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FRESHLY PAINTED AND SEALED FLOOR WILL NOT SUPPORT A SLIP AND FALL CASE IN THE ABSENCE OF PROOF THE DEFENDANTS HAD ACTUAL, CONSTRUCTIVE OR IMPUTED KNOWLEDGE THE PAINT AND SEALANT COULD RENDER THE FLOOR DANGEROUSLY SLIPPERY (SECOND DEPT).

The Second Department determined that the allegation that a freshly painted floor was slippery was not enough to support a slip and fall case. The defendants’ motion for summary judgment was properly granted:

The plaintiff Stephanie Faiella (hereinafter the injured plaintiff) slipped and fell on a recently painted walkway at her place of employment. The walkway was painted several days prior to her accident. … The walkway was first painted with an epoxy-based paint and then covered with a clear sealant. …

A defendant may not be held liable for the application of “wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge” that the product could render the floor dangerously slippery … . Faiella v Oradell Constr. Co., Inc., 2019 NY Slip Op 02851, Second Dept 4-17-19

 

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THE PROOF REQUIRED FOR SUMMARY JUDGMENT, FOR BOTH PLAINTIFFS AND DEFENDANTS, IN FORECLOSURE ACTIONS, ON WHETHER THERE HAS BEEN COMPLIANCE WITH THE RPAPL 1304 NOTICE PROVISIONS, EXPLAINED; PRIOR DECISIONS HOLDING THAT A DEFENDANT’S DENIAL OF RECEIPT OF NOTICE WAS SUFFICIENT SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, reversing Supreme Court, fleshed out the proof required for summary judgment, for both plaintiffs and defendants, with respect to compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL). The court noted that prior decisions holding that a defendant’s denial of receipt of notice was enough should no longer be followed:

Here, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Crampton [assistant vice president of Specialized Loan Servicing, LLC] stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. There is no copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute. Further, while Crampton attested that she was in receipt of the prior loan servicer’s records, that she had personal knowledge of the business practices for mailing of notices by Wilmington, and that the 90-day notice was sent in compliance with RPAPL 1304, she did not attest to knowledge of the mailing practices of Bank of America, the entity that allegedly sent the notices to the defendant. * * *

Even in the face of a plaintiff’s failure to establish, prima facie, that a notice was properly mailed on a motion for summary judgment on the complaint, this Court has held that a defendant still has to meet its burden, on a cross motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled … . Here, the defendant provided no particulars supporting her claim that Bank of America never mailed the RPAPL 1304 notice to her last known address. The defendant only stated that she never received the notice. The defendant did not confirm that she still lived at the address shown on the notice on the date it was purportedly mailed, that she had been receiving other mail at that address, and that she was never contacted by the United States Post Office about mail for which she was required to sign. We hold that a simple denial of receipt, without more, is insufficient to establish prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304. To the extent that our prior decisions are to the contrary, they should no longer be followed. Citibank, N.A. v Conti-Scheurer, 2019 NY Slip Op 02846, Second Dept 4-17-19

 

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TENANT DID NOT DEMONSTRATE IT DID NOT EXACERBATE THE CONDITION OF THE SIDEWALK BY ITS EFFORTS TO REMOVE SNOW AND THE PROPERTY OWNER AND MANAGER DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tenant, the landowner and the property manager did not submit sufficient evidence to warrant summary judgment in their favor in this sidewalk slip and fall case. The tenant (PCM) did not demonstrate that it did not exacerbate the danger by its snow removal and the property owner (2248) and the property manager (Solil) did not demonstrate they did not have constructive notice of the condition. [Defendants moving for summary judgment must address every theory of liability in their papers or the motion will be denied without the need to consider the opposing papers]:

PCM failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts on the date of the accident to clear the area of the sidewalk where Pilar allegedly slipped and fell, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition that allegedly caused Pilar to fall … . …

2248, as owner of the premises abutting the sidewalk where Pilar allegedly slipped and fell, and Solil, its managing agent, failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. Section 7-210 of the Administrative Code imposes a nondelegable duty on 2248 to maintain the sidewalk abutting the premises, where Pilar allegedly fell … . In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … . Here, neither 2248 nor Solil established when the subject portion of the sidewalk was last inspected relative to when Pilar slipped and fell … . Accordingly, 2248 and Solil failed to establish, prima facie, that they did not have constructive notice of the condition that allegedly caused the plaintiff decedent’s fall … . Branciforte v 2248 Thirty First St., LLC, 2019 NY Slip Op 02845, Second Dept 4-17-19

 

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UNSIGNED DEPOSITIONS WERE ADMISSIBLE AND EVIDENCE SUBMITTED IN REPLY SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, although affirming the denial of defendants’ motion for summary judgment in this slip and fall case on other grounds, noted that the depositions were admissible and evidence submitted in reply should have been considered:

Although the plaintiff’s deposition transcript, which the defendants submitted in support of their motion, was unsigned, it was nonetheless admissible as the plaintiff raised no objection to its submission or accuracy and, in fact, requested that the Supreme Court “incorporate” his transcript into his opposition … . Regarding the deposition transcript of the decedent’s niece, which the defendants also submitted in support of their motion, the defendants demonstrated that they had submitted the unsigned transcript to the decedent’s niece for review, but that she failed to sign and return it within 60 days. Thus, the niece’s deposition transcript could have been used by the defendants as fully as though signed (see CPLR 3116[a] …). Furthermore, even though the evidence demonstrating the defendants’ compliance with CPLR 3116(a) was submitted by the defendants in reply, the court should have considered it, because it was in direct response to allegations raised for the first time in the plaintiff’s opposition papers … . The unsigned deposition transcript of the defendants’ property manager was admissible under CPLR 3116(a) since it was submitted by the defendants themselves and thus adopted as accurate … . Baptiste v Ditmas Park, LLC, 2019 NY Slip Op 02844, Second Dept 4-17-19

 

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DEFENDANT STORE DEMONSTRATED IT TOOK ADEQUATE MEASURES TO MOP UP RAIN WATER IN THIS SLIP AND FALL CASE, THE STORE’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant store (7-Eleven) demonstrated it took adequate steps to mop up rain water in this slip and fall case. The store’s motion for summary judgment was properly granted:

It is undisputed that it was raining heavily on the day of the accident, and that there was a mat just inside the front entrance to the store. Said testified at her deposition that store employees were instructed to dry-mop water from the floor every 15 minutes on days it rained. At his deposition, one of Said’s employees testified that he mopped water as soon as he observed it. Moreover, the evidence submitted in support of the defendants’ motion demonstrated that the employee dry-mopped the area of the floor where the injured plaintiff allegedly fell approximately 15 to 25 minutes before the accident occurred. Said and her employees were not obligated to provide a constant remedy to the problem of water being tracked into the store in rainy weather … . Further, the defendants demonstrated that the condition was not present for a sufficient period of time for the defendants to have discovered and remedied it, and therefore, there is no basis for an inference that they had constructive notice … . Radosta v Schechter, 2019 NY Slip Op 02916, Second Dept 4-17-19

 

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911 CALL PROPERLY ADMITTED AS PRESENT SENSE IMPRESSION OR EXCITED UTTERANCE, DEFENDANT PROPERLY GIVEN CONSECUTIVE SENTENCES FOR WOUNDING ONE VICTIM WITH THE INTENT TO SHOOT ANOTHER VICTIM (SECOND DEPT).

The Second Department determined a 911 recording was properly admitted under the present-sense-impression and excited-utterance exceptions to the hearsay rule and defendant was properly sentenced to consecutive sentences where, intending to shoot one victim, another victim was also hit:

We agree with the Supreme Court’s determination allowing the admission of a recording of a call to the 911 emergency number made by the father of the then-15-year-old victim. The record established that the declarant made the call within seconds of the shooting after his son cried out that he had been shot, and the father saw his neighbor, who was also shot and who the father thought was dying, fall to the ground in a pool of blood. Although the declarant’s statements to the 911 operator were hearsay, they were nevertheless admissible under the exception for excited utterances ” made contemporaneously or immediately after a startling event'” … or present sense impressions made while he was “perceiving the event as it is unfolding or immediately afterward” which are “corroborated by independent evidence establishing [their] reliability” … . …

… [T]he defendant fired multiple shots with the intent of hitting the older victim and one of those shots hit the 15-year-old victim. However, “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent” … . The shots which hit the two victims “were the result of separate and distinct acts of pulling a trigger to discharge a firearm” and “repetitive discrete acts, such as successive shots . . . [do not] somehow merge such that they lose their individual character where the same criminal intent . . . inspir[es] the whole transaction” … . Accordingly, the imposition of consecutive sentences for the two counts of attempted murder in the second degree was legal. People v Smith, 2019 NY Slip Op 02911, Second Dept 4-17-19

 

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MOTION FOR A JUDGMENT AS A MATTER OF LAW MADE DURING JURY SELECTION WAS PREMATURE, GRANTING THE MOTION ON SPOLIATION GROUNDS VIOLATED THE LAW OF THE CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to strike defendant’s answer on spoliation grounds in this medical malpractice and wrongful death action, made during jury selection, should not have been granted. It was not a proper motion for a judgment as a matter of law pursuant to CPLR 4401 and the ruling violated the law of the case:

During jury selection, the plaintiff made an oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability based on the defendant’s alleged spoliation of evidence relating to certain telemetry strips and the defendant’s failure to perform an autopsy on the decedent. In opposition, the defendant argued, among other things, that the Supreme Court had previously denied that branch of a prior motion by the plaintiff which was to strike the defendant’s answer based on the defendant’s alleged spoliation of evidence. …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the plaintiff’s oral application, which was made during jury selection, was not based on any admissions by the defendant, and the Supreme Court should not have considered the merits of the plaintiff’s application at that juncture … .

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . The doctrine forecloses reexamination of an issue previously determined by a court of coordinate jurisdiction “absent a showing of newly discovered evidence or a change in the law” … .

Here, the Supreme Court violated the doctrine of law of the case by disregarding the prior order denying that branch of the plaintiff’s earlier motion which was to strike the defendant’s answer based upon the same evidentiary issues … . Fishon v Richmond Univ. Med. Ctr., 2019 NY Slip Op 02682. Second Dept 4-10-19

 

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COURT ORDER AUTHORIZING ACCESS TO DEFENDANT’S HISTORICAL CELL SITE LOCATION DATA INCLUDED AN EXPRESS FINDING OF PROBABLE CAUSE AND WAS THEREFORE THE EQUIVALENT OF A WARRANT (SECOND DEPT).

The Second Department determined the court order authorizing access to defendant’s historical cell site location data in this murder case was the equivalent of a warrant because it included an express finding of probable cause:

The defendant’s contention that his historical cell site location information should have been suppressed as it was purportedly obtained in violation of his Fourth Amendment rights under Carpenter v United States (__ US __, 138 S Ct 2206 [2018]), is unpreserved for appellate review (see CPL 470.05[2]). In any event, the court order authorizing the acquisition of the records made an express finding of probable cause, which was supported by the People’s evidentiary showing … . Accordingly, the order “was effectively a warrant” which complied with the requirement of Carpenter … . People v Clark, 2019 NY Slip Op 02719, Second Dept 4-10-19

 

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THE CONSEQUENCES OF DEFENDANT’S WAIVER OF APPEAL WERE EITHER NOT EXPLAINED OR WERE WRONGLY EXPLAINED, THE WAIVER WAS INVALID, THE INITIAL COMMUNICATION BY THE POLICE OFFICER WAS NOT A LEVEL ONE DE BOUR INQUIRY, THE SWITCHBLADE DEFENDANT THREW AWAY WHEN THE COMMUNICATION WAS MADE WAS PROPERLY ADMITTED IN EVIDENCE (SECOND DEPT).

The Second Department determined (1) defendant’s waiver of appeal was invalid because the nature and consequences of the waiver were either not explained or were wrongly explained, and (2) the police officer’s (Conaghan’s) initial communication with defendant when the officer was sitting in a moving police vehicle was not a level one De Bour inquiry. Therefore the switchblade defendant threw away upon the officer’s communication was properly admitted in evidence:

We agree with the Supreme Court’s determination that the comment, “fellas, how you doing tonight,” constituted a greeting and not a level-one De Bour inquiry … . Conaghan testified at the suppression hearing that, when he asked the defendant and the two other males how they were doing, the window to the vehicle was already rolled down and his partner did not stop the vehicle. He also testified that he often greeted people on the street in this manner. Moreover, the credibility determinations of a court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record … . A review of the record supports the court’s finding that Conaghan’s testimony was credible.

Since there was no impermissible request for information by Conaghan, the defendant’s “unprovoked and wholly voluntary” act of throwing the switchblade was not in direct and immediate response to any illegal actions by the police … . The recovery of the switchblade was not tainted by any illegality, because no illegal inquiry occurred … . People v Birch, 2019 NY Slip Op 02716, Second Dept 4-10-19

 

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PLAINTIFF WAS NOT ENTITLED TO THE PRESUMPTION DEFENDANT RECEIVED A LETTER ALLEGEDLY REQUESTING THAT SURVEILLANCE VIDEO BEFORE AND AFTER PLAINTIFF’S SLIP AND FALL BE PRESERVED AS THERE WAS NO PROOF OF MAILING, DEFENDANT SHOULD NOT HAVE BEEN SANCTIONED FOR SPOLIATION PURSUANT TO CPLR 3126 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff was not entitled to the “presumption of receipt” with respect to a letter alleged to have been sent to the defendant requesting that surveillance video from 6 hours before to 2 hours after plaintiff’s slip and fall be preserved. Only a two-minute clip showing plaintiff’s fall had been preserved and Supreme Court had precluded the defendant from presenting video evidence as a sanction for spoliation pursuant to CPLR 3126:

… [T]he plaintiff did not establish that the defendant failed to preserve all of the surveillance video footage taken on the date of the accident after the defendant was placed on notice that the evidence might be needed for future litigation … . The letter dated February 23, 2016, which was submitted for the first time with the plaintiff’s reply papers, may be considered, since the defendant had an opportunity to respond and submit papers in surreply … . However, the defendant denied receiving this letter and we reject the plaintiff’s argument that he is entitled to the presumption of receipt. The mere assertion in the reply affirmation of the plaintiff’s attorney that the letter dated February 23, 2016, was “sent” to the defendant, unsupported by someone with personal knowledge of the mailing of the letter or proof of standard office practice or procedure designed to ensure that the letter was properly addressed and mailed, was insufficient to give rise to the presumption of receipt that attaches to letters duly addressed and mailed … . Sanders v 210 N. 12th St., LLC, 2019 NY Slip Op 02737, Second Dept 4-10-19

 

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