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OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined: (1) a 2019 Court of Appeals decision clarified the defendant out-of-possession landlord’s duty to keep sidewalks safe, notwithstanding any maintenance arrangement with a tenant; (2) although the plaintiff was required to allege the defendant violated the NYC Administrative Code and failed to do so, plaintiff could rely on the Code provision in opposition to defendant’s summary judgment motion; and (3) plaintiff raised a question of fact whether the ice condition existed before the alleged storm in progress at or near the time of the fall:

… [T]he court’s determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals’s decision in Xiang Fu He v Troon Mgt., Inc. (34 NY3d 167 [2019]). …[E]ven if … plaintiff was required to plead defendant’s violation of Administrative Code of City of New York § 7-210 – which he undisputedly failed to do – plaintiff’s reliance thereon for the first time in opposition to defendant’s motion for summary judgment was permissible, given that doing so did not raise any new theory of liability or prejudice … . Herrera v Vargas, 2020 NY Slip Op 03082, First Dept 5-28-20

 

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CIVIL SERVICE LAW 75-B SERVES THE SAME PURPOSE AS THE EMPLOYMENT ANTI-RETALIATION STATUTES IN THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW; EVEN THOUGH PLAINTIFF HAD RESIGNED AT TIME OF THE SUIT, HIS RETALIATION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).
Evidence of Availability of Ladders Insufficient to Defeat Summary Judgment in Favor of Plaintiff; Plaintiff Fell While Working Standing on Milk Crates
INSURER’S ACCIDENT INVESTIGATION REPORT IS PRIVILEGED AND NOT DISCOVERABLE (FIRST DEPT).
​ THE GUARDIAN OF THE PERSON AND PROPERTY OF THE INCAPACITATED PERSON (IP) AND THE ATTORNEY APPOINTED TO REPRESENT THE IP WERE PROPERLY REMOVED AND DISCHARGED WITHOUT A TESTIMONIAL HEARING, WHICH IS NOT REQUIRED BY THE MENTAL HYGIENE LAW; THE GUARDIAN AND THE ATTORNEY FAILED TO INVESTIGATE THE BONA FIDES OF THE IP’S MARRIAGE AND THE PRENUPTIAL AGREEMENT (FIRST DEPT). ​
THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT).
IT WAS ERROR TO ALLOW IN EVIDENCE PHOTOGRAPHS OF A BAYONET WHICH WAS NOT THE WEAPON USED IN THE STABBING; THE MAJORITY FOUND THE ERROR HARMLESS, THE DISSENT DISAGREED (FIRST DEPT).
NO PROOF NOTE WAS IN POSSESSION OF PLAINTIFF WHEN THE ACTION WAS COMMENCED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

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