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PLAINTIFF SLIPPED AND FELL ON A WET SPOT ON THE MARBLE FLOOR IN THE CONDOMINIUM LOBBY DURING A SNOW STORM; THE DEFENDANT CONDOMINIUM HAD PLACED RUBBER MATS ON THE FLOOR AND PERIODICALLY MOPPED WET SPOTS; THE STORM-IN-PROGRESS DOCTRINE APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant condominium was entitled to summary judgment in this wet-marble-floor slip and fall case. It was snowing at the time of the fall, triggering the storm-in-progress doctrine, and defendant had placed rubber mats on the floor and periodically mopped wet spots:

The condominium established prima facie entitlement to summary judgment by submitting certified weather reports demonstrating that there was an ongoing snowstorm at the time of accident, and that the “storm-in-progress” doctrine therefore applied … . The condominium demonstrated that it undertook reasonable maintenance measures to address the wet conditions created by tracked-in snow by laying rubber mats throughout the lobby, including an eight-foot runner from the building entrance to the elevator bank, as well as having the doorman and other staff dry mop any wet spots … . Although plaintiff’s accident took place on a small portion of the floor that was uncarpeted and remained uncovered, a defendant is not required under the “reasonable care” standard to cover all of its floors with mats to prevent someone from falling on moisture … . In response to the condominium’s prima facie showing, plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

The condominium also showed lack of actual notice of the specific wet condition that caused plaintiff to slip. The building’s doorman testified that he monitored the condition of the lobby throughout the day and would mop any wet spot, and plaintiff admitted that she did not see any wet condition on the floor when she left the building 15 minutes earlier … . Similarly, because the water might have been tracked in by plaintiff or by other residents entering the lobby, there is no basis for a finding of constructive notice … . Nor was the condominium’s general awareness that the floor might become wet while it was snowing sufficient to establish constructive notice of the specific condition that caused plaintiff’s injury … . Plaintiff’s opposition did not raise a triable issue of fact regarding notice…. . Hart v 210 W. 77 St. LLC, 2024 NY Slip Op 06655, First Dept 12-31-24

Practice Point: The storm-in-progress doctrine applied in this slip and fall case where plaintiff slipped on a wet spot on the lobby floor caused by tracked in snow during an snow storm.​

Practice Point: A general awareness that tracked-in snow will result in wet spots on a marble floor does not amount to constructive notice of the specific condition which caused plaintiff’s slip and fall.

 

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THE WORN MARBLE STAIRWAY TREAD WAS NOT AN ACTIONABLE DEFECT; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant property-owner (Marion) was entitled to summary judgment in this stairway slip and fall case. Defendant demonstrated it did not have actual or constructive notice of any defective condition on the stairs:

Marion demonstrated prima facie that the worn marble tread depicted in the photographs taken by plaintiff is not an actionable defect … . Plaintiff and Marion’s superintendent testified that the photographs taken by plaintiff accurately reflected the condition of the stair on the day of the accident, and there is no claim that the stair was wet, slippery, or covered with debris. Moreover, Marion’s expert opined that the accident could not have occurred as plaintiff described because when she fell, her left foot was in the middle of the tread rather than on the right-hand side where the worn condition she cited was located.

Marion also demonstrated that it did not have actual or constructive notice of a defective condition on the stair in that the superintendent testified that there were no complaints and no violations had been issued with respect to the stair. He stated that he swept the stairs five days and mopped three days a week, and that the photographs accurately depicted the condition of the stair on the day of the accident. Plaintiff’s complaints to the prior superintendent about the general condition of the stairs was insufficient to constitute notice of the specific condition cited by plaintiff as the cause of her fall … .

In opposition, plaintiff failed to raise a triable issue of fact as to Marion’s negligence. The opinion of her expert cited numerous dangerous conditions on the stairs and in the stairway, but plaintiff did not cite any of them as a proximate cause of her accident … . James v Chestnut Holdings of N.Y., Inc., 2024 NY Slip Op 06656, First Dept 12-31-24

Practice Point: Here, in this stairway slip and fall case, a worn tread in a marble stairway did not constitute an actionable defect.

 

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THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S FANNY PACK WAS A VALID SEARCH INCIDENT TO ARREST; CONVICTIONS REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions for tampering with evidence and resisting arrest, determined the search of defendant’s fanny pack was not demonstrated to have been a valid search incident to arrest:

The People failed to demonstrate that the search of defendant’s fanny pack was a proper search incident to a lawful arrest because they failed to establish either that the officer actually arrested defendant or intended to do so before opening his bag … . People v Lamberty, 2024 NY Slip Op 06669, First Dept 12-31-24

Practice Point: Here the People did not prove the officer who searched defendant’s fanny pack actually arrested defendant or intended to arrest the defendant before opening pack. Therefore the People did not prove the search was a valid search incident to arrest.

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BEFORE HEARSAY CAN BE RELIED UPON BY THE COURT FOR A SORA RISK-LEVEL ASSESSMENT, THE PEOPLE MUST ESTABLISH A FOUNDATION SUPPORTING THE RELIABILITY OF THE HEARSAY (THIRD DEPT).

The Third Department, reversing County Court and remitting the SORA risk-assessment proceeding, determined County Court should not have relied on hearsay to prove that the adult in a photograph depicting sexual activity between an adult and a child was the defendant. The case was remitted to allow the People the opportunity to establish a foundation for the reliability of the hearsay:

In assessing defendant 25 points under risk factor 2 for sexual contact with the victim, County Court relied upon a contested statement in the case summary made by an assistant district attorney to the author of the case summary. The assistant district attorney stated that defendant had possessed an image depicting him and his female relative engaged in sexual activity. The People concede, and we agree, that County Court improperly relied upon this hearsay, without making an inquiry into its reliability, in assessing 25 points under risk factor 2 for sexual contact with the victim. While the court found that the photographs depicted sexual activity between the child and an adult, it made no finding that defendant was that adult. The People therefore failed to establish by clear and convincing evidence that there was any sexual contact between defendant and the victim … .

Although defendant argues that the remedy for the error is to subtract 25 points from risk factor 2 and, upon doing so, designate him a risk level one sex offender, we agree with the People that the more appropriate course is to remit the matter to the SORA court “to provide the District Attorney an opportunity to establish a foundation” supporting the hearsay’s reliability … . People v Davis, 2024 NY Slip Op 06632, Third Dept 12-26-24

Practice Point: The People must establish a foundation supporting the reliability of any hearsay relied upon by the court in a SORA risk-level assessment proceeding.​

 

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A STATEMENT ATTRIBUTED TO DEFENDANT IN A POLICE REPORT TO THE EFFECT THAT PLAINTIFF STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT IN THIS REAR-END COLLISION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff was entitled to summary judgment on liability in this rear-end collision case. The court noted that evidence the car in which plaintiff was a passenger stopped suddenly was not enough to raise a question of fact:

“A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence” … . “[A]n assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle” … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that the vehicle owned by Elshaer and operated by Elnaggar struck Chowdhury’s vehicle in the rear, and in opposition, Elshaer and Elnaggar failed to raise a triable issue of fact. Contrary to Elshaer and Elnaggar’s contention, although a police report recounted Elnaggar’s statement that Chowdhury’s vehicle stopped suddenly prior to the rear-end collision, this statement was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the collision … . Chowdhury v Elshaer, 2024 NY Slip Op 06603, Second Dept 12-24-24

Practice Point: Here a statement attributed to defendant in a police report to the effect that plaintiff stopped suddenly was not sufficient to raise a question of fact about whether there was a nonnegligent explanation for the rear-end collision.

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent hiring and negligent supervision case, over a two-justice dissent, determined the defendant school district did not demonstrate it did not have constructive notice of the sexual abuse of plaintiff by a teacher (Faralan) which occurred repeatedly over an extended period during school hours:

… [T]he district failed to meet its prima facie burden of demonstrating that it was not negligent with respect to the hiring, retention, and supervision of Faralan or that it was not negligent with respect to its supervision of the plaintiff. The district submitted no evidence regarding its hiring, retention, or supervision of Faralan, who was a probationary employee during the time when he sexually abused the plaintiff on school grounds, including times when he was tutoring her one-on-one … . Furthermore, the district failed to establish, prima facie, that it lacked constructive notice of Faralan’s abusive propensities and conduct, particularly given the frequency of the abuse, which occurred several times per week over an extended period of time in the same classroom and hallway during tutoring sessions and at times when others were present … . Stanton v Longwood Cent. Sch. Dist., 2024 NY Slip Op 06600, Second Dept 12-24-24

Practice Point: To warrant summary judgment in a negligent hiring and supervision suit alleging abuse of a student by a teacher, the school district must affirmatively demonstrate it did not have constructive notice of the teacher’s propensity for abuse and/or the abuse itself. Plaintiff’s allegations of repeated abuse during school hours over an extended period of time raised a question of fact re: the district’s constructive notice.

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HERE A SINGLE INCIDENT OF ALLEGED EXCESSIVE CORPORAL PUNISHMENT (GRABBING THE CHILD’S ARM AND SQUEEZING TIGHTLY) WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT FINDING; A NEGLECT FINDING CANNOT BE BASED UPON ALLEGATIONS NOT INCLUDED IN THE PETITION (SECOND DEPT).

The Second Department, reversing Family Court’s neglect finding and dismissing the petition, in a full-fledged opinion by Justice Voutsinas, determined the evidence of a single incident of alleged excessive corporal punishment (grabbing the child’s arm and squeezing it tightly) was not enough. The Second Department further noted that a neglect finding cannot be based on allegations not included in the petition:

This appeal concerns a finding of neglect against a parent in a proceeding pursuant to Family Court Act article 10, based upon an alleged incident of excessive corporal punishment. This appeal does not present us with an opportunity to resolve a novel legal question. It does, however, provide us with an opportunity to provide some guidance with regard to when a single incident of excessive corporal punishment may be sufficient to support a finding of neglect. This appeal also presents us with the opportunity to emphasize that a finding of neglect must be based on evidence establishing the allegations set forth in the petition before the court. Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition. * * *

The petition alleged, more specifically, that on or about June 7, 2021, the father had grabbed the child’s arm and squeezed it “really, really hard,” leaving “three circular, dark green marks” on the child’s shoulder, which appeared to be the size of finger prints.” The petition did not contain any allegations that the father had engaged in any other acts of aggression toward the child or regarding any misuse of alcohol. Matter of Elina M. (Leonard M.), 2024 NY Slip Op 06574, Second Dept 12-24-24

Practice Point: Consult this comprehensive opinion for a discussion of when a neglect finding can be based upon a single incident of alleged excessive corporal punishment.

 

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WITNESS TESTIMONY DEMONSTRATED CLAIMANT LOST CONTROL OF HIS MOTORCYCLE AFTER GETTING CAUGHT IN A RUT IN THE ROAD; THE STATE HAD TAKEN PICTURES A FEW MONTHS BEFORE WHICH DEPICTED THE ROAD DEFECT; DEFENSE VERDICT REVERSED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the state had actual or constructive notice of the road defect which caused claimant to lose control of his motorcycle. Photographs of the area, taken by the State a few months before claimant’s accident in connection with the clean-up of a fuel-truck-accident, depicted the road defect:

Anthony Monzillo testified that he was riding his own motorcycle approximately 15 to 20 feet behind the claimant, and he observed the front wheel of the claimant’s motorcycle go into a “rutted area” and “get caught and begin to wobble side to side” and saw the motorcycle fall over. * * *

Quadri [a State engineer] oversaw the clean-up and remedial work of the roadway in April and May 2017, following the truck accident, and photographs taken in April 2017 of the clean-up and remediation work depicted the defect in the roadway. Quadri testified that he was at the truck accident site at least six times during April and May 2017. While Quadri acknowledged during his testimony that he could see “a separation in the pavement” in a photograph taken in April or May 2017, he further testified that he could not remember seeing the separation in the pavement when he was at the site in April 2017. Quadri also testified that DOT maintenance crews would patrol Route 293 at least once a week looking for areas that require maintenance or repairs and would repair “potholes in the travel lanes . . . right away.” … . …

Based upon our review of the record, including the photographs and the witnesses’ testimony, we conclude that the claimant met his burden of proving by a preponderance of the evidence the existence of a dangerous condition of which the defendant was actually or constructively aware and which it failed to take reasonable measures to correct and that such failure was a proximate cause of the claimant’s accident … . Paci v State of New York, 2024 NY Slip Op 06569, Second Dept 12-24-24

Practice Point: A witness demonstrated the road defect caused claimant’s accident. Photographs demonstrated the State had constructive notice of the road defect. The defense verdict was not supported.

 

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DEFENDANT’S MOTION TO VACATE HIS ATTEMPTED MURDER CONVICTIONS ON INEFFECTIVE-ASSISTANCE-OF-COUNSEL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Supreme Court’s grant of defendant’s motion to vacate his attempted murder convictions, determined defendant’s counsel (Lee) was not ineffective for failure to raise a medical-condition defense. Defendant argued he was incapable of running because of a gunshot wound. Several witnesses to the shooting testified the shooter ran after the victims:

It is unclear from the record as to whether Lee was informed of the existence of such a defense and that he ignored it without investigation. The record is devoid of any evidence, including an affidavit from counsel Brown [defendant’s prior attorney], as to whether Brown followed up on securing the medical records or whether he informed Lee of their existence and possible significance. While Lee testified that he had no recollection of the specifics of the case and therefore of being told of such a defense, he testified that it was his custom and practice to discuss and investigate possible defenses with his clients. Defendant also testified that he discussed various defenses with Lee, which Lee followed up on.

… [I]t is of note that defendant did not assert the defense of medical impossibility, and Lee’s alleged ineffectiveness in not presenting it, in defendant’s appeal of his conviction on October 16, 2001, his pro se CPL 440 motion dated October 6, 2004, or his habeas corpus petition dated February 22, 2006. While Supreme Court acknowledged that it was “troubling that the issue was not raised in the habeas corpus application,” it nevertheless dismissed the People’s argument … . The significance of defendant’s failure to raise the issue for over 19 years is two-fold. First, had defendant raised the issue earlier, Lee’s recollections as to what he did and did not do would certainly have been clearer. More importantly, Lee’s case files would be available for review and scrutiny. Despite Supreme Court’s recognition that “the loss of Lee’s file makes it impossible to prove that” Lee was in possession of the medical records or was aware of the records, it nevertheless improvidently concluded that Lee “conducted no investigation” and “did not look for an expert or for the treating doctor to consult about the injury and its consequences.”

Assuming Lee was informed of the existence of such a defense, defendant failed to overcome a “presumption” that the challenged action “might be considered sound trial strategy,” and demonstrate the “absence of strategic or other legitimate explanations” for the alleged shortcomings … . People v Brown, 2024 NY Slip Op 06550, First Dept 12-24-24

Practice Point: Although fact-specific, this opinion provides in-depth analysis of several issues raised in defendant’s motion to vacate his convictions, including ineffective assistance for failure to raise a defense, newly discovered evidence and actual innocence.

 

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DEFENDANT SNOW-REMOVAL CONTRACTOR WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE; NO “ESPINAL” EXCEPTIONS WERE ALLEGED IN THE COMPLAINT OR DEMONSTRATED IN RESPONSE TO THE SUMMARY JUDGMENT MOTION; THE CONTRACT WITH THE PROPERTY OWNER DID NOT MAKE THE SNOW-REMOVAL CONTRACTOR COMPLETELY RESPONSIBLE FOR MAINTENANCE OF THE PARKING LOT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant snow-removal contractor was entitled to summary judgment in this parking-lot slip and fall case. The defendant demonstrated plaintiff was not a party to the snow-removal contract with the owner of the parking lot, a nursing home. The plaintiff had not alleged in the complaint that any “Espinal” exception applied and was unable to raise a question of fact on the “Espinal” issue in response to defendant’s summary judgment motion:

“‘As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties'” … . However, the Court of Appeals has recognized three exceptions to the general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” …  * * *

… [T]he defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that the plaintiff was not a party to the snow removal contract … . Since the plaintiff did not allege facts in the pleadings that would establish the possible applicability of any of the Espinal exceptions, the defendants were not required to affirmatively demonstrate that these exceptions did not apply to establish their prima facie entitlement to judgment as a matter of law … .

… [T]he plaintiff failed to raise a triable issue of fact based on any of the Espinal exceptions. The plaintiff failed to raise a triable issue of fact as to whether the defendants launched a force or instrument of harm. The affidavit of a former coworker that the plaintiff relied upon was insufficient because it only addressed the general conditions of the parking lot and not the cause of the specific ice on which the plaintiff allegedly was injured … . The plaintiff also failed to raise a triable issue of fact as to whether the defendants entirely displaced the nursing home’s duty to maintain the parking lots. The affidavit of the former assistant to the head administrator of the nursing home that the plaintiff submitted failed to address the language in the snow removal contract that provided that the nursing home retained some duties and responsibilities to maintain the parking lots … . Brito-Hernandez v Superior Contr., 2024 NY Slip Op 06619, Second Dept 12-24-24

Practice Point: Consult this decision for a discussion of all the issues relevant to suing a snow-removal contractor for a slip and fall. Are any “Espinal” exceptions raised or applicable? Did the snow-removal contract make the contractor completely responsible for maintenance of the parking lot, or did the property-owner retain some responsibility?

 

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