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STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined summary judgment should not have been granted to the school in this negligent supervision case. Plaintiff was injured while horsing around during gym class:

At the beginning of gym class, prior to attendance being taken, the infant plaintiff ran toward a fellow classmate, placed his hands on his shoulders, and jumped over him. The classmate asked the infant plaintiff to do it again, and the infant plaintiff jumped over the classmate again, without incident. The classmate then asked the infant plaintiff to jump over him once again, and when the infant plaintiff attempted to do so, “something popped” in his knee, which caused him to fall to the gym floor and allegedly sustain an injury. At the time of the incident, two teachers were nearby; however, neither saw the incident occur. The infant plaintiff stated that about four to five minutes elapsed between the first and third time he jumped over his classmate. A teacher, however, stated that class began at 1:11 p.m., and that the incident occurred at approximately 1:20 p.m. * * *

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Contrary to the defendant’s contention, it failed to establish, prima facie, that it adequately supervised the plaintiff or that, even if it had, the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision … . Cruz-Martinez v Brentwood Union Free Sch. Dist., 2017 NY Slip Op 00626, 2nd Dept 2-1-17

 

NEGLIGENCE (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SUPERVISION (EDUCATION-SCHOOL LAW, STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff moped operator should have been granted summary judgment in this traffic accident case. Defendant made a sudden left turn crossing plaintiff’s right of way:

The plaintiff established his entitlement to judgment as a matter of law by demonstrating, prima facie, that the defendant driver violated Vehicle and Traffic Law § 1141 when he suddenly made a left turn directly into the path of the moped operated by the plaintiff, who had no time to avoid the impact, when it was not reasonably safe to do so, and that this violation was the sole proximate cause of the accident … . Mei-Hua Gao v Makrinos, 2017 NY Slip Op 00639, 2nd Dept 2-1-17

NEGLIGENCE (DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS (DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)

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EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE.

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Defendant offered evidence only of its general cleaning practices rather than specific evidence when the area was lasted cleaned or inspected:

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition that caused the plaintiff to fall. The deposition testimony of the defendant’s caretaker, submitted in support of the motion, did not establish when the accident site was last inspected in relation to the plaintiff’s fall. The caretaker merely testified about general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, which is insufficient to establish a lack of constructive notice … . Jeremias v Lake Forest Estates, 2017 NY Slip Op 00635, 2nd Dept 2-1-17

NEGLIGENCE (EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE)/SLIP AND FALL (EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE)

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QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the city (NYC) did not demonstrate there was no question of fact whether plaintiff tripped over a portion of the sidewalk (for which the city would not be liable) or a tree well (for which the city would be liable):

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, absent certain exceptions not relevant to this case … . However, a tree well does not fall within the applicable Administrative Code definition of “sidewalk” and, thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Antonyuk v Brightwater Towers Condo Homeowners’ Assn., Inc., 2017 NY Slip Op 00619, 2nd Dept 2-1-17

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/TREE WELLS (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

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COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM; INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM; FLOOD DAMAGE RESULTED FROM DREDGING OPERATION.

The Second Department determined the county was not entitled to summary judgment on governmental immunity grounds and an independent contractor for the county was not entitled to summary judgment because of the contractual relationship. Plaintiffs alleged the county and the contractor were negligent in dredging a pond resulting in flood damage. The county could be liable in ordinary negligence for maintenance of the drainage system (as opposed to design) and the subcontractor could be liable for launching an instrument of harm:

Although a governmental entity may be entitled to immunity from liability arising out of claims that it negligently designed a sewerage or storm drainage system … , the immunity does not extend to claims that it negligently maintained the system … . Here, even assuming the subject project fell within the ambit of a governmental function, the plaintiffs contend that the County was negligent, inter alia, in its maintenance of the pond and oversight of the dredging operations. * * *

Generally, an independent contractor owes no tort duty of care to third parties … . However, there are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons … where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm … . Nachamie v County of Nassau, 2017 NY Slip Op 00657, 2nd Dept 2-1-17

MUNICIPAL LAW (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/NEGLIGENCE (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/IMMUNITY (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/CONTRACT LAW (INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)

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LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE.

The Second Department determined the county’s written notice required precluded suit in this “slip and fall on ice” action:

Here, the County established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of a County employee, which indicated that she had conducted a search of the relevant records covering a five-year period prior to the date of the accident, and found no written notice of any dangerous or defective conditions at the accident site … .

… Contrary to the plaintiff’s contention, the County could require prior written notice of the icy condition because the landing on the exterior steps of the building where the accident occurred provided the public with a general right of passage, and thus served the same functional purpose as a sidewalk, which is one of the locations specifically enumerated in General Municipal Law § 50-e(4) … . Walker v County of Nassau, 2017 NY Slip Op 00683, 2nd Dept 2-1-17

 

MUNICIPAL LAW (LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE)/SLIP AND FALL (LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE)/NEGLIGENCE (LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE)

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ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT; THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT.

The Second Department determined Supreme Court properly dismissed a police officer’s article 78 proceeding seeking reimbursement of the cost of defending a civil rights lawsuit. During the civil rights suit, the officer admitted doing nothing when he learned the plaintiff could not have committed the crime for which he was arrested. The officer argued the applicable provision of the General Municipal Law was ambiguous and, read correctly, required the county to indemnify him. Although the Second Department found that the provision was in fact ambiguous and had not been interpreted correctly by the Nassau County Police Officer Indemnification Board, the Board had correctly held the statute did not allow indemnification of the officer:

The statute vests the [Nassau County Police Officer Indemnification] Board with the discretion to determine the issues of proper discharge of duties and scope of employment, limited only by judicial review of whether a denial of defense and indemnification is arbitrary and capricious … . Here, the Board’s determination that the petitioner was not acting within the scope of his employment was arbitrary and capricious … . However, its determination that the petitioner’s failure to notify anyone that an incarcerated arrestee could not possibly have committed the robbery for which he was charged was not “committed while in the proper discharge of his duties” was supported by the facts and was not arbitrary and capricious (General Municipal Law § 50-l…). A court “may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious” … . Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. Matter of Lemma v Nassau County Police Officer Indem. Bd., 2017 NY Slip Op 00649, 2nd Dept 2-1-17

MUNICIPAL LAW (ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)/POLICE OFFICERS (ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)/ADMINISTRATIVE LAW (POLICE OFFICERS, ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)/CIVIL RIGHTS (POLICE OFFICERS, ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)

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DOG INJURED PLAINTIFF BY RUNNING AND JUMPING UP ON HER IN PLAY, COMPLAINT PROPERLY DISMISSED, DEFENDANTS DEMONSTRATED THE DOG DID NOT HAVE A PROPENSITY TO JUMP IN PLAY EXCEPT ON COMMAND.

The Second Department determined the complaint in this dog-injury case was properly dismissed. It was alleged the dog ran at plaintiff at full speed, jumped up on its hind legs, struck plaintiff in the chest and knocked her to the ground:

To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities ;;; . “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” … . Indeed, “[a] known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act” … .

The defendants’ submissions, including the deposition testimony of the defendants and the plaintiffs, as well as the defendants’ affidavits, demonstrated that prior to the subject incident, the dog was not aggressive, and did not growl or spontaneously jump on people in the fashion described by the injured plaintiff. The defendants did not restrain the dog to keep it away from guests in their home. Accordingly, the defendants established their prima facie entitlement to judgment as a matter of law … .

In opposition, the plaintiffs failed to raise a triable issue of fact. While the plaintiffs note that the defendants “trained” their dog to jump up on them on command, the deposition testimony of the defendants made clear that the dog only did so when prompted and only on immediate family members. They specifically testified that their dog had never jumped on an individual outside the immediate family. Such a jump on command is very different from the type of jump described by the injured plaintiff. Gammon v Curley, 2017 NY Slip Op 00630, 2nd Dept 2-1-17

 

ANIMAL LAW (DOG INJURED PLAINTIFF BY RUNNING AND JUMPING UP ON HER IN PLAY, COMPLAINT PROPERLY DISMISSED, DEFENDANTS DEMONSTRATED THE DOG DID NOT HAVE A PROPENSITY TO JUMP IN PLAY EXCEPT ON COMMAND)/DOGS (DOG INJURED PLAINTIFF BY RUNNING AND JUMPING UP ON HER IN PLAY, COMPLAINT PROPERLY DISMISSED, DEFENDANTS DEMONSTRATED THE DOG DID NOT HAVE A PROPENSITY TO JUMP IN PLAY EXCEPT ON COMMAND)

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DEFENDANT DID NOT EXERCISE SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200.

The Second Department determined the masonry contractor, Citnalta, did not exercise sufficient control over plaintiff’s work to be liable under Labor Law 200. Plaintiff, who worked for a subcontractor, was injured when a masonry saw jammed”

Here, Citnalta established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject accident was caused by the means and methods of the plaintiff’s work, that the plaintiff’s work was directed and controlled by his employer, and that it had no authority to exercise supervisory control over his work … . The plaintiff’s evidence of Citnalta’s general supervision of the project and overall compliance with safety standards was insufficient to raise a triable issue of fact in opposition … . Further, contrary to the plaintiff’s contention, he failed to raise a triable issue of fact as to whether his injuries arose from a dangerous or defective premises condition … . Messina v City of New York, 2017 NY Slip Op 00640, 2nd Dept 2-1-17

LABOR LAW-CONSTRUCTIVE LAW (DEFENDANT DID NOT EXERCISE SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)

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COVERAGE FOR CLAIMS ALLEGING PAYMENT OF INADEQUATE WAGES AND RETALIATION FOR BRINGING SUIT PRECLUDED BY EXCLUSION FOR EMPLOYMENT-RELATED WRONGFUL ACTS.

The Second Department, reversing Supreme Court, determined defendant insurer (FIC) was not obligated to defend plaintiff in a suit alleging the payment of inadequate wages in violation of the Faire Labor Standards Act and retaliation for bringing suit. The policy excluded coverage for employment-related wrongful acts. “Employment-related” was not defined:

In context, the plain and ordinary meaning of the “employment-related Wrongful Act” exclusion unambiguously encompasses claims regarding violations of wage laws and retaliation for complaints about violations of wage laws. The payment of wages has such an established connection to the “act of employing” or “the state of being employed” that a contrary conclusion would be unreasonable. Put otherwise, no reasonable average insured giving the relevant terms their “plain and ordinary meaning” would conclude that complaints regarding violations of law as to payment of wages were not “employment-related” … . In short, it is clear from the language of the exclusion that … the policy did not insure against the clearly “employment-related” claims raised in the underlying action. Hansard v Federal Ins. Co., 2017 NY Slip Op 00633, 2nd Dept 2-1-17

INSURANCE LAW (COVERAGE FOR CLAIMS ALLEGING PAYMENT OF INADEQUATE WAGES AND RETALIATION FOR BRINGING SUIT PRECLUDED BY EXCLUSION FOR EMPLOYMENT-RELATED WRONGFUL ACTS)/EMPLOYMENT LAW (INSURANCE LAW, COVERAGE FOR CLAIMS ALLEGING PAYMENT OF INADEQUATE WAGES AND RETALIATION FOR BRINGING SUIT PRECLUDED BY EXCLUSION FOR EMPLOYMENT-RELATED WRONGFUL ACTS)/EXCLUSIONS (INSURANCE LAW, COVERAGE FOR CLAIMS ALLEGING PAYMENT OF INADEQUATE WAGES AND RETALIATION FOR BRINGING SUIT PRECLUDED BY EXCLUSION FOR EMPLOYMENT-RELATED WRONGFUL ACTS)

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