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FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant condominium owner was properly ejected from the condominium for failure to pay the common charges:

… [T]he Condominium Act and the applicable bylaws for the subject condominium authorize a lien for unpaid common charges and permit a lien foreclosure action and an action for the appointment of a receiver where appropriate (see Real Property Law §§ 339-z, 339-aa). Further, the order appointing the receiver in this matter authorized the receiver to take certain actions, including ejectment of defendant from the property … . * * *

Ejectment of defendant from the unit was not unconstitutional, since he failed to comply with the court’s prior order directing him to pay the “reasonable fair market rent” of $6,500 per month for his use and occupancy of the unit. Contrary to defendant’s contentions, he was properly required to pay rent on the unit, regardless of the fact that he was the unit’s owner, since both Real Property Law § 339-aa and section 5.9 of the bylaws provide that in a lien foreclosure action, “the Unit Owner shall be required to pay a reasonable rental for the use of said Unit Owner’s Unit.” It is inconsequential and irrelevant to this action that defendant defeated plaintiff’s motion for summary judgment in the 2011 action. Nor does ejectment under these circumstances deprive defendant of his “real property ownership/occupancy rights without due process of law.” Heywood Condominium v Wozencraft, 2017 NY Slip Op 00257, 1st Dept 1-12-17

 

CONDOMINIUMS (FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM)/COMMON CHARGES (CONDOMINIUMS, FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM)/EJECTION (CONDOMINIUMS, FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM)

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OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE.

The First Department determined defendant’s motion for summary judgment was properly denied. Defendant (Schindler) failed to secure a seven-foot wooden panel which apparently fell and injured plaintiff. The court noted that the open and obvious nature of the panel eliminated the duty to warn but not the duty to make the premises safe:

Schindler’s arguments that the wooden panel that its workers leaned against the wall was open and obvious, that plaintiff failed to use her senses to observe it, and that any barricades or warnings would not have prevented the accident, are unpreserved as they were not presented to the motion court … . In any event, we would find such arguments unavailing because even if a hazard is open and obvious, that merely eliminates the duty to warn, but not the duty to maintain the premises in a reasonably safe condition … . Here, it is undisputed that Schindler’s employees failed to secure the seven-foot tall wooden panel that they leaned against the wall or create a perimeter around it to prevent others from entering the area. Polini v Schindler El. Corp., 2017 NY Slip Op 00254, 1st Dept 1-12-17

NEGLIGENCE (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/OPEN AND OBVIOUS (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/WARN, DUTY TO (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)

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QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT.

The First Department, reversing Supreme Court, determined there were triable issues of fact whether a sidewalk defect narrowed the passable area and whether the defect was visible at night:

… [T]he owner and property manager of the premises that abutted a sidewalk where plaintiff Alison Stolzman tripped, established prima facie entitlement to summary judgement based on the testimony and photographic evidence indicating the alleged hazard was open and obvious and not inherently dangerous … .

However, there remain triable issues as to whether the alleged low-lying tripping condition dangerously narrowed the passable area of the sidewalk and was adequately visible at night … . Stolzman v City of New York, 2017 NY Slip Op 00247, 1st Dept 1-12-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/SIDEWALKS (SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/ABUTTING PROPERTY OWNERS (SIDEWALK SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/SLIP AND FALL (SIDEWALKS, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/OPEN AND OBVIOUS (SIDEWALK SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)

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QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200.

The First Department determined there was a question of fact whether defendant site safety consultant exercised sufficient supervisory control to support the Labor Law 200 cause of action:

The motion court properly found a material question of fact as to whether ELI, the site safety consultant employed by plaintiff[‘s] … employer, had supervisory control and authority over the work being done when plaintiff was injured, and can be held liable for plaintiff’s injuries under the Labor Law as an agent of the owner or general contractor. …  ELI’s principal testified that the responsibility of a site safety consultant was to consult with and make recommendations to the foreman, project manager or superintendent should he or she observe a potentially unsafe condition. However, the agreement under which ELI performed its services for plaintiff’s employer … provided that the site safety consultant, in addition to making inspections of the work place to ascertain a safe operating environment, was to “[t]ake necessary and timely corrective actions to eliminate all unsafe acts and/or conditions,” and “[p]erform all related tasks necessary to achieve the highest degree of safety.”  Oliveri v City of New York, 2017 NY Slip Op 00237, 1st Dept 1-12-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)/SAFETY CONSULTANT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)

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LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when a wooden ladder which was part of the structure of the building (for access to the attic) shifted when he attempted to step onto it:

Plaintiff’s testimony that the ladder shifted as he descended, thus causing his fall, established a prima facie violation of Labor Law § 240(1) … . The affidavit submitted by defendant averring that plaintiff had told his employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff’s testimony that the ladder shifted and failed to create triable issues of fact that plaintiff’s actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

Further, we reject defendant’s contention that issues of fact exist as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff’s employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other unspecified safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points … . Defendant further fails to explain how a rope that was used to hoist materials to the attic area where plaintiff was working could be used as a safety device, and plaintiff’s decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it … . Garcia v Church of St. Joseph of the Holy Family of the City of N.Y., 2017 NY Slip Op 00239, 1st Dept 1-12-17

LABOR LAW-CONSTRUCTION LAW (LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)

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HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS).

The Third Department determined defendant insurer (homeowners policies) had a duty to defend plaintiff in an action brought by one Prindle, who was shot by plaintiff. The shooting could have been unintentional and therefore covered under the policy:

An insurance company’s duty to defend “is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage” … . If the complaint’s allegations bring the claim “even potentially within the embrace of the policy, the insurer must defend its insured no matter how groundless, false or baseless the suit may be” … . …

Here, Prindle’s complaint alleged that plaintiff “assault[ed] [Prindle] . . . by shooting [Prindle] in the abdomen” and that “as a result of the assault,” Prindle sustained personal injuries. While Prindle’s complaint also alleged that plaintiff was arrested and criminally charged with assault, there was no further specification as to this criminal charge raised against plaintiff … . Inasmuch as an assault may derive from an individual’s recklessness or criminal negligence (see Penal Law § 120.00 [2], [3]), a reasonable possibility exists that plaintiff’s actions were not intentional, as defendant argues … . …

Because the shooting can be reasonably interpreted as having stemmed from plaintiff’s unintentional conduct, we conclude that defendant’s duty to defend was triggered under the insurance policy … . Guzy v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 00233, 3rd Dept 1-12-17

 

INSURANCE LAW (HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))/DUTY TO DEFEND (INSURANCE LAW, HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))/ASSAULT (INSURANCE LAW, HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))/SHOOTING (ASSAULT, INSURANCE LAW, HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))

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PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING.

The First Department, reversing Family Court, determined Family Court should have informed pro se petitioner of his right to counsel in this order of protection proceeding:

Family Court committed reversible error when, during a brief hearing in this article 8 proceeding, it failed to advise the pro se petitioner that he had a right to the assistance of counsel of his own choosing, a right to an adjournment to confer with counsel, and a right to have counsel assigned if he was financially unable to obtain representation (Family Ct Act § 262[a][ii]…). Moreover, Family Court did not possess sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) … . Further evidence is needed regarding the frequency of petitioner and respondent’s interactions … . Matter of Gustavo D. v Michael D., 2017 NY Slip Op 00246, 1st Dept 1-12-17

FAMILY LAW (PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ATTORNEYS (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ORDER OF PROTECTION (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)

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DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED.

The Second Department determined Supreme Court should have granted plaintiffs’ motion to set aside the verdict in this medical malpractice action. The defendants’ notice of the expert opinion evidence to be presented at trial did not notify plaintiffs that the expert would testify plaintiff’s stroke was caused by a piece of calcium, not a blood clot. Plaintiffs’ malpractice theory was based entirely on the allegation a blood clot was the cause of the stroke. The court explained the notice requirements:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside the verdict in favor of [defendants] and against the plaintiffs on the issue of liability. Pursuant to CPLR 3101(d)(1)(i), [defendants] were required to disclose “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, . . . and a summary of the grounds for each expert’s opinion.” Here, [the] expert witness disclosure only revealed expert testimony that [plaintiff’s] stroke was not caused by his atrial fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the stroke was caused by calcification. [Defendant] failed to demonstrate good cause for not disclosing the substance of his expert’s causation theory until trial … . The revelation of the defendants’ causation theory at trial prejudiced the plaintiffs’ ability to prepare for trial because they did not have adequate time to consult or retain an expert neuroradiologist … . Rocco v Ahmed, 2017 NY Slip Op 00207, 2nd Dept 1-11-17

NEGLIGENCE (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRCTICE (DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, NOTICE OF EXPERT OPINION, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EXPERT OPINION (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)

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DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant bus driver’s motion for summary judgment in this intersection accident case was properly denied. Although the bus driver had the right of way, she did not demonstrate freedom from comparative fault:

At the time of the collision, the defendants’ bus was in the process of making a left turn from Hillside Avenue onto Merrick Boulevard from a left turn only lane, and the plaintiff was going straight in the opposite direction on Hillside Avenue. …

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 … . While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, the operator traveling with the right-of-way nevertheless has a duty to use reasonable care to avoid colliding with other vehicles … .

Here, the defendants failed to eliminate all triable issues of fact, including whether Coleman contributed to the happening of the accident by failing to observe the plaintiff’s vehicle as he approached the intersection … . Blair v Coleman, 2017 NY Slip Op 00143, 2nd Dept 1-11-17

NEGLIGENCE (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/INTERSECTIONS (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/COMPARATIVE NEGLIGENCE  (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER.

The Second Department determined the plaintiff driver of a car (Ahmed) was not entitled to summary judgment even though his passenger (Olga) was. Plaintiff driver did not demonstrate freedom from comparative fault in this intersection accident:

“[A] driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way” … . Olga’s affidavit, submitted on behalf of both plaintiffs, failed to establish that Ahmad was free from comparative fault in the happening of the accident … . Since Ahmad failed to meet his prima facie burden for summary judgment … , that branch of the plaintiffs’ motion which was for summary judgment on his behalf against … was properly denied without regard to the sufficiency of the opposition papers … . Al-Mamar v Terrones, 2017 NY Slip Op 00140, 2nd Dept 1-11-17

NEGLIGENCE (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/EVIDENCE (TRAFFIC ACCIDENT, COMPARATIVE FAULT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/COMPARATIVE FAULT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/SUMMARY JUDGMENT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)

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