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LADDER WAS NOT DEFECTIVE, FALL NOT COVERED BY LABOR LAW 240.

The First Department determined plaintiff's fall from a ladder did not support a Labor Law 240 cause of action. Plaintiff's pant leg caught on an unmarked rebar as he descended from the third rung. The accident was not caused by a defective ladder and was not attributable to an extraordinary elevation-related risk:

… [D]ismissal of the Labor Law § 240 claim was proper, as there is no dispute that the ladder was free from defects, and the record shows that plaintiff's fall was not attributable to the kind of extraordinary elevation-related risk that the statute was designed to prevent. Rather, plaintiff's injuries “were the result of the usual and ordinary dangers at a construction site” … . Almodovar v Port Auth. of N.Y. & N.J., 2016 NY Slip Op 03075, 1st Dept 4-21-16


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ORDINANCE OR LAW ENDORSEMENT DID NOT REQUIRE INSURER TO PAY FOR REMEDIATION OF CODE VIOLATIONS NOT RELATED TO THE COVERED DAMAGE.

The First Department, in a full-fledged opinion by Justice Saxe, determined a “Blanket Ordinance or Law Coverage Endorsement” did not cover remediation of below-code construction which was not related to the covered damage. Below-code structural concrete was discovered when covered water-related damage was being repaired. Because the below-code concrete was unrelated to the water damage, the “Law Coverage Endorsement” did not obligate the insurer to pay for remedtion of the concrete-work:

Here … the latent problem that was uncovered by inspection necessitated by the covered damage was not a problem related to the covered damage; rather, the inspection discovered a latent, unrelated problem with the building's infrastructure. The condition of the concrete slabs in plaintiff's building, which had to be repaired to bring the building into compliance with the Building Code, bore no relationship to the covered loss — the water damage … .

… The Ordinance or Law endorsement cannot be triggered simply by the discovery, in the course of an inspection necessitated by a covered event, of structural problems that amount to code violations. That is so whether the discovered condition could have been discerned earlier … or where, as here, it could not have been discovered absent the covered damage. St. George Tower v Insurance Co. of Greater N.Y., 2016 NY Slip Op 03100, 1st Dept 4-21-16


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FAILURE TO INFORM JURY OF EFFECT OF ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFCATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant's conviction in the interest of justice because the trial judge did not make clear that acquittal of the top count (second degree murder) based on the justification defense required acquittal of the lesser homicide charges:

… [R]eversal in the interest of justice is warranted by the court's failure to convey to the jury, either directly or indirectly, in any part of its charge, that an acquittal on the top count of murder in the second degree based on a finding of justification would preclude consideration of the two lesser homicide charges. While the jury may have acquitted on the top charge without relying on defendant's justification defense, it is nevertheless “impossible to discern whether acquittal of the top count . . . was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts”… . People v Rowley, 2016 NY Slip Op 03084, 1st Dept 4-21-16


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POLICE OFFICER’S GENERAL MUNICIPAL LAW 205-E CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, CRITERIA FOR SUMMARY JUDGMENT NOT MET BY POINTING TO GAPS IN OTHER PARTY’S PROOF.

The Second Department, reversing Supreme Court, determined the dismissal of plaintiff police officer's negligence cause of action did not mandate dismissal of the General Municipal Law 205-e cause of action. Plaintiff alleged his slip and fall injury resulted from defendant's failure to comply with specified regulations. In its motion for summary judgment, defendant did not affirmatively demonstrate the regulations were not breached. The court noted that simply pointing to gaps in plaintiff's proof is not enough in the summary judgment context:

…[T]he dismissal of the plaintiff's common-law negligence cause of action was not fatal, as a matter of law, to his General Municipal Law § 205-e cause of action. In order to recover under General Municipal Law § 205-e, the statute does not mandate that the plaintiff establish general negligence, but rather, negligence of any person in “failing to comply” with the requirements of, inter alia, a regulation … , or ” negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties'” … . Furthermore, while the plaintiff alleged in his consolidated complaint that the defendants violated certain identified regulations, the defendants failed to affirmatively demonstrate in their submissions to the Supreme Court that these regulations were not breached. A defendant's prima facie burden on a motion for summary judgment cannot be met by pointing to gaps in the plaintiff's case … . Vaughn v Veolia Transp., Inc., 2016 NY Slip Op 02985, 2nd Dept 4-20-16


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VILLAGE DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH LED TO PLAINTIFF’S TRIP AND FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined defendant village's motion for summary judgment in this slip and fall case should have been denied. Although the village demonstrated it did not have written notice of the stop-sign “stump” over which plaintiff tripped, the village did not demonstrate it did not create the dangerous condition. There was evidence the stump was exposed (not buried) immediately after the village removed the stop sign:

” Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies'” … . ” The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality'” … . The affirmative negligence exception “is limited to work by the City that immediately results in the existence of a dangerous condition” … .

Where, as here, the plaintiff has alleged that the affirmative negligence exception applies, the Village was required to show, prima facie, that the exception does not apply. Although the Village proved that it did not receive prior written notice of the alleged defect, it failed to establish, prima facie, that it did not create the alleged defect … . Kelley v Incorporated Vil. of Hempstead, 2016 NY Slip Op 02966, 2nd Dept 4-20-15


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LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF EXCUSE.

The Second Department determined a late notice of claim was properly allowed despite the absence of an excuse for the delay in serving the notice. The claim alleged negligence during an emergency cesarean birth at defendant facility. Because the medical records memorialized the event, the delay caused no prejudice to the defendant:

The petitioner established that the appellant had actual knowledge of the essential facts constituting the claim by virtue of its possession of the infant's medical records, which detail her delivery and post-natal care, and established that the delay in serving the notice of claim would not substantially prejudice the appellant in maintaining its defense on the merits. Under those circumstances, the fact that the petitioner could not show a reasonable excuse for the delay does not bar the granting of leave to serve a late notice of claim upon the appellant … . Matter of Benjamin v Nassau Health Care Corp., 2016 NY Slip Op 02989, 2nd Dept 4-20-16


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DEFENDANTS FAILED TO DEMONSTRATE WHEN SLIP AND FALL AREA LAST CLEANED OR INSPECTED, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants' (appellants') motion for summary judgment in a slip and fall case was properly denied because the defendants failed to demonstrate when the area was last cleaned or inspected:

Here, the appellants failed to establish, prima facie, their entitlement to judgment as a matter of law on the ground that they did not have constructive notice of any hazardous condition. Although the appellants presented evidence that they neither created nor had actual notice of the alleged condition, they failed to demonstrate that they did not have constructive notice of the alleged condition, as they failed to tender any evidence establishing when the subject area was last inspected prior to the plaintiff's alleged accident … . James v Orion Condo-350 W. 42nd St., LLC, 2016 NY Slip Op 02964, 2nd Dept 4-20-16


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OPENINGS THROUGH WHICH A WORKER’S BODY COULD NOT COMPLETELY FALL NOT ACTIONABLE UNDER LABOR LAW 240(1) OR 241(6).

Plaintiff was injured when his leg slipped into a 12-inch square opening in a rebar grid. The Second Department determined an opening through which a worker's body could not fall through was not an elevation hazard (Labor Law 240(1)) and did not violate a regulation prohibiting “hazardous openings” (Labor Law 241(6):

… [T]he openings of the grid, which were not of a dimension that would have permitted the plaintiff's body to completely fall through and land on the floor below, did not present an elevation-related hazard to which the protective devises enumerated in Labor Law § 240(1) are designed to apply … . …

This Court has repeatedly held that 12 NYCRR 23-1.7, which concerns “hazardous openings,” does not apply to openings that are too small for a worker to completely fall through … . Vitale v Astoria Energy II, LLC, 2016 NY Slip Op 02986, 2nd Dept 4-20-16


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PARTY WHO SIGNS A DOCUMENT WITHOUT READING IT IS CONCLUSIVELY BOUND BY ITS TERMS.

The Second Department, affirming the dismissal of a fraud cause of action, noted that plaintiff's acknowledgment he did not read the relevant documents before signing them prevented plaintiff from establishing justifiable reliance on any alleged misrepresentations in the documents:

“The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” … . Each of the foregoing elements must be supported by factual allegations containing the details constituting the wrong sufficient to satisfy CPLR 3016(b) … . Here, the complaint, as supplemented by the plaintiff's affidavit in opposition, does not contain any allegations setting forth any material misrepresentations the defendants made to the plaintiff. Moreover, the plaintiff's averment that he did not read the documents before signing them prevents him from establishing justifiable reliance, an essential element of fraud … . “A party who signs a document without any valid excuse for not having read it is conclusively bound' by its terms” … . Stortini v Pollis, 2016 NY Slip Op 02984, 2nd Dept 4-20-16


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FORECLOSURE COULD PROCEED DESPITE ERRONEOUS SATISFACTION OF MORTGAGE.

The Second Department determined foreclosure proceedings could proceed despite an erroneous, recorded satisfaction of mortgage:

“A mortgagee may have an erroneous discharge of mortgage, without concomitant satisfaction of the underlying mortgage debt, set aside, and have the mortgage reinstated where there has not been detrimental reliance on the erroneous recording” … . “Only bona fide purchasers and lenders for value are entitled to protection from an erroneous discharge of a mortgage based upon their detrimental reliance thereon” … . …

… [T]he complaint's factual allegations, i.e., that the plaintiff was the holder and owner of the subject note and mortgage, that the satisfaction of mortgage was erroneously executed and recorded, that the mortgage had not been satisfied, that the original mortgagor defaulted on the note and mortgage, and that the balance due under the note remained outstanding, were sufficient to set forth viable causes of action to foreclose the mortgage and to cancel and vacate the satisfaction of mortgage … . Wells Fargo Bank N.A. v E & G Dev. Corp., 2016 NY Slip Op 02988, 2nd Dept 4-20-16


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