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QUESTION OF FACT WHETHER AN UNGUARDED, UNILLUMINATED SEAWALL AT THE BACK OF DEFENDANTS’ YARD CONSTITUTED AN ACTIONABLE DANGEROUS CONDITION; PLAINTIFF, AT NIGHT, FELL OVER THE WALL DOWN TO THE BEACH BELOW (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the unguarded seawall in defendants’ backyard constituted a dangerous condition. Plaintiff was at defendants’ party and walked to the back of the yard to relieve himself when he fell over the wall, which was 20 feet above the lake:

Defendants’ backyard is approximately 20 feet above the lake, separated by a natural cliff that runs along the shoreline. Built into the face of the cliff is the 15-foot-high seawall, which consists of two levels, with an upper and a lower platform, and a cement staircase built into the center of the seawall that permits access from the backyard to the lower platform. Defendants’ backyard includes a cement sidewalk that leads to the top of the seawall’s staircase. Plaintiff fell off the seawall down to the beach below and sustained various injuries. * * *

… [D]efendants failed to eliminate all triable issues of fact whether the alleged hazard posed by the cliff and seawall, given the lighting conditions at the time of the accident, “was visible and obvious or presented a latent, dangerous condition” … . Stempien v Walls, 2021 NY Slip Op 02683, Fourth Dept 4-30-21

 

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AFTER WALKING OVER A TRAP DOOR, PLAINTIFF STEPPED BACK AND FELL THROUGH THE OPEN DOOR; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although the lease did not unambiguously insulate the out-of-possession landlord from liability for plaintiff’s fall through an open trap door in a deli, the landlord demonstrated it did not have actual or constructive notice of the dangerous condition. Apparently plaintiff walked over the closed trap door but then stepped back and fell through the open door:

… [T]he owner failed to demonstrate, prima facie, that it was an out-of-possession landlord that did not have a contractual duty under the lease to maintain and repair the subject trapdoor … . “‘[W]hile the meaning of a contract is ordinarily a question of law, when a term or clause is ambiguous and the determination of the parties’ intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact'” … . Although paragraph 46 of the rider to the lease effectively limits the owner’s responsibility to “structural portions” of the deli, that phrase is only partially described in the lease, and is not so clear and unambiguous as to be subject only to the interpretation that it excludes the trapdoor … .

However, the owner established, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of its existence … . At his deposition, the plaintiff testified that he walked over the trapdoor, and then “seconds” later when he stepped back, he fell through a hole caused by the open trapdoor. Accordingly, even though the owner did not present evidence of the last time it inspected the trapdoor, the plaintiff’s testimony establishes lack of constructive notice as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact. Although the owner’s representative testified at his deposition that he was aware of the existence and location of the trapdoor and went into the deli once a month to collect rent, a general awareness that customers could fall through an open trapdoor in the aisle of the deli is legally insufficient to constitute constructive notice of the particular condition that caused the plaintiff’s accident … . Vaughan v Triumphant Church of Jesus Christ, 2021 NY Slip Op 02560, Second Dept 4-28-21

 

PLAINTIFF, A SWIMMING OFFICIAL, SLIPPED ON WATER ON A POOL DECK AT AN INDOOR SWIMMING FACILITY; THE WATER ON THE POOL DECK CAME FROM AN OVERHEAD DEHUMIDIFICATION SYSTEM, NOT FROM SPLASHES FROM THE POOL; THE WATER WAS NOT NECESSARILY INCIDENTAL TO THE USE OF THE POOL AND THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (SECOND DEPT). ​

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff, a swimming official, slipped on water on a pool deck at an indoor swimming facility. The water did not come from the pool, but rather was condensation from a dehumidification system:

… [T]he defendant cannot obtain summary judgment by relying on the cases in which courts have dismissed personal injury claims arising out of slipping on water around pools based on the reasoning that such water was necessarily incidental to the use of the area … . …

[Re: assumption of the risk:] … [P]articipants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport” … .

Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility … .. Further, “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . O’Brien v Asphalt Green, Inc., 2021 NY Slip Op 02534, Second Dept 4-28-21

 

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THE EVIDENCE DEMONSTRATED DEFENDANT DID NOT STOP FOR A RED LIGHT AND STRUCK PLAINTIFF’S CAR AS PLAINTIFF WAS PASSING THROUGH THE INTERSECTION; FAILING TO STOP FOR A RED LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW AND CONSTITUTES NEGLIGENCE PER SE; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the evidence that defendant Glennon ran a red light and struck plaintiff’s car as plaintiff was passing through the intersection warranted summary judgment in plaintiff’s favor. Running a red light is a violation of the Vehicle and Traffic Law which constitutes negligence per se:

“[A] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . Pursuant to Vehicle and Traffic Law § 1111(d)(1), a driver when “facing a steady circular red signal, . . . shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection.” …

[Steedman, a witness, testified the] first two vehicles passed through the intersection without incident, but then the plaintiff, who was driving the third vehicle, was struck by Glennon’s vehicle. Steedman … testified that he observed Glennon looking down into her lap at the time of the accident. Thus, the evidence submitted by the plaintiff demonstrated, prima facie, that Glennon entered the subject intersection against a red light, in violation of Vehicle and Traffic Law § 1111(d)(1) … . Callahan v Glennon, 2021 NY Slip Op 02509, Second Dept 4-28-21

 

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PLAINTIFF WAS RAPED IN DEFENDANTS’ BAR/RESTAURANT AND RAISED QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE THIRD-PARTY ASSAULT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s third-party-assault-negligence action alleging inadequate security at defendant bar/restaurant should not have been dismissed. The building was owned by Harvard Agency and leased to Turnmill. Plaintiff was raped in a basement restroom. Plaintiff raised questions of fact by evidence a rape had occurred at a nearby bar owned by the same family, the bar was in a high crime area, and there were no security cameras in the basement:

Our courts have long held that “‘New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition'” … . “Although landlords . . . have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor’s safety … . …

… [P]laintiff raised an issue of fact by pointing to evidence that Harvard was aware of another assault at a bar owned by the same family and located only a few blocks from Turnmill ( … [… ‘[t]here is no requirement . . . that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected”]).

… [P]laintiff submitted a detailed expert affidavit indicating that the bar/restaurant was in a high crime area, and that the security employed was inadequate and a deviation from reasonable security standards … . Jane Doe v Turnmill LLC, 2021 NY Slip Op 02495, First Dept 4-27-21

 

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THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE CITY TO CONTEST THE ANNUAL INSPECTION FEES; A NEGLIGENCE ACTION AGAINST A MUNICIPALITY BASED UPON A STATUTORY DUTY WILL NOT FLY UNLESS THE STATUTE PROVIDES A PRIVATE RIGHT OF ACTION; A PRE-ANSWER MOTION TO DISMISS A REQUEST FOR A DECLARATORY JUDGMENT MUST BE DENIED IF IT SETS FORTH A CAUSE OF ACTION, THE MERITS OF THE REQUEST CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department determined the putative class action suit by two realty companies alleging the city charges annual fire and building code inspection fees but does not do the inspections was properly dismissed, with the exception of the request for a declaratory judgment. The suit alleged breach of contract, breach of fiduciary duty and negligence, and requested a declaratory judgment finding the fee violates the NYS Constitution. The Second Department held that the fire and building codes do not give rise to a private right of action. With respect to municipal liability for negligence and the request for a declaratory judgment, the court wrote:

To sustain liability against a municipality engaged in a governmental function, “the duty breached must be more than that owed the public generally” … . The Court of Appeals has recognized that a special duty can arise “when the municipality violates a statutory duty enacted for the benefit of a particular class of persons” … . “To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … [N]either the Uniform Code nor the Yonkers Fire Code gives rise to a private right of action. * * *

… [T]he Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the sixth cause of action, which sought a declaration, inter alia, that the inspection fees were invalid as an unconstitutional tax. “‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable [disposition]'” … . WMC Realty Corp. v City of Yonkers, 2021 NY Slip Op 02440, Second Dept 4-21-21

 

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THE PROPERTY OWNERS DID NOT HAVE NOTICE OF THE ALLEGED DEFECT IN THE STOVE IN PLAINTIFF’S APARTMENT AND DID NOT HAVE A DUTY TO INSPECT THE STOVE AFTER THEY INSTALLED IT; THE PROPERTY OWNERS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE WRONGFUL DEATH ACTION STEMMING FROM A STOVE TOP FIRE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the appellant-landlords were entitled to summary judgment dismissing the wrongful death action stemming from a stove top fire. The plaintiff alleged the fire was caused by the faulty installation of the gas stove by the appellants. The appellants demonstrated they did not create or have actual or constructive notice of the alleged dangerous condition:

… [O]n their motion for summary judgment, the appellants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the condition alleged by installing the stove and that they did not have actual or constructive notice of that condition. Contrary to the plaintiff’s assertion, where, as here, there was nothing to arouse the appellants’ suspicion that there was an issue with the subject stove prior to the accident, the appellants had no duty to inspect the stove … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the appellants maintained the premises in a reasonably safe condition, including whether they breached any duty to inspect the stove after its installation. Vantroba v Zodiaco, 2021 NY Slip Op 02438, Second Dept 4-21-21

 

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PLAINTIFF POLICE OFFICER WAS INJURED CHANGING THE CARBON DIOXIDE CARTRIDGE FOR AN ANIMAL TRANQUILIZER GUN; THE PRODUCTS LIABILITY CAUSE OF ACTION AGAINST THE MANUFACTURER SURVIVED SUMMARY JUDGMENT; THE GENERAL MUNICIPAL LAW 205-E/LABOR LAW 27-A CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence and products liability causes of action against NASCO, the manufacturer of an animal tranquilizer gun, properly survived summary judgment, but the General Municipal Law/Labor Law action against the city and the NYPD should not have been dismissed. Plaintiff, a police officer, was injured changing the carbon dioxide cartridge for the gun:

NASCO’s expert … opined in mere conclusory fashion that the tranquilizer gun was “appropriately designed.” The affidavit did not, for example, contain any explanation of the gun’s design, or any discussion of industry standards or costs. Nor did it state whether NASCO had received complaints about any of the other tranquilizer guns it had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use … .

NASCO … failed to demonstrate, prima facie, that the plaintiff’s actions were the sole proximate cause of the subject accident … . Triable issues of fact existed, among other things, as to whether the plaintiff was given specific instructions by the NYPD that he failed to follow or whether he used a tool to remove the end cap. …

NASCO, which relied primarily on an instruction sheet produced by the NYPD that the plaintiff testified was never given to him, failed to meet its burden of establishing, prime facie, that the warnings provided to the NYPD were adequate, that no warnings were necessary, or that the failure to give the aforesaid warnings was not a proximate cause of the accident … .

…The City defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the General Municipal Law § 205-e cause of action as was predicated upon Labor Law § 27-a. The City defendants failed to demonstrate, prima facie, that the tranquilizer gun, which was purchased by the NYPD in 1976, was not defective due to lack of proper maintenance, as alleged by the plaintiff … . Further “[r]ecovery under General Municipal Law § 205-e ‘does not require proof of such notice as would be necessary to a claim in common-law negligence'” … .”Rather, the plaintiff must only establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant’s part” … . Morales v City of New York, 2021 NY Slip Op 02386, Second Dept 4-21-21

 

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IT IS NOT CLEAR FROM THE CONTRACT WHETHER DEFENDANT TRUSTEE WAS TO PERFORM A MERELY MINISTERIAL FUNCTION OR A GATEWAY FUNCTION IN ACCEPTING ASSETS FOR THE TRUST FROM A NONPARTY WHICH WAS ACTING FRAUDULENTLY; THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE DAMAGES ASSOCIATED WITH ACCEPTING NON-NEGOTIABLE ASSETS WERE DIRECT OR INDIRECT AND WHETHER A FIDUCIARY DUTY WAS BREACHED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, reversing Supreme Court, determined the breach of contract, breach of fiduciary duty action against defendant trustee, Wilmington, should not have been dismissed. Wilmington acted as a trustee for assets transferred to the trust by a nonparty. The contract stated Wilmington would be responsible only for its own negligence but also stated no non-negotiable assets were to be placed into the trust. The nonparty which transferred assets to the trust acted fraudulently and made risky investments rendering the trust assets out-of-compliance with state law. Plaintiff sued Wilmington for breach of contract and breach of fiduciary duty. Wilmington argued that any damages suffered by plaintiff from the assets transferred by the nonparty were indirect, not direct, and therefore barred by the trust agreements:

… [I]t can be argued that, in light of Wilmington’s promise not to accept nonnegotiable assets into the trusts, and to be responsible for its own negligence, maintaining the value of the assets in the trusts was inherent in the service Wilmington agreed to provide. Thus, there is merit to plaintiffs’ argument that when the assets proved not to be negotiable, they lost the benefit of their bargain and were entitled to recover as direct damages the diminution in value, and the concomitant costs of restoring the assets to negotiable status, such as professional fees. * * *

… [A]t this stage of the litigation, it is difficult to discern whether the parties contemplated that Wilmington would have to pay the damages sought by plaintiffs if it failed to perform under the trust agreements. Again, the agreements provided that Wilmington would be liable for “its own negligence,” which a reasonable factfinder could consider as recognition that Wilmington, if it did not perform its duties in accordance with a minimum level of care, would need to pay more than the nominal damages represented by its fee. * * *

Even though the breach of contract and breach of fiduciary duty claims involved the same conduct, the fiduciary duty claim alleges a breach of a noncontractual duty relating to the trustee’s independent duty to perform nondiscretionary ministerial duties with respect to the negotiability of assets. Thus, the fact that Wilmington’s failure to prevent nonnegotiable assets from entering the trusts breached both fiduciary and contractual duties does not bar plaintiffs from seeking damages related to the former … . Bankers Conseco Life Ins. Co. v Wilmington Trust, N.A., 2021 NY Slip Op 02355, First Dept 4-20-21

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE POLICE OFFICER WHO COLLIDED WITH HER CAR WAS ENGAGED IN AN EMERGENCY OPERATION AT THE TIME OF THE ACCIDENT; THEREFORE THE ORDINARY NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether defendant police officer, Breen, was in fact involved in an emergency operation at the time she collided with the car in which plaintiff was a passenger. Therefore there was a question of fact whether the ordinary negligence principles, as opposed the reckless disregard standard, applied:

“[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, the defendants established, prima facie, that a negligence standard of care was inapplicable to Breen’s conduct, through the submission of evidence establishing that Breen was responding to another officer in need of assistance when she entered the intersection against a red traffic light and collided with the plaintiff’s vehicle … . In opposition, however, the plaintiff raised triable issues of fact as to whether Breen was in fact responding to the other officer’s call at the time of the accident and, therefore, whether the negligence standard should apply … . Modica v City of New York, 2021 NY Slip Op 02287, Second Dept 4-14-21

 

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