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PLAINTIFF TRIPPED OVER A FOOTING FOR A TRAFFIC SIGNAL POLE WHICH HAD BEEN REMOVED; ALTHOUGH THE CITY APPROVED THE REMOVAL OF THE POLE IT PLAYED NO ROLE IN ITS REMOVAL; THEREFORE THE CITY DID NOT CREATE THE CONDITION AND THE LACK OF WRITTEN NOTICE RELIEVED THE CITY OF LIABILITY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined, after a plaintiff’s verdict at trial, the defendant city’s motion for summary judgment should have been granted in this slip and fall case. Plaintiff tripped over the footing of a traffic signal pole (the pole had been removed). The city demonstrated it did not have written notice of the condition. Therefore the burden shifted to the plaintiff to show that the city created the condition. The city submitted documents showing that the removal of the pole was part of a private construction project over which the city exercised no control:

The City did not receive notice of the project’s completion or when and by whom the traffic signals were removed. Trudeau [Chief Supervisor of the Traffic Engineering Division of the Albany Police Department] testified that the City did not oversee the development project because it was a private project, and he was not aware of when the traffic signals were removed or who removed them. We note that, contrary to Supreme Court’s decision, the City’s failure to inspect the sidewalk is an omission that does not constitute affirmative negligence that excuses compliance with the prior written notice requirement … . By failing to present any proof that the City received written notice of the defect or of an affirmative act taken by the City that immediately resulted in the defective condition of the sidewalk, plaintiffs failed to raise a material issue of fact as to the exception to the prior written notice requirement … . Vnuk v City of Albany, 2021 NY Slip Op 00600, Third Dept 2-4-21

 

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PLAINTIFF’S DECEDENT, A POLICE OFFICER SUFFERING FROM BIPOLAR DISORDER, COMMITTED SUICIDE; THE ESTATE BROUGHT A WRONGFUL DEATH ACTION AGAINST THE CITY; ALTHOUGH THE FACTS SUPPORTED AN EMPLOYMENT DISCRIMINATION CLAIM, THE COMPLAINT DID NOT ALLEGE HUMAN RIGHTS LAW CAUSES OF ACTION; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta. determined plaintiff’s decedent (Benitez), a police officer who committed suicide, was disabled by bipolar disorder and was entitled to accommodation under the state and city Human Rights Law. However, because the estate brought a wrongful death action, and did not allege Human Rights Law discrimination causes of action, the complaint was properly dismissed:

… [P]laintiff conceded that this case “ha[d] been primarily brought on a claim of negligence,” that it had not interposed separate statutory causes of action, and that “this [wa]s a negligence c[ase], not a c[ase] based on discriminatory practices.” …

Inasmuch as plaintiff did not raise any Human Rights Law violations for failure to accommodate, we are constrained to affirm … . Supreme Court correctly concluded that defendants did not owe Benitez a duty to prevent him from committing suicide. A defendant owes such a duty where it is either “a facility such as a hospital or jail which is in actual physical custody of an individual” or “an institution or mental health professional with sufficient expertise to detect suicidal tendencies and with the control necessary to care for the person’s well-being” … . Here, defendants had neither “actual physical custody” of the decedent nor “the control necessary to care for [his] well-being” before his suicide … . Furthermore, a defendant only breaches its duty to prevent a decedent’s suicide when it “fails to take reasonable steps to prevent a reasonably foreseeable suicide … ,” and there is no evidence in this case that the decedent’s suicide was “reasonably foreseeable” … .

On appeal, plaintiff argues that the NYPD failed to accommodate Benitez under, among other statutes, the City Human Rights Law (City HRL). However, plaintiff improperly raises elements of disability discrimination in the context of a wrongful death action. Benitez v City of New York, 2021 NY Slip Op 00617, First Dept 2-4-21

 

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AFTER TWICE ADMITTING OWNERSHIP OF THE AREA OF PLAINTIFF’S SLIP AND FALL, DEFENDANTS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THEIR ANSWER TO DENY OWNERSHIP AFTER THE STATUTE OF LIMITATIONS HAD RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants, after twice acknowledging ownership of the area of plaintiff’s slip and fall, should not have been allowed to amend their answer to deny ownership after the statute of limitations had run

[Defendants] may not amend their answer in this manner after the statute of limitations has expired; the amendment would be too prejudicial to plaintiff … . Jackson v 170 W. End Ave. Owners Corp., 2021 NY Slip Op 00625, First Dept 2-4-21

 

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ALTHOUGH THE SIDEWALK DEFECT WAS SMALL, THE AREA WAS DARKENED BY SCAFFOLDING; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was evidence the defect in the sidewalk, although small, may not have been visible because scaffolding covered the sidewalk. In addition, defendants’ expert did not inspect the sidewalk until 3 1/2 years after the accident (after repairs had been made):

Defendants and the motion court relied extensively on the height differential between the sidewalk flags, applying a mechanistic disposition of a case based exclusively on the dimension of a sidewalk defect, which defendants’ expert measured to be seven-sixteenths of an inch … .

Plaintiff presented evidence that the height differential was not the only factor that caused her to trip. First, plaintiff established that the sidewalk was covered by a scaffolding that darkened the sidewalk and made it harder to see a sidewalk defect … . Second, plaintiff established through her expert that the expansion joint between the sidewalk flags was recessed an inch below the surface, when it should have been filled in and flush with the surface (see New York City Department of Transportation Highway Rule § 2-09[f][4][v]). The recessed expansion joint, which was repaired by the time defendants’ expert examined the sidewalk, added to the hazard …

Moreover, defendants’ expert did not inspect the area where plaintiff fell until more than 3 ½ years after plaintiff’s accident. Marks v 79th St. Tenants Corp., 2021 NY Slip Op 00629, First Detp 2-4-21

 

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THE METEOROLOGICAL DATA WAS NOT SWORN TO; DEFENDANTS THEREFORE DID NOT DEMONSTRATE THERE WAS A STORM IN PROGRESS IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendants asserted the storm in progress defense, but the meteorological data was not in admissible form:

In this action where plaintiff alleges that he was injured after he fell on a snowy or icy condition on defendants’ driveway, defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law. The meteorologists’ reports relied upon by defendants were not in admissible form … . The reports contain no jurat, stamp of a notary public, or any other indication that the experts were actually sworn … .

In any event, contrary to defendants’ contention, the testimony of the parties alone did not establish that the snowstorm was still in progress at the time of the accident, and was therefore insufficient to avail them of the storm in progress defense … . Morales v Gross, 2021 NY Slip Op 00632, First Dept 2-4-21

 

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RARE CASE IN WHICH A SPECIAL RELATIONSHIP BETWEEN THE PLAINTIFF AND THE CITY MAY RENDER THE CITY LIABLE FOR A DELAYED RESPONSE TO A 911 CALL; BECAUSE THE DELAY MAY NOT HAVE BEEN THE RESULT OF A DELIBERATE EXERCISE OF DISCRETION, THE DOCTRINE OF GOVERNMENTAL IMMUNITY MAY NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had sufficiently alleged the existence of a special relationship with the city and dismissal based on the doctrine of governmental function immunity was not appropriate. Plaintiff called 911 and was told the ambulance was on its way. Plaintiff had other options for assistance but relied on the 911 operator’s statement. Apparently the ambulance response was delayed. Absent a special relationship a municipality may not be held liable for breach of a duty owed to the general public. Governmental immunity generally protects discretionary actions. Here the delayed response may not have been due to the deliberate exercise of discretion and therefore may not be protected by the immunity doctrine:

Plaintiff’s allegations are sufficient to establish a special relationship between the City and the decedent that brings her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public — such as the duty to provide ambulance service … . The allegation that the 911 operator told plaintiff that “we are on our way” is sufficient to establish defendants’ assumption of an affirmative duty to act on the decedent’s behalf … . Plaintiff sufficiently alleged justifiable reliance on the call operator’s statement through an affidavit submitted in opposition to defendants’ motion in which she listed several additional actions she would have taken to secure help but for the operator’s assurance … .

Dismissal is also not appropriate at this stage pursuant to the doctrine of governmental function immunity, which shields public entities from liability for “discretionary” actions taken during the performance of “governmental functions” … . It is undisputed that the provision of emergency care by FDNY EMTs constitutes a governmental function … . It is also clear that determinations of whether and when to dispatch an ambulance, the type of ambulance to dispatch and from where, and the route the ambulance should take are discretionary in nature … . However, it is not clear that the delay at issue here was due to an affirmative exercise of this discretion, rather than an unintentional failure to timely dispatch an ambulance … . Xenias v City of New York, 2021 NY Slip Op 00647, First Dept 2-4-21

 

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PLAINTIFF HIGH SCHOOL BASEBALL PLAYER ASSUMED THE RISK OF BEING STRUCK WITH A BALL DURING A PRACTICE DRILL WHERE MULTIPLE BALLS WERE IN PLAY; TWO DISSENTING MEMORANDA (THIRD DEPT).

The Third Department, over two separate dissents, determined plaintiff high school baseball player assumed the risk of injury from being struck with a ball during a so-called “Warrior Drill” where multiple balls are in play:

Having more than one ball in play may not be an inherent risk in a traditional baseball game, but the record indicates that it is a risk inherent in baseball team practices … . Although plaintiff asserts that the presence of a screen between certain players may have provided a false sense of security that they would be protected, thereby creating a dangerous condition beyond the normal dangers inherent in the sport, this argument is belied by his testimony unequivocally establishing that he did not rely upon the screen for safety but, rather, thought that the drill was unsafe even in the presence of the screen. Thus, the conditions were “as safe as they appear[ed] to be” … .  As the evidence showed that plaintiff was an experienced baseball player who “knew of the risks, appreciated their nature and voluntarily assumed them,” defendants demonstrated their prima facie entitlement to summary judgment under the primary assumption of risk doctrine … . Grady v Chenango Val. Cent. Sch. Dist., 2021 NY Slip Op 00468, Third Dept 1-28-21

 

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ALTHOUGH DEFENDANTS MISSED THE DEADLINE AND THEREBY WAIVED THE RIGHT TO MEDICAL EXAMINATIONS OF PLAINTIFF, THE MOTION TO STRIKE THE NOTE OF ISSUE AND COMPEL AN EXAM SHOUD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to strike the note of issue and certificate of readiness and compel a medical examination of plaintiff should have been granted. Although the defendants missed the agreed deadline for the exam, they had an adequate excuse and there was no prejudice:

Although a defendant waives the right to medical examinations of the plaintiff by failing to conduct them within the time period set forth in compliance conference orders … , “under certain circumstances and absent a showing of prejudice to the opposing party, the court may exercise its discretion to relieve a party of a waiver of the right to conduct a physical examination” … . Here, a scheduled medical examination of the plaintiff failed to happen due to a clerical error by the vendor that scheduled the examination. Consequently, the defendants did not have the opportunity to conduct an independent medical examination of the plaintiff. Further, no prejudice was shown by the plaintiff. Andujar v Boyle, 2021 NY Slip Op 00400, Second Dept 1-27-21

 

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PLAINTIFF ALLEGED SHE TRIPPED ON A TWIG ON THE SIDEWALK WHICH WAS NOT ADEQUATELY ILLUMINATED; DEFENDANT, IN HER MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITIONS OR THAT THE CONDITIONS WERE NOT A PROXIMATE CAUSE OF THE FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property owner’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged she tripped on a twig on the sidewalk in an area which was not adequately illuminated. The defendant, in her motion papers, did not demonstrate she lacked constructive notice of the conditions or that the conditions were not a proximate cause of the fall:

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition … . “In a premises liability case, a defendant [real] property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … .

Here, the defendant failed to establish, prima facie, that she lacked constructive notice of the alleged dangerous conditions—to wit, the twig on the sidewalk and inadequate lighting on the premises, or that these conditions were not a proximate cause of the plaintiff’s fall … . Since the defendant failed to meet her initial burden as the movant, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . Wittman v Nespola, 2021 NY Slip Op 00454, Second Dept 1-27-21

 

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IN THIS THIRD-PARTY ASSAULT CASE, THE FACT THAT THE INTRUDER KILLED PLAINTIFF’S DECEDENT, A RESIDENT OF DEFENDANT’S APARTMENT BUILDING, IN A PRE-MEDITATED, TARGETED ATTACK DID NOT, AS A MATTER OF LAW, INSULATE THE LANDLORD FROM LIABILITY BASED UPON AN ALLEGEDLY BROKEN LOCK ON THE BUILDING’S EXTERIOR DOOR; THE 2ND DEPARTMENT DISAGREED WITH A LINE OF 1ST DEPARTMENT CASES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, disagreeing with a line of First Department decisions, determined a targeted, premeditated attack on a building resident is not necessarily an intervening cause which insulates the landlord from liability. Here plaintiff’s decedent was targeted by her former fiance (Boney) who set her, himself and one of her children on fire in the hallway outside plaintiff’s decedent’s apartment. There was evidence the exterior door to the building did not have a functioning lock. The Second Department held that the defendant landlord (the New York City Housing Authority [NYCHA]) did not eliminate questions of fact about whether the broken lock was a proximate cause of the attack and whether the attack was foreseeable:

The test in determining summary judgment motions involving negligent door security should … not focus on whether the crime committed within the building was “targeted” or “random,” but whether or not, and to what extent, an alleged negligently maintained building entrance was a concurrent contributory factor in the happening of the criminal occurrence. In examining whether there is a triable issue of fact as to foreseeability and proximate cause requiring trial, a jury could conceivably conclude that the chronically broken lock at the building’s front door provided Boney with an opportunity to attack the decedent, in a manner that might not otherwise have been possible, and that NYCHA could have foreseeably anticipated that its broken front door lock would result in the entry of intruders into the building for the commission of criminal activities against known or unknown specific tenants … . All of these actions should be examined sui generis, recognizing the unique facts of individualized matters, rather than simplistically or arbitrarily channeling them into either “targeted” or “random” criminal boxes that do not accommodate the factual nuances that may vary from case to case. Scurry v New York City Hous. Auth., 2021 NY Slip Op 00447, Second Dept 1-27-21

 

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