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THE FAILURE TO PROVIDE PLAINTIFF WITH EYE-PROTECTION EQUIPMENT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. Plaintiff suffered an injury to his eye when a discharge hose disconnected from a sandblaster. Plaintiff alleged the violation of two Industrial Code provisions requiring that he be provided with protective equipment:

The plaintiff alleged … violations of (1) 12 NYCRR 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” and (2) 12 NYCRR 23-1.8(a), which provides that “[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons . . . while engaged in any . . . operation which may endanger the eyes.” * * *

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … .. “‘To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'” … ,. “An owner or contractor may be held liable under Labor Law § 241(6) even if it did not have control of the site or notice of the allegedly dangerous condition” … .

Here, the plaintiff demonstrated, prima facie, that the defendants violated Labor Law § 241(6) by failing to provide adequate eye protection equipment and to ensure that the plaintiff used safety equipment while working at the job site in accordance with 12 NYCRR 23-1.5(c)(3) and 23-1.8(a), and that those violations were a proximate cause of the accident … . Castellon v 38 E. 85th St., Inc., 2025 NY Slip Op 02311, Second Dept 4-23-25

Practice Point: Owners and contractors have a nondelegable duty to provide their workers with adequate safety equipment and can be held liable even if they did not have control of the work site or notice of the dangerous condition.

 

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IN THIS ALL-TERRAIN-VEHICLE (ATV) ACCIDENT CASE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER UNREASONABLY INCREASED THE RISK TO PLAINTIFF-PASSENGER THEREBY PRECLUDING THE APPLICATION OF THE ASSUMPTION-OF-THE-RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether assumption of the risk doctrine precluded plaintiff from recovery in this all-terrain vehicle (ATV) accident case. There was a question whether the driver unreasonably increased the risk to plaintiff-passenger:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . Participants, however, are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks … . Here, the evidence submitted by the defendant in support of the motion raised triable issues of fact as to whether the manner in which the decedent was operating the ATV unreasonably enhanced the risk of injury and whether the doctrine of primary assumption of risk applies to this case … . Bulfamante v Bulfamante, 2025 NY Slip Op 02310, Second Dept 4-23-25

Practice Point: Here there was no question that the assumption-of-the-risk doctrine could apply to plaintiff-passenger injured in an all-terrain-vehicle (ATV) accident.

Practice Point: Although the assumption-of-the-risk doctrine could apply to the plaintiff-passenger in this ATV accident case, there was a question of fact whether the doctrine was precluded because the driver unreasonably increased the risk.

 

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THE DISMISSAL OF A FORELCOSURE ACTION ON THE GROUND THE BANK FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN RPAPL 1304 IS NOT AN EXPRESS JUDICIAL DETERMINATION THAT THE ACTION DID NOT VALIDLY ACCELERATE THE DEBT; THEREFORE, HERE, THE 2013 FORECLOSURE ACTION IS TIME-BARRED PURSUANT TO THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred. The bank’s argument that the the foreclosure complaint filed in 2013 did not accelerate the debt was rejected. The 2013 action was dismissed in 2018 because the bank did not comply with the notice of default requirement in Real Property Actions and Proceedings Law (RPAPL) 1304. That dismissal did not constitute an express judicial finding that the debt had not been validly accelerated when the 2013 complaint was filed:

Deutsche Bank’s argument that the complaint in the 2013 action did not constitute a valid acceleration of the debt is precluded by the Foreclosure Abuse Prevention Act (hereinafter FAPA) … . FAPA amended CPLR 213(4) to provide that in an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, “a defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” … . Here, the Supreme Court directed dismissal of the complaint in the 2013 action upon a determination that Deutsche Bank failed to establish … its strict compliance with RPAPL 1304. The mailing of a RPAPL 1304 notice, while a condition precedent to commencing a foreclosure action, is not a precondition for acceleration of the debt … , and thus, the 2013 action was not dismissed upon an expressed judicial determination that the debt was not validly accelerated. Brennan v Deutsche Bank Trust Co. Ams., 2025 NY Slip Op 02308, Second Dept 4-23-25

Practice Point: A foreclosure action is time-barred six years after the debt was accelerated by the filing of the complaint, unless there is an express judicial determination that the filing of the complaint did not accelerate the debt. A dismissal of the foreclosure action based upon the bank’s failure to comply with the RPAPL 1304 notice of default requirements is not an express judicial determination that the foreclosure complaint did not validly accelerate the debt. Therefore, in this case, the 2013 foreclosure action, which was dismissed in 2018 for failure to comply with RPAPL 1304, is time-barred.

 

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PLAINTIFF TRIPPED AND FELL AS HE WALKED THROUGH A “ROOM,” NOT A “PASSAGEWAY;” THEREFORE THE LABOR LAW 241(6) CAUSE OF ACTION BASED ON THE INDUSTRIAL CODE PROVISION PROHIBITING OBSTRUCTIONS IN A “PASSAGEWAY” SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action based on an Industrial Code regulation requiring passageways be kept free of obstructions did not apply to the room where plaintiff tripped and fell:

… [P]laintiff testified that while he was walking through a room, he slipped upon and became tangled in a portion of a plastic tarp that was covering a pool table that extended past the table onto the floor, causing him to fall. * * *

… [D]efendants established, prima facie, that 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors, among other things, to keep all passageways free of obstructions that could cause tripping, is inapplicable, because the site where the plaintiff allegedly fell was not a passageway … . Bittrolff v City of New York, 2025 NY Slip Op 02307, Second Dept 4-23-25

Practice Point: For purposes of Labor Law 241(6) which bases liability on a violation of the Industrial Code, an Industrial Code provision prohibiting obstructions and tripping hazards in a “passageway” does not apply to obstructions and tripping hazards in a “room.”​

 

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THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to be present in court,” which was not sufficient proof defendant was notified of the hearing and his rights and voluntarily waived his rights. Although defense counsel did not object, the issue did not require preservation for appeal because the defendant had “no practical ability to object” to the due process error:

The record does not establish that defendant was advised of the hearing date, the right to be present or of the consequences of failing to appear and/or participate. County Court’s passing remark at the outset of the hearing that defendant had been “served” and did not wish to be present did not demonstrate such advisement or the basis for finding a waiver, and defense counsel did not represent that he had provided such advisements to defendant, that defendant was aware of his rights or that defendant had “expressed a desire to forego his presence at the hearing” … .

Although the People submitted a July 19, 2022 email correspondence indicating that an order to produce defendant for the SORA hearing was sent by County Court to the facility where defendant was apparently incarcerated, the responsive email from a Department of Corrections and Community Supervision employee stated only that defendant “is waiving his right to be present in court” for the SORA hearing, which was insufficient to establish that defendant was advised of the hearing date, his right to participate remotely or the consequences of failing to appear or participate. As such, the record fails to establish that defendant voluntarily waived his right to participate in the hearing, where County Court may have had the opportunity to assess any cognitive impairment and its impact, if any, on the appropriate risk level classification. Therefore, without expressing any opinion as to the appropriate risk level, the order must be reversed and the matter remitted to County Court for a new risk level assessment hearing and a new determination, preceded by the required notice (see Correction Law § 168-n [3]). People v Santiago, 2025 NY Slip Op 02381, Thrid Dept 4-24-25

Practice Point: Here an email from the Department of Corrections stating defendant “is waiving his right to be present in court” was deemed insufficient to prove defendant was notified of the SORA risk-level-assessment hearing and voluntarily waived his right to be present, a due process violation.

Practice Point: Although defense counsel did not object to the hearing being held in defendant’s absence, the issue need not be preserved for appeal because defendant had “no practical ability to object.”

 

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IN A SLIP AND FALL CASE, TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, THE DEFENDANT MUST PROVE THE AREA OF THE SLIP AND FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE INCIDENT; PROOF OF GENERAL CLEANING OR INSPECTION PRACTICES IS NOT ENOUGH; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this black-ice slip and fall case did not demonstrate when the area was last inspected or cleaned. Therefore the defendant did not demonstrate a lack of constructive notice of the condition. Proof of general cleaning and inspection practices is insufficient. Defendant’s motion for summary judgment should not have been granted:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . “Accordingly, a property owner seeking summary judgment in a slip-and-fall case ‘has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it'” … .

Here, the defendant failed to submit sufficient evidence establishing, prima facie, that it did not have constructive notice of the alleged black ice condition. The defendant’s station cleaner provided only general information about his cleaning and inspection practices, and he failed to specify when he last cleaned or inspected the area where the plaintiff fell relative to the time of the accident … . Ravello v Long Is. R.R., 2025 NY Slip Op 02361, Second Dept 4-23-25

Practice Point: There are hundreds of reversals on this ground. A lack of constructive notice of a condition alleged to have caused a slip and fall can only be demonstrated by proof the area was actually cleaned or inspected close in time to the fall. Proof of general cleaning or inspection practices will not support a summary judgment.

 

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A JUDGE SHOULD NOT, SUA SPONTE, ORDER THE DISMISSAL OF A COMPLAINT ABSENT “EXTRAORDINARY CIRCUMSTANCES,” NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances to justify the judge’s “sua sponte” dismissal of the complaint:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, no extraordinary circumstances existed warranting dismissal of the complaint … . Accordingly, the Supreme Court should not have, sua sponte, directed dismissal of the complaint. Project Guardianship v Chai 91 St. Marks PLC, LLC, 2025 NY Slip Op 02360, Second Dept 4-23-25

Practice Point: There have been many reversals of “sua sponte” dismissals of complaints.

 

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A CONDITION WHICH MIGHT BE DEEMED OPEN AND OBVIOUS CAN BECOME A “TRAP FOR THE UNWARY” WHEN A PERSON IS DISTRACTED; HERE PLAINTIFF SLIPPED AND FELL WHEN HIS FOOT WAS CAUGHT IN A DEPRESSION BETWEEN DEFENDANT’S FENCE AND THE SIDEWALK AS PLAINTIFF TRIED TO SEPARATE TWO FIGHTING DOGS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted on the ground the condition was open and obvious. Plaintiff was trying to separate two fighting dogs when his foot was caught in a depression between defendant’s fence and the sidewalk. The depression was about a foot wide and five or six inches deep. The court noted that a condition that might ordinarily be deemed open and obvious can be a “trap or the unwary” when a person is distracted:

“Property owners have a common-law duty to maintain property in a reasonably safe condition, but there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … . However, “[w]hether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . “[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” … .

Here, the defendants failed to establish, prima facie, that the alleged condition was open and obvious and not inherently dangerous under the circumstances surrounding the accident. In addition, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged defective condition … . Niyazov v Ditmas Mgt. Corp., 2025 NY Slip Op 02349, Second Dept 4-23-25

Practice Point: This decision presents an example of when an “open and obvious” condition can be deemed a “trap for the unwary” for someone who is distracted. Here plaintiff was trying to separate two fighting dogs when his foot became caught in a five-or-six-inch-deep depression between defendant’s fence and the sidewalk.​

 

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PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD ALLEGATIONS SUPPORTING “PIERCING THE CORPORATE VEIL” SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint to add allegations supporting “piercing the corporate veil” in this breach of contract action should have been granted:

“Broadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity” … . “Because a decision whether to pierce the corporate veil in a given instance will necessarily depend on the attendant facts and equities, the New York cases may not be reduced to definitive rules governing the varying circumstances when the power may be exercised” … . However, “[g]enerally, a plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury. The plaintiff must adequately allege the existence of corporate obligation and that defendant exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” … . “[T]he corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego. In determining whether to pierce the corporate veil, [g]enerally considered are such factors as whether there is an overlap in ownership, officers, directors and personnel, inadequate capitalization, a commingling of assets, or an absence of separate paraphernalia that are part of the corporate form” … . Another factor to be considered is whether the corporation and its owners shared “common office space” … . “A cause of action under the doctrine of piercing the corporate veil is not required to meet any heightened level of particularity in its allegations” … , and “a fact-laden claim to pierce the corporate veil is unsuited for resolution on a pre-answer, pre-discovery motion to dismiss” … . HLI Rail & Rigging, LLC v Franklin Exhibit Mgt. Group, LLC, 2025 NY Slip Op 02330, Second Dept 4-23-25

Practice Point: Consult this decision for a concise description of the criteria for “piercing the corporate veil” in the context of a motion to amend the complaint to add the relevant allegations.

 

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BECAUSE THE RES IPSA LOQUITUR DOCTRINE IS DEPENDENT UPON CIRCUMSTANTIAL EVIDENCE FROM WHICH INFERENCES MUST BE DRAWN, SUMMARY JUDGMENT IS USUALLY NOT APPROPRIATE; HERE A GARAGE DOOR CLOSED OR FELL ON PLAINTIFF; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the res ipsa loquitur doctrine was not a proper basis for granting plaintiff’s summary judgment motion. Plaintiff was injured when a garage door at defendant’s vehicle-repair shop closed on her as she left the customer waiting area. Plaintiff could have used an exterior door rather than the open garage door:

“The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident” … . It requires evidence of an event which ordinarily does not occur in the absence of negligence, was caused by an agency or instrumentality within the exclusive control of the defendant, and was not due to any voluntary action or contribution on the part of the plaintiff … . “Since the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent, res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment, even if the plaintiff’s circumstantial evidence is unrefuted” … . Summary judgment on the issue of liability should only be granted “in the rarest of res ipsa loquitur cases” where “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of [the] defendant’s negligence is inescapable” … .

Here, the plaintiff did not establish, by sufficiently convincing circumstantial proof, “that the inference of [the] defendant’s negligence is inescapable” … . Specifically, the plaintiff failed to submit sufficiently convincing circumstantial proof that the garage door and its mechanism were within the defendant’s exclusive control, and that the accident was not due to any fault on the part of the plaintiff … . “‘In those cases where conflicting inferences may be drawn, choice of inference must be made by the jury'” … . Hafeez v TT of Freeport, 2025 NY Slip Op 02327, Second Dept 4-23-25

Practice Point: Consult this decision for insight into the proof requirements for liability under the res ipsa loquitur doctrine.​

Practice Point: Because the res ipsa loquitur doctrine is dependent upon circumstantial evidence, summary judgment is rarely appropriate even where plaintiff’s evidence is unrefuted.

 

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