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VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.

The First Department determined a new trial on liability was required. The plaintiff fractured her ankle walking over cobblestones to board a bus which had parked five feet from the curb. The jury found plaintiff was negligent but her negligence was not the proximate cause of her injury. The First Department concluded the verdict was inconsistent and against the weight of the evidence:

The jury's finding that plaintiff was negligent, but that such negligence was not the proximate cause of her injuries, is inconsistent and against the weight of the evidence. The issues “are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . McKenzie v New York City Tr. Auth., 2016 NY Slip Op 01918, 1st Dept 3-17-16

NEGLIGENCE (VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)/VERDICTS (NEGLIGENCE, VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)/SLIP AND FALL (VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)

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THE INDUSTRIAL CODE REQUIRED A GUARD ON THE SAW WHICH INJURED PLAINTIFF; DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE ALLEGATION THERE WAS NO PLACE TO INSTALL A GUARD ON THE SAW.

The plaintiff was injured when he was struck by part of a saw blade which broke off from the hand-held reciprocating saw he was using. A provision of the Industrial Code, with a couple of exceptions not relevant to this case, requires guards on hand-held saws. The saw used by plaintiff did not have any guards. Defendant alleged there was no place to attach such a guard on the saw and the plaintiff testified he had never seen a reciprocating saw with a guard. The First Department upheld the motion court's finding that the Industrial Code applied to the saw in question as a matter of law. Therefore defendant's motion for summary judgment was properly denied:

We agree with the motion court that defendant failed to satisfy its burden of establishing that section 23-1.12(c) does not apply to this case. “[T]o support a claim under Labor Law § 241(6) . . . the particular [Industrial Code] provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles” … . “The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court” … .

Industrial Code § 23-1.12(c)(1) is sufficiently specific to support a Labor Law § 241(6) claim and is applicable because plaintiff was using a “power-driven, hand-operated saw” at the time of his accident. Defendant sought to use plaintiff's deposition testimony that he had never seen a blade cover or guard on that type of saw as expert testimony to establish that the reciprocating saw plaintiff was given was not covered by the Industrial Code provision in question … . Defendant, however, cannot avoid its duty to comply with section 23-1.12(c)(1) by asserting that the saw used by plaintiff had no base plate and could not accommodate a self adjusting guard. Section 23-1.12(c)(1) obligated defendant to ensure that the “power-driven, hand-operated saw” provided to plaintiff to perform his job was secured with guard plates to cover the saw blade. As the motion court observed, “[T]o interpret the regulation in any other manner [] would be to ineffectualize the regulation because employers, owners and contractors would only use tools that would minimize their liability.” Accordingly, we find that Industrial Code (12 NYCRR) § 23-1.12(c)(1)) is applicable to this case as a matter of law. Kelmendi v 157 Hudson St., LLC, 2016 NY Slip Op 01903, 1st Dept 3-17-16

LABOR LAW (INDUSTRIAL CODE REQUIRED A GUARD ON THE SAW WHICH INJURED PLAINTIFF, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE CLAIM THERE WAS NO PLACE TO INSTALL A GUARD ON THE SAW)/INDUSTRIAL CODE (LABOR LAW, INDUSTRIAL CODE REQUIRED A GUARD ON THE SAW WHICH INJURED PLAINTIFF, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE CLAIM THERE WAS NO PLACE TO INSTALL A GUARD ON THE SAW)

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PLAINTIFF NEED NOT SHOW LADDER WHICH FELL WAS DEFECTIVE TO BE ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff need not show the ladder which fell was defective to be entitled to summary judgment on his Labor Law 240 (1) cause of action:

Plaintiff made a prima facie showing of his entitlement to summary judgment as to liability on his Labor Law § 240(1) cause of action, by submitting his own testimony that the ladder upon which he was standing to perform his work wobbled, and that both he and the ladder fell to the ground as he descended it to figure out why it had wobbled … . Plaintiff was not required to offer proof that the ladder was defective … .

In opposition, defendant failed to show that plaintiff's conduct was the sole proximate cause of the accident … and that it had provided plaintiff with adequate safety devices to prevent his fall … . Ocana v Quasar Realty Partners L.P., 2016 NY Slip Op 01902, 1st Dept 3-17-16

LABOR LAW (NO NEED TO SHOW LADDER WHICH FELL WAS DEFECTIVE TO BE ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)

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BAILEE CANNOT, PURSUANT TO THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, PURPORTED WAIVER OF SUBROGATION UNENFORCEABLE.

The First Department determined the relationship between the fine art dealer (Chowalski) and the defendant warehouse was that of bailor/bailee with respect to stored artworks.  Under the UCC the bailee (warehouse) cannot contract away liability for damage caused by lack of due care. Therefore, the waiver of subrogation in the bailment agreement was not enforceable. There was a question of fact whether the failure to move the stored artworks as Hurricane Sandy approached constituted a failure to exercise the level of care mandated by the UCC:

UCC 7-204(a) provides that a “warehouse is liable for damages for loss of or injury to the goods caused by its failure to exercise care with regard to the goods that a reasonably careful person would exercise under similar circumstances” and “is not liable for damages that could not have been avoided by the exercise of that care.” UCC 7-204(b) provides that “[d]amages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage beyond which the warehouse is not liable.” However, such limitations on liability are limited by UCC 7-202(c), which provides that such terms must not “impair its . . . duty of care under Section 7-204. Any contrary provision is ineffective.”

Here there is a question of fact concerning whether defendant, in failing to move Chowaiki's goods to either another floor, or to a location above ground level on the floor they were on, was reasonable under the circumstances. If the trier of fact finds that defendant did not act reasonably, then defendant may be liable for damages to Chowaiki's goods .

… [T]he court erred in finding that the waiver of subrogation contained in the agreement's loss/damage waiver is enforceable and bars this action.

Provisions purporting to exempt the bailee from liability for damage to stored goods from perils against which the bailor had secured insurance, even when caused by the bailee's negligence have been held to run afoul of the statutory scheme of UCC Article 7. XL Specialty Ins. Co. v Christie's Fine Art Stor. Servs., Inc., 2016 NY Slip Op 01901, 1st Dept 3-17-16

INSURANCE LAW (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/UCC (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/CONTRACT LAW (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/BAILMENT   (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/SUBROGATION  (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)

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TACIT MISREPRESENTATION BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS.

The First Department, in a full-fledged opinion by Justice Saxe, determined respondent law school had the authority to refuse an LLM degree to a student who had completed the course requirements because of the student's (tacit) misrepresentation at the time of admission to the program. The LLM program was open to students with a law degree from a foreign school. However, the student's law degree was from an online law school—information the student should have provided when he realized the school representative was under the impression his degree was from a foreign school. The student's law school transcript was not provided until after he had begun courses in the LLM program:

With regard to the contract cause of action, petitioner relies on case law holding that “[t]here exists an implied contract between the institution and its students such that if the student complies with the terms prescribed by the institution, he will obtain the degree which he sought” … . However, even assuming that such an implied contract might have been formed here, a school has the authority to rescind a student's admission or to dismiss a student from the school, even after course work has begun or been completed, where there were material misrepresentations or omissions in the student's application … . … Although petitioner here did not affirmatively or explicitly misrepresent facts on his application, he omitted the critical fact that the school from which he had received his J.D. degree was not a foreign law school, which fact disqualified him from eligibility for entry into the LL.M. program. By submitting the application, petitioner was implicitly stating that he satisfied the program's prerequisites for attendance, in particular, the requirement that he had attended a foreign law school. Indeed, he did more than omit that information; he allowed respondents to proceed with his admission knowing that they harbored a misconception regarding the nature of the institution that had awarded him a J.D. degree. Petitioner knew or should have known from the outset that (1) to be eligible for the program to which he applied, he had to have graduated from a foreign law school, and (2) on the date he was admitted, Touro's administrators had incorrectly concluded that Novus was a law school located in the Philippines. Since petitioner's admission was based upon an omission of a material fact of which petitioner was aware, petitioner's conditional admission was falsely obtained. Pursuant to the school's code of conduct, the terms of the application and the law the school had no contractual obligation to award a degree under these circumstances. Matter of Salvador v Touro Coll., 2016 NY Slip Op 01924, 1st Dept 3-17-16

EDUCATION-SHCOOL LAW (TACIT MISREPRESENTATIONS BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS)/CONTRACT LAW (EDUCATION-SCHOOL LAW, TACIT MISREPRESENTATIONS BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS)

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LETTERS TESTAMENTARY PROPERLY REVOKED WITHOUT A HEARING.

The Second Department determined Surrogate's Court properly revoked letters testamentary without a hearing based upon undisputed proof the administrators were in conflict with each other, improvidently managed the property and failed to abide by the terms of a so-ordered stipulation:

The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to a judicial nullification of the testator's choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established … . The Surrogate may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge, or where facts warranting an amendment of letters are presented to the court during a related evidentiary proceeding … . Thus, revoking a fiduciary's letters without a hearing pursuant to SCPA 719 will constitute an abuse of discretion where the facts are disputed, where conflicting inferences may be drawn therefrom, or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy … . Matter of Kaufman, 2016 NY Slip Op 01849, 2nd Dept 3-16-16

TRUSTS AND ESTATES (LETTERS TESTAMENTARY PROPERLY REVOKED WITHOUT A HEARING)/LETTERS TESTAMENTARY (PROPERLY REVOKED WITHOUT A HEARING)

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PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PURCHASE PRICE REFLECTED POTENTIAL VALUE OF THE LAND AS DEVELOPED.

The Second Department, reversing (modifying) Supreme Court, determined the recent sales price of a golf course was not the proper benchmark for valuing the property for tax purposes. The $12,000,000 purchase price reflected the potential value of the land as developed:

“[T]he purchase price set in the course of an arm's length transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of the highest rank' to determine the true value of the property at that time” … . However, improved property must be assessed based on its current condition and use (see RPTL 302[1]…). “Property is assessed for tax purposes according to its condition on the taxable status date, without regard to future potentialities or possibilities and may not be assessed on the basis of some use contemplated in the future”… . Accordingly, in the context of a tax certiorari proceeding involving improved land, a recent sales price that was based upon speculation for future development, rather than continuation of the property's current use, is not a proper indicator of value (see RPTL 302[1]…).

Here, the evidence at trial established that the subject property was purchased for future residential development that had not yet occurred, and the sales price was based upon this residential development potential. Accordingly, the Supreme Court's adoption of the recent sales price as the valuation of the property for assessment purposes was in error … . Matter of Hampshire Recreation, LLC v Board of Assessors, 2016 NY Slip Op 01847, 2nd Dept 3-16-16

REAL PROPERTY TAX LAW (PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PRICE REFLECTED POTENTIAL VALUE OF LAND AS DEVELOPED)/PROPERTY TAX ASSESSEMENT (PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PRICE REFLECTED POTENTIAL VALUE OF LAND AS DEVELOPED)

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RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES.

The Second Department determined Supreme Court should not have granted plaintiff summary judgment in a partition action without holding a hearing. The right to partition is not absolute and the remedy is subject to the equities between the parties:

“A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners (RPAPL 901[1]). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties” … . Here, the Supreme Court implicitly acknowledged the above when it stated in its … order that the parties were directed to appear for a conference “for purposes of finding a date for a trial of the issue of existence of equitable defenses to plaintiff's request for partition.” Guo v Guo, 2016 NY Slip Op 01806, 2nd Dept 3-16-16

REAL PROPERTY (RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES)/PARTITION (REAL PROPERTY, RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES)

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QUESTIONS OF FACT WHETHER AUTOMOBILE LIFT WAS INTENDED TO BE USED WITHOUT A PROTECTIVE DEVICE AND WHETHER WARNINGS WERE ADEQUATE.

The Second Department determined plaintiff had raised questions of fact whether the automobile lift was defectively designed and whether there were inadequate warnings about its use. When the lift was originally shipped, there was a plastic cover over an opening which exposed the mechanism. The plastic cover was inexplicably missing. Two of plaintiff's fingers were partially amputated when plaintiff put his hand inside the hole. Although the manufacturer demonstrated the product was safe with the cover in place, plaintiff raised questions of fact in opposition, including a question whether the lift was intended to be used without the cover:

Manufacturers may be held strictly liable for injuries caused by their products “because of a mistake in the manufacturing process, because of defective design or because of inadequate warnings regarding use of the product” … . Furthermore, “[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product[s] of which it knew or should have known” … .

Here, the manufacturer made a prima facie showing of entitlement to judgment as a matter of law dismissing so much of the complaint as alleged products liability based upon a design defect. The manufacturer demonstrated that the lift was shipped with a plastic cover over the hole in the lift but the cover had been removed by the time of the accident … . The manufacturer further demonstrated, prima facie, that, if the cover were in place, it would have prevented the plaintiff from placing his hand or other body parts inside the lift while the lift was in operation … . However, in opposition, the plaintiff raised triable issues of fact as to whether the lift was defective at the time it was manufactured and sold, or whether a post-sale modification of the product rendered the otherwise safe product defective, and the modification was the proximate cause of the plaintiff's injuries … . Among other things, the plaintiff raised a triable issue as to whether the lift was intended to be used without the plastic cover in place … .

With respect to the plaintiff's inadequate warning claim, the manufacturer failed to establish, prima facie, that it had adequately warned users of the hazards posed by operating the lift without the cover in place or, more broadly, the dangers of placing a hand or other body part in the hole while operating the lift … . Singh v Gemini Auto Lifts, Inc., 2016 NY Slip Op 01826, 2nd Dept 3-16-16

 

PRODUCTS LIABILITY (QUESTIONS OF FACT WHETHER AUTOMOBILE LIFT WAS INTENDED TO BE USED WITHOUT A PROTECTIVE DEVICE AND WHETHER WARNINGS WERE ADEQUATE)

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HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE.

The Second Department determined defendant hospital (HHC) was entitled to summary judgment in an action stemming from injuries caused by a mentally ill patient after discharge from defendant hospital. The patient, four days after discharge, attacked and stabbed employees of the residential facility where the patient resided. The hospital medical records supported the conclusion the patient did not qualify for involuntary psychiatric observation at the time of his release. The plaintiff's expert's opposing affidavit was conclusory and speculative:

“[D]octors or a governmental subdivision of the State that employs them cannot be held responsible for damages resulting from the actions of a psychiatric patient who has been released when the patient's release is a matter of professional judgment” … . For liability to attach, it must be shown that the decision to release the patient was “something less than a professional medical determination” founded upon careful examination of the patient … . “Evidence of a difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice” … . * * *

… [T]he plaintiffs submitted an expert affirmation opining that HHC deviated from accepted standards of medical practice and failed to make a careful examination by failing to contact [the patient's] psychiatric providers … and his … caseworker to inquire as to his condition and history of violence before making the determination whether to discharge him, and that those deviations proximately caused the plaintiffs' injuries. However, the expert failed to explain what, if any, information HHC did not already have which those parties could have provided, and which would have been necessary for a careful examination of whether [the patient] continued to meet the legal criteria for involuntary psychiatric observation, care, and treatment. The expert also failed to address the evidence that [the patient] did not meet the criteria for involuntary psychiatric observation, care, and treatment at the time of his discharge … . Stephen v City of New York, 2016 NY Slip Op 01827, 2nd Dept 3-16-16

NEGLIGENCE (MEDICAL MALPRACTICE, HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE)/MEDICAL MALPRACTICE (HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE)

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