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COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice. Whether an investigative report in plaintiff's possession precluded recovery by alerting plaintiff to the problem with the public offering underwritten by plaintiff could not be determined on a motion to dismiss:

Plaintiff, a lead underwriter on a public offering of a Chinese corporation, claimed that defendant law firm was negligent in failing to uncover material misrepresentations made by the corporation in connection with the offering. Plaintiff sufficiently asserted that but for defendant's negligence, plaintiff would have ceased its involvement in the public offering and avoided the fees, expenses and other damages it incurred in defending against, as well as settling claims against it … .

Defendant's argument that an investigative report gave plaintiff prior constructive notice of the material misrepresentations is unavailing … . … Here, on a pre-answer motion to dismiss, although plaintiff acknowledges that it had possession of the investigative report, the information contained in the report cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel's interpretation of the information. Defendant “may not shift to the client the legal responsibility it was specifically hired to undertake” … . Macquarie Capital (USA) Inc. v Morrison & Foerster LLP, 2018 NY Slip Op 00091, First Dept 1-9-18

ATTORNEYS (MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/NEGLIGENCE (ATTORNEYS, LEGAL MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/LEGAL MALPRACTICE (COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))

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THREE CASES IN WHICH THE APPELLATE DIVISIONS FOUND THE TERMINATION OF TEACHERS TOO SEVERE A PUNISHMENT REVERSED, APPELLATE DIVISIONS HAD EXCEEDED THEIR AUTHORITY TO REVIEW ADMINISTRATIVE PENALTIES (CT APP).

The Court of Appeals, in a brief memorandum decision supplemented by an extensive memorandum by Judge Rivera, reversed the appellate divisions in three cases involving teachers who were terminated from their employment in administrative proceedings. In all three cases, the appellate divisions had found termination too severe a punishment. The Court of Appeals reinstated the punishment (termination) and explained in depth how the appellate divisions had exceeded their statutory powers for review of administrative determinations:

From the Concurring Memorandum: Termination of employment for the misconduct evinced in these three appeals is neither irrational nor such an affront to one's sense of fairness as to shock the conscience. This Court has repeatedly explained that under this “rigorous” standard, an administrative sanction may not be disturbed unless it is “disproportionate to the misconduct . . . of the individual, or the harm or risk of harm to the agency or the public” … . Whether a punishment may deter future misconduct and reflects societal standards given the nature of the offense are appropriate factors for judicial consideration. A difference of opinion as to the appropriate penalty, however, “does not provide a basis for vacating the arbitral award or refashioning the penalty” … . As in these appeals, dismissal is not a shocking response to cases in which a teacher encourages cheating, falsifies documents leaving a student without educational services, or crosses the line of proper student-teacher interactions by making sexually suggestive inquiries about a student's relatives. Matter of Bolt v New York City Dept. of Educ., 2018 NY Slip Op 00090, Ct App 1-9-18

ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, THREE CASES IN WHICH THE APPELLATE DIVISIONS FOUND THE TERMINATION OF TEACHERS TOO SEVERE A PUNISHMENT REVERSED, APPELLATE DIVISIONS HAD EXCEEDED THEIR AUTHORITY TO REVIEW ADMINISTRATIVE PENALTIES (CT APP))/EDUCATION-SCHOOL LAW (ADMINISTRATIVE LAW, THREE CASES IN WHICH THE APPELLATE DIVISIONS FOUND THE TERMINATION OF TEACHERS TOO SEVERE A PUNISHMENT REVERSED, APPELLATE DIVISIONS HAD EXCEEDED THEIR AUTHORITY TO REVIEW ADMINISTRATIVE PENALTIES (CT APP))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, ADMINISTRATIVE LAW,  THREE CASES IN WHICH THE APPELLATE DIVISIONS FOUND THE TERMINATION OF TEACHERS TOO SEVERE A PUNISHMENT REVERSED, APPELLATE DIVISIONS HAD EXCEEDED THEIR AUTHORITY TO REVIEW ADMINISTRATIVE PENALTIES (CT APP))/TEACHERS (ADMINISTRATIVE LAW,  EMPLOYMENT LAW, THREE CASES IN WHICH THE APPELLATE DIVISIONS FOUND THE TERMINATION OF TEACHERS TOO SEVERE A PUNISHMENT REVERSED, APPELLATE DIVISIONS HAD EXCEEDED THEIR AUTHORITY TO REVIEW ADMINISTRATIVE PENALTIES (CT APP))

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DEFENDANT’S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT).

The First Department noted that defendant's statement memorialized in a police report, acknowledging he did not stop at a red light, was an admission and a conflicting statement made later presented only a feigned issue of fact:

The police accident report and the affidavit of plaintiff Jose Colon were sufficient to demonstrate that defendant Jason S. Gilbert's negligence in failing to stop for the red light and yield the right of way in the intersection was the sole proximate cause of the accident… . His affidavit also showed the absence of comparative negligence in that he stated that he was going 25 miles per hour, looking straight ahead in the direction of travel, and could not see defendants' van because of a chain link fence, train trestle, and the height of his motor scooter… .

Although Gilbert denied that he stated to the police that he did not know that he had to stop for the red light, the court correctly concluded that the affidavit was insufficient to raise an issue of fact because statements by a party in a police accident report may constitute admissions, and later conflicting statements containing a different version of the facts present only a feigned issue of fact … . Colon v Vals Ocean Pac. Sea Food, Inc., 2018 NY Slip Op 00097, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/EVIDENCE (POLICE REPORTS, NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/TRAFFIC ACCIDENTS (POLICE REPORTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/POLICE REPORTS (EVIDENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))

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DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT).

The First Department determined defendant's motion for summary judgment in this personal injury case was properly granted. Plaintiff, a delivery truck driver, was injured unloading loose boxes from a trailer owned by defendant. Plaintiff alleged the shrink wrap securing the boxes broke, which led to his injury unloading the loose boxes. The defendant demonstrated it lacked actual and constructive notice of the failure of the shrink wrap. The fact that shrink wrap had failed on other occasions did not raise a question of fact. The court noted that plaintiff was not obligated to pick up the loose boxes, so the failed shrink wrap was a condition leading to his injury but was not the cause:

Defendant established its entitlement to judgment as a matter of law first by showing that it did not create the alleged hazardous condition. Defendant submitted, inter alia, plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor. Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident … . Defendant also showed that it lacked actual or constructive notice that there were boxes on the trailer's floor. Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day … . …

The possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so … .

Furthermore, plaintiff's certified packing expert failed to identify any professional or industry standard to substantiate his assertions … . The fact that defendant may have been aware that shrink-wrapping had previously come loose from other pallets did not establish that defendant had constructive notice that the subject pallet was loose before plaintiff sustained the injuries alleged … . Lynch v C & S Wholesale Grocers, Inc., 2018 NY Slip Op 00110, First Dept 1-9-18

NEGLIGENCE (NOTICE OF DANGEROUS CONDITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))/NOTICE (NEGLIGENCE, DANGEROUS CONDITION,  DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))

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EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's testimony, which presented conflicting descriptions of where she slipped and fell, was sufficient to raise a question of fact whether the fall took place in the area which had been excavated by defendant (Empire):

Empire failed to establish its entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she tripped and fell on a defect located within a crosswalk. Empire failed to show that the work it performed in the vicinity of plaintiff's fall could not have caused the defect because it was outside the area where plaintiff stated her accident occurred … . Although plaintiff did testify that she fell “[a]t least three feet” from the curb that she was approaching and Empire records show that it excavated a trench about 10 to 14 feet from the subject curb, plaintiff also stated that she was not good at measurements and twice described the accident location as being “[a]bout three-quarters” of the way across the intersection, which would be in the area of Empire's trench work. Prunella v Empire City Subway Co., 2018 NY Slip Op 00100, First Dept 1-9-18

NEGLIGENCE (SLIP AND FALL, EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))/SLIP AND FALL (EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT’S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant's (Bishop's) motion for summary judgment should have been granted in this intersection traffic accident case. The driver of the car in which plaintiff was a passenger (Pulinario) failed to stop at a stop sign. No question of fact was raised about Bishop's comparative negligence:

Bishop met her prima facie burden for summary judgment by demonstrating that Pulinario was negligent as a matter of law, and that Bishop was not negligently operating her vehicle. Bishop and plaintiff testified that Pulinario failed to stop for a stop sign, which is a violation of Vehicle & Traffic Law §§ 1142(a) and 1172(a), which constitutes negligence as a matter of law… . Bishop, who had the right of way, was ” entitled to anticipate that other vehicles will obey the traffic laws that require them to yield,' and ha[d] no duty to watch for and avoid a driver who might fail to stop . . . at a stop sign'” … .

Although a driver lawfully entering an intersection may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection … , plaintiff and Pulinario failed to raise a triable material issue of fact as to whether Bishop was negligent. The evasive measures that Bishop took during the less than three seconds before impact did not constitute negligence, “under the emergency-like circumstances confronting her” … . Gonzalez v Bishop, 2018 NY Slip Op 00095, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT'S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT))/TRAFFIC ACCIDENTS (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT'S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was standing on top of a sidewalk shed as he loaded sheetrock into a building when the shed broke. The fact that there were no witnesses did not raise a question of fact:

Plaintiff Pedro Serrano was injured when, during the course of moving sheetrock into a building, he stood on top of a sidewalk shed that broke beneath him, causing him to fall to the sidewalk below. While the motion court correctly determined that these facts demonstrated plaintiffs' prima facie entitlement to summary judgment … , it erred in finding that EAS [defendant] raised a triable issue of fact. That no witness other than plaintiff testified as to the occurrence of the accident does not bar judgment in his favor, “where nothing in the record contradicts his version of the occurrence or raises an issue as to his credibility” … , and defendant EAS's expert report was purely speculative in that it was not based on an examination of the sidewalk shed at the time of the accident … . Serrano v TED Gen. Contr., 2018 NY Slip Op 00113, First Dept 1-9-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTIVE LAW, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT))

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PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner property owner had stated causes of action alleging the town's rezoning of the property was arbitrary and capricious and constituted reverse spot zoning. The property had been zoned for resort-type development but, after a State Environmental Quality Review Act (SEQRA) review by the town, the property was rezoned to preclude development. The regulatory taking cause of action was dismissed as not ripe because petitioner had not first sought compensation. The SEQRA review and negative declaration were deemed properly done (requisite hard look taken):

Petitioner asserts, as a result, that the Town Board's decision to rezone the subject property arbitrarily disregarded the comprehensive plan's finding that a planned resort community was appropriate for the subject property. The 2015 report proposed the rezoning in order to address changed conditions in keeping with the spirit of the comprehensive plan, and it is debatable whether petitioner can ultimately “establish[] by competent evidence that the Town Board's decision to . . . change its zoning ordinance as it affects [the subject] property was arbitrary and unreasonable” … . Nevertheless, accepting the allegations in the petition/complaint as true, and noting the absence of documentary proof conclusively establishing a defense to them …, petitioner articulated a cognizable claim.

Petitioner also alleges that the subject property was “arbitrarily singled out for different, less favorable treatment than neighboring properties in a manner that was inconsistent with a well-considered land-use plan” so as to constitute discriminatory reverse spot zoning … . In our view, the … allegations are sufficient to state a cognizable claim for reverse spot zoning … . Matter of Wir Assoc., LLC v Town of Mamakating, 2018 NY Slip Op 00059, Third Dept 1-4-18

ZONING (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT))/SPOT ZONING (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED, SEQRA REVIEW PROPERLY DONE (THIRD DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (PROPERTY OWNER SUFFICIENTLY ALLEGED THE REZONING TO PRECLUDE DEVELOPMENT WAS ARBITRARY AND CAPRICIOUS AND CONSTITUTED REVERSE SPOT ZONING, THOSE CAUSES OF ACTION, ALTHOUGH THEY MAY NOT ULTIMATELY BE SUCCESSFUL, SHOULD NOT HAVE BEEN DISMISSED, SEQRA REVIEW PROPERLY DONE (THIRD DEPT))

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SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT).

The Third Department determined the defendants who had contracted with the property owner/manager to remove snow from the parking lot where plaintiff slipped and fell on ice were not liable to plaintiff under an Espinal exception:

It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless “(1) . . . the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties launche[d] a force or instrument of harm; (2) . . . the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties; [or] (3) . . . the contracting party has entirely displaced the other party's duty to maintain the premises safely” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] … ).

… [W]hile [the snow removal contractor] retained some independent authority, we cannot conclude that the agreement “displaced entirely” [the property owner's] duty to maintain the property … . …

[The defendants' meteorologist's] affidavit fails to raise a material question of fact, inasmuch as the evidence demonstrates only that defendants may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition … . Hutchings v Garrison Lifestyle Pierce Hill, LLC, 2018 NY Slip Op 00057, Third Dept 1-4-18

NEGLIGENCE (SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/SLIP AND FALL (SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/CONTRACT LAW (NEGLIGENCE, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/ESPINAL EXCEPTIONS (NEGLIGENCE, CONTRACT LAW, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/SNOW REMOVAL CONTRACTORS (NEGLIGENCE, SLIP AND FALL, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))

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QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the denial of the defendants' motions for summary judgment in this third party assault case. The defendants are the owner-operators of a domestic violence shelter and the security company hired by the shelter. Plaintiff child, CB, was shot while CB and his father, Bobby B, were waiting for CB's mother to come down to the gate to accompany CB back to where she and CB were residing in the shelter. Bobby B had asked the guards to let the child in because Bobby B had been followed by several men. The child was not let in. The guards called CB's mother a couple of times telling her the child was waiting. One of the men who followed Bobby B approached with a gun and demanded Bobby B's jacket. In a struggle the gun discharged striking and paralyzing CB:

With respect to the common-law duty, landowners have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances”…, which includes taking minimal safety precautions to protect against reasonably foreseeable criminal acts of third persons … .

We reject defendants' contention that they had no common-law duty to CB because the shooting took place outside the building, i.e., because CB was on the street side of the gate. Plaintiffs raised issues of fact as to whether the security booth, gate, and recessed area that CB was standing in were part of the shelter property and not the public sidewalk. However, even if CB was not standing on shelter property, it cannot be said that under any circumstance [the owner] owed no duty to him. …

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Although the contract [with defendant security company] clearly provides that CB is an intended third-party beneficiary, there are issues of fact as to the benefits that CB is entitled to under the contract. It should be noted, however, that allowing a child in danger to enter the shelter does not appear to be in derogation of any rules prohibiting unarmed guards from intervening in an altercation. CB v Howard Sec., 2018 NY Slip Op 00087, First Dept 1-4-18

NEGLIGENCE (QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))/ASSAULT BY THIRD PARTY (NEGLIGENCE, QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))/CONTRACT LAW (THIRD-PARTY ASSAULT, SECURITY COMPANY, QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))/THIRD PARTY BENEFICIARY (CONTRACT LAW, SECURITY COMPANY, QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))

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