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PLAINTIFF’S OWN DEPOSITION TESTIMONY THAT HE CLEANED THE AREA WHERE HE STEPPED ON A NAIL PROVED DEFENDANT DID NOT NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE NAIL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant demonstrated it did not have constructive notice of the nail plaintiff stepped on requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The twist here is plaintiff’s own deposition testimony that he had cleaned the area proved defendant’s lack of constructive notice:

Plaintiff expressly based his Labor Law § 200 and common-law negligence claims on a theory that he was injured when he stepped on a nail and that his injuries therefore arose from the condition of the workplace. Thus, defendant was required to establish prima facie that it neither caused or created the dangerous condition nor had actual or constructive notice of it … . Defendant sustained that burden by submitting plaintiff’s deposition testimony that he had swept the area before his lunch break, that everything was where he had left it and the floor was still clean when he returned from his lunch break, and that he never noticed the nail before the accident, which occurred after plaintiff’s lunch break … . Zyskowski v Chelsea-Warren Corp., 2025 NY Slip Op 02860, First Dept 5-8-25

Practice Point: Proof the area where plaintiff stepped on a nail was cleaned and inspected shortly before the injury demonstrated defendant did not have constructive notice of the presence of the nail, requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The facts here are unusual in that it was plaintiff’s own testimony that he cleaned and inspected the area shortly before he stepped on the nail and did not notice the nail which proved defendant lacked constructive notice.

 

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THE FACT THAT BOTH PLAINTIFF AND THE COW PLAINTIFF WAS WALKING FELL, WITH THE COW LANDING ON PLAINTIFF’S FOOT, DID NOT REQUIRE THAT PLAINTIFF SUE IN STRICT LIABILITY BASED UPON AN ANIMAL’S VICIOUS PROPENSITIES; PLAINTIFF RAISED A QUESTION OF FACT ABOUT WHETHER THE CAUSE OF THE FALL WAS THE SLIPPERY CONDITION OF THE FLOOR, NOT THE ACTIONS OF THE COW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff slipped and fell because of the condition of the floor, and not because of the actions of an animal, a cow which plaintiff was walking back to her stall when both he and the cow fell:

The plaintiff, who was working as a farrier, went to the defendant Bobby Wickham’s farm to service his cows. The cement area that the plaintiff had to traverse to transport each cow to and from her stall allegedly was covered with feces and urine. When the plaintiff complained to Wickham that the floor was very slippery, Wickham allegedly stated that he did not have sand to put down on the ground. The plaintiff serviced six or seven cows without incident. While he was working, the plaintiff saw cows slip on the floor. After servicing the cow at issue, the plaintiff was walking the cow back to her stall when he slipped and fell on the floor. The cow then fell on top of the plaintiff’s right foot.

… Wickham moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the sole means of recovery of damages for injuries caused by a domestic animal was upon a theory of strict liability, whereby the plaintiff must establish that the domestic animal had vicious propensities and that the owner knew or should have known of the domestic animal’s vicious propensities, which the plaintiff did not allege here. …

* * * The evidence submitted raised triable issues of fact as to whether the plaintiff allegedly slipped and fell due to the condition of the floor and whether the cow’s subsequent contact with the plaintiff was causally related to the condition of the floor. Gomez v Wickham, 2025 NY Slip Op 02760, Second Dept 5-7-25

Practice Point: Just because a plaintiff’s injuries are caused by an animal, here a cow falling on plaintiff, does not require that plaintiff’s lawsuit be brought under animal law (strict liability based on the animal’s vicious propensities). Plaintiff successfully alleged, under a negligence theory, that both he and the cow fell because of the slippery condition of the floor.

 

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PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint alleging that defendants improperly influenced the decedent to name them as beneficiaries of two bank accounts should not have been dismissed. The allegations in the complaint were supplemented by plaintiff’s affidavit. The Second Department noted that the affidavit should have been considered in assessing the sufficiency of the complaint:

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, that it failed to state a cause of action. In opposition to the motion, the plaintiff submitted an affidavit in which she made statements to supplement the causes of action alleged in the complaint. … Supreme Court granted the defendants’ motion. …

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . Where a cause of action is based upon, inter alia, fraud, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail (see CPLR 3016[b]).

Here, the Supreme Court should have considered the plaintiff’s affidavit to remedy any defects in the complaint when it assessed the defendants’ motion … . Rauch v Rauch, 2025 NY Slip Op 02802, Second Dept 5-7-25

Practice Point: Here the court held that an affidavit submitted by the plaintiff to remedy defects in the complaint in response to a motion to dismiss should have been considered by the motion court. The complaint as supplemented by the affidavit was deemed to state a cause of action for undue influence.

 

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A PROPER FOUNDATION WAS NOT PROVIDED FOR THE ADMISSIBILITY OF SOME BUSINESS RECORDS RELIED ON BY THE REFEREE IN THIS FORECLOSURE ACTION; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to confirm the referee’s report in this foreclosure action should have been denied. A proper foundation had not been provided for the admissibility of some of the business records relied upon by the referee:

Generally, the report of a referee should be confirmed whenever the findings are substantially supported by the record … . Here, the referee computed the amount due to the plaintiff based upon the affidavit of an employee of the plaintiff and certain business records. Although the affiant purported to have personal knowledge of the amounts due and owing on the loan, she averred that this was based upon her review of the plaintiff’s records. “[A] review of records maintained in the normal course of business does not vest an affiant with personal knowledge” … . The affiant also failed to establish a proper foundation for the admission of all of the business records relied upon (see CPLR 4518[a]). “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the referee’s findings with respect to the total amount due on the note were premised upon a payment history beginning in 2009. The plaintiff, however, did not acquire the note until 2013. The plaintiff’s affiant failed to establish a proper foundation for the admission of the records from 2009 to 2013 … , and, therefore, the referee’s report was not substantially supported by the record. Nationstar Mtge., LLC v Lewis, 2025 NY Slip Op 02789, Second Dept 5-7-25

Practice Point: Reversals in foreclosure proceedings often stem from the failure to provide a proper foundation for the admissibility of business records relied upon by the parties and/or the referee.​

 

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PETITIONER JUDGMENT-CREDITOR WAS ENTITLED TO THE TURNOVER OF CERTAIN REAL PROPERTY WHICH HAD BEEN FRAUDULENTLY TRANSFERRED TO A TRUST BY THE RESPONDENT JUDGMENT-DEBTORS, AS WELL AS THE CONTENTS OF RESPONDENTS’ SAFETY DEPOSIT BOX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was entitled to real property which was fraudulently transferred by respondents to a trust, as well as to the contents of respondents’ safety deposit box, to satisfy a judgment against respondents in the approximate amount of $338,000:

… [P]etitioner commenced this proceeding pursuant to CPLR article 52, seeking … the turnover of a safety deposit box maintained by the respondents Zakhar Brener and Ninel Krepkina and of certain residential real property owned by the respondent B and K Trust. * * *

… [P]etitioner established her prima facie entitlement to judgment as a matter of law on the cause of action seeking relief pursuant to Debtor and Creditor Law former § 273 by submitting evidence that Brener was insolvent at the time of the conveyance of the property, which was made without fair consideration … .  * * *

… [P]etitioner established her prima facie entitlement to judgment as a matter of law on the cause of action seeking relief pursuant to Debtor and Creditor Law former § 276. “Pursuant to Debtor and Creditor Law former § 276, every conveyance made with actual intent to hinder, delay, or defraud either present or future creditors is fraudulent. The requisite intent required by this section need not be proven by direct evidence, but may be inferred from the circumstances surrounding the allegedly fraudulent transfer” … . “In determining whether a conveyance was fraudulent, the courts consider the existence of certain common ‘badges of fraud,’ which include ‘a close relationship between the parties to the alleged fraudulent transaction; a questionable transfer not in the usual course of business; inadequacy of the consideration; the transferor’s knowledge of the creditor’s claim and the inability to pay it; and retention of control of the property by the transferor after the conveyance'” … . “A prime example of this type of fraud is where a debtor transfers his property to another while retaining the use thereof so as to continue . . . free from the claims of creditors” … . Here, the petitioner submitted, among other things, the Brener respondents’ answer, wherein they admitted that Brener continued to occupy and use the property with Krepkina. …

… [P]etitioner established her prima facie entitlement to judgment as a matter of law on the cause of action to direct Chase Bank to turn over of the contents of the safe deposit box maintained by Brener and Krepkina by submitting a letter establishing that Brener and Krepkina jointly held a safe deposit box at one of Chase Bank’s branches in Brooklyn … . Matter of Schiffman v Affordable Shoes, Ltd., 2025 NY Slip Op 02786, Second Dept 5-7-25

Practice Point: Consult this decision for a concise description of a CPLR Article 52 turnover proceeding by a judgment creditor against judgment debtors based in part upon respondents’ fraudulent transfer of real property to avoid creditors (Debtor and Creditor Law sections 273 and 276).

 

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PLAINTIFFS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS SPECIFIC ASSERTIONS BY DEFENDANT’S EXPERT RE: PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION; THEREFORE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ expert’s affidavit in opposition to defendant’s motion for summary judgment in this medical malpractice action did not address all the proximate-cause issues railed by defendant’s expert, specifically the plaintiff’s failure to return for a follow-up visited after being treated in the emergency room at Elmhurst Hospital (the defendant). Therefore, defendant’s motion for summary judgment should have been granted:

At Elmhurst, the injured plaintiff’s forearm was X-rayed, and his wound was cleaned, sutured, and dressed. Later that same day, the injured plaintiff was discharged and instructed to return in two days for a follow-up appointment. The injured plaintiff did not return for the follow-up appointment but instead followed up with several physicians who were not associated with the defendant. The injured plaintiff allegedly required surgery later to repair several tendons in his forearm. The plaintiffs alleged that the defendant negligently failed to properly diagnose and treat the injured plaintiff’s injuries during the initial emergency department visit at Elmhurst. * * *

… [T]he defendant established its prima facie entitlement to judgment as a matter of law by submitting … an affirmation of an expert physician, who opined that the physicians and employees of the defendant did not depart from the applicable standard of care and that any alleged departures were not a proximate cause of the injured plaintiff’s injuries … . In opposition, the plaintiffs failed to raise a triable issue of fact regarding proximate cause. The opinions of the plaintiffs’ expert regarding proximate cause failed to address specific assertions made by the defendant’s expert regarding, among other things, the implications of the injured plaintiff’s failure to return for a follow-up appointment as instructed … . Torres v New York City Health & Hosps. Corp., 2025 NY Slip Op 02806, Second Dept 5-7-25

Practice Point: In this med mal action, the defense expert’s affirmation submitted with defendant’s motion for summary judgment raised proximate-cause issues that were not addressed by plaintiffs’ expert. Therefore, defendant’s summary judgment motion should have been granted.

 

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DEFENDANT’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SPECIFIC ALLEGATIONS ASSERTED BY PLAINTIFFS; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant surgeon was not entitled to summary judgment in this medical malpractice action. The defendant’s expert affidavit did not address specific allegations of negligence asserted by plaintiffs:

… [T]he defendants failed to establish .. that Ashraf [defendant] did not depart from the applicable standard of care in treating the injured plaintiff or that any such departure did not proximately cause the injured plaintiff’s injuries. An expert affidavit of Ashraf submitted by the defendants in support of their motion failed to address specific allegations of negligence asserted by the plaintiffs, including whether Ashraf departed from the applicable standard of care in placing a 14-millimeter polyethylene component during the September 2016 surgery, as opposed to a smaller size, and whether such departure was a proximate cause of the injured plaintiff’s injuries … . Sanchez v Ashraf, 2025 NY Slip Op 02803, Second Dept 5-7-25

Practice Point: Summary judgment dismissing a medical malpractice action is dependent upon the defense expert’s affidavit. If the affidavit fails to address specific allegations of negligence made by the the plaintiff, summary judgment is not warranted. This is a fairly common ground for reversal.

 

 

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THE PORT AUTHORITY DEMONSTRATED IT WAS NOT LIABLE FOR PLAINTIFF’S DECEDENT’S DEATH BY SUICIDE; PLAINTIFF’S DECEDENT CLIMBED OVER A FOUR-FOOT-TALL PEDESTRIAN RAILING AND JUMPED OFF THE GEORGE WASHINGTON BRIDGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, over a dissent, affirming summary judgment dismissing the complaint, determined the Port Authority was not liable for the plaintiff’s decedent’s death by suicide.  Plaintiff’s decedent climbed over the four-foot-tall pedestrian railing and jumped off the George Washington Bridge (GWB). Plaintiff alleged the Port Authority was negligent in failing to install suicide prevention barriers along the pedestrian walkways:

In this action to recover damages for wrongful death, plaintiff seeks to hold defendant the Port Authority of New York and New Jersey liable for the death of the decedent, who died by suicide after jumping off the George Washington Bridge (GWB). To fully capture the nature of this appeal, however, it is pertinent to first discuss that the issue here is not whether the Port Authority’s alleged negligence arose out of the performance of a governmental rather than a proprietary function; this Court has already determined that the Port Authority, as owner of the GWB, was acting in a proprietary capacity at the time this claim arose and therefore that the ordinary rules of negligence apply. In the appeal now presented to us, the Port Authority’s expert engineer opines that the engineering concerns associated with modifying the 100-year-old bridge justified the steps taken and the interim measures implemented, but also opines that reasonable engineering judgment delayed the implementation of the safety mechanism that plaintiff contends would have ultimately prevented the decedent’s death by suicide. We therefore consider whether, given the record presented, the Port Authority has established its prima facie burden under ordinary rules of negligence. For the reasons that follow, we find that the Port Authority established that the pedestrian walkways on the bridge were safe for the public at large, and the steps taken, including additional interim measures implemented prior to this incident to help individuals who, like the decedent, were suffering from suicidal ideations, were reasonable in light of the complexity and size of the bridge. Donaldson v Port Auth. of N.Y. & N.J., 2025 NY Slip Op 02719, First Dept 5-6-25

 

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THERE WERE QUESTIONS OF FACT WHETHER A RAISED MANHOLE COVER, EXPOSED WHEN THE ROAD SURFACE AROUND THE MANHOLE WAS MILLED IN PREPARATION FOR REPAVING, CONSTITUTED A DANGEROUS CONDITION CREATED BY THE CITY AND WHETHER THE CONDITION WAS OPEN AND OBVIOUS (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the complaint, determined there were questions of fact whether the raised manhole cover constituted a dangerous condition, and whether the condition was open and obvious. Plaintiff was a passenger in a car which struck a raised manhole cover. In preparation for repaving, the existing road surface was milled or scarified such that the manhole covers extended above the surface of the road. Although asphalt was placed around the manhole (called ramping) so that the wheels on one side of a vehicle could pass over it, here the wheels on both sides of the manhole were on the milled surface and undercarriage of the car apparently struck it, causing the windshield to crack and the air bags to deploy:

[Defendant’s witness] could not say whether that ramping made it safe [for a vehicle to traverse directly over the manhole, with the wheels completely to the side of the entire width of the manhole’s ramping. It is this condition that plaintiff alleges was dangerous and defective, and the City adduced no evidence to refute that allegation. Accordingly, whether the City’s work — the ramping of the manhole — “immediately resulted in the existence of a dangerous condition,” thus rendering the City liable to plaintiff for her injuries, is a question of fact for the jury … . …

The City’s argument that the court erred in rejecting its argument sub silentio that it is nonetheless entitled to summary judgment dismissing the complaint as against it on the ground that the condition was open and obvious is unavailing. Whether a dangerous or defective condition is open and obvious relates to the duty to warn of the hazard, not the duty to neutralize it … . Summary judgment may only be granted on an open-and-obvious defense “when the established facts compel that conclusion . . . on the basis of clear and undisputed evidence”; otherwise, the inquiry “is generally fact-specific and thus usually a jury question” … . Timmons v Praylow, 2025 NY Slip Op 02744, First Dept 5-6-25

Practice Point: The question whether a condition, here a raised manhole cover, is open and obvious applies to the duty to warn, not the duty to neutralize a hazard, and is rarely appropriate as a basis for summary judgment.

Practice Point: The written-notice requirement, which is often a condition precedent for a negligence action against a municipality stemming from a road-condition, does not apply where, as here, it is alleged the municipality created the dangerous condition (a raised manhole cover).

 

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THE QUESTIONING OF DEFENDANT CONTINUED DESPITE HER REPEATED STATEMENTS THAT SHE HAD NOTHING ELSE TO SAY AND WAS DONE TALKING; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defendant had unequivocally and repeated stated that she was “done talking” and had “nothing else to say” during her interrogation by investigators. The interrogators continued questioning her as if they hadn’t heard her assert her right to remain silent:

… [W]hile being interrogated at the police station, defendant stated to the investigators six separate times that she had “nothing else to . . . say” and that she was “done talking.” Even if defendant’s initial statement that she had nothing else to say may have been prompted by her “unwillingness to change [her] story” ,,, , she repeated her desire to stop talking even after the conversation shifted to another topic … . It is clear from a viewing of the interrogation video that defendant repeatedly stated in no uncertain terms that she no longer wished to answer any more questions from the investigators. There was nothing equivocal about defendant’s invocations of the right to remain silent, which were not scrupulously honored by the investigators, who continued the interrogation as if they did not hear what defendant had said.

We thus conclude that the court erred in refusing to suppress any and all statements made by defendant on August 19, 2020 after 12:03 a.m. on the interrogation video. “Inasmuch as there is a reasonable possibility that the erroneous admission of defendant’s inculpatory statements contributed to the verdict, the error in refusing to suppress all of those statements cannot be considered harmless, and reversal is required” … . People v Lipton, 2025 NY Slip Op 02691, Fourth Dept 5-2-25

Practice Point: Any statements made in response to questioning after a defendant has told the interrogators he/she is “done talking” and has “nothing else to say” must be suppressed.

 

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