Court Decisions & News

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated May 6, 2022. The order, insofar as appealed from, granted those branches of the separate motions of the defendant County of Westchester and the defendant Bilotta Construction Corp. which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in August 2015 when the bicycle she was riding hit a height differential between a curb and an asphalt walkway in front of the east parking lot at the Westchester County Center, causing her to fall. In 2007, the defendant County of Westchester had contracted with the defendant Bilotta Construction Corp. (hereinafter Bilotta) to renovate the east parking lot of the Westchester County Center. As part of these renovations, Bilotta installed the asphalt walkway and curbing upon which the plaintiff's accident occurred. The County and Bilotta separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated May 6, 2022, the Supreme Court, among other things, granted those branches of the defendants' separate motions. The plaintiff appeals.

A contractor may be held liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (Santelises v Town of Huntington, 124 AD3d 863, 865). A builder or contractor is justified in relying upon the plans and specifications which it has contracted to follow (Ryan v Feeney & Sheehan Bldg. Co., 239 NY 43, 46; see Corniel v CCA Civil-Halmar Intl., LLC, 215 AD3d 731, 732). A contractor that performs its work in accordance with contract plans may not be held liable unless those plans are so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous (Corniel v CCA Civil-Halmar Intl., LLC, 215 AD3d at 732 [internal quotation marks omitted]; see Nichols-Sisson v Windstar Airport Serv., Inc., 99 AD3d 770, 772).

Here, Bilotta established, prima facie, that in renovating the asphalt walkway and curbing, it performed its work in accordance with the County's plans and specifications (see Corniel v CCA Civil-Halmar Intl., LLC, 215 AD3d at 732; Hartofil v McCourt & Trudden Funeral Home, Inc., 57 AD3d 943, 945). Bilotta submitted evidence demonstrating that its work was inspected daily to ensure compliance with the County's plans and specifications and that the County conducted a final inspection and approved Bilotta's work. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the County's plans were so clearly defective that a contractor of ordinary prudence would not have performed the work (see Nichols-Sisson v Windstar Airport Serv., Inc., 99 AD3d at 772; Gee v City of New York, 304 AD2d 615, 616).

Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice (Kolenda v Incorporated Vil. of Garden City, 215 AD3d 647, 648 [internal quotation marks omitted]; see Parthesius v Town of Huntington, 210 AD3d 789, 790; see also Westchester County Administrative Code § 780.01). When a municipality has adopted a prior written notice law, the municipality cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies (Walker v City of Newburgh, 222 AD3d 809, 810 [internal quotation marks omitted]; see Morreale v Town of Smithtown, 153 AD3d 917, 918).

Where the municipality establishes, prima facie, that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the prior written notice rule, namely, that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality (Kolenda v Incorporated Vil. of Garden City, 215 AD3d at 648; see Groninger v Village of Mamaroneck, 17 NY3d 125, 129-130; Smith v City of New York, 210 AD3d 53, 69). Alternatively, a plaintiff may raise a triable issue of fact regarding whether the municipality did, in fact, have prior written notice of the alleged defective condition (Douglas v City of Mount Vernon, N.Y., 226 AD3d 973, 974 [internal quotation marks omitted]).

Here, the County demonstrated, prima facie, that it did not have prior written notice of the alleged defect. In support of its motion, the County submitted, inter alia, affidavits of the Clerk of the County's Board of Legislators and the Commissioner of the County's Department of Public Works and Transportation, both of whom averred that a search of the appropriate records failed to reveal any prior written notice of a defective condition at the subject location (see Parthesius v Town of Huntington, 210 AD3d at 790; Cuomo v Incorporated Vil. of Garden City, 188 AD3d 987, 988). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the County received prior written notice of the alleged defective condition. Furthermore, the plaintiff failed to demonstrate the applicability of the exception to the prior written notice law that the County affirmatively created the alleged condition through an act of negligence (see Morreale v Town of Smithtown, 153 AD3d at 918). The special use exception is not at issue here.

Although prior written notice was not required with respect to the allegations that the County negligently designed the asphalt walkway (see Hughes v Jahoda, 75 NY2d 881, 883; Meyer v Town of Brookhaven, 204 AD2d 699, 700), the County established, prima facie, that it did not negligently design the asphalt walkway (see Richards v Passarelli, 77 AD3d 905, 909). In opposition, the plaintiff failed to raise a triable issue of fact (see Landsman v Tolo, 194 AD3d 1034, 1035).

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Damaris E. Torrent, J.), dated October 28, 2021. The order, insofar as appealed from, granted that branch of the motion of the defendants Hubert G. Robin and Shahram Ahari which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Hubert G. Robin and Shahram Ahari which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against them is denied.

In December 2019, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendants Hubert G. Robin and Shahram Ahari (hereinafter together the defendants), among others. The plaintiff alleged that the defendants departed from the standard of care in treating her for an anaphylactic reaction to a bee or wasp sting. In particular, she alleged that the defendants negligently misplaced a central venous catheter into her carotid artery and that this departure proximately caused her injuries.

In June 2021, the defendants moved, inter alia, for summary judgment dismissing the medical malpractice cause of action insofar as asserted against them. The plaintiff opposed the motion. In an order dated October 28, 2021, the Supreme Court, among other things, granted that branch of the defendants' motion. The plaintiff appeals.

The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries (Kielb v Bascara, 217 AD3d 756, 756 [internal quotation marks omitted], quoting DiLorenzo v Zaso, 148 AD3d 1111, 1112). To prevail on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing either that there was no departure from accepted community standards of practice or that any alleged departure was not a proximate cause of the plaintiff's injuries (id.). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden (Alao v Richmond Univ. Med. Ctr., 213 AD3d 722, 723 [internal quotation marks omitted]; see Chillious v Edouard, 234 AD3d 737, 739). Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions (Chillious v Edouard, 234 AD3d at 741, quoting Feinberg v Feit, 23 AD3d 517, 519).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against them by submitting, among other things, an affirmation of an expert who opined that the defendants did not deviate from the accepted standard of medical care and that the defendants' treatment did not proximately cause the plaintiff's injuries (see Kielb v Bascara, 217 AD3d at 757).

In opposition, however, the plaintiff raised triable issues of fact by submitting an affidavit of an expert who opined, among other things, that the defendants departed from the standard of care by failing to use ultrasound guidance during guidewire advancement through the needle during the central line placement and to confirm correct positioning of the guidewire in the jugular vein (see Chillious v Edouard, 234 AD3d at 740-741; Kielb v Bascara, 217 AD3d at 757). The plaintiff's expert further opined that this departure proximately caused the plaintiff's subsequent complications and injuries. Contrary to the Supreme Court's determination, the opinions of the plaintiff's expert were not speculative and conclusory (see Chillious v Edouard, 234 AD3d at 741; Kielb v Bascara, 217 AD3d at 757).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the medical malpractice cause of action insofar as asserted against them.

BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Lewis J. Lubell, J.), dated January 31, 2023, and (2) an order of the same court dated January 31, 2023. The first order, insofar as appealed from, granted those branches of the motion of the defendant Allen J. Reyen which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against him. The second order, insofar as appealed from, granted those branches of the motion of the defendant Allen J. Reyen, Inc., which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against it.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The plaintiff allegedly was injured when he fell from a ladder while performing certain work on a barn located on property in Pound Ridge. Thereafter, the plaintiff commenced this action against the defendants, Allen J. Reyen and Allen J. Reyen, Inc., alleging, inter alia, violations of Labor Law §§ 240 and 241(6). The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted those branches of the defendants' separate motions which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against each of them. The plaintiff appeals.

Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards (Argueta v Hall & Wright, LLC, 230 AD3d 1200, 1201 [internal quotation marks omitted]; see Thorpe v One Page Park, LLC, 208 AD3d 818, 820). In contrast, Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (Moscati v Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717, 718 [internal quotation marks omitted]). A general contractor may be held liable under Labor Law §§ 240(1) and 241(6) if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors (Caiazzo v Mark Joseph Contr., Inc., 119 AD3d 718, 720 [internal quotation marks omitted]; see Temperino v DRA, Inc., 75 AD3d 543, 544). Moreover, a contractor may be held liable as an agent of an owner where it had the authority to supervise and control the work at issue (see Caiazzo v Mark Joseph Contr., Inc., 119 AD3d at 720; Herrel v West, 82 AD3d 933, 934).

Here, Allen J. Reyen, Inc., established its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against it by demonstrating it did not own the property and did not contract to have work performed for its benefit (see Paul v Village of Quogue, 178 AD3d 942, 943) and that it was neither a general contractor nor an agent of the owner with regard to the plaintiff's work (see Mejia v 69 Mamaroneck Rd. Corp., 232 AD3d 886, 888). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Both Labor Law §§ 240(1) and 241(6) exempt from liability owners of one and two-family dwellings who contract for but do not direct or control the work (Pawelic v Siegel, 220 AD3d 883, 884, quoting Labor Law §§ 240[1]; 241[6]). In order for a defendant to receive the protection of the homeowner's exemption, the defendant must show that (1) the premises consisted of a one- or two-family residence, and (2) the owner did not direct or control the work being performed (Walsh v Kenny, 219 AD3d 1555, 1556, quoting Marquez v Mascioscia, 165 AD3d 912, 913).

Here, Reyen demonstrated his prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against him by establishing that the work was related to the residential use of the home and that he did not direct or control the work. Moreover, Reyen demonstrated that the barn functioned as an extension of the dwelling and that the work had a substantially residential purpose (Bartoo v Buell, 87 NY2d 362, 369; see Rendon v Callaghan, 206 AD3d 945, 947; Bates v Porter, 203 AD3d 792, 794). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).

CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.