Last week in Taveras v. City of New York the Supreme Court, Appellate Division, Second Department permitted a drowning death lawsuit to continue.
In June 2005, Luis Alberto Peralta (a.k.a. Luis A. Peralta Taveras) drowned while swimming at the public ocean beach at Coney Island in Brooklyn. (New York Post story here).
The administrators of Mr. Peralta’s estate sued the City of New York, two lifeguards, and a detective.
The trial court denied defendants’ motion for (1) summary judgment dismissing the complaint, (2) dismissal for lack of personal jurisdiction as to two lifeguards, and (3) dismissal against a third individual due to abandonment. The appellate court held that the trial court was correct as to 1 and 2, but not 3.
1. Summary Judgment
In evaluating defendants’ motion for summary judgment on the merits, the court began by reciting well-settled law regarding the duty of a landowner (here, the City of New York) to those injured on its premises:
While a municipality is not an insurer of the safety of those who use its parks, it does have a duty to maintain its parks in a reasonably safe condition, which includes exercising ordinary care in providing an adequate degree of general supervision.
Defendants met their initial burden on summary judgment “by submitting evidence demonstrating that the City provided experienced lifeguards to supervise the bathers and that the search for the decedent was performed pursuant to the New York City Department of Parks and Recreation’s Beach Safety Plan.”
The mere fact that the City provided lifeguards, however, was not enough.
Specifically, plaintiffs presented enough evidence to “raise triable issues of fact as to whether the lifeguards in attendance at the time of the incident were inattentive or inefficient, and whether the delay in commencing a search for the decedent was a proximate cause of the decedent’s death.”
Plaintiff’s evidence consisted of eyewitness testimony that:
- the decedent was in apparent distress around 1:00 p.m. when he went under the water without resurfacing,
- one of the lifeguards remained on his stand talking to a group of females while the decedent could be observed struggling in the water,
- the first lifeguard did not enter the water when the eyewitness informed him that the decedent was in distress,
- a second lifeguard who finally entered the water on a board failed to paddle out to where the decedent was last observed before returning to shore,
- a distress call was not signaled and the water evacuated until the eyewitness informed a third lifeguard that the decedent was in distress, and
- a linked search by about 10 lifeguards was not performed until more than one hour after she initially observed the decedent in distress, which eventually led to the discovery of the decedent around 3:00 or 3:30 p.m.
Therefore, the trial court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.
2. Personal Jurisdiction
The trial court denied defendants’ motion, brought pursuant to CPLR 3211(a)(8), to dismiss the complaint against two lifeguards (Ilienko and Sewell) for lack of personal jurisdiction.
Initially, plaintiffs brought suit against then-unknown parties (as “John Doe” defendants), which is permitted by the CPLR. In that case, an “informal appearance”, such as by a defendants’ attorney, suffices to establish jurisdiction:
CPLR 1024 allows for the commencement of an action against an unknown party. While the use of a John Doe designation does not exempt a plaintiff from the requirement of serving process on the intended defendant by an authorized method under CPLR article 3, a defendant may appear informally by actively litigating the action before the court. When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court. Thus, absent a formal “appearance” by a defendant, a defendant may nevertheless appear in an action where his or her counsel communicates a clear intent to participate.
Here, that is exactly what happened:
[I]t is undisputed that Ilienko and Sewell were never served with process. The plaintiffs contend that the defendants’ attorney agreed to appear for Ilienko and Sewell and, as a result, they neither personally served the summons and amended complaint upon Ilienko and Sewell, nor moved for leave to enter a default judgment against them. The record establishes that, during the depositions of Ilienko and Sewell, the defendants’ counsel appeared on their behalf. Moreover, during the plaintiffs’ counsel’s questioning of Ilienko about the examination he took to become a City lifeguard, the defendants’ counsel stated that the negligent hiring, retention, and training claims would fail in this instance because, “when the city takes a position to represent employees for acts that occurred during the course of their employment … the only issue that goes to the jury is negligence on the day of the incident.”
Based on this the court concluded that Ilienko’s and Sewell’s “participation in this action and their counsel’s statements confirming that he was appearing on their behalf subsequent to the substitution constituted an informal appearance on their behalf and a waiver of any objection to personal jurisdiction.”
3. Claim Abandonment
The court, however, held that the trial court should have granted the branch of defendants’ motion, made pursuant to CPLR 3215(c), for claim abandonment as to defendant Detective O’Malley.
After plaintiffs served O’Malley with process, they failed to seek leave to enter a default judgment against him even though he did not answer the complaint or appear in the action.
This warranted dismissal:
Where, as here, a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned. To avoid dismissal of the complaint pursuant to CPLR 3215(c) insofar as asserted against O’Malley, the plaintiffs were required to demonstrate both a reasonable excuse for their delay in seeking a default judgment and that the complaint, insofar as asserted against O’Malley, was potentially meritorious. Here, the plaintiffs failed to demonstrate either.