR ENHANCING
RISK OF PLAY
Playing sports, such as hunting,
assumes a certain risk; but the defen-
dant may still be liable if his negligent
play enhances the risk of the sport,
N EW YO RK LAW DIGE S T V OLU ME 1, ISSU E 1
PRODUCT LINE THEORY RE-
JECTED BY FIRST DEPART-
MENT
There continues to be considerable
confusion as to whether the product
line theory for successor liability has
been rejected or not in New York.
The First Department has
written, once again, that it
has rejected the product
line theory.
Subramani v. Bruno Mach. Corp.,
2001 N.Y. App. Div. LEXIS
12753 (1st Dep’t Dec. 2001).
resulting in plaintiff’s injury. mune from liability and negligence for
acts involving judgment or discretion,
Pelkey v. Viger, 2001 N.Y. App. Div. LEXIS
12548 (3d Dep’t Dec. 2001)
unless its plan or design was adopted
without
HIGHWAY DE-
adequate study, or lacked
SIGN a reasonable basis. A
governmental body may
In the field of be held liable only when
highway safety its study of a traffic con-
planning, a mu- dition is plainly inade-
nicipality is im- quate or there is no rea-
V OLU ME 1, ISSU E 1 N EW YO RK LAW DIGE S T PAGE 7

Liability Developments
sonable basis for its traffic plan. public.
Sabbagh v. Shalom, 2001 N.Y. App. Div.
McCabe v. Town of Brookhaven, 2001 N.Y. LEXIS 12906
If the defendant submits evidence
that establishes a prima facie case that App. Div. LEXIS 13073 (2d Dep't Dec 2001).
there was no negligence, the plaintiff
must submit more than just an expert's SUMMARY JUDGMENT ON
affidavit opining REAR END
that there was negli- CASES
gence. Something
more than a mere A rear-end colli-
choice between sion with a stopped
conflicting opinions automobile estab-
of experts is re- lishes a prima facie
quired before the case of negligence
State may be on the part of the
charged with a fail- operator of the
ure to discharge its moving vehicle, and
duty to plan high- imposes a duty of
ways for the safety explanation upon
of the traveling him or her.
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