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THE CURB AND TREE WELL ARE NOT AREAS OF A SIDEWALK WHICH ARE THE RESPONSIBILITY OF THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S/MANAGER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the areas near the sidewalk where plaintiff slipped and fell were the curb and a tree well. Both the curb and the tree well, according to the NYC Administrative Code, are not the responsibility of the abutting property owner (Gore/UA):

The owner of premises abutting the public sidewalk has a nondelegable duty to maintain and repair the sidewalk abutting the premises (Administrative Code of the City of New York § 7—210 …). The sidewalk includes “the intersection quadrant for corner property” (Admin Code § 7-210[a]). “Although section 7-210 does not define the term ‘sidewalk,’ Administrative Code § 19-101 (d) defines sidewalk as ‘that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians'” … . In the absence of a definition in section 7-210, this Court has held that the definition in section 19-101(d) should govern … .

We find that Gore/UA’s motion for summary judgment should have been granted. Review of the photographs clearly show that the area where plaintiff fell is a curb, intended for the use of pedestrians. Therefore, the definition of the term sidewalk in section 19-101(d) shows that Gore and UA did not have a duty to maintain or repair the area where plaintiff fell. Further, to the extent that plaintiff’s injuries were caused by the tree well, Administrative Code § 7-210 “does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Brown v New York City Dept. of Transp., 2020 NY Slip Op 05807, First Dept 10-15-20

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWAY HAD LAST BEEN CLEANED OR INSPECTED IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant was not entitled to summary judgment in this slip and fall case because it did not demonstrate when the stairway where plaintiff slipped and fell was last cleaned or inspected:

Defendant did not demonstrate that it lacked constructive notice of the grease as it failed to show when the stairwell was last cleaned or inspected … . Proof of a regular maintenance schedule “does not suffice for purposes of showing that it was followed” … , and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff’s observation of debris on the stairs shows that no such maintenance was done prior to her fall. White v MP 40 Realty Mgt. LLC, 2020 NY Slip Op 05838, First Dept 10-15-20

 

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PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND RELIED ON FACTS NOT IN THE RECORD; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice should not have granted because plaintiffs’ expert’s affidavit relied on facts not in the record:

… [W]e disagree with the Supreme Court’s determination that the affirmation of the plaintiffs’ expert, submitted in opposition to the motion, was sufficient to raise a triable issue of fact as to whether the defendants deviated or departed from accepted medical practice. Even assuming that the plaintiffs’ expert was qualified to opine on the placement of an epidural catheter, the expert’s opinion that [defendant] departed from the standard of care was conclusory and speculative, and relied on facts that were not supported by the record … . Herrera v Sanroman, 2020 NY Slip Op 05726, Second Dept 10-14-20

 

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THE MOTION TO SET ASIDE THE VERDICT AS INCONSISTENT AFTER IT WAS DEEMED A DEFENSE VERDICT VIOLATED THE BINDING SUMMARY TRIAL STIPULATION; THE MOTION TO SET ASIDE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined granting the motion to set aside the verdict in this personal injury trial violated the binding summary jury trial stipulation which was entered into pursuant to Richmond County Summary Jury Trial Rules:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in an automobile accident. The parties subsequently entered into a stipulation to submit this matter to a binding summary jury trial pursuant to the Richmond County Summary Jury Trial Rules.

In its verdict sheet, the jury found that the [defendant’s] … negligence was not a substantial factor in causing the accident, but went on to assess her percentage of fault at 49%. The jury did not determine whether the plaintiff had sustained a serious injury and did not award any damages. Upon receiving the jury’s verdict sheet, the Supreme Court informed the jury that “there was no need to go on past” the finding that [defendant’s] negligence was not a substantial factor in causing the accident, and after ascertaining that all six jurors had signed the form, the trial court dismissed the jurors and announced that “[t]his constitutes a defense verdict.”

Four days later, the plaintiff moved, in effect, to set aside the verdict on the ground that it was internally inconsistent, and the Supreme Court granted the motion.

As the defendants contend, the Supreme Court “exceeded the boundaries of the parties’ agreement by setting aside the verdict” … . Conio v Talarico, 2020 NY Slip Op 05720, Second Dept 10-14-20

 

DEFENDANTS’ DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE ASSUMPTION OF THE RISK DOCTRINE APPLIED TO PLAINTIFF’S USE OF DEFENDANTS’ HOVER BOARD IN DEFENDANTS’ DRIVEWAY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate as a matter of law that  the assumption of the risk doctrine applied to plaintiff’s use of defendants’ hover board in defendants’ driveway. Plaintiff was injured falling off the hover board:

Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, the plaintiff was operating the hover board in the defendants’ driveway, not a designated athletic or recreational venue; nor did the defendants actively sponsor or promote the activity … . Accordingly, the defendants failed to establish, prima facie, that the doctrine of primary assumption of risk applied to the circumstances of this case … . Scally v J.B., 2020 NY Slip Op 05791, Second Dept 10-14-29

 

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THE DRIVER OF THE STATE DUMP TRUCK WHO SIDESWIPED PLAINTIFF’S MOPED IN THE BICYCLE LANE WHILE LOOKING FOR DEAD DEER DID NOT ACT RECKLESSLY WITHIN THE MEANING OF THE VEHICLE AND TRAFFIC LAW (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the driver of a Department of Transportation (DOT) dump truck did not act recklessly within the meaning of Vehicle and Traffic law 1103 [b]. The driver was traveling partially in the bicycle lane looking for dead deer and didn’t see the plaintiff on a moped in the bicycle lane:

A State vehicle “actually engaged in work on a highway” is exempt from the rules of the road and may be held liable only for damages caused by an act done in “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1103[b] … ). “Reckless disregard . . . requires more than a momentary lapse in judgment” … . In order to meet the standard required by Vehicle and Traffic Law § 1103(b), a claimant must show that “the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome”… .

… [T]he evidence was insufficient to establish that the DOT workers exhibited a “reckless disregard for the safety of others” (Vehicle & Traffic Law § 1103[b]). The claimant failed to establish that the DOT workers acted in conscious disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow … . Rascelles v State of New York, 2020 NY Slip Op 05788, Second Dept 10-14-20

 

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ALTHOUGH THE TRAFFIC ACCIDENT OCCURRED IN VIRGINIA, PLAINTIFF’S CHOICE OF FORUM (NEW YORK) SHOULD HAVE BEEN UPHELD; VIRGINIA WITNESSES MAY COME TO NEW YORK VOLUNTARILY OR THE VIRGINIA WITNESSES COULD BE DEPOSED IN VIRGINIA; SUPREME COURT SHOULD NOT HAVE SPECULATED ABOUT THE AVAILABILITY OF VIRGINIA WITNESSES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s choice of forum should have been upheld:

Dalaine M. Piesker (plaintiff) was injured in a motor vehicle accident while driving a truck owned by defendant. Plaintiffs are residents of New York, and defendant has an office and transacts business in New York, but the accident occurred in Virginia. Plaintiffs thereafter commenced this negligence action in New York. Supreme Court subsequently granted defendant’s motion to dismiss the complaint on forum non conveniens grounds, reasoning that defendant would be prejudiced by litigating this action in New York because it would be unable to subpoena either the Virginia State Police officers who investigated the accident or the medical providers who treated plaintiff in Virginia immediately following the accident.

“[W]here a plaintiff is a New York resident, a defendant bears the heavy burden of establishing that New York is an inappropriate forum before plaintiff’s choice of forum will be disturbed” … . Defendant failed to meet that heavy burden here. Although “New York courts lack the authority to subpoena out-of-state nonparty witnesses” …, defendant submitted no evidence establishing that the investigating police officers and the emergency medical providers would not testify voluntarily in New York. The court’s speculation to the contrary is unsupported by the record. In any event, both New York and Virginia are parties to the Uniform Interstate Depositions and Discovery Act (see CPLR 3119; Va Code Ann § 8.01-412.10), and defendant could, if necessary, depose the subject witnesses in Virginia and thereafter introduce those depositions at trial in lieu of in-person testimony in New York (see CPLR 3117 [a] [3] [ii]). Piesker v Price Leasing Corp., 2020 NY Slip Op 05648, Fourth Dept 10-9-20

 

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE THE APPLICABILITY OF THE STORM-IN-PROGRESS RULE IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district did not demonstrate the applicability of the storm-in-progress rule in this slip and fall case:

… [D]efendants did not meet their initial burden of establishing that plaintiff’s injuries were the result of “an icy condition occurring during an ongoing storm or for a reasonable time thereafter” … . Although defendants submitted an affidavit from a meteorologic expert, Doppler radar data, and deposition testimony establishing that it had been snowing and icy on the date of the accident from the early morning hours through 3:00 p.m., the time plaintiff fell, defendants also submitted conflicting evidence regarding how much snow actually accumulated in the area of the middle school. Defendants’ expert never set forth, by opinion or otherwise, any specific amount of snowfall in the Town of Yorkshire on the date of plaintiff’s fall. … Thus, defendants’ own submissions raised a question of fact whether there was a storm in progress at the time of the fall.

Even assuming, arguendo, that defendants met their initial burden, plaintiff raised an issue of fact whether the ice upon which she fell preexisted the weather event … . Plaintiff submitted the affidavit of an expert meteorologist who averred that a thaw in the days prior to the accident, followed by a drop in temperatures from the night before into the morning hours of the accident, would account for the formation of the ice. Plaintiff also submitted deposition testimony establishing that there had been thick ice in the parking lot since the day before the accident, and that defendants’ groundskeeper had plowed down to the ice … . We also conclude that plaintiff raised an issue of fact whether defendants had constructive notice of the condition … . Ayers v Pioneer Cent. Sch. Dist., 2020 NY Slip Op 05622, Fourth Dept 10-9-20

 

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EVIDENCE OF CAUSATION IN THE ASBESTOS EXPOSURE CASE WAS SUFFICIENT, MOTION TO SET ASIDE THE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the evidence of causation in this asbestos exposure case was sufficient to support the plaintiffs’ verdict and the motion to set aside was properly denied:

Although, to prove specific causation, plaintiff and decedent were required to establish that decedent “was exposed to sufficient levels of the toxin to cause” his alleged injuries, “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship” … . There simply “must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . Such evidence may include an expert’s use of estimates generated by mathematical models taking a plaintiff’s work history into account, or the use of “more qualitative means” to determine the level of a plaintiff’s exposure, such as comparing the plaintiff’s exposure level “to the exposure levels of subjects of other studies” … . Matter of Eighth Jud. Dist. Asbestos Litig., 2020 NY Slip Op 05621, Fourth Dept 10-9-20

 

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SUPREME COURT SHOULD NOT HAVE HELD AS A MATTER OF LAW THAT THE TRIGGERING EVENT FOR INSURANCE COVERAGE FOR ASBESTOS-INJURY IS THE FIRST EXPOSURE TO ASBESTOS AS OPPOSED TO EXPOSURE TO A CERTAIN LEVEL OF ASBESTOS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this asbestos exposure case, held it should not have been determined as a matter of law that insurance coverage is triggered by the first exposure to asbestos, as opposed after exposure to a certain level of asbestos:

The parties do not dispute that the applicable test in determining what event constitutes personal injury sufficient to trigger coverage is injury-in-fact, “which rests on when the injury, sickness, disease or disability actually began” … . Rather, the parties dispute when an asbestos-related injury actually begins: plaintiffs assert that injury-in-fact occurs upon first exposure to asbestos, while defendant denies that assertion and instead maintains that injury-in-fact occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms. The court concluded, as a matter of law, that injury-in-fact occurs upon first exposure to asbestos. … [T]he court erred in that regard, and we therefore modify the judgment by denying the subject motion for partial summary judgment and vacating the declaration with respect to that motion. Carrier Corp. v Allstate Ins. Co., 2020 NY Slip Op 05620, Fourth Dept 10-9-20

 

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