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QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR.

The Second Department determined questions of fact precluded summary judgment in favor of the landlord (New York City Housing Authority, NYCHA) in this assault liability case. Plaintiff-tenant alleged she was assaulted by an intruder who entered the apartment building through a broken door:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . Recovery against a landlord for an assault committed by a third party requires a showing that the landlord’s negligent failure to provide adequate security was a proximate cause of the injury … . “In premises security cases particularly, the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder” … .

Here, in support of its motion for summary judgment dismissing the complaint, NYCHA failed to demonstrate its prima facie entitlement to judgment as a matter of law. The deposition testimony of the plaintiff submitted in support of the motion raised issues of fact regarding whether the door was operating properly prior to, and on the day of, the incident, and whether [the assailant] was an intruder who gained access to the premises through a negligently maintained entrance … . Ramos v New York City Hous. Auth., 2017 NY Slip Op 01244, 2nd Dept 2-15-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)/LANDLORD-TENANT (LIABILITY FOR ASSAULT, QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)/ASSAULT (LANDLORD-TENANT, NEGLIGENCE, QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)

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NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY.

The Second Department determined defendant, who suffered a stroke while driving, could not be held liable for the accident:

“The operator of a vehicle who becomes involved in an accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was unforeseen” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating through deposition testimony, the defendant driver’s medical records, and expert medical evidence that the accident was caused by the defendant driver experiencing an acute stroke at the time of the accident, which was unforeseeable … . Van De Merlen v Karpf, 2017 NY Slip Op 01251, 2nd Dept 2-15-17

NEGLIGENCE (NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)/TRAFFIC ACCIDENTS (NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)/MEDICAL EMERGENCY (TRAFFIC ACCIDENTS, NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)

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MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED.

The Second Department determined plaintiff’s motion to amend the notice of claim was properly granted. The slip and fall allegedly occurred around midnight on March 2/3. The notice of claim was one day late if the incident occurred on March 2 and was timely if it occurred on March 3. The amendment changed the date of the accident stated in the notice from March 2 to March 3:

Here, mere minutes constituted the difference between whether the plaintiff’s fall occurred on March 2, 2012, or March 3, 2012. Under these circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the notice of claim and the pleadings to reflect March 3, 2012, as the correct date of the accident. There is no indication that the date originally set forth in the notice of claim as the accident date, March 2, 2012, was set forth in bad faith, the Transit Authority did not demonstrate any actual prejudice as a result of the discrepancy, and the record discloses no basis to presume the existence of prejudice … . Bowers v City of New York, 2017 NY Slip Op 01174, 2nd Dept 2-15-17

MUNICIPAL LAW (MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED

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SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION.

The Second Department determined Supreme Court should not have dismissed a petition for civil management of a sex offender (Ezekial R) for failure to state a cause of action:

The Supreme Court, relying on Matter of State of New York v Donald DD. (24 NY3d 174), dismissed the State of New York’s petition for the civil management of Ezikiel R. on the ground that it failed to state a cause of action. This was error. It is true that a diagnosis of antisocial personality disorder does not, by itself, “distinguish the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case” … . Here, however, the petition alleges a mental abnormality based on a composite diagnosis of antisocial personality disorder and psychopathy, and is supported by expert evidence containing an additional diagnosis of conduct disorder, a provisional diagnosis of sexual sadism disorder, and a determination that Ezikiel R.’s actions were suggestive of his potential for deviant sexual behavior and/or sexual preoccupation. Under these circumstances, the petition was facially valid and not subject to dismissal prior to a probable cause hearing … . Although the court at a probable cause hearing or the factfinder at trial may or may not be convinced by the expert evidence, the evidence was not so deficient as to warrant dismissal of the petition at this early juncture … . Matter of State of New York v Ezikiel R., 2017 NY Slip Op 01213, 2nd Dept 2-15-17

MENTAL HYGIENE LAW (SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)/SEX OFFENDERS (MENTAL HYGIENE LAW, SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)

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QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED, PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Second Department determined, re: plaintiff’s common law negligence cause of action, there was a question of fact whether defendants had constructive notice of a cracking concrete slap which collapsed. However plaintiff’s Labor Law 241 (6) cause of action should have been dismissed because no applicable provision of the Industrial Code was identified by the plaintiff:

… [T]he defendants submitted, inter alia, the deposition testimony of the plaintiff, in which he stated that for up to 10 days prior to the accident, he observed that the place where the concrete eventually collapsed had “lines . . . indicating the breaking points.” Thus, by their own submissions, the defendants raised an issue of fact as to whether the allegedly dangerous condition was visible and apparent and existed for a sufficient length of time prior to the plaintiff’s fall to permit them to discover and remedy it … . …

In order to establish a Labor Law § 241(6) claim, a plaintiff must allege a violation of a specific and applicable provision of the Industrial Code … . Here, although the plaintiff’s bill of particulars alleged a violation of Labor Law § 241(6), it failed to identify any specific provision of the Industrial Code that the defendants allegedly violated … . Furthermore, in opposition to summary judgment, the plaintiff failed to allege a violation of any specific provision of the Industrial Code, and did not address the issue … . Grabowski v Board of Mgrs. of Avonova Condominium, 2017 NY Slip Op 01185, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/NJEGLIGENCE (CONSTRUCTIVE NOTICE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)/CONSTRUCTIVE NOTICE (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)

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PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT.

The Second Department determined Supreme Court properly granted plaintiffs’ motion for a judgment as a matter of law (CPLR 4401) on the Labor Law 240 (1) cause of action. Plaintiff fell from the top of a boiler when a co-worker accidentally caused hot water and steam to escape from a valve. The jury found that the Labor Law 240(1) violation was not the proximate cause of the accident:

Here, the evidence adduced at trial, viewed in the light most favorable to the defendant, demonstrated that the defendant failed to provide an adequate safety device to the plaintiff, and that this failure proximately caused the plaintiff’s fall. The fact that the plaintiff’s coworker bumped into the valves, which caused hot water and steam to pour onto the plaintiff and precipitated his fall, was not of such an extraordinary nature or so attenuated from the defendant’s conduct that responsibility for the injury should not reasonably be attributed to it … . Moreover, in light of the statutory violation, even if the plaintiff were negligent in some respect, his comparative negligence would not bar liability under Labor Law § 240(1) … . Raia v Berkeley Coop. Towers Section II Corp., 2017 NY Slip Op 01243, 2nd Dept 2-15-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT)/PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT)/JUDGMENT AS A MATTER OF LAW (CPLR 4401) (PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT)

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PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1).

The Second Department determined defendants’ summary judgment motion dismissing plaintiff’s Labor Law 240(1) cause of action was properly granted. Plaintiff was engaged in routine repair work:

The plaintiff allegedly was injured while performing work on the air conditioning system in a building … . He allegedly fell while climbing over an “I-beam” that was used to support the air conditioning system. He commenced this action to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 240(1).

The defendants established, prima facie, that they were entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) by showing that the plaintiff’s work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1) … . The defendants established that the work constituted merely routine maintenance of the air conditioning system … . Tserpelis v Tamares Real Estate Holdings, Inc., 2017 NY Slip Op 01247, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1))/MAINTENANCE (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1))

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ALLEGATIONS NOT SUFFICIENT TO SUPPORT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION STEMMING FROM A FALL FROM A LADDER.

The Second Department determined Supreme Court erred in granting plaintiff’s summary judgment motion on his Labor Law 240(1) cause of action stemming from a fall from a ladder. Plaintiff did not demonstrate the ladder was defective or unsecured. [The decision explains in detail the criteria for Labor Law 200 liability and several substantive indemnification issues which are not summarized here.]:

“To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries'” … . “A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1). There must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries” … .

Here, the plaintiff’s own submissions demonstrated the existence of triable issues of fact, inter alia, as to how the accident occurred, whether the ladder was inadequately secured, and whether the plaintiff’s actions were the sole proximate cause of the accident … . Shaughnessy v Huntington Hosp. Assn., 2017 NY Slip Op 01245, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (LADDERS, ALLEGATIONS NOT SUFFICIENT TO SUPPORT PLAINTIFF’S SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION STEMMING FROM A FALL FROM A LADDER)/LADDERS (LABOR LAW-CONSTRUCTION LAW, ALLEGATIONS NOT SUFFICIENT TO SUPPORT PLAINTIFF’S SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION STEMMING FROM A FALL FROM A LADDER)

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SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1).

The Second Department determined the repair of a sidewalk damaged when a gas main was replaced did not fall within the reach of the Labor Law. Plaintiff was injured when a piece of the sidewalk fell from a backhoe. The court held that the sidewalk repair work was too far removed from the gas main replacement to trigger the Labor Law protections:

Supreme Court properly determined that, at the time of the accident, the injured plaintiff was not engaged in an enumerated activity under Labor Law § 240(1). That statute applies only to “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” … . Significantly, the statute does not cover an injury occurring after an enumerated activity is complete … . While the plaintiffs urge that the injured plaintiff’s work was part of a larger project involving the replacement of the gas main, the record reflects that the gas main replacement work was performed by a completely different entity and had been completed well before the injured plaintiff commenced any work at the location. Neither the injured plaintiff nor his employer played any role in the replacement of the gas main, and the work performed by the injured plaintiff and his coworkers constituted a separate and distinct phase of the overall project that involved only the demolition and restoration of a sidewalk … . Accordingly, under these circumstances, the plaintiff’s work did not fall within the purview of Labor Law § 240(1) … . Davis v City of New York, 2017 NY Slip Op 01179, 2nd Dept 2-15-17

LABOR LAW-CONSTRUCTION LAW (SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1))/SIDEWALK (LABOR LAW-CONSTRUCTION LAW, SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1))/STRUCTURE (LABOR LAW-CONSTRUCTION LAW, SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1))

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HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK.

The Second Department, reversing Supreme Court, determined the homeowner’s exception to Labor Law liability applied to the owner of the home (Kathleen) but not to the agent of the owner who supervised the work (Mervyn). Plaintiff fell from a scaffold:

More generally, “Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents” … . ” A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured'” … . “It is not a defendant’s title that is determinative, but the amount of control or supervision exercised” … .

Here, the defendants failed to establish Mervyn’s prima facie entitlement to judgment as a matter of law on the Labor Law §§ 240(1) and 241(6) causes of action by demonstrating that he lacked the authority to supervise or control the plaintiff’s work … . Specifically, the defendants submitted transcripts of the plaintiff’s two depositions, at which he testified that, in addition to visiting the site daily and telling the plaintiff what work to do, Mervyn provided and instructed him to use the allegedly defective scaffold and a safety belt to complete the work that led to his injury. Moreover, the plaintiff testified that his boss told him to follow Mervyn’s instructions, and there is no dispute on this record that Mervyn was listed as an insured on the plaintiff’s employer’s policy. …

To be held liable pursuant to Labor Law § 200 or the common law in a case such as this, where the claim arises out of the methods or means of the work, a defendant must have authority to supervise or control the work … . Here, the defendants established Kathleen’s prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action against her, and the plaintiffs failed to raise a triable issue of fact in opposition … . For the same reasons as those articulated above, however, the defendants failed to satisfy their prima facie burden with respect to the plaintiff’s Labor Law § 200 and common-law negligence causes of action against Mervyn … . Abdou v Rampaul, 2017 NY Slip Op 01169, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)/HOMEOWNER’S EXCEPTION (LABOR LAW-CONSTRUCTION LAW, (HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)/AGENT (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)

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