You are here: / PLAINTIFF PRESENTED ONLY SPECULATION ABOUT THE CAUSE OF HER SLIP AND FALL,...

Search Results

/ , ,

PLAINTIFF PRESENTED ONLY SPECULATION ABOUT THE CAUSE OF HER SLIP AND FALL, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the landlord’s motion for summary judgment in this slip and fall case should have been granted because plaintiff could not identify the cause of her fall:

… [T]he landlord met her prima facie burden on her motion for summary judgment dismissing the complaint by submitting the plaintiff’s deposition transcript which demonstrated, prima facie, that she was unable to identify the cause of her fall without resorting to speculation … . The plaintiff’s theory that she slipped on water dripping from the ceiling was speculative in light of, inter alia, her deposition testimony that she “personally didn’t see any water dripping, but there must have been a drip from the ceiling because the ground was wet.” Moreover, [third-party defendant] testified at his deposition that, although there had been a prior water leak coming from the ceiling into the kitchen, that leak was not near the location of the plaintiff’s accident. Bilska v Truszkowski, 2019 NY Slip Op 02490, Second Dept 4-3-19

 

/ ,

DEFENDANT DID NOT PRESENT EVIDENCE THAT THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS INSPECTED OR TREATED ON THE DAY OF THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it did not have constructive notice of the icy condition in this slip and fall case. The defendant presented evidence of the manager’s and superintendent’s general practices but did not present evidence was inspected or treated on the day of the fall:

“To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendant failed to demonstrate, prima facie, that it did not have constructive notice of the alleged ice condition that caused the plaintiff to fall. The deposition testimony of the defendant’s site manager merely referred to her general practice of traversing the breezeway where the accident allegedly occurred, one to two times per week, but provided no evidence regarding any specific inspection of the area prior to the plaintiff’s fall … . … The superintendent’s testimony failed to provide specific details of his snow removal efforts and salting near the time of the incident, and, thus, was too general to establish lack of constructive notice … . Ahmetaj v Mountainview Condominium, 2019 NY Slip Op 02489, Second Dept 4-3-19

 

/ ,

CAUSE OF ACTION BASED UPON A THEORY NOT ALLEGED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiff’s first cause of action was properly dismissed because it alleged a theory of liability in this slip and fall case that was not alleged in the notice of claim. Apparently the plaintiff fell after getting off defendants’ bus:

[In the notice of claim] the plaintiff alleged … that the accident was caused by “the carelessness, recklessness and negligence of . . . New York City Transit Authority in the ownership, operation, maintenance, repair, construction, renovation, supervision and control of the aforesaid location.” …

… [T]he … defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action … by submitting proof that the amended notice of claim contained no allegation that the bus operator was negligent in failing to provide the plaintiff with a safe place to alight … . Rojas v Hazzard, 2019 NY Slip Op 02573, Second Dept 4-3-19

 

/ , , ,

DEFENDANT’S HEALTH AT THE TIME OF THE TRAFFIC ACCIDENT WAS NEVER PLACED IN CONTROVERSY AND THE PHYSICIAN-PATIENT PRIVILEGE WAS NOT WAIVED BY A LETTER TO PLAINTIFF’S ATTORNEY INDICATING DEFENDANT SUFFERED FROM DEMENTIA, ANXIETY AND DEPRESSION (SECOND DEPT).

The Second Department, over a two-justice dissent, determined that defendant driver’s (Rozansky’s) medical condition at the time of this 2004 traffic accident was not “in controversy” and therefore the driver’s medical records were not discoverable. Rozansky, who subsequently died, had, in 2006, submitted a letter from his social worker to plaintiff’s attorney claiming he suffered from dementia, anxiety and depression, allegedly to be excused from a deposition, but otherwise the issue of the Rozansky’s health was not raised:

… [T]he plaintiffs failed to sustain their initial burden of demonstrating that Rozansky’s condition at the time of the accident was “in controversy” within the meaning of CPLR 3121(a) … . Furthermore, even if the plaintiffs had met that burden, neither Rozansky nor his estate waived the privilege attached to the medical records, as the defendant has not asserted a counterclaim or sought to excuse Rozansky’s conduct at the time of the accident on the basis of some condition … . Contrary to the conclusion of our dissenting colleagues, Rozansky did not place his mental condition at the time of the accident “in controversy” or waive the privilege attached to his medical records by allegedly declining to be deposed … . Neither Rozansky nor his estate have sought to excuse his conduct at the time of the accident … , due to any condition. At best, Rozansky placed his mental condition in September 2006 at issue by allegedly refusing to appear for a deposition … . The plaintiffs could have moved at that time to compel the deposition and challenged the social worker’s diagnosis. Instead, nine years after the social worker’s letter, and six years after Rozansky’s death, and after filing three notes of issue over the course of some seven years, indicating that discovery was complete and the case was ready for trial, the plaintiffs purported to use the mechanism of a trial subpoena to compel production of Rozansky’s medical records from October 22, 1999, to the present. We disagree with our dissenting colleagues that Rozansky’s alleged invocation of dementia in September 2006, by submission of a letter from his social worker, established a waiver of the privilege attached to his medical records from October 22, 1999. Peterson v Estate of John Rozansky, 2019 NY Slip Op 02568, Second Department, 4-3-19

 

/ , ,

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND DID NOT HAVE A PRACTICAL ABILITY TO OBJECT, THEREFORE AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIES, MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (SECOND DEPT).

The Second Department determined the defendant was not informed of the deportation consequences of his guilty plea and therefore did not have the opportunity to move to withdraw his plea. Therefore a narrow exception to the preservation requirement applies and the matter was remitted to allow defendant to make the motion:

… [A] narrow exception to the preservation requirement exists “in rare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect in the plea which is clear on the face of the record and to which the court’s attention should have been instantly drawn,’ such that the salutary purpose of the preservation rule is . . . not jeopardized'” … .

In this case, the exception applies. At the plea proceeding, the court merely asked defense counsel if he had discussed with the defendant the potential “immigration consequences” of pleading guilty. Defense counsel responded: “He is here on a Green Card. We have discussed the immigration consequences.” Furthermore, the People’s contention that the written appeal waiver form demonstrates that the defendant was aware of the possibility of deportation prior to the imposition of the sentence is without merit … . Inasmuch as the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware of, the possibility of deportation, the defendant had “no practical ability” to object to the court’s statement or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … . People v Mohamed, 2019 NY Slip Op 02557, Second Dept 4-3-19

 

/ ,

ANONYMOUS TIP ALLEGING SUSPICIOUS BEHAVIOR BY MEN WEARING HOODIES GOING IN AND OUT OF A U-HAUL TRUCK DID NOT JUSTIFY PULLING OVER A U-HAUL TRUCK DRIVEN BY A MAN WEARING A HOODIE, WEAPON FOUND IN THE TRUCK SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the anonymous tip that persons were acting suspicious going in and out of a U-Haul truck and that one of the persons was wearing a brown hoodie did not justify pulling over a U-Haul truck driven by a man wearing a brown hoodie. The weapon found in the truck after the traffic stop should have been suppressed:

… [T]he police lacked reasonable suspicion to stop the vehicle based only on the anonymous tip of men “suspiciously” going in and out of a U-Haul truck, because the tip was insufficient to create reasonable suspicion that the individuals described were engaging in criminal activity … . The characteristics described in the anonymous tip were readily observable, and the behavior of the individuals described in the tip was consistent with the ordinary use of a U-Haul truck, as the tipster failed to identify what made the behavior suspicious for burglary … . Additionally, the tip “lacked predictive information” and was uncorroborated by the officers, as the U-Haul truck was not at the reported location when the officers arrived … . Accordingly, the information that the police received from the anonymous informant, even coupled with the officers’ own observations, did not provide them with reasonable suspicion to make an investigatory stop … . People v Floyd, 2019 NY Slip Op 02546, Second Dept 4-3-19

 

/ ,

ANGRY REMARK MADE TO PROBATION OFFICER DID NOT CONSTITUTE OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION, PROBATION SHOULD NOT HAVE BEEN REVOKED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s angry remark made to the probation officer (threatening to “blow her up”) was not a crime and therefore did not justify the revocation of probation and incarceration (defendant has served his sentence):

A person is guilty of obstructing governmental administration in the second degree when “he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act” (Penal Law § 195.05). “The plain meaning of the statute and the accompanying commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function” … . Although the evidence at the hearing demonstrated that the probation officer was at work, there was no evidence to show that the defendant attempted to prevent her from performing a specific function. The defendant’s angry outburst, without more, was insufficient to establish a violation of Penal Law § 195.05. Thus, the Supreme Court’s finding that the defendant violated a condition of his probation by failing to lead a law-abiding life is not supported by a preponderance of the evidence … . People v Brooks, 2019 NY Slip Op 02539, Second Dept 4-3-19

 

/ ,

FAMILY COURT PROPERLY TRANSFERRED THIS DERIVATIVE NEGLECT PROCEEDING TO THE UNKECHAUG INDIAN NATION PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) (SECOND DEPT).

The Second Department determined Family Court properly transferred the derivative neglect proceeding to the Unkechaug Indian Nation pursuant to the Indian Child Welfare Act (ICWA):

The ICWA provides that “the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point” in a proceeding to which the ICWA applies … . Congress authorized the Department of the Interior, Bureau of Interior Indian Affairs (hereinafter the DOI), to promulgate rules and regulations “as may be necessary to carry out the provisions of [ICWA]” … . The current regulations define the term “child-custody proceeding” as “any action, other than an emergency proceeding, that may culminate in” foster-care placement, termination of parental rights, preadoptive placement, and adoptive placement … . “An action that may culminate in one of these four outcomes is considered a separate child-custody proceeding from an action that may culminate in a different one of these four outcomes” … . The DOI explained that “[t]he final rule uses the phrase may culminate in one of the following outcomes,’ rather than the less precise phrase involves,’ used in the draft rule, in order to make clear that ICWA requirements would apply to an action that may result in one of the placement outcomes, even if it ultimately does not. For example, ICWA would apply to an action where a court was considering a foster-care placement of a child, but ultimately decided to return the child to his parents. Thus, even though the action did not result in a foster-care placement, it may have culminated in such a placement and, therefore, should be considered a child-custody proceeding’ under the statute” … . Matter of Dupree M. (Samantha Q.), 2019 NY Slip Op 02523, Second Dept 4-3-19

 

/ ,

PETITION SEEKING A STAY OF ARBITRATION AND A FRAMED-ISSUE HEARING ON WHETHER THE TRAFFIC ACCIDENT WAS STAGED SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition to temporarily stay arbitration of the claim for uninsured motorist benefits pending a framed-issue hearing addressing whether the collision was an accident or intentional should have been granted. The insurer, Global, presented evidence the traffic accident involving an uninsured vehicle was staged. The injured passenger, Eveillard, submitted sufficient evidence to rebut the insurer’s position:

As the party seeking a stay of arbitration based upon a lack of coverage, Global bore the initial burden of “showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . Here, contrary to the Supreme Court’s determination … , Global set forth evidentiary facts and submitted documentary evidence sufficient to establish a preliminary issue as to whether the collision giving rise to the claim for uninsured motorist benefits was an accident or an intentional act orchestrated, in part, by Eveillard … . Since Eveillard submitted evidence sufficient to rebut Global’s evidentiary showing, a temporary stay of arbitration pending a framed-issue hearing is warranted … .

… Supreme Court should have granted that branch of the petition which was to temporarily stay arbitration of the claim for uninsured motorist benefits pending a framed-issue hearing as to whether the collision was the result of a covered accident or an intentional act, and we remit the matter to the Supreme Court … for a hearing on the issue of insurance coverage and a new determination thereafter on that branch of the petition which was to permanently stay arbitration. Matter of Global Liberty Ins. Co. v Eveillard, 2019 NY Slip Op 02521, Second Dept 4-3-19

 

/ ,

ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).

The Second Department, resolving a split among Surrogate’s Courts, determined that the attorney who drafted the 2005 will appointing himself as executor was required to have the testator sign an acknowledgment the testator had been informed that the failure to comply with statutory disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions:

The 2004 amendment [of Surrogate’s Court Procedure Act (SCPA) 2307-a] was intended, as reflected in both its text and in its legislative history, to require that the testator be informed that, absent the testator’s acknowledgment of receipt of the required disclosures, the attorney-executor would receive only one-half of the commissions otherwise payable. That the Legislature inadvertently included this fourth disclosure requirement only in model forms and not in the subdivision dealing directly with the required disclosures was an oversight, as is confirmed by the 2007 amendment and its legislative history … . …

At bar, the instrument signed by the testator in 2005 did not include an acknowledgment that he had been informed that the failure to comply with the disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions. Therefore, we agree with the Surrogate’s Court’s determination that the petitioner is entitled to only one-half of the statutory executor’s commissions … . Matter of Brier, 2019 NY Slip Op 02516, Second Dept 4-3-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy