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A DANGEROUS CONDITION, A DOOR WHICH SWUNG CLOSED ABRUPTLY, IS ALLEGED TO HAVE INJURED PLAINTIFF; TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DOOR, THE DEFENDANT MUST SUBMIT EVIDENCE THE DOOR WAS INSPECTED OR MAINTAINED AND FOUND SAFE CLOSE IN TIME TO THE INJURY; THE FAILURE TO SUBMIT SUCH EVIDENCE REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants in this premises liability case should not have been granted summary judgment. Plaintiff alleged a door closed abruptly, striking her and causing her to fall. The defendants presented no evidence when the door was last inspected or maintained. Therefore the defendants did not demonstrate a lack of constructive notice of the condition:

… [T]he defendants failed to establish, prima facie, that the condition of the door on the date of the accident did not constitute a dangerous condition … . … [T]he defendants failed to establish, prima facie, that they lacked actual or constructive notice of the alleged dangerous condition, as the defendants failed to submit any inspection or maintenance records or any other evidence showing when, if ever, the door was last inspected or maintained prior to the accident … . Ogletree v Long Is. Univ., 2024 NY Slip Op 04329, Second Dept 8-28-24

Practice Point: To warrant summary judgment where plaintiff alleges a defective condition on defendant’s property caused injury, the defendant must present proof the specific area or object alleged to be defective was inspected or maintained and found safe close in time to the incident. Over the past few years, hundreds of reversals have been based on defendant’s failure to submit such proof in support of summary judgment. The proof is essential to demonstrating defendant did not have constructive notice of the allegedly dangerous condition.

 

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THE NYC DEPARTMENT OF EDUCATION PROPERLY DENIED PETITIONER-TEACHER’S REQUEST FOR AN EXTENSION OF AN EXEMPTION FROM THE COVID VACCINE MANDATE BECAUSE THE MANDATE IS NO LONGER IN EFFECT; SUPREME COURT SHOULD NOT HAVE ISSUED AN ADVISORY OPINION TO THE CONTRARY; THE AWARD OF ATTORNEY’S FEES WAS IMPROPER; THE PETITION DID NOT MEET THE CRITERIA FOR AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner, at teacher, was not entitled to an extension of an exemption from the COVID vaccine mandate (denied by the NYC Department of Education) and the award of over $24,000 in attorney’s fees. The vaccine mandate is no longer in force, and the matter did not meet the criteria for an exception to the mootness doctrine:

Courts are prohibited from rendering advisory opinions, and a matter will be considered academic unless the rights of the parties will be directly affected by the determination of the matter and the interest of the parties is an immediate consequence of the judgment … . Here, the vaccine mandate, which was never enforced against the petitioner, was repealed on February 9, 2023. Accordingly, the petition is academic … .

Furthermore, the exception to the mootness doctrine, which permits judicial review where the case presents a significant issue that is likely to recur and evade review, is inapplicable here … . The issue is not likely to repeat, as the vaccine mandate has been repealed and the possibility that some form of vaccine mandate might be enforced against the petitioner at some unknown time in the future is entirely speculative, and the petitioner does not raise novel questions … .

Since an award of attorneys’ fees is not authorized by agreement between the parties, by statute, or by court rule, the Supreme Court improperly awarded attorneys’ fees to the petitioner … ..  Matter of Ferrera v New York City Dept. of Educ., 2024 NY Slip Op 04317, Second Dept 8-28-24

Practice Point: Because the vaccine mandate for NYC teachers is no longer in force, the petitioner-teacher’s request for an extension of an exemption from the mandate was properly denied by the NYC Department of Education. Supreme Court’s grant of the extension and award of attorney’s fees was improper because courts are prohibited from issuing advisory opinions. In addition, the criteria for an exception to the mootness doctrine were not met.

 

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DEFENDANT, AS AN OUT-OF-POSSESSION LANDLORD, WAS NOT LIABLE FOR AN ALLEGED DANGEROUS CONDITION ON THE PROPERTY; PLAINTIFF’S REFERENCES TO UNPLEADED CAUSES OF ACTION (LABOR LAW 240(1) AND LABOR LAW 241(6)) IN THE BILL OF PARTICULARS WERE UNSUPPORTED; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing plaintiff’s complaint, determined defendant was an out-of-possession landlord who was not responsible for the alleged dangerous condition on the property and the Labor Law 240(1) and 241(6) causes of action, although mentioned in the bill of particulars, were not pleaded. Plaintiff was doing work on cabinets when she was struck by a piece of wood that flew off a table saw operated by another worker. She sued under a negligence theory (dangerous condition) and under Labor Law section 200 (which codifies common law negligence):

“[A] landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . “‘An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct'” … .

… [T]he evidence … , including … the written lease … and transcripts of the deposition testimony … established … that the defendant was an out-of-possession landlord that had relinquished control of the subject property to Tobin and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct … . Although the defendant reserved a right of entry under the lease, this did not provide a sufficient basis on which to impose liability upon the defendant for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect … .

Modern practice permits a plaintiff, in some circumstances, to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action that is supported by the plaintiff’s submissions, where the plaintiff has not engaged in unexcused protracted delay in presenting the new theory of liability… . … Here … the plaintiff’s unpleaded causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not supported by the plaintiff’s submissions, as the record demonstrates that the plaintiff’s work at the time of her injury did not involve “construction, excavation or demolition work” within the meaning of Labor Law § 241(6), or “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” within the meaning of Labor Law § 240(1) … . Miranda v 1320 Entertainment, Inc., 2024 NY Slip Op 04313, Second Dept 8-28-24

Practice Point: Here the defendant demonstrated out-of-possession landlord status and was therefore not liable for an alleged dangerous condition on the property.​

Practice Point: Although unpleaded causes of action mentioned for the first time in the bill of particulars can be considered in opposition to a summary judgment motion, here the unpleaded Labor Law 240(1) and 241(6) causes of action were unsupported by the plaintiff’s submissions. The complaint should have been dismissed.

 

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THE VEHICLE WHICH STRUCK PLAINTIFF’S STOPPED VEHICLE FROM BEHIND FLED THE SCENE BUT WAS IDENTIFIED BY A LICENSE PLATE FOUND AT THE SCENE; DEFENDANT ACKNOWLEDGED OWNERSHIP OF THE VEHICLE BUT DENIED OPERATING IT AT THE TIME OF THE ACCIDENT; THAT ALLEGATION DID NOT OVERCOME THE PRESUMPTION OF PERMISSIVE USE UNDER THE VEHICLE AND TRAFFIC LAW; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end traffic-accident case, determined defendant’s allegation he was not driving his vehicle at the time of the accident did not overcome the presumption of permissive use under Vehicle and Traffic Law section 388(1). The vehicle which struck plaintiffs’ stopped vehicle fled the scene. But defendant admitted the license plate found at the scene was from his vehicle:

The plaintiff Manu Kanwar was a passenger in a vehicle owned and operated by the plaintiff Mahesh Kashyap when it was struck in the rear by another vehicle. Although the rear vehicle fled the scene, it allegedly was identified by its license plate, which had fallen off that vehicle at the accident scene. The plaintiffs commenced this action against the defendant to recover damages for personal injuries allegedly sustained in the accident. In his answer, the defendant, inter alia, admitted to owning a vehicle bearing the license plate number identified in the complaint, asserted an affirmative defense alleging that the plaintiffs were comparatively at fault, and asserted a counterclaim against Kashyap. * * *

The plaintiffs’ affidavits demonstrated, inter alia, that Kashyap’s vehicle was stopped for the traffic condition ahead when it was struck in the rear by the defendant’s vehicle and that the defendant, as the owner of the vehicle, was negligent (see Vehicle and Traffic Law §§ 388, 1129[a] …). In opposition, the defendant failed to raise a triable issue of fact. In his affidavit in opposition to the plaintiffs’ motion, the defendant merely averred that he was not operating his vehicle at the time of the accident. However, this was insufficient to overcome the statutory presumption of permissive use under Vehicle and Traffic Law § 388(1)… , and it was also insufficient to raise a triable issue of fact as to whether his vehicle was not involved in the accident … . Kashyap v Dasilva, 2024 NY Slip Op 04308, Second Dept 8-28-24

Practice Point: Here the defendant acknowledged ownership of the vehicle which struck plaintiff’s stopped vehicle from behind and left the scene, but denied he was operating it at the time of the accident. That denial did not overcome the presumption that whoever was driving the vehicle was doing so with the owner’s permission (Vehicle and Traffic Law 388). Plaintiff was entitled to summary judgment.

 

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PLAINTFF’S MOTION TO STRIKE DEFENDANTS’ ANSWER FOR SPOLIATION OF EVIDENCE IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN CONSIDERED BY THE MOTION COURT BEFORE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the motion court should have first considered plaintiff’s (decedent’s) motion to strike defendants’ answer (for spoliation of evidence) before considering defendants’ motion for summary judgment (which was granted). Decedent alleged there was video footage showing the slip and fall which was overwritten 72 hours after the fall:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . The Supreme Court has broad discretion in determining what, if any, sanction would be imposed for spoliation of evidence … . “The sanction of dismissal of a pleading may be imposed even absent willful and contumacious conduct if a party has been so prejudiced that dismissal is necessary as a matter of fundamental fairness” …  “However, a less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense” … .

A defendant whose answer is stricken is “deemed to admit all traversable allegations in the complaint, including the basic allegation of liability” … , and summary judgment is warranted in favor of the plaintiff on the issue of liability upon the appropriate motion … .

Here, since the decedent’s motion pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, for an adverse inference instruction at trial for spoliation of evidence sought sanctions that would impact the defendants’ ability to establish, prima facie, that they were entitled to judgment as a matter of law on the issue of liability, the Supreme Court should have considered the merits of the decedent’s motion before rendering a determination on the issue of liability on the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them … . Hudesman v Dawson Holding Co., 2024 NY Slip Op 04307, Second Dept 8-28-24

Practice Point: Where a plaintiff’s motion can affect a defendant’s ability to defend an action (here a motion to strike the answer for spoliation of evidence), that motion should be considered first, before considering a defendant’s motion for summary judgment.

 

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THE MOTION COURT IN THIS REAR-END TRAFFIC-ACCIDENT CASE SHOULD HAVE CONSIDERED THE CERTIFIED BUT UNSIGNED DEPOSITION TRANSCRIPTS SUBMITTED BY DEFENDANT; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT AND DISMISSAL OF THE CROSS-CLAIMS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion court should have considered the deposition transcripts, which were certified but unsigned, and should have granted defendant driver’s (Jara Mejia’s) motions for summary judgment and dismissal of the cross-claims. Jara Mejia’s car was stopped when it was struck from behind:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . In support of his motion, Jara Mejia submitted, inter alia, a transcript of his deposition testimony and transcripts of the deposition testimony of the plaintiffs, Tsering, and Cruz Arce. Contrary to the Supreme Court’s determination, Jara Mejia’s unsigned but certified deposition transcript was admissible, “since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent” … . In addition, while the remaining deposition transcripts were also unsigned, they were certified and their accuracy was not challenged … . Thus, the deposition transcripts were admissible and should have been considered by the court on Jara Mejia’s motion. Gironza v Macedonio, 2024 NY Slip Op 04306, Second Dept 8-28-24

Practice Point: Certified but unsigned deposition transcripts are admissible in support of summary judgment when submitted by the party deponent himself.

Practice Point: Certified but unsigned deposition transcripts are admissible in support of summary judgment when their accuracy is not challenged.

 

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ALTHOUGH THE MEDICATION DISPENSED BY DEFENDANT PHARMACY WAS PRESCRIBED, THE COMPLAINT ALLEGED THE MEDICATION WAS CLEARLY CONTRAINDICATED; THE PHARMACIST MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the pharmacist malpractice lawsuit should not have been dismissed, despite the fact that the medication was duly prescribed, criteria explained:

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable theory” … .

“[W]hen a pharmacist has demonstrated that he or she did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, that pharmacist cannot be held liable for negligence in the absence of evidence that he or she failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication” … . Here, the amended complaint does not allege that the pharmacy exercised independent professional judgment or that it did not fill the prescriptions as directed by Gibson. Nevertheless, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently alleges that the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication. Bistrian v Gibson, 2024 NY Slip Op 04303, Second Dept 8-28-24

Practice Point: Usually a pharmacist cannot be held liable for dispensing a duly prescribed medication (as was the case here), but the allegation that the medication was clearly contraindicated was deemed sufficient to state a cause of action for pharmacist malpractice.

 

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NEW YORK’S EARLY MAIL VOTER ACT IS NOT UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge concurring opinion and a dissenting opinion, determined New York’s Early Mail Voter Act is constitutional:

Plaintiffs, a coalition of elected officials, registered voters, and party officials, challenge New York’s Early Mail Voter Act (the Act), which permits all registered voters to vote early by mail in any election in which the voter is eligible to vote. Plaintiffs maintain the Act is unconstitutional and seek a declaratory judgment and a permanent injunction against its implementation and enforcement. The question raised here is difficult. Though the State Constitution contains no language that explicitly requires in-person voting, the legislative and executive branches have often proceeded as if our Constitution requires as such. Our Court has never been asked to determine what the Constitution requires in this regard. Recently, the legislature assumed that the Constitution requires in-person voting, passing concurrent resolutions culminating in the 2021 proposed amendment to authorize mail-in voting. We acknowledge that the public rejected that amendment, and we take seriously both the legislature’s position in 2021 and the voters’ rejection of the proposed constitutional amendment. At the same time, we may not simply defer to the legislature’s assumptions about what the Constitution requires. Our task is to rigorously analyze the constitutional text and history to determine if New York’s Early Mail Voter Act is unconstitutional. We now hold that it is not. Stefanik v Hochul, 2024 NY Slip Op 04236, CtApp 8-20-24

Practice Point: New York’s Early Mail Voter Act is not unconstitutional.

 

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STATEMENTS ATTRIBUTED TO DEFENDANT CONSTITUTED NONACTIONABLE OPINION; TO THE EXTENT ANY OF THE STATEMENTS COULD BE REGARDED AS FACT RATHER THAN OPINION, THE STATEMENTS WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF DID NOT DEMONSTRATE THE STATEMENTS WERE MADE WITH ACTUAL MALICE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, determined the statements attributed to defendant New York State Assemblyman Jeffrey Dinowitz constituted nonactionable opinion and plaintiff (Verdi) did not demonstrate Dinowitz acted with actual malice. The facts are far too detailed to summarize here:

Given the history of the hyperbolic and public finger-pointing between the parties, a reasonable reader would conclude that Dinowitz’s statements were opinion and merely “the product of passionate advocacy,” especially considering that he was in the midst of litigation involving accusations of him manipulating student registration to advance a racist agenda … . Although Dinowitz’s status as an assemblyman may lead an average reader to interpret his statements as those of fact known to him through his involvement with the school and the community … , “[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in . . . circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole’ ” … . * * *

Even if some of Dinowitz’s statements could be regarded as fact rather than opinion, we agree with the motion court’s finding that Dinowitz’s statements may be entitled to a qualified privilege, as an overcrowded public school is a matter of public concern … . We also agree with the motion court’s determination that the “actual malice” standard should be applied in the evaluation of whether Dinowitz’s conduct went beyond that protected by the qualified privilege … . Verdi v Dinowitz, 2024 NY Slip Op 04287, First Dept 8-22-24

Practice Point: The statements attributed to defendant in this defamation action were nonactionable opinion, criteria explained.​

Practice Point: To the extent any of the statements may be regarded as fact, as opposed to opinion, they were protected by qualified privilege because there was no showing the statements were made with actual malice.

 

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THE DEFAMATION ACTION AGAINST A REPORTER AND A MEDIA COMPANY WAS PROPERLY DISMISSED PURSUANT TO THE ANTI-SLAPP STATUTE; PLAINTIFFS FAILED TO DEMONSTRATE THE SUIT HAD A “SUBSTANTIAL BASIS IN LAW;” CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, over a two-justice concurrence, determined plaintiffs failed to demonstrate their defamation action against a reporter and a media company had a “substantial basis in law” under the anti-SLAPP law. Therefore the complaint was dismissed pursuant to CPLR 3211 [g] [1] and defendants were entitled to attorney’s fees and costs. The articles published by defendants concerned plaintiff Karl Reeves’ divorce and custody dispute. The facts are too detailed to fairly summarize here:

… [T]he anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a defendant in a SLAPP suit moves pursuant to CPLR 3211(a)(7) to dismiss the complaint. Upon such a motion, the defendant bears the initial burden of showing that the action or claim is a SLAPP suit (see CPLR 3211[g][1]). Once the defendant makes that showing, the burden shifts to the plaintiff to demonstrate that the claim has a “substantial basis in law” (id.). If the claim is dismissed, the defendant recovers a mandatory award of attorneys’ fees.

This case presents the issue of what constitutes a “substantial basis in law” under the anti-SLAPP law. We hold, based on our reading of CPLR 3211(g) and (h), that “substantial basis” under the anti-SLAPP law means “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , a phrase drawn from the relevant legislative history. We further find that, because the complaint in this case fails to survive ordinary CPLR 3211(a)(7) analysis, plaintiffs have failed to meet the higher burden under CPLR 3211(g) of showing that their SLAPP suit has a substantial basis in law. Accordingly, defendants — a media entity and a reporter — are entitled to mandatory costs and attorneys’ fees pursuant to Civil Rights Law § 70-a. We remand the case solely for calculation of those costs and fees.  Reeves v Associated Newspapers, Ltd., 2024 NY Slip Op 04286, First Dept 8-22-24

Practice Point: To overcome a motion to dismiss a defamation action under the anti-SLAPP statute, the plaintiff must demonstrate the action has a “substantial basis in law.” This decision fleshes out the meaning of that phrase.

 

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