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THE PRIOR WRITTEN NOTICE RULE RE: MUNICIPAL LIABILITY FOR DANGEROUS CONDITIONS APPLIES TO MORE THAN JUST SURFACE DEFECTS; HERE THE RULE APPLIED TO AN ARCH-SHAPED BOLLARD OR BARRIER WHICH FELL OVER WHEN A CHILD WAS SWINGING FROM IT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming the dismissal of the complaint, over a two-justice dissent, determined the “written notice” requirement in the City of Ithaca code applied to an arch-shaped bollard or barrier placed to protect a tree from being damaged by cars using a parking lot. As plaintiff’s child grabbed onto the bollard and swung from it, it came loose from the ground and fell over, injuring the child’s hand. The city demonstrated it did not have written notice of the condition, which, under the code, is a prerequisite for liability. The dissenters argued a bollard was not in any category which triggers the written-notice requirement:

… [T]he operative query is not whether there is a surface defect affecting safe passage but, more broadly, whether there is a defective condition that would not have come to the municipality’s attention unless it was notified of it … . As such, the prior written notice rule has been applied to conditions as varied as a low-hanging tree branch …, a sharp metal beam … and a bent parking meter pole … . Therefore, the prior written notice rule governs.

From the Dissent:

First, in our opinion, the defective bollard that crushed plaintiff’s child’s hand was not in one of the six locations that General Municipal Law § 50-e authorizes municipalities to cover with a prior written notice law. And second, defendants failed to submit any proof that they installed the bollard properly, in accordance with industry standards. Thus, the burden never shifted to plaintiff, and defendants’ summary judgment motion should have been denied regardless of the adequacy of plaintiff’s proof. Finally, even if defendants had shifted the burden, we believe that plaintiff submitted proof presenting a question of fact as to whether the bollard was unreasonably dangerous when installed, precluding a grant of summary judgment. Gurbanova v City of Ithaca, 2025 NY Slip Op 00252, Third Dept 1-16-25

Practice Point: The written-notice rule, which requires that a municipality have written notice of a dangerous condition before it can be held liable for injury caused by the condition, applies to more than just surface defects. Here the rule applied to an arch-shaped bollard or barrier which fell over when a child swung on it.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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THE TREE WELL IN THE SIDEWALK WHERE PLAINTIFF TRIPPED AND FELL WAS THE RESPONSIBILTY OF THE CITY, NOT DEFENDANT ABUTTING PROPERTY OWNER (FIRST DEPT). ​

The First Department, reversing Supreme Court in this slip and fall case, determined that maintenance of the tree well within the sidewalk where plaintiff fell was the responsibility of the city, not the defendant property owner:

Defendant established its prima facie entitlement to summary judgment by submitting plaintiff’s pleadings and deposition testimony, along with photographic evidence showing the area where the sidewalk connects to the tree well and marked by plaintiff at her deposition to show where she fell. This evidence, taken together, establishes that plaintiff fell when she stepped into and out of the perimeter of the tree well, not when she stepped on an uneven sidewalk slab or other sidewalk defect … . The perimeter of the tree well is not part of the sidewalk whose maintenance is the responsibility of the abutting property owner under Administrative Code of City of NY § 7-210 … . Rather, the perimeter of the tree well is part of the tree well itself, which the City, not the property owner responsible for the sidewalk, has the obligation to maintain in a safe condition … .

Defendant also submitted an affidavit and deposition testimony from one of its owners, stating that the tree wells near the property were installed by the City and that neither defendant nor any building tenant constructed the tree well, maintained it, repaired it, or put it to special use. This evidence was sufficient to show that defendant did not affirmatively create the dangerous condition, negligently make repairs to the area, or cause the dangerous condition to occur through a special use of the area. Thus, there was no basis to impose liability on the defendant … . Cabral v Triangle, LLC, 2025 NY Slip Op 00187, First Dept 1-14-25

Practice Point: In NYC tree wells, as opposed to the surrounding sidewalks, are the responsibility of the city, not the abutting property owner. Here plaintiff tripped and fell stepping into a tree well. Defendant abutting property owner was off-the-hook.

 

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PLAINTIFF WAS NOT IN AN AREA IN WHICH FALLING OBJECTS COULD BE ANTICIPATED, SO THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; PLAINTIFF WAS STRUCK BY A BOARD INTENTIONALLY THROWN INTO THE EXCAVATED AREA WHERE HE WAS WORKING; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240(1) and 241(6) causes of action should have been dismissed. Plaintiff was in an excavated area four or five feet below ground level when a worker at ground level threw a board into the excavated area which struck plaintiff. Apparently throwing boards into the excavated area was part of the work, so the Labor Law 200 and negligent supervision causes of action survived:

Defendant thus demonstrated prima facie entitlement to judgment as a matter of law by showing that plaintiff was not injured by an “object [that] fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .T he burden thus shifted to plaintiff to raise a triable issue of fact, which plaintiff failed to do” … , requiring dismissal of the Labor Law § 240 (1) cause of action. * * *

Defendant’s proof showed that the dig area was not “normally exposed to falling material or objects” (12 NYCRR 23-1.7 [a] [1]), and, in any event, plaintiff was working only four to five feet below grade. Thus, defendant demonstrated the “overhead protection” regulation was not applicable … . Accordingly, defendant met its preliminary burden to show that plaintiff could not recover under Labor Law § 241 (6) as a matter of law … . Plaintiff’s proof does not raise an issue of fact on this point, thus dismissal of the Labor Law § 241 (6) claim should have been granted … . James v Marini Homes, LLC, 2025 NY Slip Op 00132, Second Dept 1-9-25

Practice Point: If the safety precautions related to falling objects are not applicable because the plaintiff was working in an area where falling objects could not be anticipated, then the “falling objects” protections in Labor Law 240(1) and 241(6) will not be triggered.

 

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THE JUSTICE FOR INJURED WORKERS ACT (JIWA), WHICH TOOK EFFECT DECEMBER 30, 2022, AMENDED THE WORKERS’ COMPENSATION LAW SUCH THAT A WORKERS’ COMPENSATION BOARD RULING CANNOT BE GIVEN COLLATERAL ESTOPPEL EFFECT IN A SUBSEQUENT PERSONAL INJURY ACTION; THE FIRST DEPARTMENT HELD THE JIWA APPLIES RETROACTIVELY (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the amendment to the Workers’ Compensation Law (the Justice for Injured Workers Act [JIWA]), which precludes giving a Workers’ Compensation Board’s ruling collateral estoppel effect in a subsequent personal injury action, applies retroactively. Therefore the defendants’ motion for leave to amend their answer to add the collateral estoppel defense should have been denied:

Plaintiff alleges that he sustained neck and back injuries in a construction site accident that occurred on August 6, 2020. He commenced this action on September 28, 2020, and separately applied for workers’ compensation benefits. In a decision filed October 19, 2021, a three-judge panel of the Workers’ Compensation Board held that plaintiff’s claimed injuries were not causally related to his accident. … [D]efendants moved, in effect, for summary judgment dismissing plaintiff’s neck and back claims, based on the Workers’ Compensation Board’s decision to which, they argued, the court should give collateral estoppel effect. * * *

JIWA’s legislative sponsor explained that its purpose was to correct what the Legislature perceived to be an injustice to injured workers caused by Second Department precedent (see Langdon v WEN Mgt. Co. (147 AD2d 450 [2d Dept 1989]) and left unresolved by the Court of Appeals’ decision in Auqui v Seven Thirty One Ltd. Partnership (22 NY3d 246 [2013]) … . Thus, JIWA was intended to return to what the Legislature perceived to have been the rule “for almost 80 years” — namely that courts, in third-party actions, would “reject[ ] attempts by defendants to apply collateral estoppel” to decisions reached in the “swift[ ]” and “cursory” workers’ compensation context — and that workers would not be prevented “from exercising their constitutional right to a jury trial” … . Accordingly, the Legislature clearly intended JIWA to be remedial in nature, to correct an unintended judicial interpretation, and to reaffirm what the Legislature believed the law should be. Garcia v Monadnock Constr., Inc., 2025 NY Slip Op 00154, First Dept 1-9-25

Practice Point: The December 30, 2022, amendment to the Workers’ Compensation Law which precludes giving Workers’ Compensation Board rulings collateral estoppel effect in subsequent personal injury actions applies retroactively.

 

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PLAINTIFF VIOLATED THE VEHICLE AND TRAFFIC LAW BY MAKING A LEFT TURN DIRECTLY INTO DEFENDANT’S PATH OF TRAVEL WHEN DEFENDANT HAD A GREEN LIGHT; PLAINTIFF’S TESTIMONY THAT DEFENDANT WAS SPEEDING WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this intersection traffic accident case. Defendant had the right-of-way (green light) when plaintiff made a left turn directly into defendant’s path of travel. Plaintiff’s testimony that defendant was speeding was not enough to raise a question of fact:

“A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . “Vehicle and Traffic Law § 1141 provides that the driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard. Further, Vehicle and Traffic Law § 1163(a) provides that no person shall turn a vehicle at an intersection . . . until such movement can be made with reasonable safety” … . “Although a driver with the right-of-way is entitled to anticipate that the other driver will obey the traffic laws requiring him or her to yield, a driver is bound to see what is there to be seen through the proper use of his or her senses and is negligent for failure to do so” … . However, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . * * *

… [P]laintiff’s contention that the defendant was operating his vehicle at an excessive speed “is speculative and unsupported by any competent evidence” … . The defendant testified at his deposition that he was driving below the speed limit, and the plaintiff admitted during her deposition that she did not see the defendant’s vehicle prior to the collision … . Although evidence regarding the force of a collision or the manner in which a vehicle moved as a result thereof may be sufficient to create an inference that a driver was speeding in some circumstances … , the plaintiff’s deposition testimony was not sufficient to create such an inference … . Further, the plaintiff’s “contention[ ] that [the defendant] could have avoided the accident . . . w[as] speculative and unsupported by the record … . Morante v Blaney, 2025 NY Slip Op 00086, Second Dept 1-8-25

Practice Point: Although proof that defendant driver with the right-of-way was speeding when the plaintiff driver violated the Vehicle and Traffic Law by making a left turn may raise a question of fact, here plaintiff driver’s testimony standing alone, claiming defendant was speeding, was not enough to raise a question of fact.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY AN EMPLOYEE OF THE COUNTY SHERIFF’S DEPARTMENT IN A GUARDED DEPARTMENT PARKING LOT AND IN A LOCKED BATHROOM IN THE JAIL; BECAUSE THE COUNTY WAS ENGAGED IN A GOVERNMENTAL, NOT A PROPRIETARY, FUNCTION (PROVIDING SECURITY FOR THE PARKING LOT AND JAIL), PLAINTIFF MUST DEMONSTRATE THE COUNTY OWED HIM A SPECIAL DUTY, WHICH HE WAS UNABLE TO DO (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligence action against the county in this Child Victims Act case should have been dismissed. Plaintiff alleged defendant Weis, a corrections officer employed by defendant Suffolk County Sheriff’s Department, sexually abused him in a guarded parking lot at the Sheriff’s Department and in a locked bathroom in the jail. The Second Department held that the alleged negligence related to a governmental function, not a proprietary function of the Sheriff’s Department, requiring plaintiff to demonstrate he was owed a “special duty:”

… [T]he specific acts or omissions that allegedly caused the plaintiff’s injuries were the defendant’s decisions regarding the level of security and surveillance to provide in a fenced-in jail parking lot, with admission controlled by a posted guard, or within the facility itself. Those decisions go beyond the scope of the defendant’s duty as a landlord and constitute actions undertaken in the defendant’s police protection capacity … . Accordingly, the specific acts or omissions at issue here involved a governmental function.

… [B]ecause the defendant was engaged in a governmental function, the plaintiff was required to demonstrate that the municipality owed him a “special duty” … . A special duty can arise, as relevant here, where “the plaintiff belonged to a class for whose benefit a statute was enacted” or “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally” … . Here, the defendant demonstrated, prima facie, that it did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition … . Neary v Suffolk County Sheriff’s Dept., 2025 NY Slip Op 00105, Second Dept 1-8-25

Practice Point: It is not easy to determine whether a governmental entity is engaged in a governmental function or a proprietary function at the time of an alleged negligent act or omission. Here plaintiff alleged abuse by a Sheriff’s Department employee in the guarded department parking lot and in a locked bathroom in the jail. The Second Department deemed the security of the parking lot and the jail a governmental function (acting as a landlord) and held the county could not be liable unless it owed plaintiff a ‘special duty.” Plaintiff was unable to demonstrate a “special duty.”

 

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THE DEFENDANT HOTEL BOOKING SERVICE, AGODA, COULD NOT BE COMPELLED TO ARBITRATE IN PLAINTIFF’S SLIP AND FALL ACTION AGAINST THE HOTEL; AGODA’S TERMS OF USE LIMITED LIABILITY TO THE BOOKING SERVICES AND EXPRESSLY EXCLUDED LIABILITY FOR PERSONAL INJURY AT THE HOTEL (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendant hotel booking service, Agoda, could not be compelled to arbitrate in this slip and fall action against the hotel booked through Agoda. The terms of use confined Agoda’s potential liability to the booking services and expressly excluded liability for personal injury:

A “party cannot be compelled to submit to arbitration unless the agreement to arbitrate expressly and unequivocally encompasses the subject matter of the particular dispute” … . Where arbitration provisions do not clearly and unequivocally provide that questions about the scope of the arbitration provisions are for the arbitration panel to determine, the threshold question whether the dispute is encompassed within an agreement to arbitrate is for the courts (CPLR 7503[b] …).

The arbitration clause in the terms of use covers “all disputes or claims arising out of or relating to your relationship with Agoda.” The terms of use also define Agoda’s role as providing a platform for individuals to browse information about accommodations and make reservations at accommodations. Furthermore, the terms of use make clear that “Agoda does not in any way . . . own, manage, operate or control” the accommodations and that Agoda will not be liable in damages for any “(PERSONAL) INJURY . . ., OR OTHER DAMAGES, ATTRIBUTABLE TO THE ACCOMMODATION.” Because plaintiff’s claim is one to recover damages for a personal injury caused by the resort’s negligence, it does not arise from or relate to the relationship between plaintiff and Agoda, which was limited to plaintiff’s booking a reservation at the resort, and therefore is not arbitrable … .

As for Agoda’s motion to dismiss, the terms of use constitute documentary evidence under CPLR 3211(a)(1), and the limitation of liability clause in the terms of use definitively disposes of plaintiff’s claim to recover damages from Agoda for personal injury caused by the resort’s alleged negligence … . McWashington v Hyatt Corp., 2025 NY Slip Op 00050, First Dept 1-7-25

Practice Point: Here the hotel booking service’s terms of use expressly excluded liability for plaintiff’s personal injury at the hotel. Therefore the booking service could not be compelled to arbitrate in plaintiff’s slip and fall case.

 

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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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