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MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded petitioner attorney’s fees as a sanction against mother based on mother’s testimony in the proceedings: Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a):

Pursuant to 22 NYCRR 130-1.1(a), the court is authorized to award a party in a civil action “reasonable attorney’s fees . . . resulting from frivolous conduct.” Conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule” … .

Here, the petitioner failed to demonstrate that the mother engaged in frivolous conduct within the meaning of the rule. Contrary to the Family Court’s determination, the mother’s inconsistent statements and evasive testimony were not frivolous conduct within the meaning of 22 NYCRR 130-1.1 … . Matter of Edwin C. v Fenny C., 2024 NY Slip Op 02700,, Second Dept 5-15-24

Practice Point: Here in this Family Court proceeding petitioner was awarded attorney’s fees as a sanction pursuant to 22 NYCRR 131-1.1(a) based on mother’s “inconsistent statements” and “evasive testimony.” Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a). The petition should not have been granted.

 

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TENANT’S ATTACK ON PLAINTIFF WAS NOT FORESEEABLE; THEREFORE THE LANDLORD WAS NOT LIABLE IN NEGLIGENCE FOR FAILING TO EVICT THE TENANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined a tenant’s (Girard’s) attack on plaintiff was not foreseeable. Therefore the negligence action against the landlord for failing to evict Girard was dismissed:

Defendant demonstrated … that it was not liable for third-party defendant Girard’s attack on plaintiff because it was not reasonably foreseeable … . No evidence was presented that Girard had engaged in criminal conduct prior to the attack or that he was violent, had a propensity toward violence, or had threatened any tenants of the building. Inconsiderate behavior, such as playing loud music at all hours, engaging in loud arguments with his sister in the apartment, and banging on the apartment walls, is insufficient to have placed defendant on notice that Girard would stab plaintiff in response to plaintiff’s noise complaints … . While it was conceivable that the dispute might escalate into violence, “conceivability is not the equivalent of foreseeability” … . Plaintiff failed to present evidence sufficient to raise a triable issue of fact concerning whether defendant was negligent in not taking steps to evict Girard prior to the attack…. . Goris v New York City Hous. Auth., 2024 NY Slip Op 02661, First Dept 5-14-24

Practice Point: Here the tenant who attacked plaintiff, although loud and argumentative, had never been violent. Therefore the tenant’s attack was not foreseeable and the landlord could not be held liable in negligence for failing to evict the tenant.

 

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THE INSURER’S OBLIGATION TO INDEMNIFY SHOULD NOT HAVE BEEN DETERMINED BASED UPON THE ALLEGATIONS IN THE PLEADINGS (FIRST DEPT).

The First Department, reversing Supreme Court, determined that although the insurer (Everest) was required to defend the plaintiff (CCM) in the underlying action, the ruling that Everest must indemnify CCM was premature:

Supreme Court should not have found that Everest was required to indemnify CCM. Although Everest concedes that it must defend CCM, “the duty to defend is broader than the duty to indemnify,” because only the latter “is determined by the actual basis for the insured’s liability to a third person and is not measured by the allegations of the pleadings” … . In the underlying action, there has been no determination whether the plaintiff’s injury was “caused, in whole or in part, by” the acts or omissions of the named insured or of those acting on its behalf … . Therefore, any declaration of the duty to indemnify was premature ( … see … Axis Surplus Ins. Co. v GTJ Co., Inc., 139 AD3d 604, 605 [1st Dept 2016] [“It is after the resolution of that action where the extent of plaintiff’s indemnification obligations can be fully determined”]). Harleysville Ins. Co. v United Fire Protection, Inc., 2024 NY Slip Op 02663, First Dept 5-14-24

Practice Point: An insurer’s obligation to indemnify cannot be determined based on the allegations in the pleadings.

 

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ALTHOUGH THE PIPE WAS A DANGEROUS CONDITION INHERENT IN THE WORK, IT WAS AN AVOIDABLE DANGEROUS CONDITION AND THERE REMAIN QUESTIONS ABOUT MEASURES TAKEN TO MINIMIZE THE TRIPPING HAZARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact which rendered the summary judgment motion premature in this Labor Law 241(6) action. A pipe 5-12 inches above the floor, although a dangerous condition inherent in the work, was an “avoidable dangerous condition.”  There remain questions of fact about preventative measures taken to minimize the tripping hazard:

Plaintiff, a welder, tripped over electrical conduit piping that rose vertically 5-12 inches in height from the floor surface in the lobby of a new building under construction and was injured. While the presence of the electrical conduit piping was a “dangerous condition” “inherent to the task at hand,” the risk of tripping over the conduit was an “avoidable dangerous condition” for which defendants could have utilized preventative measures that would not have made it impossible to complete the work … . Indeed, it is undisputed that plywood boxes ordinarily were placed on the protruding conduit piping, which mitigated the risk of tripping without rendering the overall work impossible to complete. The plywood boxes, however, were removed at the time of plaintiff’s accident. Issues of fact remain regarding the preventative measures taken to mitigate the risks associated with the dangerous condition. Accordingly, summary judgment on the Labor Law § 241 (6) is premature and the claim is reinstated to resolve the issues of fact detailed above. Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC, 2024 NY Slip Op 02666, First Dept 5-14-24

Practice Point: In the context of a Labor Law 241(6) cause of action, even though a dangerous condition is inherent in the work, it may be an avoidable dangerous condition requiring measures to mitigate the risk.

 

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PLAINTIFF RAISED A QUESTION OF FACT RE: THE NEGLIGENT APPLICATION OF FLOOR WAX IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised a question of fact whether the area where she slipped and fell was excessively waxed:

… [P]laintiff raised an issue of fact as to “the negligent application of wax . . . by evidence that a dangerous residue of wax was present” … . Plaintiff testified that the waxy substance on the floor was on the side of her clothing and that where she fell there was an indentation into the substance. This testimony is sufficient to establish an issue of fact as to whether wax was negligently applied … . This evidence “conflicted with [defendants’] assertions that the area was never waxed, creating triable issues of fact precluding the grant of summary judgment” … . Scaccia v Brookfield Props. One WFC Co., LLC, 2024 NY Slip Op 02677, First Dept 5-14-23

Practice Point: The negligent application of floor wax can result in liability for a slip and fall.

 

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FORMER PRESIDENT TRUMP’S PETITION FOR A WRIT OF PROHIBITION CHALLENGING A RESTRAINING ORDER RESTRICTING HIS ABILITY TO MAKE STATEMENTS DIRECTED AT POTENTIAL WITNESSES IN A CRIMINAL TRIAL DENIED (FIRST DEPT). ​

The First Department determined the restraining order restricting former President Donald Trump’s speech during his criminal trial was valid. Trump’s petition for a writ of prohibition was denied:

The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case … .

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes … . Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” … . This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” … . First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process … . Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well. Matter of Trump v Merchan, 2024 NY Slip Op 02680, First Dept 5-14-24

Practice Point: A court has the power to restrict speech by a defendant in a criminal trial which is directed at potential trial witnesses and which could threaten the witnesses’ willingness to testify.

 

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IN THIS CAR ACCIDENT CASE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE RELEASE SHE SIGNED WAS THE RESULT OF MUTUAL MISTAKE CONCERNING THE EXTENT OF HER INJURIES (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether the release signed by plaintiff after a car accident was the result of mutual mistake. At the time plaintiff signed the release it appeared her injuries, including whiplash, involved only her cervical, thoracic and lumbar regions. After signing the release she was diagnosed as having suffered a mild traumatic brain injury:

… [I]nasmuch as the submissions indicate that plaintiff had been diagnosed with neck and back injuries only at the time she signed the release and that plaintiff’s symptoms were not medically attributed to postconcussive syndrome until after the execution of the release with additional uncertainty in the interim, we conclude that plaintiff raised an issue of fact whether, at the time the release was executed, the parties were under “[a] mistaken belief as to the nonexistence of [a] presently existing injury,” i.e., a traumatic brain injury … . We therefore … reinstate the complaint. DiDomenico v McWhorter, 2024 NY Slip Op 02634, Fourth Dept 5-10-24

Practice Point: A release signed when both parties are not aware of an existing injury may be invalid as the result of mutual mistake.

 

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PLAINTIFF ALLEGED THE AIR BAG UNEXPECTEDLY DEPLOYED, CAUSING INJURY; DEFENDANT FORD’S EXPERT EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DID NOT DEMONSTRATE THE CAUSE OF THE DEPLOYMENT WAS NOT ATTRIBUTABLE TO A PRODUCT DEFECT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this “unexpected-air-bag-deployment” case:

Just prior to the airbag’s deployment, decedent’s vehicle had collided with a deer. After the collision, decedent parked his vehicle on the side of the road, then he looked to his right to check on his passengers in the vehicle and looked to the left to see the deer. At that point the airbag deployed. * * *

It is well settled that a strict products liability cause of action may be established by circumstantial evidence, and thus a plaintiff ” ‘is not required to prove the specific defect’ ” in the product … . “In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to defendants” … . ” ‘Proof that will establish strict liability will almost always establish negligence’ ” … . * * *

Ford Motor’s expert failed to assert that there existed a likely cause of the unexpected deployment of the airbag that was “not attributable to any defect in the design or manufacturing of the product,” and therefore Ford Motor failed to meet its burden on its motion with respect to the strict products liability and negligence causes of action … . Keem v Ford Motor Co., 2024 NY Slip Op 02632, Fourth Dept 5-10-24

Practice Point: Defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this products liability/negligence action based upon the alleged unexpected deployment of an air bag.

 

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A DEPOSITION ERRATA SHEET SUBMITTED PAST THE 60-DAY DEADLINE SHOULD HAVE BEEN STRUCK (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the deposition errata sheet should have been struck because it was submitted after the 60-day period expired:

Supreme Court erred in denying their joint motion to the extent that it seeks to strike plaintiff’s errata sheet inasmuch as the errata sheet was untimely (see CPLR 3116 [a]). We therefore modify the order accordingly. CPLR 3116 (a) provides, in relevant part, that “[n]o changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.” It is undisputed that plaintiff did not submit the errata sheet within 60 days of her deposition, and submitted it over a month after the 60-day period expired, in opposition to defendants’ motions for summary judgment. Plaintiff’s reasons for the lateness under the circumstances did not constitute a good cause for the delay (see CPLR 2004 …). We note that we did not consider the errata sheet when reviewing defendants’ contentions regarding their motions for summary judgment. Pagan v GPK, LLC, 2024 NY Slip Op 02631, Fourth Dept 5-10-24

Practice Point: A motion to strike a deposition errata sheet submitted past the 60-day deadline should be granted.

 

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