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PLAINTIFF WAS STRUCK BY A SHED WHICH WAS BEING TRANSPORTED AS AN OVERSIZED LOAD; AN EMPLOYER WHICH HIRES AN INDEPENDENT CONTRACTOR WILL GENERALLY NOT BE VICARIOUSLY LIABLE FOR THE CONTRACTOR’S NEGLIGENCE UNLESS THE CONTRACTOR IS TASKED WITH AN “INHERENTLY DANGEROUS ACTIVITY;” TRANSPORTING AN OVERSIZED LOAD BY TRUCK IS NOT AN “INHERENTLY DANGEROUS ACTIVITY;” THEREFORE THE EMPLOYER WAS NOT VICARIOUSLY LIABLE FOR THE TRUCK DRIVER’S NEGLIGENCE WHICH CAUSED PLAINTIFF’S INJURY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Powers, over a dissent, determined defendant ACS, which hired defendant St. Mary as an independent contractor, was not vicariously liable for the negligence of a driver working for St. Mary. Plaintiff was struck by a shed which was being transported by truck as an oversized load. Although the employer is usually not vicariously liable for the negligence of an independent contractor, there is an exception where the employer assigns an “inherently dangerous” task to the independent contractor. The majority concluded that moving a shed on a truck as an oversized load did not meet the definition of “inherently dangerous:”

​It is undisputed that St Mary was an independent contractor of ACS and, as a general rule, “a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . Certain exceptions exist to this general rule, however. These exceptions include, as is relevant here, ” ‘where the employer . . . has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer’ ” … . * * *

… “[A]n actor who hires an independent contractor to do work that the actor knows or should know involves an abnormally dangerous activity is subject to vicarious liability for physical harm when the abnormally dangerous activity is a factual cause of any such harm within the scope of liability” (Restatement [Third] of Torts § 58). “[A]n activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage” … .

​… [N]o view of the facts presented on this motion supports the conclusion that the trucking of the oversized load in question was an inherently dangerous activity because there was not a significant risk of harm if reasonable care were exercised by those involved — namely, Rousell [the driver]. Plaintiff alleges that his injuries resulted from Rousell failing to take notice of his surroundings on one side of the vehicle and crossing the line separating lanes of travel. This ordinary incident of negligence — i.e., failing to appropriately observe one’s surroundings — is not inherent in the trucking of oversized loads and could have been avoided with the exercise of reasonable care. “Demanding though it may be, the activity of transporting [oversized loads on public highways] — successfully accomplished countless times daily — does not involve that sort of inherent risk for the nonnegligent driver and is simply not an inherently dangerous activity so as to trigger vicarious liability” … . Deitrich v Binghamton Rd. Elec., LLC, 2026 NY Slip Op 00557, Third Dept 2-5-26

Practice Point: Consult this opinion for insight into what constitutes an “inherently dangerous activity” which can trigger an employer’s vicarious liability for the negligence of an independent contractor.​

 

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DEFENDANTS-ATTORNEYS WAIVED A DEFENSE WITHOUT THEIR CLIENTS’ CONSENT; THE LEGAL MALPRACTICE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the motion to dismiss the legal malpractice complaint should not have been granted. Defendants-attorneys represented Park West. A driver working for Park West was in an accident and both Park West and the driver were sued. The contract between the driver and Park West indicated the driver was an independent contractor. The attorneys, however, conceded the driver was an employee and Park West settled. The essence of the legal malpractice action was the attorneys’ failure to raise the independent-contractor-defense to Park West’s liability. The First Department noted that the evidence indicated the driver may in fact have been Park West’s employee, but that cannot be decided at the motion-to-dismiss stage. The only relevant question for the motion to dismiss is whether the complaint stated a cause of action for legal malpractice:

The motion court improperly held that plaintiffs failed to state a cause of action for legal malpractice against defendants. To state a claim for legal malpractice, a “plaintiff must show that (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages” … . Moreover, an “attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action or would not have sustained actual and ascertainable damages” … .

Here, plaintiffs argue that but for defendants’ negligence in waiving Park West’s independent contractor defense in the underlying action, without their consent and without disclosing conflicts in their representation of several defendants in the action, they would not have been compelled to settle the action, and they would not have been held vicariously liable for [the driver’s] negligence. Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP, 2026 NY Slip Op 00428, First Dept 1-29-26

Practice Point: The question at the motion-to-dismiss stage is whether the complaint states a cause of action, not whether the elements of the cause of action can be proven. Here the defendants-attorneys’ waiver of a defense without their client’s consent stated a cause of action for legal malpractice. Whether that defense would hold up at trial is not relevant to a dismissal for failure state a cause of action.​

 

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DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS WET-FLOOR SLIP AND FALL CASE; THEY FAILED TO PROVE THERE WAS A STORM IN PROGRESS, THEY FAILED TO PROVE THEY TOOK REASONABLE PRECAUTIONS TO REMEDY THE WET FLOOR, AND THEY FAILED TO PROVE THEY DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this slip and fall case. The slip and fall was related to tracked-in water in the lobby of defendants’ premises. The court noted what defendants failed to prove, i.e., there was a “storm in progress,” they took reasonable precautions to remedy the wet floor, and they didn’t have constructive or actual notice of the condition. The decision provides insight into how those issues can be proven:

Defendants failed to demonstrate that they are protected from liability for plaintiff’s accident by the storm in progress rule. They did not submit any weather reports or expert opinions to show an ongoing storm at the time of plaintiff’s fall, and plaintiff’s conclusory, affirmative response when asked whether it was “snowing when [her] accident happened” is insufficient to show that a storm was in progress … .

… [T]he superintendent … could not recall whether he placed … signs or dry-mopped on the morning of plaintiff’s accident or if he even worked that day. In fact, there was no evidence that a caution sign was placed in the lobby or that anyone had mopped the area prior to the accident, or throughout that day … . Although defendants were not obligated to continuously mop moisture tracked onto the lobby floor by people entering from outside or to cover the entire floor with mats, here plaintiff claims that her accident was caused by a lack of matting on the portion of the lobby between the entrance and the stairway … . …

Defendants … failed to demonstrate when they last inspected the lobby on the day of the accident … . … [T]hey failed to produce a witness to testify that no complaints about the location of plaintiff’s fall were received before the accident and that there were no prior incidents in that area before plaintiff fell … . * * * … [T]he superintendent, who could not recall if he worked on the day of plaintiff’s accident, testified that he could not recall if anyone had complained to him about water on the floor of the lobby and that he had “no idea” about the procedure for tenants to make complaints. Rodney v 840 Westchester Ave, LLC, 2026 NY Slip Op 00435, First Dept 1-29-26

Practice Point: Consult this decision for insight into what evidence a defendant in a wet-floor slip and fall case should present to prove (1) the “storm in progress” defense, (2) actions were taken to remedy the wet floor, (3) defendant’s lack of constructive notice of the condition, and (4) defendant’s lack of actual notice of the condition.

Practice Point: Note that the plaintiff’s testimony that it was snowing at the time of her fall was not sufficient to prove defendants’ “storm in progress” defense.

 

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IN THIS HOTEL-ROOM SLIP AND FALL CASE, THE OUT-OF-POSSESSION LANDLORD WAS NOT OBLIGATED BY CONTRACT OR COURSE OF CONDUCT TO REPAIR DANGEROUS CONDITIONS AND THE LESSEE OF THE HOTEL DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE WATER ON THE BATHROOM FLOOR IN PLAINTIFF’S ROOM; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the out-of-possession landlord and the lessee of the hotel where plaintiff slipped and fell on water on the bathroom floor were entitled to summary judgment. The out-of-possession landlord was not bound by contract or course of conduct to repair a dangerous condition. The lessee demonstrated it had no constructive or actual notice of the condition:

“‘An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'” … . “[A] landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . * * *

Here, the moving defendants established, prima facie, that New Ram [the lessee] did not create or have constructive notice of the alleged dangerous condition …. [T]he moving defendants submitted … plaintiff’s deposition transcript indicating that the plaintiff did not see any water on the bathroom floor prior to his fall. The plaintiff testified that he showered in the bathroom at approximately 6:00 p.m., after which there was no water on the bathroom floor. Thereafter, he went to sleep and awoke at approximately 1:00 a.m. to use the bathroom, where he fell and then first noticed the leak. The plaintiff also testified that he never noticed or reported any leaks or water on the bathroom floor prior to this incident and that he never before complained about water on the bathroom floor or leaks … .

The moving defendants also submitted a transcript of the deposition testimony of [the lessee’s] former general manager, who testified that there had never before been reports of a water leak from one room to another, nor had there been reports of any other slip and falls in the bathrooms of the hotel. She further stated that any such report would have been recorded in a log, and no such report existed. Additionally, another hotel worker averred in an affidavit that he was not aware of any incidents in the hotel where water leaked from one room to another. Gibbs v New Ram Realty, LLC, 2026 NY Slip Op 00349, Second Dept 1-28-26

Practice Point: Here the out-of-possession landlord was not obligated to repair dangerous conditions by contract or course of conduct and the lessee of the property demonstrated a lack of constructive and actual notice of the condition which allegedly caused plaintiff’s slip and fall. The property defendants were entitled to summary judgment.

 

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ALTHOUGH PLAINTIFF IN THIS INTERSECTION ACCIDENT CASE DID NOT HAVE A STOP SIGN AND HAD THE RIGHT-OF-WAY, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF DRIVER COULD HAVE AVOIDED THE COLLISION WITH DEFENDANT WHO HAD ENTERED THE INTERSECTION AFTER STOPPING AT A STOP SIGN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this intersection traffic accident case did not not demonstrate plaintiff driver, who had the right-of-way (no stop sigh), was not at fault. Defendant testified he stopped at a stop sign, looked both ways, proceeded slowly into the intersection and was half-way through when the rear of his car was struck by the plaintiff driver. Although not specifically discussed, it appears that testimony raised a question of fact whether plaintiff exercised reasonable care to avoid the collision:

“There can be more than one proximate cause of an accident” … . Hence, “[a] defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard” … . “As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law” … . “Even though the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, he or she still has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection” … . Ficalora v Almeida, 2026 NY Slip Op 00346, Second Dept 1-28-26

Practice Point: Having the right-of-way does not necessarily guarantee summary judgment in an intersection traffic accident case. A driver with the right-of-way is obligated to use reasonable care to avoid a collision with a vehicle already in the intersection.​

 

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THE INSTALLATION OF A TEMPORARY PEDESTRIAN TRAFFIC SIGNAL AT AN INTERSECTION IS NOT SUBJECT TO THE REQUIREMENT THAT A MUNICIPALITY HAVE WRITTEN NOTICE OF A DEFECTIVE CONDITION; THE COMPLAINT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED BECAUSE THERE WAS NO “WRITTEN NOTICE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this pedestrian-vehicle accident case should not have been dismissed on the ground the defendant city did not have written notice of the allegedly negligently designed temporary pedestrian signal at an intersection. The written notice requirement does not apply to the failure to maintain or install pedestrian signals. In addition, the expert evidence created a question of fact whether the city created the defect through an affirmative act of negligence:

… [T]he requirement that the municipality have prior written notice of the alleged defect before it can be held liable for injuries arising from the defect does not apply here (Administrative Code of City of NY § 7-201[c][2]). The prior written notice requirement applies to physical defects such as holes or cracks in the street, not the failure to maintain or install pedestrian signals … .

Neither plaintiff’s expert nor defendants’ expert, both professional engineers, cite a standard or regulation setting forth specific height requirements for temporary pedestrian signals. In addition, the experts disagree as to whether the temporary pedestrian signal was installed at a proper height. …

An issue of fact also exists as to whether the height or the placement of the signal proximately caused plaintiff’s accident. Although defendants’ expert opined that the temporary pedestrian signal would have been within plaintiff’s field of view, plaintiff testified that he remembered looking for a signal and not seeing one. Plaintiff’s testimony, together with the conflicting expert opinions as to whether the pedestrian signal was installed at a proper height, is sufficient to raise a triable issue of fact as to the City’s negligence … . Harelick v De La Cruz Lora, 2026 NY Slip Op 00315, First Dept 1-27-26

Practice Point: The requirement that a city have written notice of a dangerous condition before liability for an injury will attach applies to physical defects like holes or cracks in the street. It does not apply to an allegedly negligently designed temporary pedestrian traffic signal.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT WAS EXEMPT FROM THE NYC SIDEWALK LAW (MAKING ABUTTING PROPERTY OWNERS RESPONSIBLE FOR SIDEWALK MAINTENANCE) BECAUSE HIS PROPERTY IS OWNER-OCCUPIED; HOWEVER THERE IS A QUESTION OF FACT WHETHER DEFENDANT IS LIABLE UNDER THE COMMON-LAW “SPECIAL USE” DOCTRINE; DEFENDANT USED THE SIDEWALK AS A DRIVEWAY FOR HIS GARAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing summary judgment in favor of defendant property owner in this slip and fall case, determined there was a question of fact whither defendant was liable for a sidewalk defect bases upon defendant’s “special use” of the sidewalk as a driveway leading to defendant’s garage. Supreme Court properly found that defendant was not liable under the NYC Sidewalk Law, which makes abutting property owners responsible for sidewalk maintenance, because of the statutory exemption for owner-occupied properties. The statutory exception was not, however, a ground for summary judgment here because defendant could be liable under the common-law “special use” doctrine:

The parties agree that the defendant/owner made “special use” of the sidewalk by using it as a driveway … . Where the parties disagree is with respect to the scope of duty under the “special use” exception to liability, and whether it contains a causation requirement that is tied to the owner’s special use. We find that it does. * * *

… [A]n owner will only be liable for a defect on the abutting sidewalk if it is tied to his special use of the property, and not if it arises from a wholly unrelated cause … . * * *

… [T]here are three distinct bases for abutting owner liability at common law: (1) when the owner derives a “special use” from the subject area, (2) when the owner causes the defect, and (3) when a statute otherwise imposes liability. * * *

We are … not persuaded by plaintiff’s argument that it is fair and reasonable to expect an abutting owner who derives a special benefit from a public sidewalk to shoulder the full responsibility for maintaining that part of the sidewalk … . It would be more unfair to saddle a property owner with the general responsibility of maintaining the sidewalk abutting its driveway when its special use did not give rise to the defect. Prete v JJ Hoyt LLC, 2026 NY Slip Op 00325, First Dept 1-22-26

Practice Point: Even where, as here, an abutting property owner is exempt from the NYC statutory requirement to maintain the abutting sidewalk, the property owner may be liable for a defect in the sidewalk based upon the owner’s special use of the sidewalk, here as a driveway leading to the owner’s garage.

 

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THE COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE PLAINTIFF HAD NOT YET BEEN APPOINTED ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE; PLAINTIFF IS FREE TO COMMENCE A NEW ACTION WITHIN SIX MONTHS PURSUANT TO CPLR 205 (A) UPON ISSUANCE OF LETTERS OF ADMINISTRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint should have been dismissed because plaintiff had not yet been appointed administrator of the estate of her mother, but noted that if she obtains letters of administration within the six-month savings period under CPLR 205(a) a new action may be commenced:

“A personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a survival action for personal injuries sustained by the decedent and a wrongful death action to recover the damages sustained by the decedent’s distributees on account of his or her death” … . “[T]he statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring the suit” … . Thus, a “proposed administrator” who has not obtained letters of administration lacks capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent’s estate … .

… [W]here, as here, a plaintiff lacks the capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent’s estate because the plaintiff has not been issued letters of administration, the plaintiff may “remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a)” … . Estate of Joyce Moore v Nassau Operating Co., LLC, 2026 NY Slip Op 00241, Second Dept 1-21-26

 

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PLAINTIFF ALLEGED HE WAS KNOCKED TO THE GROUND BY DEFENDANTS’ DOG; DEFENDANTS DEMONSTRATED THEY WERE NOT AWARE OF AND SHOULD NOT HAVE BEEN AWARE OF THE DOG’S VICIOUS PROPENSITIES AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT TO THE CONTRARY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “plaintiff knocked to the ground by a dog” action should have been granted. Plaintiff was unable to raise a question of fact in the face of defendants’ proof they were not aware of, and should not have been aware of, the dog’s vicious propensities:

“To recover in strict liability for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities” … . “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” … . “Knowledge of vicious propensities may be established by evidence of, among other things, a prior similar attack or by evidence that the dog was known to growl, snap, or bare its teeth” … . In contrast, “‘[k]nowledge of normal canine behavior, such as running around, pulling on a leash and barking at another dog or passerby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that they were not aware, nor should have been aware, that the dog had vicious propensities … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit raised only feigned issues of fact designed to avoid the consequences of his earlier deposition testimony … . Yi-Ching Liu v Chu, 2026 NY Slip Op 00284, Second Dept 1-21-26

Practice Point: Here plaintiff alleged he was injured when defendants’ dog knocked him to the ground. Consult this decision for insight into the proof a defendant dog-owner must present to demonstrate defendant was not not aware of, and should not have been aware of, a dog’s “vicious propensities.”

 

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HERE PLAINTIFF’S SIGNING A CONSENT FORM DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT IN THIS “LACK OF INFORMED CONSENT” MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this “lack of informed consent” medical malpractice case should not have been granted. The court noted that plaintiff’s signing a consent form was not enough to establish defendant’s entitlement to judgment as a matter of law:

“To establish a cause of action to recover damages based upon lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . Thus, “a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks, by demonstrating that a reasonably prudent person in the plaintiff’s position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury” … . “If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent … . “The mere fact that the plaintiff signed a consent form does not establish the defendant[‘s] prima facie entitlement to judgment as a matter of law” … , and the defendant’s submissions, including a transcript of the plaintiff’s deposition testimony, did not establish that the plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed … . Furthermore, the defendant failed to establish, prima facie, that the procedure performed for which there was no informed consent was not a proximate cause of the plaintiff’s injury. Rymer v Bernstein, 2026 NY Slip Op 00273, Second Dept 1-21-26

Practice Point: Here n this  “lack of informed consent” medical malpractice action, plaintiff’s signing a consent form did not entitle defendant to summary judgment as a matter of law.

 

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