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THE POLICE CAR FOLLOWED DEFENDANT, FIVE FEET BEHIND HIM, AS HE WALKED THROUGH A NARROW PASSAGEWAY; THE POLICE WERE NOT IN PURSUIT AND THE HANDGUN DISCARDED BY THE DEFENDANT WAS PROPERLY SEIZED (FOURTH DEPT).

The Fourth Department determined the police, who followed defendant in a police car as he walked through a narrow passageway (a cut-through) between two streets, were not in pursuit of defendant. Therefore the weapon discarded by the defendant was properly seized:

The evidence at the suppression hearing established that a police officer responding to the sound of gunshots observed a person walking towards him a few blocks away from the location of the incident. The officer lost sight of the person before he was able to speak with him to determine whether the person had heard the gunshots, but he relayed over the police radio a generic physical description of the person he had encountered and that person’s location. Shortly thereafter, a second police officer encountered defendant not far from the radioed position. The second officer engaged defendant in a brief conversation from her patrol vehicle, after which defendant entered a nearby cut-through—i.e., a pedestrian pathway that connected two streets. When defendant first entered the cut-through, the second officer did not consider him a suspect in the shooting and he was not engaged in any unlawful activity. Nonetheless, the second officer, still in her patrol vehicle and now accompanied by another officer in a separate patrol vehicle, followed defendant along the pathway, maintaining a distance of about five feet from defendant. The cut-through was so narrow at one point that the officers would not have been able to open the doors of their patrol vehicles. When defendant reached the end of the cut-through, he removed a handgun from his pocket and ran. As he ran, defendant discarded the handgun and was thereafter arrested. * * *

The police did not activate their vehicles’ overhead lights or sirens, exit their vehicles, or significantly limit defendant’s freedom of movement along the pedestrian path … . Indeed, defendant remained free to keep walking down the path, even if at one point on the path he could not have turned around and traveled in the opposite direction. People v Allen, 2020 NY Slip Op 06594, Fourth Dept 11-13-20

 

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IN THIS LABOR LAW 240(1), 241(6) AND 200 TRIAL, THE DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION BASED UPON THE HOMEOWNER’S EXEMPTION SHOULD NOT HAVE BEEN GRANTED, THE BETTER PRACTICE WOULD HAVE BEEN TO RESERVE ON THE MOTION AND LET THE MATTER GO TO THE JURY; AND PLAINTIFF’S MOTION TO SET ASIDE THE LABOR LAW 200 VERDICT SHOULD HAVE BEEN GRANTED BECAUSE THE VERDICT WAS INCONSISTENT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law pursuant to CPLR 4401 should have been denied and plaintiff’s motion to set aside the verdict pursuant to CPLR 4404 (a) in this Labor Law 240 (1), 241 (6) and 200 scaffold-fall case should have been granted. The defendants’ motion to dismiss the Labor Law 240 (1) and 241 (6) causes of action were granted because the court found defendants exempt pursuant to the homeowner exemption. Plaintiff moved to set aside the verdict because the jury found the defendant homeowner (Nielson) was negligent in striking the scaffold with a Bobcat, but also illogically found the negligence was not the proximate cause of the accident:

Contrary to the Supreme Court’s determination, we conclude that different inferences could be drawn from the evidence on the issue of whether Nielson had authority to or exercised authority to direct or control the work. Affording the plaintiff the benefit of every favorable inference and considering the evidence in the light most favorable to the plaintiff, there was a rational process by which a jury could find that the defendants were not exempt from liability by reason of the homeowner exemption under Labor Law §§ 240(1) and 241(6), and could find that they were liable under Labor Law § 200 … .

We note that, in the interest of judicial economy, the better practice would have been for the Supreme Court to reserve determination on the motion for a directed verdict on the Labor Law causes of action, and allow those causes of action to go to the jury. “There is little to gain and much to lose by granting the motion for judgment as a matter of law after . . . the evidence has been submitted to the jury and before the jury has rendered a verdict. If the appellate court disagrees, there is no verdict to reinstate and the trial must be repeated” … . …

Assuming that Nielson struck the scaffold with the Bobcat, which was the only theory of common-law negligence presented by the plaintiff, then it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Thus, the issues of negligence and proximate cause were so inextricably interwoven as to make it logically impossible to find Nielson negligent without also finding proximate cause. Brewer v Ross, 2020 NY Slip Op 06483, Second Dept 11-12-20

 

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INFANT PLAINTIFF WAS IN THE ZONE OF DANGER AND WITNESSED A TRUCK STRIKE AND KILL HER BROTHER; SHE ALLEGED SEVERE EMOTIONAL TRAUMA; DEFENDANT’S DISCLOSURE DEMANDS FOR PLAINTIFF’S FACEBOOK, SNAPCHAT AND INSTRAGRAM ACCOUNTS, AS WELL AS THE PHONE NUMBERS AND ADDRESSES, OF INFANT PLAINTIFF’S FRIENDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s disclosure demand for the Facebook, Snapchat and Instagram accounts of infant plaintiff, as well and the last known addresses and phone numbers of infant plaintiff’s friends should have been granted. Infant plaintiff was crossing the street with her brother when he was struck and killed by a truck allegedly owned by defendant. Infant plaintiff claimed psychological injuries based upon her being in the zone of danger and witnessing her brother’s death:

… [T]he defendant demonstrated that records from the infant plaintiff’s Facebook, Snapchat, and Instagram accounts were “reasonably likely to yield relevant evidence” regarding the alleged emotional and mental trauma that the infant plaintiff suffered from as a result of the subject accident, which allegedly was, in part, evidenced by her social isolation and withdrawal … . In addition, the defendant demonstrated that its request for the last known addresses and phone numbers of three of the infant plaintiff’s friends was reasonably calculated to lead to the discovery of information bearing on the infant plaintiff’s claimed mental and emotional trauma. In response, the plaintiffs do not contend that the requested disclosure was unduly burdensome, overbroad, or otherwise improper. The Supreme Court erred in finding that disclosure of the last known addresses and phone numbers of the infant plaintiff’s three friends was improper because they would provide evidence that was cumulative of other evidence previously exchanged during discovery. Therefore, under the circumstances, the court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to compel the plaintiffs to produce the last known addresses and phone numbers of three friends of the infant plaintiff, and authorizations to obtain records from the infant plaintiff’s Facebook, Snapchat, and Instagram accounts. Abedin v Osorio, 2020 NY Slip Op 06478, Second Dept 11-12-20

 

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WORKERS’ COMPENSATION LAW 35 PROVIDES A SAFETY NET FOR WORKERS WHO HAVE REACHED THE LIMIT OF WEEKS OF INDEMNITY PAYMENTS PURSUANT TO WORKERS’ COMPENSATION LAW 15 (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined Workers’ Compensation Law 35 provides a safety net for workers who have reached the  limit of weeks of indemnity payments pursuant to Workers’ Compensation Law 15:

As part of the comprehensive reforms of the Workers’ Compensation Law in 2007, the Legislature amended Workers’ Compensation Law § 15 (3) (w) … . “The amendment, in a concession to insurance carriers, capped the number of weeks that a person is eligible to receive benefits for a non-schedule permanent partial disability” … . …

The 2007 legislative reforms also included the enactment of Workers’ Compensation Law § 35 … , which is “intended to create a possible safety net for claimants who sustain a permanent partial disability and have not returned to work after they have reached their limit on weeks of indemnity payments” … . Pursuant to Workers’ Compensation Law § 35 (2), “[n]o provision of this article shall in any way be read to derogate or impair current or future claimants’ existing rights to apply at any time to obtain the status of total industrial disability under current case law.” Given the plain language of this statute that a claimant’s right to seek total industrial disability status at any time remains, notwithstanding other statutory provisions of article two of the Workers’ Compensation Law, as well as the clear legislative intent of Workers’ Compensation Law § 35 “to establish a safety net for permanent partial disability claimants who surpass their number of maximum benefit weeks” … . Matter of Minichiello v New York City Dept. of Homeless Servs., 2020 NY Slip Op 06433, First Dept 11-12-20

 

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DEFENDANT TRIPPED OVER A PIECE OF PIPE STICKING OUT OF THE FLOOR AND FELL INTO THE UNGUARDED ELEVATOR MECHANISM; THE DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant’s (19 Realty’s) motion for summary judgment should not have been granted on the ground that the piece of pipe sticking out of the floor, over which plaintiff tripped, was a trivial defect. The pipe stub was near unguarded elevator mechanisms in the elevator room of an apartment building. Plaintiff fell into the mechanism and the injuries to his hand required amputation. The court noted that the size of a defect is not the proper criteria for determining whether a defect is trivial, and further noted the defendant had notice of the defect because it had been there since 2007:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Moreover, “there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable,” and therefore “granting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable” … . The cases recognize that “a holding of triviality [must] be based on all the specific facts and circumstances of the case, not size alone” … .

Here, 19 Realty failed to meet its prima facie burden of establishing that the pipe stub defect was trivial and nonactionable, given that the surrounding circumstances included the unguarded and exposed hoist and moving cables of the elevator cars, which magnified the risk the pipe stub posed and rendered the raised pipe stub more dangerous than it might otherwise have been. Moreover, both 19 Realty and the court below improperly relied almost exclusively on the size of the pipe stub, which the Court of Appeals has held is not the proper analysis (see Hutchinson, 26 NY3d at 77) … . Arpa v 245 E. 19 Realty LLC, 2020 NY Slip Op 06444, First Dept 11-12-20

 

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THE EMERGENCY DOCTRINE PROTECTED THE TRANSIT AUTHORITY FROM LIABILITY IN THIS BUS-PASSENGER INJURY CASE; THE DRIVER TESTIFIED HE BRAKED SLIGHTLY WHEN A CAR WAS IN FRONT OF THE BUS MAKING A RIGHT TURN (FIRST DEPT). ​

The First Department, affirming Supreme Court. but on different grounds, determined the New York City Transit Authority’s (NYCTA’s) motion for summary judgment in this bus-passenger injury case. Plaintiff alleged he fell when the bus stopped in an unusual and violent manner. The First Department applied the emergency doctrine to affirm summary judgment in favor of the NYCTA. The bus driver testified he slightly touched the brake when a car was in front of the bus making a right turn:

The emergency doctrine recognizes that when an actor is faced with a sudden, unexpected circumstance leaving little or no time for deliberation, “the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . Under the doctrine, a person faced with an emergency “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” … . Further, “[w]hile it is often a jury question whether a person’s reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate issue of fact on the issue” … . …

… [P]laintiff failed to submit any evidence tending to show that Williams [the bus driver] created the emergency or could have avoided plaintiff’s fall by other means than slightly stepping on the brake … . Castillo v New York City Tr. Auth., 2020 NY Slip Op 06447, First Dept 11-12-20

 

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PLAINTIFF STEPPED INTO A TRENCH WHICH HAD BEEN FILLED WITH SOFT SOIL AND SANK DOWN TO ABOVE HIS KNEE; SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff stepped into a trench that had been filled with soft soil and sank into the soil past his knee:

It is undisputed that no safety devices were provided to plaintiff to protect him against the gravity-related risk of descending a significant distance into the trench. Thus, plaintiff established prima facie his entitlement to partial summary judgment on the Labor Law § 240(1) claim … . The elevation differential between the ground level and the lower level to which plaintiff’s foot and leg sank is analogous to the risk that a worker standing on a platform on a body of water would fall into the water, which we have found to be covered by Labor Law § 240 … . Defendants failed to submit evidence that no safety devices could have prevented the accident … . Sunun v Klein, 2020 NY Slip Op 06471, First Dept 11-12-20

 

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PLAINTIFF’S MOTION TO EXTEND THE TIME TO SERVE THE DEFENDANT PURSUANT TO CPLR 306-B SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE; IF A PLAINTIFF IS NOT ENTITLED TO EXTEND TIME FOR GOOD CAUSE, THE COURT SHOULD GO ON TO CONSIDER WHETHER THE MOTION SHOULD BE GRANTED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to extend the time to serve defendant should have been granted in the interest of justice. The court described the difference between the “good cause” and “interest of justice” analyses and indicated that if a court finds relief is not warranted for good cause, the interest of justice analysis should then be considered:

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice … . “‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards” … . “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” … . If good cause for an extension is not established, the court must consider the broader interest of justice standard of CPLR 306-b … . In considering the interest of justice standard, ‘the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statutes of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant'” … .

Although the plaintiff failed to establish good cause for an extension of time to serve the defendant under CPLR 306-b, it established that an extension of time to serve the defendant was warranted in the interest of justice. The plaintiff established, among other things, that it has a potentially meritorious cause of action, that it promptly moved for an extension of time to serve the summons and complaint after the defendant challenged service on the ground that it was defective, and that there was no demonstrable prejudice to the defendant as a consequence of the delay in service … . Wells Fargo Bank, N.A. v Ciafone, 2020 NY Slip Op 06580, Second Dept 11-12-20

 

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THE ORDER DISMISSING THE COMPLAINT FOR FAILURE TO PROSECUTE DID NOT DESCRIBE THE SPECIFIC CONDUCT CONSTITUTING NEGLECT BY THE PLAINTIFF AS REQUIRED BY CPLR 3216; PLAINTIFF’S MOTION TO VACATE THE ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to vacate the order dismissing the complaint for failure to prosecute should have been granted because the conditions required by CPLR 3216 were not met:

A court may not dismiss a complaint for want of prosecution pursuant to CPLR 3216 on its own initiative unless certain conditions precedent have been complied with, including the requirement that “where a written demand to resume prosecution of the action is made by the court . . . ‘the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation'” … .

Here, the Supreme Court should have granted the plaintiff’s motion, among other things, to vacate the … order, as that order failed to set forth the specific conduct constituting neglect by the plaintiff … . Wells Fargo Bank, N.A. v Brown, 2020 NY Slip Op 06576, Second Dept 11-12-20

 

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VEHICLE AND TRAFFIC LAW 388 (1), WHICH IMPOSES VICARIOUS LIABILITY ON THE OWNER OF A VEHICLE, DOES NOT PERMIT A NEGLIGENT DRIVER TO SUE THE VEHICLE OWNER FOR THE DRIVER’S OWN NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Chambers, determined defendant vehicle-owner’s motion to dismiss the complaint should have been granted. The deceased driver’s estate sued the owner of the car under the vicarious liability statute, Vehicle and Traffic Law 388 (1). The Second Department held that the statute does not permit a negligent driver to recover against the vehicle-owner for the driver’s own negligence:

Vehicle and Traffic Law § 388(1) provides that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.” The predecessor of this provision—section 282-e of the Highway Law, which was enacted in 1924 …—was intended to alleviate the harshness of the common law rule whereby the owner of a vehicle who merely permitted another to drive it could not be held liable for the driver’s negligence unless the driver was the owner’s employee or agent and was using the vehicle as part of the owner’s business … . Thus, the purpose of the new legislation was to ensure that persons injured by a negligent driver had access to “a financially responsible insured person against whom to recover for injuries” … . In other words, while the driver’s own negligence remained grounded in common law, the new statute simply made owners vicariously liable for injuries caused by the driver’s negligence, so long as the driver was operating the vehicle with the owner’s express or implied permission … . The Legislature “did not otherwise change any of the rules of liability,” and “may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied” … .

In light of the history and purpose of Vehicle and Traffic Law § 388, we hold that the statute does not permit a negligent driver (or, in this case, the driver’s estate) to recover damages against the owner for injuries resulting from the driver’s own negligence … . Shepard v Power, 2020 NY Slip Op 06568, Second Dept 11-12-20

 

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