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Criteria for Common Law Indemnification Explained (Not Met Here)—Property Owner Could Not Seek Indemnification from Independent Contractor Re: Dangerous Condition on the Property

In the context of a personal injury action based upon a dangerous condition, the Second Department explained the criteria for common law indemnification.  Here the dangerous condition was on property built by an independent contractor, Ambrosio, and owned by Wincoma.  Wincoma did not demonstrate it met the criteria for seeking indemnification from Ambrosio:

“The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “If . . . an injury can be attributed solely to negligent performance or nonperformance of an act solely within the province of [a] contractor, then the contractor may be held liable for indemnification to an owner” … . A party that has actually participated in the wrongdoing is not entitled to indemnification … .

Here, the record demonstrates that Wincoma, the owner of the property where the subject incident occurred, had actual and constructive notice of the allegedly defective condition which caused the plaintiff’s injuries … . Moreover, the record shows that the injury cannot be attributed solely to the negligent performance or non-performance of an act solely within the province of Ambrosio, which was an independent contractor … . Ambrosio built the subject structure approximately one year prior to the accident, the structure was built pursuant to specifications provided by Wincoma, and the record shows that those specifications were not “patently defective” … . Consequently, Wincoma could not be entitled to common-law indemnification from Ambrosio for any damages that may be assessed against it in this action … . Rappel v Wincoma Homeowners Assn, 2015 NY Slip Op 01434, 2nd Dept 2-18-15

 

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Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged

The Second Department noted that the issue whether the jury’s conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff’s injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged.  The court further noted that the jury’s conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):

The plaintiffs contend that the jury verdict finding that the defendant … School District … negligently supervised certain students who assaulted the plaintiff …, but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review … . Contrary to the plaintiffs’ further contention, the jury verdict was not against the weight of the evidence. The jury’s finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff’s] injuries, was based on a fair interpretation of the evidence… . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15

 

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Questions of Fact Raised Re: Whether Property Owner Liable for Work Done by Independent Contractor

The Second Department determined questions of fact existed about the liability of the property owner (Eastern) for work done by an independent contractor (Affraim).  Infant plaintiff was injured when he fell through a glass panel near the entrance of defendant’s building. The panel had been installed by an independent contractor.  The court explained the relevant analytical criteria:

“The general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts” … . One of the exceptions to this general rule is the “nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party “is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated” … .

Here, the Eastern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by presenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable City and State building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition … . However, in opposition, the plaintiffs’ submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated City and State building codes by failing to install safety glass in the panel … , and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition … . Horowitz v 763 E Assoc Inc, 2015 NY Slip Op 01417, 2nd Dept 2-18-15

 

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Defendant-Employer’s Motion for Summary Judgment Properly Denied—Defendant Did Not Submit Proof that Defendant’s Employee Was Not Acting Within the Scope of Employment When Employee Removed and Disseminated Photos from Plaintiff’s Cell Phone and Defendant Did Not Submit Proof Demonstrating It Did Not Know of the Employee’s Propensity for Such Conduct

The Second Department determined the motion for summary judgment made by defendant-employer, R & K,  was properly denied. The plaintiff alleged that defendant’s employee, Press, removed and disseminated photographs of her from a cell phone plaintiff had left with defendant for repair.  The Second Department noted that an employer can be liable for the negligence and the intentional torts of an employee, provided that the employee was acting within the scope of employment.  The court explained the criteria for vicarious liability under the doctrine of respondeat superior as well as direct liability for negligent hiring and supervision:

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment” … . “Intentional torts as well as negligent acts may fall within the scope of employment” … . Liability will not attach for torts committed by an employee acting solely for personal motives unrelated to the furtherance of the employer’s business …, or for conduct which could not have been reasonably expected by the employer … .

Here, R & K failed to establish, prima facie, that it could not be held vicariously liable for Press’s alleged acts, as it submitted no transcripts of testimony or affidavits from any of its employees, or business records, to support its contention that Press was acting outside the scope of his employment when he accessed and disseminated photographs from the plaintiff’s cell phone. * * *

“To establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . R & K failed to submit any proof establishing that it did not know and should not have known about Press’s alleged propensity to engage in the conduct at issue here, or that it was not negligent in hiring Press … . Hoffman v Verizon Wireless Inc, 2015 NY Slip Op 01416, 2nd Dept 2-18-15

 

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Some of the Requirements for the Application of Attorney Work-Product and Trial-Preparation Privileges Explained

The Second Department explained some of the requirements for the application of attorney work-product and trial-preparation privileges:

Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy … . “[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product'” … . Contrary to the plaintiff’s contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant Nicoletta Starks prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy … .

The plaintiff argues, in the alternative, that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). However, the conclusory assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing, with specificity, that the recording was prepared “exclusively in anticipation of litigation” … . Geffner v Mercy Med Ctr, 2015 NY Slip Op 01411, 2nd Dept 2-18-15

 

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Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave to File a Late Notice of Claim Explained

The Second Department determined petitioner’s application for leave to file a late notice of claim was properly denied, as was petitioner’s request for discovery prior to the hearing.  The court explained the relevant analytical criteria:

In a special proceeding, where disclosure is available only by leave of the court (see CPLR 408), the Supreme Court has broad discretion in granting or denying disclosure …, although it must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality … . Contrary to the petitioners’ contention, they failed to demonstrate that the requested discovery was necessary and that providing the requested discovery would not unduly delay this proceeding … .

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner had a reasonable excuse for the delay, and (3) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). The injured petitioner’s assertion that she did not immediately appreciate the nature and severity of her injuries during the first 90 days after the subject incident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and to be diagnosed … . * * *

In addition, the petitioners failed to establish that the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter … . * * *

Finally, the petitioners failed to establish that the respondent would not be substantially prejudiced in its defense on the merits by the significant delay should leave be granted … . Matter of Bramble v New York City Dept of Education, 2015 NY Slip Op 01450, 2nd Dept 2-18-15

 

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Criteria for Recovery of Lost Profits for Breach of Contract Described

In finding the criteria were not met, the Second Department explained the proof necessary to recover lost profits in a breach of contract action:

“Lost profits may be recoverable for breach of a contract if it is demonstrated with certainty that such damages have been caused by the breach, and the alleged loss is capable of proof with reasonable certainty. There also must be a showing that the particular damages were fairly within the contemplation of the parties to the contract at the time the contract was made” … . While a plaintiff need not prove that its damages resulted “solely from [the defendant’s] breach of contract, to the exclusion of all other factors,” it must, at least, prove that the breach “contributed in substantial measure to its damages” … . Todd Rotwein DPM PC v Nader Enters LLC, 2015 NY Slip Op 01441, 2nd Dept 2-18-15

 

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Defendant Seeking Summary Judgment Under the Storm in Progress Rule Must Demonstrate It Did Not Undertake Snow Removal During or Immediately After the Storm and Did Not Create or Exacerbate the Dangerous Condition

The Second Department, in denying defendant’s (Happy Nails’) motion for summary judgment, explained the analytical criteria for the “storm in progress” defense to a slip and fall case. Here the defendant failed to demonstrate it did not undertake snow removal efforts and did not create or exacerbate the dangerous condition during or immediately after the storm:

Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, ” until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . However, once a landowner or a tenant in possession elects to engage in snow removal, it is required to act with “reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … . Thus, New Happy Nails may be held liable for the allegedly hazardous condition on the sidewalk if it undertook snow and ice removal efforts during or immediately after the storm that made the naturally occurring condition more hazardous … .

Here, New Happy Nails failed to establish its prima facie entitlement to judgment as a matter of law. New Happy Nails failed to demonstrate that it did not undertake to remove snow and ice during or immediately after the storm, and failed to show that any such efforts on its part did not create or exacerbate the alleged icy condition … . Fernandez v City of New York, 2015 NY Slip Op 01410, 2nd Dept 2-18-15

 

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Criteria for Determining Motions to Dismiss Affirmative Defenses Explained

The Second Department explained the analytical criteria for determining motions to dismiss affirmative defenses:

Pursuant to CPLR 3211(b), “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit” (CPLR 3211[b]). When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is “without merit as a matter of law” … . “In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” … . Bank of NY v Penalver, 2015 NY Slip Op 01407, 2nd Dept 2-18-15

 

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Cause of Action for Fraudulent Concealment Must Allege a Basis for the Existence of a Duty to Disclose

In affirming the dismissal of a cause of action alleging fraudulent concealment (no basis for a duty to disclose was alleged), the Second Department explained the required elements:

To properly plead a cause of action for fraud, a plaintiff must allege all of the following requisite elements: (1) the defendant made a misrepresentation or a material omission of fact which was false and which the defendant knew to be false; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff justifiably relied on the misrepresentation or material omission; and (4) injury … . To sustain a cause of action for fraudulent concealment, the plaintiff must further allege a fifth element, namely, that the defendant had a duty to disclose the material information … . Bannister v Agard, 2015 NY Slip Op 01408, 2nd Dept 2-18-15

 

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