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SECOND SUMMARY JUDGMENT MOTION PROPERLY ENTERTAINED; ABSENCE OF SPECIAL RELATIONSHIP REQUIRED DISMISSAL OF NEGLIGENCE ACTION AGAINST POLICE.

In finding the defendant-city’s motion for summary judgment should have been granted, the Second Department noted that, although successive summary judgment motions are disfavored, the defendant-city’s second motion was properly entertained. The complaint alleged negligence on the part of the police stemming from an attack on her by her husband and the shooting of her husband by the police. Prior to the attack and the shooting, plaintiff had gone to the police station seeking protection but was sent home. The negligence action against the city/police was dismissed on governmental immunity grounds because no “special relationship” between plaintiff and the police had been demonstrated:

 

That branch of the defendants’ cross motion which was for summary judgment should have been granted. Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts … .

Generally, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection” … . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person … . A special duty is “a duty to exercise reasonable care toward the plaintiff,” and “is born of a special relationship between the plaintiff and the governmental entity” … . The elements required to establish a special relationship are: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the police did not assume an affirmative duty to act on Dawes’ behalf … . Graham v City of New York, 2016 NY Slip Op 00932, 2nd Dept 2-10-16

 

NEGLIGENCE (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/MUNICIPAL LAW (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/POLICE (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/CIVIL PROCEDURE (SECOND SUMMARY JUDGMENT MOTION PROPERLY CONSIDERED)/SUMMARY JUDGMENT (SECOND MOTION FOR SUMMARY JUDGMENT PROPERLY CONSIDERED)/CIVIL PROCEDURE (SECOND SUMMARY JUDGMENT MOTION PROPERLY CONSIDERED)

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AFFIDAVITS IDENTIFYING THE CAUSE OF PLAINTIFF’S FALL, SUBMITTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS; IN THE CONTEXT OF SUMMARY JUDGMENT, THE COURT’S FUNCTION DOES NOT INCLUDE THE ASSESSMENT OF CREDIBILITY.

In this slip and fall case, the Second Department determined Supreme Court should not have rejected affidavits submitted by the plaintiff in opposition to a summary judgment motion because of inconsistencies. The affidavits were from witnesses who saw plaintiff fall and who were able to identify the cause of plaintiff’s fall. In the context of a summary judgment motion, assessing credibility is not the court’s function:

 

Here, the defendant established, prima facie, his entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, which demonstrated that she was unable to identify the cause of her fall … . However, in opposition to the defendant’s prima facie showing on this ground, the plaintiff raised a triable issue of fact. The plaintiff’s submissions included affidavits from two individuals who witnessed the accident and identified the cause of her fall … . The Supreme Court erred in rejecting these two eyewitness affidavits on the ground that they gave inconsistent accounts of the accident. “It is not the court’s function on a motion for summary judgment to assess credibility” …, and any inconsistencies in the affidavits of the two eyewitnesses did not render them both incredible as a matter of law, but rather, raised issues of credibility to be resolved by the factfinder … . McRae v Venuto, 2016 NY Slip Op 00944, 2nd Dept 2-10-16

 

NEGLIGENCE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)/CIVIL PROCEDURE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)/EVIDENCE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)

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DEFENDANTS’ FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED, AND FAILURE TO AFFIRMATIVELY DEMONSTRATE DEFENDANTS DID NOT CREATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION, REQUIRED DENIAL OF DEFENSE MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant property owners were not entitled to summary judgment in this slip and fall case. The defendants had directed plaintiff to a parking lot as a smoking area (where plaintiff fell). Therefore, defendants were obliged to make sure the parking lot was adequately illuminated. The defendants’ failure to affirmatively demonstrate the area was adequately illuminated, and their failure to demonstrate they did not create the dangerous condition or have actual or constructive notice of it required denial of their summary judgment motion. [Yet another example of the necessity of affirmatively addressing every possible theory of recovery available to a plaintiff in a defense summary judgment motion.]:

 

… [H]aving directed guests to use the rear parking lot as a smoking area, they had a duty to provide adequate illumination … . The defendants failed to establish, prima facie, that the parking lot was adequately illuminated … . Contrary to the defendants’ further contention, the plaintiff was able to identify what had caused her to fall … . Additionally, the defendants failed to establish, prima facie, that they did not create the alleged hazardous condition of the parking lot or have actual or constructive notice thereof … . Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiff’s opposition papers … . Steed v MVA Enters., LLC, 2016 NY Slip Op 00960, 2nd Dept 2-10-16

 

NEGLIGENCE (FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)/NEGLIGENCE (FAILURE TO AFFIRMATIVELY DEMONSTRATE DEFENDANTS DID NOT CREATE OR HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)/SLIP AND FALL (FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)

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DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS EVERY THEORY OF LIABILITY RAISED BY THE COMPLAINT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant in this slip and fall case. The plaintiffs had sufficiently identified the cause of the fall (uneven floor). Defendant failed to affirmatively demonstrate the uneven floor was not a dangerous condition, and further failed to affirmatively demonstrate she had no notice of the condition and she did not create the condition. [Once again, a defendant must affirmatively address all possible theories of recovery in a motion for summary judgment.]:

 

To impose liability upon a defendant for a plaintiff’s injuries, there must be evidence showing the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time … . Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case, and is generally a question of fact for the jury … . The defendant failed to establish, prima facie, that the subject staircase was not in a defective condition and that she did not create the alleged hazardous condition or have actual or constructive notice of such condition … . Since the defendant failed to meet her burden as the movant, it is not necessary to review the sufficiency of the plaintiffs’ opposition papers. Davis v Sutton, 2016 NY Slip Op 00923, 2nd Dept 2-10-16

 

NEGLIGENCE (SLIP AND FALL, DEFENSE MOTION FOR SUMMARY SHOULD NOT HAVE BEEN GRANTED, DID NOT ADDRESS ALL THEORIES OF RECOVERY RAISED BY COMPLAINT)/SLIP AND FALL (SLIP AND FALL, DEFENSE MOTION FOR SUMMARY SHOULD NOT HAVE BEEN GRANTED, DID NOT ADDRESS ALL THEORIES OF RECOVERY RAISED BY COMPLAINT)

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FAILURE TO ADDRESS EVERY ELEMENT OF THE THEORIES OF RECOVERY ALLEGED IN THE COMPLAINT, I.E., COMMON-LAW NEGLIGENCE AND RES IPSA LOQUITUR, REQUIRED DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.

The plaintiff alleged she was injured by a picture frame which fell on her inside an office leased by defendant.  Plaintiff alleged liability under common-law negligence and res ipsa loqutur. The Second Department determined defendant’s summary judgment was properly denied because defendant did not affirmatively demonstrate (1) a lack of exclusive control over the picture frame, (2) the picture frame did not constitute a dangerous condition, and (3) defendant did not create a dangerous condition. [Again, failure of the defense to affirmatively address every alleged theory of liability requires denial of summary judgment.]. Assil v Camba, Inc., 2016 NY Slip Op 00914, 2nd Dept 2-10-16

 

NEGLIGENCE (SLIP AND FALL, VILLAGE FAILED TO ADDRESS CREATION-OF-THE-DEFECT THEORY, SUMMARY JUDGMENT DENIED)/MUNICIPAL LAW (SLIP AND FALL, VILLAGE FAILED TO ADDRESS CREATION-OF-THE-DEFECT THEORY, SUMMARY JUDGMENT DENIED)/SLIP AND FALL (MUNICIPAL LAW, VILLAGE FAILED TO ADDRESS CREATION-OF-THE-DEFECT THEORY, SUMMARY JUDGMENT DENIED)

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SUBTLE DIFFERENCE BETWEEN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION AND THE AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 200/COMMON LAW NEGLIGENCE CAUSE OF ACTION.

The Second Department determined defendant general contractor (Metro) was not entitled to summary judgment on the Labor Law 240(1) and 241(6) causes of action, but was entitled to summary judgment on the Labor Law 200 and common law negligence causes of action. Plaintiff was injured when the knot on a rope he was tied to while pushing snow off a roof gave way and he fell three stories. The decision illustrates the subtle difference between the amount of supervisory control necessary to hold a general contractor liable under Labor Law 240(1) and the greater amount of supervisory control necessary to hold a general contractor liable under Labor Law 200 and common law negligence:

 

The failure of an owner or an agent of the owner “to furnish or erect suitable devices to protect workers when work is being performed” results in absolute liability against that owner or the owner’s agent under the statute … , and the duty to provide a suitable safety device under Labor Law § 240(1), moreover, is nondelegable … . A general contractor is not considered a statutory agent of the property owner for Labor Law § 240(1) liability purposes, unless that contractor had the authority to supervise and control significant aspects of the construction project, such as safety, at the time of the accident … . …

… Metro was [demonstrated to be] a statutory agent of the property owner on the construction project through the submission of Metro’s admission that it was hired by the property owners as the general contractor on the project, and evidence that Metro undertook general contractor duties by coordinating and supervising the project, and hiring and paying subcontractors… . …

Where, as here, “a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . However, ” [t]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'” … . Sanchez v Metro Bldrs. Corp., 2016 NY Slip Op 00957, 2nd Dept 2-10-16

 

LABOR LAW (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/NEGLIGENCE (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/GENERAL CONTRACTOR (SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)

 

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DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS ALL THEORIES OF RECOVERY ALLEGED IN THE COMPLAINT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant property owner was not entitled to summary judgment in this common-law negligence and Labor Law 200, 240(1) and 241(6) action. Plaintiff was injured working on defendant’s building. Defendant, in his motion papers, did not affirmatively address all the possible theories of recovery available to the plaintiff. Therefore summary judgment should not have been granted. [Another example of the need for a defendant bringing a summary judgment motion to affirmative address every theory raised in the complaint.]:

 

Liability on common-law negligence and Labor Law § 200 causes of action “generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site” … . Where, as alleged here, the plaintiff’s accident arose from an allegedly dangerous premises condition, a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it …. Thus, where a plaintiff’s injury arose from a dangerous condition at a work site, a property owner moving for summary judgment dismissing a cause of action alleging common-law negligence has “the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence” … . Here, the defendant failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. … Further, the defendant failed to demonstrate the absence of any triable issues of fact as to whether he had actual or constructive notice of the dangerous condition … . …

Moreover, the Supreme Court erred in directing the dismissal of the Labor Law §§ 240(1) and 241(6) causes of action because, while the defendant generally sought dismissal of the plaintiff’s complaint insofar as asserted against him, he did not demonstrate the absence of any triable issues of fact in connection with these causes of action… . Korostynskyy v 416 Kings Highway, LLC, 2016 NY Slip Op 00939, 2nd Dept 2-10-16

 

LABOR LAW (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/NEGLIGENCE (GENERAL CONTRACTOR, SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)/GENERAL CONTRACTOR (SUBTLE DIFFERENCE IN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT A LABOR LAW 240(1) VERSUS A LABOR LAW 200 CAUSE OF ACTION)

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QUESTION OF FACT WHETHER TENANT ENTITLED TO COMPENSATION FOR TRADE FIXTURES ON PROPERTY TO WHICH VILLAGE ACQUIRED TITLE BY EMINENT DOMAIN.

The Second Department, reversing Supreme Court, determined there was a question of fact whether tenant was entitled to compensation for trade fixtures in property to which the village acquired title by eminent domain.  The court explained the relevant law:

 

Providing compensation to a trade fixture owner is in derogation of the common-law rule that government taking of real property encompasses the land and everything annexed thereto, including trade fixtures … . Under the trade fixture rule, a tenant who owns the trade fixture, but not the property to which the fixture is annexed, may seek compensation for trade fixtures it had a right to remove, but elected not to remove, and thus remained annexed to the property at the time of the taking … . A tenant’s right to compensation for fixtures installed on the leasehold exists despite provisions in the lease which terminate the lease in the event of a condemnation. Such provisions have been interpreted as ” an agreement between landlord and tenant that the tenant shall receive out of the award no compensation for his leasehold interest. Even so, the tenant retains the right to compensation for his interest in any annexation to the real property which but for the fact that the real property has been taken, he would have had the right to remove at the end of his lease'” … . Matter of Village of Spring Val., N.Y.. (Sport Club Intl., Inc.), 2016 NY Slip Op 00985, 2nd Dept 2-10-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE CAR ACCIDENT)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE CAR ACCIDENT)/RESPONDEAT SUPERIOR  (QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE CAR ACCIDENT)

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DISCHARGE OF SWORN JUROR WITHOUT CONDUCTING AN APPROPRIATE INQUIRY AND WITHOUT SEEKING INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED.

The Second Department determined the court’s discharging a sworn juror without allowing counsel to be heard was an abuse of discretion requiring reversal and a new trial. The juror became upset when she learned the defendant was a relative of a person she sees every day. With counsel’s permission, the trial judge interviewed the juror alone. The judge discharged her without conducting a proper inquiry, without first explaining to counsel what was discussed and without hearing from both counsel on what should be done:

 

As a matter of procedure, the court, at a minimum, should have informed all parties of the substance of the in camera interview and provided each side with an opportunity to be heard before making its determination to discharge the sworn juror (… cf. CPL 270.35[2][b]). Contrary to the defendant’s contention, however, this procedural error, standing alone, was not inherently prejudicial … . Nevertheless, affording all sides an opportunity to be heard in this case might well have allowed counsel to oppose the court’s proposed disposition before it became a fait accompli. Further questioning of the juror might have revealed the underlying reasons for her uncertainty, thereby assisting the court in making an informed decision as to whether discharge of the juror was warranted.

Based on the Supreme Court’s very limited questioning of the subject juror, we find that the court improvidently exercised its discretion in discharging her. Assuming, as both parties contend, that the court’s authority to discharge the sworn juror must be considered under CPL 270.35 …, the court made little effort to ascertain whether the juror could, in fact, deliberate fairly and render an impartial verdict. In making such an important determination with respect to a sworn juror, “the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent her from rendering an impartial verdict” … . People v Owens, 2016 NY Slip Op 00993, 2nd Dept 2-10-16

 

CRIMINAL LAW (DISCHARGE OF SWORN JUROR WITHOUT PROPER INQUIRY AND INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED)/JURORS (CRIMINAL LAW, DISCHARGE OF SWORN JUROR WITHOUT PROPER INQUIRY AND INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED)

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COURT SHOULD NOT HAVE REJECTED NEGOTIATED STIPULATION SETTLING THE ACTION WITH ONE PLAINTIFF AND PROCEEDING TO TRIAL WITH THE OTHER PLAINTIFF.

The Second Department determined Supreme Court should not have rejected a stipulation which settled the personal injury action with respect to one of the plaintiffs and allowed the matter to proceed to trial with respect to another plaintiff. The Second Department explained the deference which should be accorded a negotiated stipulation:

 

” [P]arties to a civil dispute are free to chart their own litigation course and, in so doing, they may stipulate away statutory, and even constitutional rights'” … . The subject stipulation of settlement was made after negotiations among counsel for the respective parties, and the litigants agreed to its terms. In consenting to the stipulation, these parties fashioned the basis upon which their particular controversy would be resolved by providing for the termination of the action with respect to [one plaintiff] and the continuation of the action with respect [the other]… . Astudillo v MV Transp., Inc., 2016 NY Slip Op 00915, 2nd Dept 2-10-16

 

CIVIL PROCEDURE (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)/STIPULATION (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)/NEGLIGENCE (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)

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