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IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT).

The First Department determined there was a question of fact whether defendant bus company (Hudson) was liable for plaintiff's fall. She stepped in a hole in the sidewalk as she got off the bus. The court noted a duty to provide a safe place to get off the bus and a contractual duty to notify Port Authority of needed repairs:

Issues of fact exist as to whether Hudson breached its duty as a common carrier to provide plaintiff with a safe place to disembark … . The record shows that 15 or 20 passengers exited the bus before plaintiff. As she alighted, she stepped into a hole on the sidewalk and fell. The bus driver corroborated this testimony, stating that the hole was on the sidewalk, “[w]ithin one step” of where plaintiff disembarked. The bus driver further admitted that the hole caused plaintiff to fall. Additionally, plaintiff testified that, upon seeing where she fell, the bus driver exclaimed, “[Y]ou fell in that hole, they're supposed to fix that hole.” Under the circumstances, where plaintiff stepped into a hole immediately upon alighting from the bus, the fact that a number of passengers safely descended before she did does not entitled Hudson to summary judgment … .

Issues of fact as to, among other things, whether Hudson breached its contractual duty to notify Port Authority of any needed repairs at the gate where the accident occurred compel denial of summary judgment on Port Authority's contractual indemnification claim. Bruno v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 00069, First Dept 1-4-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/CONTRACT LAW (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/SLIP AND (FALL QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/CONTRACT LAW (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/BUSES  (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))

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EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined there were questions of fact precluding defendants' motions for summary judgment in this elevator misleveling slip and fall case. There was evidence the building owner had notice of the problem and evidence the elevator company (Fugitec) may not have properly maintained the elevator. The doctrine of res ipsa loquitur was also applicable:

The record contained ample evidence from which a jury could find that the owner had actual notice of a recurring, misleveling problem with the elevator, based on prior similar incidents shown in the building's logbook and based on service records of Fujitec, which had contracted to maintain the elevator … . Fujitec's servicing of the elevator in response to those prior complaints raises an issue of fact as to notice … . …

… [T]here is an issue of fact as to whether the owner's liability, if any, is vicarious… . Due to the adverse inference charge the court previously granted against the owner, a jury might find that the owner had actual notice of the misleveling defect on the day of the accident, before plaintiff's injury. In addition, given the adverse inference charge, a jury could find that the owner was negligent in either failing to timely notify Fujitec of the misleveling defect, or in failing to remove the elevator from service. Such negligence would bar the owner from obtaining common-law indemnification from Fujitec … . …

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… [T]he doctrine of res ipsa loquitur precludes summary judgment… . “The misleveling of an elevator does not ordinarily occur in the absence of negligence” … . Further, the misleveling was apparently caused by an instrumentality within Fujitec's exclusive control and was not due to any voluntary action on plaintiff's part. The application of res ipsa loquitur is not “overcome by [Fujitec's] evidence that the elevator was regularly inspected and maintained”… . Given the applicability of res ipsa loquitur, plaintiff was not required to identify a malfunction or defect in the elevator … . Dzidowska v Related Cos., LP, 2018 NY Slip Op 00074, First Dept 1-4-18

 

NEGLIGENCE (SLIP AND FALL, EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/ELEVATORS (SLIP AND FALL, EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))

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FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT).

The Third Department determined the fact that the pro se notice of claim was not verified was properly overlooked by Supreme Court and, although the notice did not explicitly describe a cause of action for malicious prosecution, the allegations were sufficient to put the municipality on notice that a malicious prosecution cause of action was contemplated. Only a mailcious prosecution claim was timely (the false arrest and false imprisonment claims were untimely):

Plaintiff's notice of claim does not specifically refer to the fact that he was charged with harassment in the second degree or to the dismissal of those charges. Nonetheless, plaintiff's assertions that he was falsely arrested without legitimate cause, that no crime took place and that City employees acted maliciously provided sufficient notice to defendants that plaintiff potentially had a claim for malicious prosecution. Although they protect different personal interests and are composed of different elements, claims for “false arrest and malicious prosecution are kindred actions insofar as they often aim to provide recompense for illegal law enforcement activities” … . Causes of action for false arrest and malicious prosecution are related closely enough that, in a trial of both, the court must instruct the jury not to make a duplicate award of damages… . Moreover, actual malice is an element of a cause of action for malicious prosecution, but not of a cause of action for false arrest … . Thus, receipt of a notice of claim alleging that its agents acted maliciously in executing a false arrest when no crime had occurred provided the City with the opportunity to investigate all circumstances related to plaintiff's arrest, including whether he had been arrested pursuant to a warrant — which would have insulated defendants from liability for false arrest … — and whether plaintiff's arrest had resulted in him being charged with, or prosecuted for, a crime. Hone v City of Oneonta, 2018 NY Slip Op 00055, Third Dept 1-4-18

MUNICIPAL LAW (NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/MALICIOUS PROSECUTION (MUNICIPAL LAW, NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))

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ALTHOUGH THE UNINSURED DRIVER ACTED INTENTIONALLY, THE INJURY TO THE MAN WHO WAS TRYING TO STOP THE DRIVER FROM DRIVING WHILE INTOXICATED WAS THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE UNINSURED MOTORIST POLICY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent, Widdecombe, was injured in an accident within the meaning of the applicable uninsured motorist policy. Widdecombe was concerned because the driver, Germain, who had been drinking, should not drive. When Widdecombe attempted to take the keys, Germain drove off, dragging and injuring Widdecombe:

… [F]or purposes of an uninsured motorist endorsement, when an occurrence is — from the insured's perspective — “unexpected, unusual and unforeseen,” it qualifies as an “accident”… .  … “[T]he intentional assault of an innocent insured is an accident within the meaning of his or her own policy” … .

… [W]hatever Germain's intent and criminal liability, this incident was an accident from Widdecombe's perspective. Contrary to petitioner's contention, Widdecombe's uncontroverted testimony established that the incident “happened so fast” and, after he attempted to grab the keys, Germain said that “he was going to cut [Widdecombe's] leg off” and, as Widdecombe tried to get his leg out of the car, Germain “threw the car in drive” and “screeched” away, dragging Widdecombe. … [T]his event “was clearly an accident from the insured's point of view,” since having his leg trapped and being dragged was sudden and “unexpected, unusual and unforeseen” … . Matter of Progressive Advanced Ins. Co. (Widdecombe), 2018 NY Slip Op 00061, Third Dept 1-4-18

INSURANCE LAW (ALTHOUGH THE UNINSURED DRIVER ACTED INTENTIONALLY, THE INJURY TO THE MAN WHO WAS TRYING TO STOP THE DRIVER FROM DRIVING WHILE INTOXICATED WAS THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE UNINSURED MOTORIST POLICY (THIRD DEPT))/ACCIDENT (INSURANCE LAW, ALTHOUGH THE UNINSURED DRIVER ACTED INTENTIONALLY, THE INJURY TO THE MAN WHO WAS TRYING TO STOP THE DRIVER FROM DRIVING WHILE INTOXICATED WAS THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE UNINSURED MOTORIST POLICY (THIRD DEPT))/UNINSURED MOTORIST (INSURANCE LAW, ALTHOUGH THE UNINSURED DRIVER ACTED INTENTIONALLY, THE INJURY TO THE MAN WHO WAS TRYING TO STOP THE DRIVER FROM DRIVING WHILE INTOXICATED WAS THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE UNINSURED MOTORIST POLICY (THIRD DEPT))

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BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined an state prison inmate's action in Supreme Court against doctors (Lieb and Angell) alleging medical malpractice should not have been dismissed as duplicating an action against the same doctors in the Court of Claims. It was possible the state would not indemnify the doctors who were not employees of the state and plaintiff would be left without recourse. The Supreme Court action should have been stayed, not dismissed:

The legal theory in the Court of Claims action is nearly identical to the Supreme Court action, and it is not disputed that the two actions arise out of the same set of facts. Moreover, Correction Law § 24-a provides that licensed physicians providing contractual medical care at the request of DOCCS are covered by the defense and indemnity provisions in Public Officers Law § 17, as long as the injury was not the result of intentional wrongdoing. As such, it appears that the dismissal of the Supreme Court action would not prejudice plaintiff's right to receive full recovery from all defendants, as intentional wrongdoing is not part of the Supreme Court action and any damages attendant to Lieb's or Angell's malpractice or negligence would be borne by the state in the Court of Claims action.

However, while these defense and indemnity provisions appear to apply to Lieb and Angell, the record is not fully developed at this time to make such a definite determination. Indeed, despite currently defending Angell, the state has neither conceded nor admitted in any of its submissions or pleadings that it is statutorily bound by Correction Law § 24-a and Public Officers Law § 17 (3) (a) to indemnify Lieb and Angell. Rothschild v Braselmann, 2018 NY Slip Op 00054, Third Dept 1-4-18

CIVIL PROCEDURE (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))/COURT OF CLAIMS (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))

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ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT).

The First Department determined plaintiffs' causes of action for trespass and encroachment properly survived summary judgment and the cause of action for enforcement of a restrictive covenant was properly dismissed. The plaintiffs alleged that construction on defendants' building encroached on and damaged a party wall. The restrictive covenant was in an 1869 deed and did not indicate it was for the benefit of anyone other than the grantee:

The motion court correctly denied the motion insofar as it sought dismissal of the causes of action for encroachment and trespass. “A party wall is for the common benefit of contiguous proprietors. Neither may subject it to a use whereby it ceases to be continuously available for enjoyment by the other. . . A wall may be carried by either owner beyond its height as first erected, provided only it is strong enough to bear the weight and strain” … . It was defendants' burden, as movants, to offer evidence establishing their prima facie entitlement to summary judgment … . This they have failed to do. Indeed, plaintiffs in opposition proffer evidence that the alterations to the party wall have undermined the structural integrity of their buildings. Plaintiffs' engineer opined that defendants failed to detail a flashing system and to adhere to industry standards, occasioning damage. He further opined that it was impossible to ascertain whether the new masonry is properly tied to the old masonry so as to provide the requisite structural stability.

The cause of action to enforce a restrictive covenant was correctly dismissed for lack of standing…  The covenant was entered into in 1869 by the original owner of one lot that included both of the subject properties and his immediate neighbor, and it contains no explicit provision that it is for the benefit of anyone other than the grantee. Mastrobattista v Borges, 2018 NY Slip Op 00039, First Depat 1-2-18

REAL PROPERTY LAW (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/TRESPASS  (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/ENCROACHMENT (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/DEEDS  (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/RESTRICTIVE COVENANT (DEEDS, ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/PARTY WALLS (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))

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IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT).

The First Department, modifying Supreme Court, limited the amount of discovery about the rear stairs of the bus where plaintiff fell and allowed representatives of defendants to be present when the bus was inspected and photographed by plaintiff:

… [D]iscovery [is limited] to documents concerning the rear stairs of the bus on which plaintiff fell, and the absence of warning signs and handrails in the rear of the bus, for a period of five years preceding the date of the accident, and records relating to any modifications or changes to the interior stairs, handrails, or warning signs in the rear of the bus from the day of the accident to the day of the inspection, and the production of the bus for inspection and photographing by plaintiff in the presence of defendants' representatives … .

Predecessor models of the bus on which plaintiff fell and buses with front-facing rear seating are not relevant to whether the bus on which plaintiff fell was defectively designed (CPLR 3101[a]… ). Similarly, while material concerning the rear stairs, handrails, and warning signs in the rear of the subject bus, i.e., the alleged dangerous conditions, is relevant, material concerning other sections of the bus or other defects is not relevant. The production of 15 years' worth of records is burdensome … . Curran v New York City Tr. Auth., 2018 NY Slip Op 00038, First Dept 1-2-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CPLR 3101 (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/SLIP AND FALL (DISCOVERY, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/BUSES (SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/DISCOVERY (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))

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EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff raised a question of fact in this sidewalk slip and fall case. Defendant presented evidence the sidewalk was clear. Plaintiff presented climatological expert evidence as well as evidence the ice was brown and dirty, indicating it had been there long enough to be noticed:

… [P]laintiff raised triable issues of fact as to whether a hazardous icy condition existed and whether defendant had notice of that condition. Plaintiff's climatological expert opined, after reviewing relevant climatological reports, that snow had ceased falling two days before plaintiff's accident, but snow and ice would have remained on the ground in untreated areas on the morning of his accident, thus giving defendant sufficient time to discover and remedy the hazardous ice condition … . Plaintiff also testified that before he fell he saw ice covering part of the sidewalk. He described the ice that he saw after his fall as “[b]rownish” and “dirty,” thereby raising issues as to whether the icy condition had been on the sidewalk long enough to clear it before the accident … .Furthermore, contrary to defendant's contentions, plaintiff identified the cause of his fall, since he testified that he saw ice on the ground when he looked sideways, when he fell, face down, onto it … . Jones v New York City Hous. Auth., 2018 NY Slip Op 00027, First Dept 1-2-18

NEGLIGENCE (EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))

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DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF’S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT).

The First Department determined defendant detoxification facility was not entitled to summary judgment on the negligence and wrongful death causes of action brought on behalf of decedent, DeJesus, who had been treated at the facility, left and was found dead a month later. The defendants pointed to the plaintiff's inability to prove causation as grounds for summary judgment. However, it was the defendants' burden to affirmatively demonstrate the absence of causation, which they did not do. (Another example of the strict analytical criteria used by the appellate courts for review of summary judgment motions.) The court also held the Public Health Law cause of action should have been dismissed because the detoxification facility was not a nursing home and therefore was not subject to the Public Health Law:

Defendants, however, failed to submit affirmative evidence establishing that their alleged negligence did not, as a matter of law, proximately cause DeJesus's death. The fact that DeJesus's body was discovered a month after he disappeared is not sufficient, in itself, to warrant summary judgment in defendants' favor. Although defendants submitted DeJesus's death certificate, that document states only that the manner and cause of death were undetermined, and does not definitively rule out the requisite causal connection. Further, the autopsy report submitted with defendants' motion papers is incomplete, and does not identify the cause of death.

Because defendants merely pointed to perceived gaps in plaintiff's proof, they are not entitled to summary judgment on the negligence and wrongful death claims … . Hairston v Liberty Behavioral Mgt. Corp., 2018 NY Slip Op 00004, First Dept 1-2-18

NEGLIGENCE (DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/SUMMARY JUDGMENT (DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT)/EVIDENCE (SUMMARY JUDGMENT, DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/DETOXIFICATION FACILITY (NOT A NURSING HOME, NOT SUBJECT TO THE PUBLIC HEALTH LAW (FIRST DEPT))/PUBLIC HEALTH LAW (DETOXIFICATION FACILITY, NOT A NURSING HOME, NOT SUBJECT TO THE PUBLIC HEALTH LAW (FIRST DEPT))

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EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this falling objects case. Plaintiff was making an opening in a concrete wall when cinderblocks above the opening fell on him. The court held that the cinderblocks should have been secured and no safety device had been employed. Expert evidence that no safety device was needed did not create a question of fact:

… [T]he testimony and expert opinion that a safety device was neither necessary nor customary “is insufficient to establish the absence of a Labor Law § 240 (1) violation” … . O'Brien v Port Auth. of N.Y. & N.J. (29 NY3d 27 [2017]) is not to the contrary. Unlike in O'Brien, the experts here do not differ as to whether a safety device that was provided was adequate, but rather differ as to whether a safety device was required at all … . In light of the uncontroverted fact that no safety devices were provided, it would be error to submit to the jury for their resolution the conflicting expert opinion as to what safety devices, if any, should have been employed … . Gonzalez v Paramount Group, Inc., 2018 NY Slip Op 00029, First Dept 1-2-18

LABOR LAW-CONSTRUCTION LAW (EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))

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