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ON A COLD DAY DEFENDANTS HOSED DOWN THE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL ON ICE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT A BAR TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court and recalling and vacating a decision in the same matter dated December 17, 2020, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Defendant restaurants hosed down the sidewalk where plaintiff, an EMT responding to a call, slipped and fell on ice. Any comparative negligence on plaintiff’s part is not a bar to summary judgment:

To obtain partial summary judgment, a plaintiff does not have to demonstrate the absence of his own comparative fault … . Moreover, plaintiff is not required to show that “defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment” … . The evidence plaintiff submitted in support of his motion shows that defendants-tenants … created the dangerous condition when their employees hosed the sidewalk on a cold winter day … . Defendants-owners Concord Partners 46th Street LLC (Concord) and Elo Equity, LLC, had a non delegable duty to maintain the sidewalk. Elo had notice that the restaurant employees had created a dangerous condition, because Elo’s superintendent had observed the restaurants’ employees hosing the sidewalk. The property manager for Concord did not personally observe the restaurant employees hosing down the sidewalk on the date in question; however, he testified that it was the general practice to hose down the sidewalk at approximately 7:30 a.m.

In opposition, defendants did not raise a question of fact with respect to the issue of their liability. Defendant restaurants admit that the evidence shows that their employees hosed the sidewalk with water before the incident occurred. Furthermore, defendants’ argument that there are triable issues of fact on the basis that plaintiff should have sought an alternative route to safely care for the patient relates to the issue of comparative negligence and, therefore, does not preclude summary resolution of the issue of their liability … . Benny v Concord Partners 46th St. LLC, 2021 NY Slip Op 01550, First Dept 3-18-21

 

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THE SCHOOL TOOK REASONABLE STEPS TO PREVENT A STUDENT, J. P., FROM ASSAULTING AN UNIDENTIFIED STUDENT AFTER THE SCHOOL LEARNED OF A RUMOR THAT J.P. INTENDED TO FIGHT SOMEONE; WHEN CONFRONTED AND WARNED J.P. DENIED THAT HE INTENDED TO ASSAULT ANYONE; TWO DAYS LATER J.P. ASSAULTED PLAINTIFF’S CHILD; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENT SUPERVISION ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment in this negligent supervision case should have been granted. Plaintiff’s child was assaulted at school by another child, J.P. The assistant principal had been warned that J.P. was going to fight with someone. The assistant principal warned J.P. of the consequences and alerted school security. When the assistant principal warned J.P. he denied that he intended to fight someone:

A necessary element of a cause of action alleging negligent supervision is that the district knew or should have known of J.P.’s propensity for violence … . The defendant established that the complaint and bill of particulars did not allege that J.P. had a propensity to engage in violence or that the district knew or should have known that J.P. had a propensity for violence … .

The defendant established, prima facie, that it was not made aware of any particularized threat against the child. Furthermore, the evidence presented by the defendant established that the assistant principal took reasonable steps to prevent J.P. from fighting by warning J.P. about the consequences of fighting, informing his mother of the alleged threat and the consequences of fighting, and informing the head of school security that there was an alleged threat that J.P. intended to fight someone, notwithstanding that the assistant principal was not aware of J.P.’s intended target. Under these circumstances, the defendant reasonably responded to a rumor of a threat and could not have anticipated that J.P. would have attacked the child two days later … . Further, the defendant established that “the incident occurred in so short a period of time that any negligent supervision on its part was not a proximate cause of the infant plaintiff’s injuries” … . Wienclaw v East Islip Union Free Sch. Dist., 2021 NY Slip Op 08277, Second Dept 3-17-21

 

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PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS AFTER DISCOVERY WAS CLOSED TO RAISE A NEW THEORY OF LIABILITY STEMMING FROM FACTS NOT PREVIOUSLY ALLEGED; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED THE LEASE DID NOT REQUIRE THE LANDLORD TO MAINTAIN THE DOOR WHICH PLAINTIFF ALLEGED CLOSED ON HER HAND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the bill of particulars after discovery was complete should not have been granted and defendant out-of-possession landlord’s motion for summary judgment should have been granted. Plaintiff alleged the door of a retail store closed on her hand as she was pushing a cart with merchandise through the doorway. She alleged the door was not properly maintained. After discovery she sought to amend her bill of particulars to allege there was a crack in the floor which caused the cart to get stuck as she was attempting to pass through the doorway:

“While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise” … , “once discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances” … . In such a case, leave may properly be granted “where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” … . However “where a motion for leave to amend a bill of particulars alleging new theories of liability not raised in the complaint or the original bill is made on the eve of trial, leave of court is required, and judicial discretion should be exercised sparingly, and should be discreet, circumspect, prudent, and cautious” … . “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom” … .

… [T]he proposed amendment to the bill of particulars raised an entirely new theory of liability well after discovery had been completed, and was advanced only in response to the defendant’s motion for summary judgment. Moreover, the plaintiff failed to proffer a reasonable excuse for her delay in seeking the amendment … , and the proposed amendment was prejudicial to the defendant … . * * *

… [T]he defendant [out-of-possession landlord] demonstrated its … entitlement to summary judgment dismissing the complaint by submitting, inter alia, the lease, which established that the tenant enjoyed complete and exclusive possession of the demised premises at the time of the plaintiff’s injury and that the defendant was not responsible for maintenance of the door. King v Marwest, LLC, 2021 NY Slip Op 08225, Second Dept 3-17-20

 

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THE COUNTY POLICE OFFICER’S STATEMENT TO PLAINTIFF’S DECEDENT TO THE EFFECT SHE HAD NO REASON TO FEEL UNSAFE DID NOT CREATE A SPECIAL RELATIONSHIP; THEREFORE THE COUNTY WAS NOT LIABLE FOR THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT AT THE HANDS OF THE FATHER OF HER YOUNG CHILD (SECOND DEPT).

The Second Department determined the complaint failed to state a cause of action against the county stemming from the shooting death of plaintiff’s decedent at the hands of the father of her child (Jenkins). Plaintiff’s decedent had repeatedly requested of the county police that Jenkins be arrested and allegedly was told there was no reason for her to feel unsafe. The officer’s statement did not create a special relationship with the county such that the county could be held liable:

“Generally, a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual” … . “A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties” … . The elements of a special relationship are (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured, (2) knowledge on the part of the municipality’s agents that inaction could lead to harm, (3) some form of direct contact between the municipality’s agents and the injured party, and (4) the injured party’s justifiable reliance on the municipality’s affirmative undertaking … .

Contrary to the plaintiff’s contentions, the complaint fails to allege facts that could establish an affirmative undertaking or justifiable reliance on any such undertaking by the defendants … . The complaint alleged that the decedent was told by an officer, weeks before the killing, that the officer “did not see any reason why Mr. Jenkins would hurt [the decedent or her sister] and that there was no reason for them to feel unsafe.” This statement, or statements to that effect, which could not be construed as conveying any promise or intention to protect the decedent, are not a basis on which a special duty may be premised … . Coleman v County of Suffolk, 2021 NY Slip Op 08219, Second Dept 3-17-21

 

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THE ELEVATOR COMPANY, BY CONTRACT, HAD COMPLETE RESPONSIBILITY FOR ELEVATOR MAINTENANCE; THEREFORE THE BUILDING OWNER AND MANAGER WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST THEM IN THIS RES IPSA LOQUITUR ELEVATOR-MALFUNCTION-ACCIDENT CASE (FIRST DEPT).

The First Department, recalling and vacating a decision in this case released on December 8, 2020, determined the building owner (1067 Fifth) and manager (Elliman) did not have constructive or action notice of the defect in the elevator door which allegedly caused it to close on plaintiff’s shoulder, pinning her while the elevator descended. However liability may be demonstrated under the res ipsa loquitur theory. But because the building owner and manager had, by contract, relinquished all control over the maintenance of the elevator to defendant elevator company, American, their motions for summary judgment were granted:

… [U]nder the terms of its contract with 1067 Fifth, American was responsible for providing “full comprehensive maintenance and repair services” for the elevators, which included maintaining “[t]he entire vertical transportation system,” including “all engineering, material, labor, testing, and inspections needed to achieve work specified by the contract.” Further, under the terms of the contract, maintenance “include[s], but is not limited to, preventive services, emergency callback services, inspection and testing services, repair and/or direct replacement component renewal procedures.” The contract also provided for American to “schedule [ ] systematic examinations, adjustments, cleaning and lubrication of all machinery, machinery spaces, hoistways and pits,” and to do all “repairs, renewals, and replacements . . . as soon as scheduled or other examinations reveal the necessity of the same.” Further, American agreed to provide emergency call-back service 24 hours a day, 7 days a week. Given such broad contractual responsibilities, American’s contract can be said to have “entirely displaced” the responsibility of 1067 Fifth and Elliman to maintain the safety of the building’s elevators, which gave rise to a duty owed directly to plaintiff by American (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Sanchez v 1067 Fifth Ave. Corp., 2021 NY Slip Op 01522, First Dept 3-16-21

 

PLAINTIFF WAS KNOCKED DOWN WHEN MALL SHOPPERS PANICKED AND FLED BECAUSE A FALLING DISPLAY SOUNDED LIKE GUNSHOTS; QUESTIONS OF FACT CONCERNING THE FORESEEABILITY OF THE PANIC AND THE OPPORTUNITY TO CONTROL THE PANIC PRECLUDED SUMMARY JUDGMENT RE THE OWNERS AND SECURITY COMPANY (SECOND DEPT).

The Second Department determined the owners of a shopping mall and the mall security company did not eliminate questions of fact about whether they owed a duty to prevent harm to plaintiff, who was knocked down when shoppers panicked. Apparently security personnel were struggling with a shoplifter when a display of perfume bottles was knocked over causing a crash which apparently sounded like gunshots:

“‘Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property'” … . An owner’s duty to control the conduct of persons on its premises arises when it has the opportunity to control such conduct, and is reasonably aware of the need for such control … . The record demonstrates that the mall defendants and AlliedBarton [the security company] had trained employees to handle mall evacuations and active shooters, including a live drill with other employees assuming the role of panicked shoppers. Thus, the mall defendants did not eliminate all triable issues of fact as to whether it was foreseeable that a disturbance in the mall, like the one caused by the incident with Darby [the alleged shoplifter], could cause a dangerous panic. Furthermore, contrary to the mall defendants’ contention, they failed to establish that they had no notice or opportunity to control the panic or the crowd before it reached [the] store [where plaintiff was shopping] and allegedly ultimately caused the plaintiff’s injuries. Grogan v Simon Prop. Group, Inc., 2021 NY Slip Op 01396, Second Dept 3-10-21

 

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THE CITY DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK/CURB DEFECT IN THIS SLIP AND FALL CASE BECAUSE THE DEFECT DID NOT APPEAR ON THE BIG APPLE MAP WHICH HAD BEEN SERVED ON THE CITY, DESPITE THE APPARENT EXISTENCE OF ANOTHER BIG APPLE MAP WHICH SHOWED THE DEFECT BUT WAS NOT SHOWN TO HAVE BEEN SERVED ON THE CITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Big Apple map demonstrated the city did not have prior written notice of the sidewalk/curb defect where plaintiff allegedly slipped and fell, despite the apparent existence of another Big Apple map which showed the defect but was not shown to have been served on the city (NYC):

Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. (hereinafter Big Apple), and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon … . Where a plaintiff relies on a Big Apple map, the map served on the City closest in time prior to the subject accident is controlling … .

Here, the City met its prima facie burden by proffering evidence that the most recent Big Apple map served on it did not show the defect and that it had not received any other prior written notice of the allegedly defective condition … . Although the plaintiff produced a competing Big Apple map which purportedly showed the defect, that map was not accompanied by any evidence showing when it had been served on the City. Abdullah v City of New York, 2021 NY Slip Op 01377, Second Dept 3-10-21

 

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THE SEVEN-YEAR STATUTE OF LIMITATIONS IN NYC’S VICTIMS OF GENDER-MOTIVATED VIOLENCE PROTECTION LAW (VGM) IS NOT PREEMPTED BY THE ONE-YEAR OR THREE-YEAR CPLR STATUTES OF LIMITATIONS; ALTHOUGH DEFENDANT AND DEFENDANT S CORPORATION MAY BE ONE AND THE SAME, THERE WAS ENOUGH EVIDENTIARY SUPPORT FOR THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION TO SURVIVE THE MOTION TO DISMISS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, reversing Supreme Court, determined the seven-year statute of limitations in NYC’s Victims of Gender-Motivated Violence Protection Law (VGM) was not preempted by the one-year statute of limitations for assault in the CPLR and the negligent hiring and supervision cause of action should have survived the motion to dismiss even though the S corporation (PDR) and the defendant (Rofe) may be one and the same. The complaint alleged plaintiffs were subjected to unwanted sexual touching by defendant Rofe during voice-over coaching sessions offered by defendant S corporation (PDR):

… [W]e find that the legislative intent of the VGM was to create a civil rights remedy or cause of action such as in VAWA, rather than to extend the statute of limitations for a particular class of assaults. Since the nature of the claim is for a civil rights violation (providing a remedy for those subjected to violence because of their gender), the seven-year limitations period provided in the Administrative Code is not preempted by the CPLR statute of limitations for assault claims. * * *

To be sure, defendants may be correct that PDR essentially has no corporate structure separate from Rofe. Plaintiffs themselves do not appear to distinguish between Rofe and PDR in their brief. Nevertheless, plaintiffs have sufficiently alleged that Rofe was an employee of PDR and, through the submission of additional evidence in opposition to the motion to dismiss, have also sufficiently alleged that there may have been other employees of PDR who either hired, or supervised Rofe or whom Rofe hired or supervised. The acts of a corporation’s agent and the knowledge acquired by the agent are presumptively imputed to the corporation … . Thus, Rofe’s knowledge (as an alleged agent of PDR) that an employee was potentially violent or prone to sexual assaults would normally be imputed to PDR, potentially requiring PDR to supervise that employee, and the cause of action for negligent hiring and supervision should be reinstated as against PDR … . Engelman v Rofe, 2021 NY Slip Op 01321, First Dept 3-2-21

 

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DESPITE A SMALL HOME OFFICE, DEFENDANT WAS ENTITLED TO THE LIABILITY EXEMPTION FOR OWNER-OCCUPIED RESIDENCES IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment in this sidewalk slip and fall case should have been granted. The NYC Administrative Code exempts abutting owner-occupied residential properties from liability. The fact that defendant had a small office where he edited photos did not change the purely residential nature of the property:

In 2003, the New York City Council enacted section 7-210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability shifting provision does not, however, 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 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” … .

Here, the appellant established, prima facie, that he was exempt from liability pursuant to the subject Code exception, and no triable issue of fact was raised in opposition. The appellant’s partial use of a room in his single-family home as an office to edit some photos in relation to his infrequent paid photography ventures was merely incidental to his residential use of the property … . The appellant was a retired photographer, and on occasion he would edit photos on his home computer in relation to two or three paid party photography jobs he did per year. The appellant did not claim a “home office” tax deduction, nor did he use this space in his home to edit these photos with any regularity. Zak v City of New York, 2021 NY Slip Op 01287, Second Dept 3-3-21

 

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PLAINTIFF’S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY IN THIS SLIP AND FALL CASE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict in this slip and fall case, determined plaintiff’s expert should have been allowed to testify:

The plaintiff Wendy Robins (hereinafter the injured plaintiff) fell after stepping onto a curb adjacent to an unfinished driveway apron leading to an underground parking garage in a condominium building that was under construction … . …

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The admissibility and scope of expert testimony is a determination within the discretion of the trial court … .

Here, the Supreme Court improvidently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert witness as to industry safety standards relating to the construction of sidewalks … . Contrary to the defendants’ contention, the record shows no appreciable difference between the unfinished driveway apron where the injured plaintiff fell, which was left open to pedestrians, and the adjoining unfinished sidewalks, which were barricaded by a fence and barrels. Moreover, the absence of a violation of a specific code or ordinance is not dispositive of the plaintiffs’ allegations based on common-law negligence principles … . Had the plaintiffs’ expert been permitted to testify, he could have addressed whether, under the circumstances presented, the defendants’ failure to barricade the driveway apron or otherwise warn pedestrians of its unfinished condition was a departure from generally accepted customs and practices and whether the defendants were negligent in failing to do so … . Robins v City of Long Beach, 2021 NY Slip Op 01277, Second Dept 3-3-21​

 

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