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DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS ALL THEORIES OF RECOVERY ALLEGED IN THE COMPLAINT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant property owner was not entitled to summary judgment in this common-law negligence and Labor Law 200, 240(1) and 241(6) action. Plaintiff was injured working on defendant’s building. Defendant, in his motion papers, did not affirmatively address all the possible theories of recovery available to the plaintiff. Therefore summary judgment should not have been granted. [Another example of the need for a defendant bringing a summary judgment motion to affirmative address every theory raised in the complaint.]:

 

Liability on common-law negligence and Labor Law § 200 causes of action “generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site” … . Where, as alleged here, the plaintiff’s accident arose from an allegedly dangerous premises condition, a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it …. Thus, where a plaintiff’s injury arose from a dangerous condition at a work site, a property owner moving for summary judgment dismissing a cause of action alleging common-law negligence has “the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence” … . Here, the defendant failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. … Further, the defendant failed to demonstrate the absence of any triable issues of fact as to whether he had actual or constructive notice of the dangerous condition … . …

Moreover, the Supreme Court erred in directing the dismissal of the Labor Law §§ 240(1) and 241(6) causes of action because, while the defendant generally sought dismissal of the plaintiff’s complaint insofar as asserted against him, he did not demonstrate the absence of any triable issues of fact in connection with these causes of action… . Korostynskyy v 416 Kings Highway, LLC, 2016 NY Slip Op 00939, 2nd Dept 2-10-16

 

LABOR LAW (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/NEGLIGENCE (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/GENERAL CONTRACTOR (SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)

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THE EXCESS INSURANCE CARRIER WAS NOT BARRED FROM RECOVERY OF THE AMOUNT IT CONTRIBUTED TO THE SETTLEMENT OF A PERSONAL INJURY ACTION BY THE VOLUNTARY PAYMENT DOCTRINE; THE EXCESS INSURANCE CARRIER’S BREACH-OF-THE-COVENANT-OF-GOOD-FAITH ACTION AGAINST THE PRIMARY CARRIER PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).
THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE CITY TO CONTEST THE ANNUAL INSPECTION FEES; A NEGLIGENCE ACTION AGAINST A MUNICIPALITY BASED UPON A STATUTORY DUTY WILL NOT FLY UNLESS THE STATUTE PROVIDES A PRIVATE RIGHT OF ACTION; A PRE-ANSWER MOTION TO DISMISS A REQUEST FOR A DECLARATORY JUDGMENT MUST BE DENIED IF IT SETS FORTH A CAUSE OF ACTION, THE MERITS OF THE REQUEST CANNOT BE CONSIDERED (SECOND DEPT).
OPENINGS THROUGH WHICH A WORKER’S BODY COULD NOT COMPLETELY FALL NOT ACTIONABLE UNDER LABOR LAW 240(1) OR 241(6).
MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED), PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT).
CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED.
NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED.
ALTHOUGH THE FIRST FORECLOSURE ACTION COMMENCED IN 2009 WAS ADMINISTRATIVELY DISMISSED, IT WAS NEVER ABANDONED PURSANT TO CPLR 3216; THEREFORE THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED AND THE MOTION TO RESTORE THE 2009 ACTION TO THE CALENDAR IN 2018, AFTER THE SECOND (2015) FORECLOSURE ACTION WAS DISMISSED AS TIME-BARRED, SHOULD HAVE BEEN GRANTED; TWO-JUSTICE DISSENT (SECOND DEPT).

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QUESTION OF FACT WHETHER TENANT ENTITLED TO COMPENSATION FOR TRADE FIXTURES... SUBTLE DIFFERENCE BETWEEN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT...