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CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S SLIP AND FALL, INCLUDING A VIDEO AND PLAINTIFF’S DESCRIPTION OF THE FALL, WERE SUFFICIENT TO WITHSTAND A SUMMARY JUDGMENT MOTION (THRID DEPT). ​

The Third Department, reversing Supreme Court, determined the defendant grocery store’s motion for summary judgment in this slip and fall action should not have been granted. A video depicted plaintiff coming around the corner of a bottled water display and falling. She testified cases of water protruded into the aisle. Although she she could not say exactly what caused her to trip, the circumstantial evidence of the cause of the fall was sufficient to create a question of fact:

…”[E]ven when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … . It is true that Grant never observed the actual item he tripped over, nor its precise location. However, given Grant’s deposition testimony indicating that he tripped over something made of soft plastic, plaintiff’s deposition testimony that there were cases of water hanging over the edge of the endcap and the video portraying a case being knocked off the display as Grant tripped and fell, defendant’s negligence could reasonably be inferred.

Even if defendants had met their initial burden of showing entitlement to judgment as a matter of law, plaintiff raised a triable issue of fact as to whether the endcap display was inherently dangerous … . In opposition to the motion, plaintiff submitted the affidavit of a commercial space designer and retail safety expert who opined that the endcap display was hazardous, inasmuch as the bottom layers of water cases were stacked below a customer’s typical line of sight, which ranges between three to six feet from the ground. According to the expert, defendants failed to conform with certain industry standards concerning the proper height of floor displays and the need for endcap displays to be fully stocked to prevent tripping hazards. Grant v Golub Corp., 2026 NY Slip Op 04013, Third Dept 6-24-26

Practice Point: Consult this decision for an example of sufficient proof of causation of a slip and fall by circumstantial evidence. Usually the failure to pinpoint the exact cause of a slip and fall will be fatal to the action.

 

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HERE IN THIS SIDEWALK SLIP AND FALL CASE THE DEFENDANTS DID NOT DEMONSTRATE THE PROPERTY ADJACENT TO THE UNEVEN SIDEWALK WAS “OWNER OCCUPIED” SUCH THAT THE NYC ADMINISTRATIVE CODE EXCEPTION TO THE SIDEWALK-MAINTENANCE OBLIGATION APPLIED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. The NYC Administrative Code creates an exception to the sidewalk-maintenance requirement for “owner occupied” properties. That term is undefined. Here the defendants did not submit sufficient proof that the “owner-occupied” exception applied:

“‘Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain city sidewalks abutting their land in a reasonably safe condition'” … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . “The statute does not expressly contain a primary residence requirement as part of the owner-occupied exemption, but the term ‘owner occupied’ generally is used to mean that the owner regularly occupies the property as a residence” … . Although “owner occupied” is not defined in the statute, it is clearly a lower standard than that of a primary residence. Furthermore, “[t]he purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. The defendants failed to establish, prima facie, that they were entitled to the exemption from liability under Administrative Code § 7-210(b). Although the defendants submitted proof that they are the owners of the subject property, which is a one-family home, they failed to eliminate triable issues of fact as to whether the property was “owner occupied” within the meaning of the statute … . Mantinaos v City of New York, 2026 NY Slip Op 03957, Second Dept 6-24-26

Practice Point: Consult this decision for insight into the meaning of “owner occupied” in the NYC Administrative Code such that the sidewalk-maintenance obligation does not apply.

 

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FOR PURPOSES OF THE “RELATION-BACK DOCTRINE,” A DEFENDANT CAN BE VICARIOUSLY LIABLE FOR THE WORK OF AN INDEPENDENT CONTRACTOR IF THE WORK IS “INHERENTLY DANGEROUS;” THE EXCAVATION WORK WAS “INHERENTLY DANGEROUS;” THE PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD THE INDEPENDENT CONTRACTORS AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court., determined plaintiff’s motion to amend the complaint by adding independent contractors hired in connection with excavation work on adjacent property should have been granted. The excavation work caused plaintiff’s building to collapse. The statute of limitations for the negligence causes of action had run. A defendant can be vicariously liable for the actions of independent contractors if the work is “inherently dangerous.” Because this work was “inherently dangerous,” the defendants and the independent contractors are “united in interest” such that the relation-back doctrine applies:

… [T]he plaintiff satisfied the second prong of the relation-back test with respect to the causes of action sounding in negligence and gross negligence, as the plaintiff established that the proposed defendants and the original defendants were united in interest as to those causes of action. “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'” … . However, this general rule is subject to various exceptions, including where the work performed is inherently dangerous … . In this case, the amended complaint and the proposed second amended complaint alleged sufficient facts demonstrating that the work being performed was inherently dangerous and, thus, the original defendants could be held vicariously liable for the negligent acts or omissions of the proposed defendants … . Further, the plaintiff satisfied the third prong of the relation-back test, as the plaintiff demonstrated that the proposed defendants knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against them as well … . Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the amended complaint to add the proposed defendants as defendants with respect to the causes of action sounding in negligence and gross negligence … . Crossbay Assoc., LLC v Singh, 2026 NY Slip Op 03941, Second Dept 6-24-26

Practice Point: A party can be vicariously liable for the work done by an independent contractor if the work is “inherently dangerous.” The excavation work at issue in this case was deemed inherently dangerous.

 

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PLAINTIFF’S STATEMENT THE LADDER MOVED SIDE TO SIDE CAUSING HIM TO FALL AND PLAINTIFF’S STATEMENT HE LOST HIS BALANCE ARE NOT INCONSISTENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Suprem[e Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testified the ladder moved side to side. A medica report indicated plaintiff said he lost his balance. The two statements were not inconsistent:

Plaintiff, who fell from an eight-foot A-frame ladder while installing sheetrock, established his prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action through his testimony that the ladder moved from side to side and caused him to fall … .

… [Even] if plaintiff’s hearsay statement contained in his post-accident medical report and post-accident investigation report that he lost his balance may be considered, it is not inconsistent with his testimony that the ladder moved and caused him to fall … . Gomez v Brookfield Props. One WFC Co., LLC, 2026 NY Slip Op 03921, First Dept 6-23-26

Practice Point: The statement that a ladder-fall resulted from movement of the ladder from side to sided and the statement that the ladder-fall resulted from plaintiff’s losing his balance are not inconsistent and do not create a question of fact.

 

PLAINTIFF SUED THE DEVELOPER OF PROPERTY ADJACENT TO PLAINTIFF’S BUILDING ALLEGING EXCAVATION WORK CAUSED PLAINTIFF’S BUILDING TO SETTLE AND LEAN; THE CITY ISSUED A STOP-WORK ORDER STEMMING FROM PLAINTIFF’S COMPLAINT; DEFENDANT-DEVELOPER THEN COUNTERCLAIMED ALLEGING PLAINTIFF WAS NEGLIGENT IN NOT MAINTAINING PLAINTIFF’S BUILDING SUCH THAT THE EXCAVATION WORK WOULD NOT DAMAGE IT, RESULTING IN THE STOP-WORK ORDER AND CAUSING THE DEVELOPER PURELY ECONOMIC LOSS OF AT LEAST $16 MILLION; SUPREME COURT LET THE COUNTERCLAIM STAND BUT THE FIRST DEPARTMENT DISMISSED IT; PLAINTIFF DID NOT OWE A DUTY TO THE DEVELOPER AND THE DEVELOPER WAS NOT ENTITLED TO PURELY ECONOMIC DAMAGES (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the defendant-developer’s counterclaim alleging plaintiff was negligent should have been dismissed. Plaintiff sued the developer alleging excavation and construction on the developer’s property, which is adjacent to plaintiff’s building, caused plaintiff’s building to settle and lean. Defendant-developer counterclaimed alleging plaintiff was negligent in not maintaining plaintiff’s building such that the excavation would would not damage it. The counterclaim alleged economic harm ($16 million) stemming from a stop-work order triggered by the plaintiff’s complaint:

The negligence counterclaim asserts that plaintiff “had a duty to construct and maintain the 1992 Building in compliance with the [Building] Code” and “a duty to maintain the 1992 Building in a reasonable and safe condition.” It contends that, as evidenced by three structural engineering reports, the building was “not constructed in compliance with the Code,” “remains in violation of the Code” and “was constructed and remains in an unsafe condition.” … The counterclaim further asserts that, on December 13, 2023, as a result of these conditions, “the DOB issued a partial Stop Work Order for the Project Site, forcing [the developer] to stop construction on its own property because of structural instability of the 1992 Building that was caused by the 1992 Building’s non-compliance with the Code and [plaintiff’s] failure to maintain the 1992 Building in a reasonable condition.” According to the developer, it was “harmed by the delay in construction . . . due to this stoppage” in an amount not less than $16 million. The developer does not allege that plaintiff’s negligent design, construction, and maintenance of its building caused any bodily injury or property damage.

This appeal raises two novel issues: 1) whether Supreme Court correctly held that plaintiff owes the developer a common-law duty as an adjacent landowner to protect the developer’s excavation/foundation work from construction delays arising out of the stop work order and, 2) assuming the existence of a duty based on plaintiff’s status as an adjacent landowner, whether the court correctly held that the developer could recover purely economic damages.

We now answer both questions in the negative and reverse. 1992 Third Realty LLC v Third Ave NY Realty LLC, 2026 NY Slip Op 03871, First Dept 6-18-26

Practice Point: The owner of a building which is damaged by excavation work on an adjacent building by a developer, does not owe a duty to the developer to maintain his building such that the excavation work would not damage it.

 

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PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT CALL HER TREATING PHYSICIAN AS A WITNESS AND DID NOT DEMONSTRATE THE PHYSICIAN WAS UNAVAILABLE OR THAT HIS TESTIMONY WOULD BE CUMULATIVE; PLAINTIFF RELIED SOLELY ON THE TESTIMONY OF A PSYCHIATRIST WHO FIRST SAW PLAINTIFF SIX YEARS AFTER THE ACCIDENT; DEFENDANT’S REQUEST FOR A “MISSING WITNESS” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; VERDICT SET ASIDE (FIRST DEPT).

The First Department, granting defendant’s motion to set aside the jury verdict and direct a new trial in this sidewalk slip and fall case, determined plaintiff’s failure to call her treating physician as a witness warranted the “missing witness” jury instruction. Plaintiff called only, Dr. Guy, a psychiatrist who saw plaintiff only a few times six years after the injury:

Plaintiff alleges that she was injured when she was walking on the sidewalk adjacent to defendant’s property when her foot became trapped in a hole, causing her to fall. At trial, plaintiff alleged that because of the accident, she suffered a cervical herniation that caused radiculopathy and required surgery. She further alleged that injuries to her knee and her lumbar spine would require future surgery.

The trial court should have given the jury a missing witness charge with regard to Dr. Jason Gallina, plaintiff’s treating physician and surgeon from the period beginning months after the accident until at least a year afterward. Dr. Gallina was the orthopedic surgeon who performed plaintiff’s cervical fusion surgery, and he was the doctor who allegedly recommended the lumbar surgery that plaintiff contended she would need in the future.

The law is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable or not under the party’s control, or that the witness’s testimony would be cumulative … . * * *

Although the burden was on plaintiff to show that Dr. Gallina was unavailable or not under her control, she made no such showing  … . … [T]he testimony from Dr. Gallina would not have been cumulative. Dr. Guy is a physiatrist, while Dr. Gallina is the orthopedic surgeon who performed plaintiff’s surgery. Encarnacion v St. Barnabas Hosp., 2026 NY Slip Op 03630, First Dept 6-9-26

Practice Point: The plaintiff in a personal injury action must call the treating physician as a witness or adequately explain the failure to do so. In the absence of an adequate explanation, the defendant is entitled to a “missing witness” jury instruction.​

 

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MOTHER DEMONSTRATED THE SCHOOL DISTRICT HAD TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE ALLEGATION THE SCHOOL DISTRICT WAS NEGLIGENT IN ADDRESSING THE BULLYING OF HER SON; MOTHER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant-mother demonstrated the school district had timely knowledge of the underlying facts of the potential negligence action against the district stemming from the bullying of her son. In addition, mother had a valid excuse for failing to file a timely notice of claim, i.e., she was involved in related Family Court proceedings against her son. Mother’s application for leave to file a late notice of claim should have been granted:

“General Municipal Law § 50-e (5) permits a court, in its discretion, to [grant leave] extend[ing] the time for a [claimant] to serve a notice of claim” (id. at 460-461). “The decision whether to grant such leave ‘compels consideration of all relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)” … . ” ‘It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are [1] whether the claimant has demonstrated a reasonable excuse for the delay, [2] whether the [school district] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and [3] whether the delay would substantially prejudice the [school district] in maintaining a defense on the merits’ ” … . “The presence or absence of any given factor is not determinative of the application and, moreover, the factors are ‘directive rather than exclusive’ ” … .

We agree with claimant that respondent possessed actual knowledge of the essential facts constituting the claim within 90 days of its accrual …  Claimant averred in her affidavit in support of the application that, during the relevant time period, she made numerous calls to the Waterloo Middle School and the Waterloo Village Police about the ongoing abuse and bullying of her son. Additionally, claimant submitted documentation pertaining to a Family Court proceeding that was brought against her son due to actions he took apparently out of his frustration with the alleged abuse and bullying. The documentation states that the school counselor was involved in that investigation and that claimant’s son was “well known” to him. The school counselor also expressed the opinion that the bullying incidents were “unfounded.” Cindy W. v Waterloo Cent. Sch. Dist., 2026 NY Slip Op 03554, Fourth Dept 6-5-26

Practice Point: Here, demonstrating that the school district had timely actual knowledge of the facts underling a negligence allegation against the district was a major factor in granting the application tor leave to file a late notice of claim.​

 

IN THIS BICYCLE ACCIDENT CASE, WHETHER A ONE-AND-A-QUARTER-INCH GAP IN THE ROADWAY WAS “OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS” SHOULD NOT HAVE BEEN DETERMINED AS A MATTER OF LAW; IT IS A QUESTION FOR THE JURY BASED ON ALL THE CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment in this bicycle-accident case based upon a 1 1/4 inch gap in the roadway. Supreme Court granted defendant’s summary judgment motion based, in part, on the conclusion that the defect was open and obvious and not inherently dangerous. The Third Department noted that whether a defect is open and obvious is usually a question for a jury:

To the extent Supreme Court dismissed the complaint based upon its conclusion that the gap was open and obvious and not inherently dangerous, we note that “[w]hether a condition is open and obvious does not preclude liability . . . as a matter of law; rather, it is a factor that impacts the foreseeability of an accident and the comparative negligence of the injured party” … . Indeed, “[t]he determination as to whether a condition is open and obvious generally falls within the province of a jury, as it requires consideration of the unique facts presented by the case before it” . “In this regard, the determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . Here … [plaintiff] indicated that his attention was occupied by a changing traffic light ahead and a moving motor vehicle to the left, and that there were cars parked to his right in…  designated spots. Viewing all of the evidence in the light most favorable to plaintiffs as the nonmovants … , the record does not compel the conclusion that the gap was readily observable with the reasonable use of one’s senses and not inherently dangerous … . Stegman v City of Glens Falls, N.Y., 2026 NY Slip Op 03486, Third Dept 6-4-26

Practice Point: Here in this bicycle accident case, a 1 1/4 inch gap in the roadway could not be deemed “trivial” or “open and obvious and not inherently dangerous” as a matter of law.

 

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THAT PLAINTIFF IN A TRAFFIC ACCIDENT CASE DID NOT HAVE A PROPER DRIVER’S LICENSE DOES NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S COMPARATIVE NEGLIGENCE (FIRST DEPT).

The Frist Department, reversing Supreme Court, noted that the fact that plaintiff in this traffic accident case did not have a proper driver’s license at the time of the accident did not raise a question of fact about plaintiff’s purported comparative negligence:

… [T]hat plaintiff was driving without a proper driver’s license does not provide a basis for finding an issue of fact as to comparative negligence (see Huff v Rodriguez, 88 AD3d 1274, 1275 [4th Dept 2011] …”[“the absence or possession of a driver’s license is not relevant to the issue of negligence”]). Torres v Occhino, 2026 NY Slip Op 03412, First Dept 6-2-25

Practice Point: In a traffic accident case, the fact that plaintiff did not have a proper driver’s license does not raise a question of fact about plaintiff’s purported comparative negligence.

 

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THE CONTRACTOR RETAINED PLAINTIFF’S EMPLOYER TO INSTALL AN OIL TANK; THE CONTRACTOR DID NOT EXERCISE SUPERVISION AND CONTROL OVER PLAINTIFF’S WORK; PLAINTIFF WAS INJURED WHEN A PIECE OF THE TANK BROKE OFF AND STRUCK HIM; THE LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION AGAINST THE CONTRACTOR WERE DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 and common-law negligence causes of action against a contractor, Controlled Combustion, should have been dismissed. Plaintiff’s employer was retained by Controlled Combustion to install an oil tank. A piece of the tank broke off and struck the plaintiff. Controlled Combustion did not exercise supervisory control over plaintiff’s work:

Controlled Combustion is entitled to dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims because it established that it did not “actually exercise[] supervisory control over” plaintiff’s work … . General oversight, regular inspections, and authority to stop unsafe work are insufficient to impose liability under Labor Law § 200 or common-law negligence … . Plaintiff testified that while installing an oil tank in the basement of a building owned by 2350 Broadway, he was struck by a base piece of the tank when the piece detached and fell from an electric chain hoist, which was owned by his employer. Controlled Combustion, a commercial heating company, was retained to perform work in the building, and it in turn retained plaintiff’s employer to install the oil tank. Plaintiff also testified that his employer came up with the plan to move the base piece with a hoist and that all orders of how to do his job came from his employer, not Controlled Combustion. Rosario v C.C. Controlled Combustion Co., Inc., 2026 NY Slip Op 03279, First Dept 5-26-26

Practice Point: Consult this decision for insight into what constitutes “supervision and control” over a plaintiff’s work such that the contractor which hired plaintiff’s employer can be liable to plaintiff under Labor Law 200 and common-law negligence.

 

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