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THE DEFENDANT GROCERY STORE DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THE STORE DID NOT SUBMIT EVIDENCE THAT THE AREA HAD BEEN INSPECTED CLOSE IN TIME TO THE FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendant grocery store in this slip and fall case did not demonstrate it did not have constructive notice of the condition which caused the fall:

… [T]the court erred in granting the motion with respect to the claim that defendant had constructive notice of the dangerous condition … . Defendant failed to meet its initial burden on that issue inasmuch as its own submissions raise triable issues of fact whether the wet floor “was visible and apparent and existed for a sufficient length of time prior to plaintiff’s fall to permit [defendant’s employees] to discover and remedy it” … . Although defendant submitted the affidavit and deposition testimony of its former store manager, in which he indicated that store employees routinely frequented the area and would have looked for dangerous conditions, defendant’s evidence failed to establish that the employees actually performed any security sweeps on the day of the incident, or that anyone actually inspected the area in question before plaintiff’s fall. Consequently, defendant failed to eliminate all issues of fact with respect to constructive notice … . Andrews v JCP Groceries, Inc., 2022 NY Slip Op 05422, Fourth Dept 9-30-22

Practice Point: In a slip and fall case, to demonstrate the defendant did not have constructive knowledge of the dangerous condition, the defendant must present evidence the area was inspected close in time to the fall. Without such evidence, the defendant’s motion for summary judgment must be denied.

 

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ONLY THE SPECIFIC CONDUCT ENUMERATED IN VEHICLE AND TRAFFIC LAW 1104 (E) IS SUBJECT TO THE HIGHER “RECKLESS DISREGARD” STANDARD OF CARE FOR EMERGENCY VEHICLES; OTHER INJURY-CAUSING ACTIONS INVOLVING THE EMERGENCY VEHICLE ARE SUBJECT TO THE ORDINARY NEGLIGENCE STANDARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, noted that while parking in a “no standing” zone maybe subject to the “reckless disregard” standard for emergency vehicles, other injury-causing actions may not be exempt from the ordinary negligence standard:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)” … . “Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” … . Here, although defendants established that they engaged in conduct covered by Vehicle and Traffic Law § 1104(b)(1) by parking in a “No Standing” area, there were, at a minimum, questions of fact whether the ambulance had its emergency lights and sirens activated as required by Vehicle and Traffic Law § 1104(c). Taveras v Almodovar, 2022 NY Slip Op 05385, First Dept 9-29-22

Practice Point: Only the specific conduct enumerated in Vehicle and Traffic Law 1104 (e) is subject to the higher “reckless disregard” standard of care for emergency vehicles. Other injury-causing actions involving the emergency vehicle (i.e. failure to activate emergency lights and sirens) are subject to the ordinary negligence standard.

 

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THE DEFENDANT “DORMITORY AUTHORITY OF NEW YORK STATE’S” INSURERS HAD ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF PLAINTIFF’S SLIP AND FALL WITHIN 90 DAYS OF THE ACCIDENT; THE PETITION FOR LEAVE TO SERVE THE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to serve a late notice of claim in this slip and fall case against the Dormitory Authority for the State of New York (DASNY) should have been granted because DASNY’s insurers had actual knowledge of the facts of the within 90 days of the accident:

… [T]he petitioner’s submissions demonstrated that DASNY’s insurers had actual notice of the essential facts constituting the claim within 90 days of the petitioner’s accident. The petitioner annexed to the petition a copy of a certificate of liability insurance stating that his employer was insured under a number of policies in connection with the construction project at the premises and identifying both DASNY and the State as “Additional Insureds” with respect to the project. The petitioner also annexed to the petition a letter dated July 8, 2019, approximately 70 days after the accident, in which the State informed the insurers named in the certificate of liability insurance that a notice of claim concerning the petitioner’s accident had been served on the State on or about June 14, 2019. The notice of claim that had been served on the State identifies the date, time, and location of the petitioner’s accident, describes the petitioner’s injuries, and specifies construction debris on the stairwell as the dangerous condition which caused the petitioner’s accident. Thus, DASNY’s insurers acquired actual notice of the essential facts constituting the petitioner’s claim within 90 days of his accident (see General Municipal Law § 50-e[5] …). Matter of Joseph v City of New York, 2022 NY Slip Op 05318, Second Dept 9-28-22

Practice Point: A slip and fall lawsuit against the Dormitory Authority of the State of New York (DANYS) must be preceded by service of a notice of claim. Here the fact that the DANYS’s insurers had been given notice of the essential facts of the slip and fall within 90 days of the accident was a sufficient ground for leave to serve a late notice of claim.

 

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PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY MEDICAL RECORDS; DEFENDANT PODIATRIST’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert affidavit in this medical malpractice case did not raise a question of fact. Plaintiff’s decedent presented with burns on his foot which were treated by defendant podiatrist, Papathomas. When the wound didn’t heal, defendant podiatrist referred plaintiff’s decedent to a wound clinic, which continued the same treatment given by defendant podiatrist until an infection was later detected:

The [plaintiff’s] expert relied upon certain photographs of the decedent’s foot, which were taken by the decedent’s daughter … and which allegedly showed signs that the wound was a third-degree burn, and not a second-degree burn as diagnosed by Papathomas … . According to the plaintiff’s expert, the failure to undertake “aggressive procedures,” including debridement of necrotic tissue as seen in the photographs, “predisposed” the decedent to a wound infection, which ultimately led to the partial amputation of his right foot, the stress of which caused the decedent to suffer a heart attack and die. …

… [I]t is undisputed that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affirmation of a board-certified podiatrist, who opined within a reasonable degree of podiatric certainty that the care Papathomas rendered to the decedent was in accordance with good and accepted practice, and did not proximately cause or contribute to any injuries … . * * *

… [S]ince the opinion of the plaintiff’s expert is entirely speculative and unsupported by the decedent’s medical records, the expert’s affidavit was insufficient to raise a triable issue of fact. Specifically, the decedent’s medical records establish that … after Papathomas observed that the decedent’s wound had not improved, Papathomas referred the decedent to a wound care clinic. … [At the wound clinic] the decedent received the same course of treatment prescribed by Papathomas. Moreover, the decedent’s medical records from his admissions to Plainview Hospital … contain no causal connection between the amputation of the decedent’s foot and his subsequent death, and the care the decedent received from Papathomas. Templeton v Papathomas, 2022 NY Slip Op 05228, Second Dept 9-21-22

Practice Point: Here in this medical malpractice case, plaintiff’s expert’s affidavit was speculative and was not supported by the medical records. The affidavit, therefore, did not raise a question of fact.

 

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IN THIS SLIP AND FALL CASE AGAINST NYC, AT THE SUMMARY JUDGMENT STAGE, ONCE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION WHICH CAUSED THE FALL, THE PLAINTIFF MUST COME FOWARD WITH EVIDENCE AN EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT APPLIES, EVEN IF, AS HERE, THE COMPLAINT ALLEGES NO EXCEPTION APPLIES; CASE LAW TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, clarified the burdens of proof at the summary judgment stage where the municipality demonstrates it did not have written notice of the condition which allegedly caused plaintiff’s slip and fall. Once the city demonstrates a lack of written notice, the plaintiff must come forward with proof of an applicable exception to the written-notice requirement, even where, as here, the complaint alleged no exception applies. Precedent to the contrary should no longer be followed:

… [W]here, as here, “the City establishes that it lacked prior written notice under [Administrative Code § 7-201(c)(2)], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” …  Furthermore, we clarify that the burden-shifting standard … is applicable even where, as here, the complaint alleged that the defendants created the allegedly dangerous condition … . To the extent that this Court’s case law conflicts with the burden-shifting standard set forth in Groninger or Yarborough [Yarborough v City of New York, 10 NY3d at 728; …Groninger v Village of Mamaroneck, 17 NY3d 125], it should no longer be followed … . * * *

Applying the correct standard here, the City sustained its initial burden on that branch of its motion which was for summary judgment dismissing the first cause of action. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City affirmatively created the allegedly dangerous condition. The expert affidavit proffered by the plaintiff was not supported by the record and, thus, was speculative and conclusory, and insufficient to raise a triable issue of fact … . Under the circumstances, those branches of the City’s motion which were for summary judgment dismissing the first cause of action and all cross claims insofar as asserted against it should have been granted. Smith v City of New York, 2022 NY Slip Op 05226, Second Dept 9-21-22

Practice Point: The Second Department clarified the burdens of proof at the summary judgment stage where a plaintiff alleges injury by a defective condition on NYC property. If the city demonstrates it did not have written notice of the condition, to survive summary judgment, the plaintiff must come forward with sufficient admissible evidence an exception to the written-notice requirement applies, even where, as in this case, the complaint alleges no exception is applicable. Case law in the Second Department to the contrary should no longer be followed.

 

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THERE WAS VIDEO EVIDENCE OF THE SLIP AND FALL, PHOTOGRAPHIC EVIDENCE OF THE UNLAWFUL DRAIN PIPE WHICH WAS THE SOURCE OF THE ICE ON THE SIDEWALK, AND EXPERT EVIDENCE; DEFENDANTS’ MERE HOPE THAT DISCOVERY WOULD REVEAL EVIDENCE TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DID NOT SUPPORT THE DENIAL OF THE MOTION AS PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this slip and fall case was not premature and should have been granted. There was video evidence and photographs depicting an unlawfully disconnected drain pipe which was the source of the ice on the sidewalk:

“Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent of the motion (see CPLR 3212[f]), ‘[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence'” … . …

… [W]here the icy condition on the sidewalk as well as Sloan’s fall are clearly depicted on a surveillance video and the condition of the drain pipe over time is revealed in photographs of the building, the defendants have offered nothing more than hope and speculation that additional discovery might uncover evidence sufficient to raise triable issues of fact regarding the manner in which the accident occurred, the cause of [plaintiff’s] fall, and their notice of the defective condition of the drain pipe … . Sloan v 216 Bedford Kings Corp., 2022 NY Slip Op 05173, Second Dept 9-14-22

Practice Point: Where plaintiff makes out a prima facie case and the defendant doesn’t raise a question of fact, defendant’s mere hope that discovery will provide evidence to defeat plaintiff’s motion for summary judgment is not enough to support denial of the motion aa premature.

 

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ALTHOUGH PLAINTIFF’S EXPERT IN THIS STAIRWAY SLIP AND FALL COULD NOT TESTIFY THE STAIRWAY VIOLATED ANY STATUTE OR REGULATION, THE EXPERT COULD HAVE TESTIFIED THE SLIPPERY CONDITION VIOLATED A CUSTOM IN THE INDUSTRY AS REPRESENTED BY THE AMERICAN SOCIETY FOR TESTING MATERIALS STANDARDS; THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert (Fein) in this stairway slip and fall case should not have been precluded from testifying. Although the expert could not testify the condition of the stairway violated a code or regulation, he could have testified the slippery condition violated a custom in the industry represented by the American Society for Testing Materials standards:

The absence of a violation of a specific code or ordinance is not dispositive of the plaintiff’s allegations based on common-law negligence principles … . Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances … .

Had Fein been permitted to testify, he could have addressed whether the coefficient of friction of the subject staircase, as measured during his inspection, was a departure from generally accepted customs and practices, and whether the defendants were negligent in failing to correct it … . Fein could have testified as to the American Society for Testing Materials standards, even though the Supreme Court correctly stated that they were not law. Fein could have testified as to whether those standards represented the general custom or usage in the industry, and the jury could have considered any deviation from those standards as some evidence of negligence . Any purported shortcomings in Fein’s testing go to the weight to be given his testimony, not its admissibility … …. [T]he court improvidently exercised its discretion in granting the defendants’ motion in limine to preclude the plaintiff from presenting the proposed expert testimony relating to the American Society for Testing Materials standards regarding the coefficient of friction, and the preclusion of this testimony deprived the plaintiff of a fair trial … . Martell v Dorchester Apt. Corp., 2022 NY Slip Op 05164, Second Dept 9-14-22

Practice Point: Here in this stairway slip and fall, the expert could not testify the stairway violated any statute or code. However the expert was prepared to testify the slippery condition violated a custom in the industry as represented by the American Society for Testing Materials standards, which may be evidence of negligence. The experts should have been allowed to testify.

 

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DEFENDANT DID NOT DEMONSTRATE DISCOVERY WOULD LEAD TO EVIDENCE ESSENTIAL TO DEFEND AGAINST PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff motorcyclist’s motion for summary judgment in this intersection traffic accident case was not premature, defendant’s violation of the Vehicle and Traffic law was negligence per se, and the comparative-negligence affirmative defense should have been dismissed. Plaintiff demonstrate defendant made an illegal left turn in front of him and he could not avoid the collision:

… [A] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … . “The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law” … . “[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” … . …

… [T]he plaintiff’s motion was not premature since the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f] … ). Higgins v Stelmach, 2022 NY Slip Op 05155, Second Dept 9-13-22

Practice Point: Plaintiff demonstrated defendant violated the Vehicle and Traffic Law by making a left turn in front of plaintiff’s motorcycle. Defendant did not demonstrate discovery would lead to evidence essential to defending the motion for summary judgment. The motion therefore was not premature. Plaintiff was entitled to summary judgment and dismissal of the comparative negligence affirmative defense.

 

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IN THIS REAR-END COLLISION CASE, THE ALLEGATION PLAINTIFF STOPPED SUDDENLY WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT AND DID NOT PRECLUDE THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. Defendant’s allegation plaintiff stopped suddenly is not sufficient to raise a question of fact and will not support a comparative-negligence affirmative defense:

… [T]the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his own affidavit, in which he averred that his vehicle was slowing due to traffic when it was struck in the rear by the defendant’s vehicle … . The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendant’s third affirmative defense, which alleged comparative fault, by demonstrating that he was not negligent in the happening of the accident … .. In opposition to the plaintiff’s prima facie showings, the defendant failed to raise a triable issue of fact. Contrary to the defendant’s contention, his claim that the plaintiff made a sudden stop, standing alone, was insufficient to raise a triable issue of fact as to whether the plaintiff negligently contributed to the accident under the circumstances of this case … . Mahmud v Feng Ouyang, 2022 NY Slip Op 05081, Second Dept 8-31-22

Practice Point: In this rear-end collision case, defendant’s allegation plaintiff stopped suddenly was not enough to raise a question of fact and did not preclude the dismissal of the comparative-negligence affirmative defense.

 

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THE 15-YEAR-OLD PLAINTIFF WAS RIDING THE ESCALATOR IN DEFENDANT’S THEATER IMPROPERLY WHEN HE FELL OFF BACKWARDS TO THE FLOOR; THERE WAS NO EVIDENCE OF A DEFECTIVE CONDITION AND PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE; THE THEATER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

​The Second Department, reversing Supreme Court, determined plaintiff’s injury was not the result of a defective condition on defendant movie theater’s property. The 15-year-old plaintiff was sitting on one rail of an escalator with his feet on the other rail and leaning back against the wall as the escalator descended. But the wall came to an end halfway down and plaintiff fell backwards to the floor:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . Here, the defendants established, prima facie, that the escalator and the adjacent wall were not in violation of any applicable statutes or regulations and that they maintained their premises in a reasonably safe condition … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants violated their common-law duty to maintain the premises in a reasonably safe condition … . The affidavit of the plaintiff’s expert was speculative and insufficient to raise a triable issue of fact … .  Boris L. v AMC Entertainment Holdings, Inc., 2022 NY Slip Op 05080, Second Dept 8-31-22

Practice Point: Here plaintiff’s fall from an escalator was caused by the improper way he was riding the escalator, not by any defect in the property. The property owner’s motion for summary judgment should have been granted.

 

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