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NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined neither the abutting property owner nor the city were entitled to summary judgment in this sidewalk slip and fall case. The property owner did not demonstrate it did not have a duty to maintain the sidewalk and it did not have constructive knowledge of the defect. The city demonstrated it did not have written notice of the defect but did not demonstrate it did not create the defect:

Approximately 1½ months prior to the incident, the defendant City of Long Beach had excavated a portion of the sidewalk and backfilled it with a temporary patch, cordoning off the area with safety barrels and yellow caution tape. At the time of the incident, the safety barrels and yellow caution tape were not present. …

With respect to [the property owner], “[g]enerally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” … . “The exceptions to this rule are when the landowner actually created the dangerous condition, made negligent repairs that caused the condition, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk” … . The Charter of the City of Long Beach imposes a duty on landowners to maintain and repair abutting sidewalk … . …

The City's evidentiary submissions failed to eliminate triable issues of fact as to whether its work on the sidewalk immediately left it in a condition that was dangerous to pedestrians and bicyclists … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact … . Trela v City of Long Beach, 2018 NY Slip Op 00190, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))

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OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF’S DECEDENT, 42 USC 1983 CAUSE OF ACTION AGAINST MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined that the 42 USC 1983 cause of action against the municipality was properly dismissed. Plaintiff's decedent was killed when a handgun handled by an off-duty police officer (Pileggi) went off. The off-duty officer was convicted of manslaughter. The cause of action against the municipality was dismissed because there was no evidence the off-duty officer was acting under color of law and there was no policy which encouraged the reckless actions of the off-duty officer:

Where the conduct complained of was committed by an off-duty police officer, a constitutional violation may be found if, for instance, the officer, albeit off-duty, nonetheless is engaged in some activity arguably invoking the real or apparent power of the police department, or is engaged in the performance of duties prescribed generally for police officers… .. Here, the amended complaint alleged only, in the most conclusory fashion, that Pileggi was “acting under the color of law” when the shooting occurred. Since nothing in the amended complaint suggested that Pileggi identified himself or was recognizable as a police officer, or was otherwise engaged in any activity arguably invoking the real or apparent power of the police department, the seventh cause of action was fatally defective. In turn, because the plaintiffs failed sufficiently to allege that Pileggi was acting under color of state law, it follows that there was no factual basis upon which to hold the defendants liable under [Monell v New York City Dept. of Social Servs., 436 US 658] … .

In any event, even if the amended complaint had properly pleaded that Pileggi was acting under color of state law and not engaged in purely personal pursuits at the time of the shooting, the seventh cause of action was also fatally defective in that it failed to allege specific facts supporting the plaintiffs' contention that the defendants had a policy or custom of encouraging or sanctioning the type of reckless behavior that led to the shooting … . Everett v Eastchester Police Dept., 2018 NY Slip Op 00129, Second Dept 1-10-18

MUNICIPAL LAW (POLICE OFFICERS, WRONGFUL DEATH, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, POLICE OFFICERS, NEGLIGENCE,  OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/42 USC 1983 (MUNICIPAL LAW, POLICE OFFICERS, NEGLIGENCE, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, POLICE OFFICERS, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION AGAINST MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/POLICE OFFICERS (OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))

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FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT).

The Third Department determined the fact that the pro se notice of claim was not verified was properly overlooked by Supreme Court and, although the notice did not explicitly describe a cause of action for malicious prosecution, the allegations were sufficient to put the municipality on notice that a malicious prosecution cause of action was contemplated. Only a mailcious prosecution claim was timely (the false arrest and false imprisonment claims were untimely):

Plaintiff's notice of claim does not specifically refer to the fact that he was charged with harassment in the second degree or to the dismissal of those charges. Nonetheless, plaintiff's assertions that he was falsely arrested without legitimate cause, that no crime took place and that City employees acted maliciously provided sufficient notice to defendants that plaintiff potentially had a claim for malicious prosecution. Although they protect different personal interests and are composed of different elements, claims for “false arrest and malicious prosecution are kindred actions insofar as they often aim to provide recompense for illegal law enforcement activities” … . Causes of action for false arrest and malicious prosecution are related closely enough that, in a trial of both, the court must instruct the jury not to make a duplicate award of damages… . Moreover, actual malice is an element of a cause of action for malicious prosecution, but not of a cause of action for false arrest … . Thus, receipt of a notice of claim alleging that its agents acted maliciously in executing a false arrest when no crime had occurred provided the City with the opportunity to investigate all circumstances related to plaintiff's arrest, including whether he had been arrested pursuant to a warrant — which would have insulated defendants from liability for false arrest … — and whether plaintiff's arrest had resulted in him being charged with, or prosecuted for, a crime. Hone v City of Oneonta, 2018 NY Slip Op 00055, Third Dept 1-4-18

MUNICIPAL LAW (NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/MALICIOUS PROSECUTION (MUNICIPAL LAW, NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))

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THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s assault conviction, determined the jury should not have been instructed that the paramedic defendant was accused of assaulting was a peace officer (thereby negating the justification defense). The paramedic (Cohn) was a member of the NYC Fire Department, and was not authorized to arrest:

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Penal Law § 35.27 provides that “[a] person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.” CPL 2.10 sets forth the “[p]ersons designated as peace officers,” including, as relevant here, “[a]ll officers and members of the uniformed force of the New York city fire department as set forth and subject to the limitations contained in section 487a-15.0 of the administrative code of the city of New York” (CPL 2.10[28]). The relevant section of the New York City Administrative Code provides, with limited exceptions not applicable here, that “[i]n the performance of their duties, all officers and members of the uniformed force [of the FDNY] . . . shall have the powers and perform the duties of peace officers, but their power to make arrests and to serve process in criminal actions shall be restricted to cases arising under laws relating to fires and the extinguishment thereof, and to fire perils” … .

… EMS personnel are not members of the uniformed force of the FDNY … . Accordingly, Paramedic Cohn was not acting as a peace officer within the meaning of CPL 2.10(28) at the time that the defendant allegedly assaulted him, and the Supreme Court erred when it instructed the jury that Penal Law § 35.27 applied with respect to the charge of assault in the second degree related to Paramedic Cohn. Since the court’s charge effectively removed from the jury’s consideration the defendant’s justification defense, under the circumstances, the defendant is entitled to a new trial on count one of the indictment charging her with assault in the second degree relating to Paramedic Cohn … . People v Thomas, 2017 NY Slip Op 09178, Second Dept 12-27-17

 

CRIMINAL LAW (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/MUNICIPAL LAW (NYC) (CRIMINAL LAW, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/PARAMEDICS (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/RESISTING ARREST  (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))

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CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an off-duty police officer (Rodriguez) working security at a bar was not acting within the scope of his employment during the encounter with plaintiff. Therefore the causes of action against the city based upon vicarious liability or respondeat superior, alleging negligence, assault and false imprisonment, should have been dismissed:​

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… [W]here there are no material disputed facts and there is no question that the employee’s acts fall outside the scope of his or her employment, the determination is one of law for the court and not one of fact for the jury … . A municipality may be held vicariously liable for the conduct of a member of its police department if the officer was engaged in the performance of police business… . Here, in support of their motion, the City defendants established that Rodriguez was at all relevant times off-duty, was engaged in other employment as a private citizen, was not in uniform, did not arrest plaintiff, and did not display his police badge. We thus conclude that the City defendants met their prima facie burden of establishing that Rodriguez was not acting within the scope of his employment as a police officer during the encounter with plaintiff … . In opposition, plaintiff failed to raise a triable issue of fact … . We reject plaintiff’s contention that Rodriguez’s identification of himself as a police officer during the encounter raised an issue of fact sufficient to defeat the motion with respect to the issue of scope of employment … . Maloney v Rodriguez, 2017 NY Slip Op 08993, Fourth Dept 12-22-17

 

NEGLIGENCE (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/MUNICIPAL LAW (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))

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IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the village’s motion for summary judgment in this slip and fall case should have been granted. Where a municipality has a written notice requirement which has not been met, it still can be liable for a dangerous condition it created. However a defect which develops gradually over time, as opposed to immediately after some act by the municipality, is not actionable. Here the collapse of pavement near a storm drain was caused by water over time:

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There is no dispute that defendant established that it lacked prior written notice, thus shifting the burden to plaintiff to demonstrate that an exception to the general rule is applicable … . Such an exception exists where “the municipality affirmatively created the defect through an act of negligence” … . That exception, however, applies only “to work by the [municipality] that immediately results in the existence of a dangerous condition” … . Here, plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work … . Malek v Village of Depew, 2017 NY Slip Op 08998, Fourth Dept 12-22-17

 

NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/MUNICIPAL LAW (SLIP AND FALL, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))

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SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator had not exceeded her authority in interpreting the collective bargaining agreement (CBA) to require full medical coverage for retiring firefighters. The Fourth Department explained the limited review powers of a court with respect to arbitration awards:

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“It is well settled that judicial review of arbitration awards is extremely limited”… . The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one”… .

Here, the arbitrator merely interpreted and applied the provisions of the CBA, as she had the authority to do. The court is powerless to set aside that interpretation merely because the court disagrees with it, and we may not countenance such an action. In any event, we conclude that the plain language of the CBA supports the arbitrator’s reasoning. Matter of Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO (City of Lackawanna), 2017 NY Slip Op 08994, Fourth Dept 12-22-17

 

ARBITRATION (SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, (SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))/MUNICIPAL LAW (COLLECTIVE BARGAINING AGREEMENT, (SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))

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FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT).

The Third Department determined the fact that father’s sister was a supervisor in St. Lawrence County Department of Social Services (SLCDSS) did not present a conflict of interest such that SLCDSS could not prosecute a neglect petition. Family Court had transferred the matter to the Jefferson County Department of Social Services (JCDSS):

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In SLCDSS’s papers submitted in response to petitioner’s motion, SLCDSS noted that the father’s sister is a grade A supervisor in its Child Preventive Services Unit and, in light of the neglect petition, the case would be transferred from the Child Protective Unit to the Child Preventive Services Unit. The mere fact, however, that the father’s sister was employed with SLCDSS as a supervisor does not justify disqualifying SLCDSS from prosecuting the neglect petition, especially where SLCDSS does not demonstrate that such fact created actual prejudice or a substantial risk of an abuse of confidence … . Moreover, the record discloses that since Family Court’s order, SLCDSS has taken steps to ensure that the father’s sister has no supervisory role in the father’s case. In view of the foregoing, we find that no conflict of interest exists prohibiting SLCDSS from prosecuting the neglect proceeding … . Matter of Gage II. (Rachel JJ.), 2017 NY Slip Op 08931, Third Dept 12-21-17

FAMILY LAW (MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/MUNICIPAL LAW (FAMILY LAW, DSS, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/NEGLECT (FAMILY LAW, MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))

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TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town did not demonstrate it did not created the dangerous condition in this slip and fall case. The town’s motion for summary judgment should not have been granted:

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Here, the plaintiff alleged in his bill of particulars that the Town negligently caused, permitted, and allowed the barricade to be placed in such a way that a part of the barricade extended out into the line of pedestrian traffic. Thus, to establish its prima facie entitlement to judgment as a matter of law, the Town was required to establish, prima facie, both that it did not receive prior written notice of the condition and that it did not create the condition through an affirmative act of negligence … .

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Although the Town established, prima facie, that it did not have prior written notice of the allegedly negligent positioning of the barricade, it failed to establish, prima facie, that it did not create the allegedly dangerous condition through an affirmative act of negligence. Since the Town’s submissions failed to eliminate all triable issues of fact as to whether it was responsible for the allegedly negligent placement of the barricade, the motion for summary judgment should have been denied regardless of the sufficiency of the papers submitted in opposition … . Toscano v Town of Huntington, 2017 NY Slip Op 08872, Second Dept 12-20-17

 

NEGLIGENCE (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county’s motion for summary judgment in this action brought by a former jail inmate for injuries related to suicide attempt (by jumping out a window) was properly denied. The defendants failed to demonstrate the attempt was not foreseeable and that the medical care provided was adequate:

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The County owes a duty of care to protect its prisoners, even from self-inflicted harm… . However, the County is not an insurer of prisoner safety and negligence cannot be inferred merely because an incident occurred… . Rather, the County’s duty is limited to providing reasonable care to protect prisoners from risks of harm that are reasonably foreseeable, i.e., those that the County knew or should have known… .

Here, the defendants, as the parties seeking summary judgment, bore the burden of establishing that the injured plaintiff’s attempt to commit suicide was not foreseeable… . … The defendants’ submissions failed to eliminate triable issues of fact as to whether the defendants knew or should have known that the injured plaintiff posed a risk of harm to herself and whether the defendants “failed to use adequate supervision to prevent that which was reasonably foreseeable”… . Moreover, the defendants’ submissions failed to eliminate triable issues of fact as to whether they violated 42 USC § 1983 by depriving the injured plaintiff of her Fourteenth Amendment right to adequate medical care … , and Mr. Iannelli’s claim for loss of consortium … . Iannelli v County of Nassau, 2017 NY Slip Op 08815, Second Dept 12-20-17

 

NEGLIGENCE (MUNICIPAL LAW, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL (NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SUICIDE (MUNICIPAL LAW, NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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