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DEFENDANT DID NOT DEMONSTRATE THE RUNG ON THE SIDE OF A DUMPSTER, WHICH WAS ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL, WAS NOT DANGEROUS, AND DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion fore summary judgment in this slip and fall case should not have been granted. Plaintiff alleged he slipped and fell because the top rung on the side of a dumpster was bent:

… [T]he defendant failed to establish its prima facie entitlement to judgment as a matter of law. The evidence submitted by the defendant in support of its motion, including a transcript of the plaintiff’s deposition testimony and a photograph of the dumpster, failed to establish, prima facie, that the top rung of the dumpster was not in a hazardous condition … , or that the plaintiff did not know what caused him to fall … .

The defendant also failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition of the top rung of the dumpster. The defendant did not submit any evidence as to when the dumpster was last inspected prior to the incident, and given the photographic evidence, it cannot be said as a matter of law that the alleged hazardous condition was not visible and apparent, and had not existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … . In addition, the defendant failed to establish, prima facie, that the plaintiff was the sole proximate cause of the accident … . Rosales v Five Star Carting, Inc., 2020 NY Slip Op 03934, Second Dept 7-15-20

 

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CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint against the landowner in this slip and fall case should not have been dismissed. Plaintiff allegedly slipped and fell in the parking lot of a shopping center. Plaintiff sued the landowner three days before the statute of limitations expired. The property address of the shopping center was wrong on the original summons and complaint. A couple of months later plaintiff served a supplemental summons and amended complaint which corrected the address and added defendants. The cause of action against the landowner should not have been dismissed because the lease gave the property owner some authority over keeping the premises safe and because the relation-back theory rendered the amended complaint timely. The causes of action against the added defendants were deemed time-barred because the relation-back doctrine did not apply to them:

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s allegations, thereby conclusively establishing a defense as a matter of law … . Here, the defendants’ own affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) … , and the ground lease between them and Stavan, Inc., failed to utterly refute the plaintiff’s factual allegations. “Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . Although “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … , and, here, the lease required the lessee to “keep [the subject property] in good repair” and “make or cause to be made any and all repairs both inside and outside,” the lease also gave the defendants the right to reenter the subject property and “perform and do such acts and things, and make such payments and incur such expenses as may be reasonably necessary to make . . . repairs to comply with the requirements” under the lease. Thus, the lease failed to conclusively establish a defense as a matter of law … . …

“The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … . Here, the plaintiff failed to demonstrate that the relation-back doctrine applied inasmuch as she did not establish that the additional defendants had knowledge of the claim or occurrence within the applicable limitations period, and that her failure to name them as defendants in the original complaint was due to a mistake on her part … . Pirozzi v Garvin, 2020 NY Slip Op 03932, Second Dept 7-15-20

 

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DEFENDANT DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED; ONE DOCTOR DID NOT DEMONSTRATE HE DID NOT PARTICIPATE IN THE RESUSCITATION OF THE NEWBORN; THERE WAS A QUESTION OF FACT WHETHER A SECOND DOCTOR EMPLOYED THE PROPER RESUSCITATION METHOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motions brought by two defendant doctors in this medical malpractice action should not have been granted. Essentially the alleged malpractice concerned the resuscitation of plaintiffs’ baby, E.K., in the seconds and minutes after birth. There were questions of fact about whether Dr. De Christofaro participated in the resuscitation efforts. And there were questions of fact whether Dr. Aleti-Jacobs used a proper resuscitation method:

De Christofaro failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. The expert affirmations submitted in support of De Christofaro’s motion failed to address, inter alia, the plaintiffs’ allegation i… that De Christofaro departed from the standard of care with regard to the resuscitation and intubation that took place in the minutes following E. K.’s birth. In particular, De Christofaro failed to eliminate triable issues of fact regarding his level of participation in the resuscitation and intubation of E. K. … . While De Christofaro testified at his deposition that there was nothing in E. K.’s medical records indicating that he was present in the delivery room during the intubation of E. K., the record does not conclusively establish his absence … . Critically, De Christofaro testified that he could not place an exact time at which he first became involved in E. K.’s care, that he “most certainly could have been there and helped in the resuscitation,” and that he could not recall the circumstances regarding E. K.’s intubation or who performed the intubation. …

… [T]he plaintiffs raised a triable issue of fact through the affirmation of their expert, who opined, inter alia, that Aleti-Jacobs breached the standard of care by administering PPV [positive pressure ventilation] to E. K. upon his birth rather than immediately intubating him. The plaintiffs’ expert opined that a baby, such as E. K., who was born with an Apgar score of one should have been intubated “within the first 15 to 20 second[s] of life.” According to one hospital record, E. K. was not successfully intubated until four minutes after his birth. Additionally, the plaintiffs’ expert’s opinion was sufficient to raise a triable issue of fact as to whether the alleged failure to timely intubate E. K. was a proximate cause of his injuries. E.K. v Tovar, 2020 NY Slip Op 03904, Second Dept 7-15-20

 

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EVIDENCE THE AREA WAS INSPECTED ONCE A MONTH DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DRIVEWAY IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined there were questions of fact about the cause of the fall (cracks in the asphalt), whether the defendant had notice of the condition, and whether the defect was trivial. Evidence the area was inspected once a month was no sufficient. Therefore defendant’s motion for summary judgment should not have been granted:

The defendant … failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition of the driveway … . To meet its initial burden to show a lack of constructive notice, the defendant must offer probative evidence demonstrating a proximity in time between when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … . The affidavit of the defendant’s maintenance worker submitted in support of the defendant’s motion referred only to his general inspection practices but did not refer to any specific inspection in the area of the plaintiff’s fall relative to the date of the incident. Another employee of the defendant averred in an affidavit that she had inspected the driveway approximately seven weeks prior to the plaintiff’s fall and found all routes were clear of obstructions. She also averred that the defendant’s maintenance department inspected the driveway at least once per month. This evidence was insufficient to establish, prima facie, lack of constructive notice … .

The defendant also failed to establish its prima facie entitlement to judgment as a matter of law on the basis that the alleged defect was trivial. The defendant failed to establish, prima facie, that the cracked condition of the driveway was trivial as a matter of law, and thus, nonactionable … . Croshier v New Horizons Resources, Inc., 2020 NY Slip Op 03892, Second Dept 7-15-20

 

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THE LANDLORD AND PROPERTY MANAGER DEMONSTRATED THE POWER-OPERATED DOOR WHICH ALLEGEDLY STRUCK PLAINTIFF WAS NOT DEFECTIVE AND THEY HAD NO NOTICE OF ANY DEFECTS (SECOND DEPT).

The Second Department determined the landlord (North Shore Towers) and the property manager (Greenthal Management) demonstrated the power-operated door which allegedly struck plaintiff as she walked through the doorway was not defective. Therefore the defendants’ motion for summary judgment was properly granted:

A landowner has a duty to maintain its property in a reasonably safe condition to prevent the occurrence of foreseeable injuries … . “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, North Shore Towers and Greenthal Management established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject door did not constitute a dangerous or defective condition … .. In support of their motion, they submitted evidence that they conducted daily inspections of the door, that the door activating system had been fully replaced two months before the incident, that, after the new system had been installed, there had been no complaints of the door malfunctioning prior to the incident, and that the door functioned in accordance with industry standards. Alkon v North Shore Towers Apts. Inc., 2020 NY Slip Op 03883, Second Dept 7-15-20

 

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WATER VALVE CAP OVER WHICH INFANT PLAINTIFF TRIPPED AND FELL WHILE PLAYING BASKETBALL IN THE STREET WAS A TRIVIAL DEFECT AS A MATTER OF LAW (SECOND DEPT). ​

The Second Department, affirming Supreme Court but on different grounds, determined the water valve cap over which infant plaintiff allegedly slipped (tripped) and fell while playing basketball in the street was a nonactionable trivial defect. Supreme Court had granted the city’s motion for summary judgment on the ground the city did not receive written notice of the defect:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . However, a property owner “may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” … . “In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … .

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, a transcript of the deposition testimony of the infant plaintiff’s father, photographs, and a transcript of the infant plaintiff’s deposition testimony describing the time, place, and circumstances of the injury. This evidence established, prima facie, that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable … . Acevedo v City of Yonkers, 2020 NY Slip Op 03881, Second Dept 7-15-20

 

CONTRACTOR WHICH WAXED THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL DID NOT OWE PLAINTIFF A DUTY OF CARE BECAUSE IT WAS NOT DEMONSTRATED THE CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contractor which waxed the floor where plaintiff allegedly slipped and fell did not owe a duty of care to the plaintiff because it was not demonstrated the contractor launched an instrument of harm (Espinal factor):

“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party … . “A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm” … . “Where such a duty is alleged, a defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of” … .

“A defendant may not be held liable for the application of wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge’ that the product could render the floor dangerously slippery” … . “In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Union v Excel Commercial Maintenance, 2020 NY Slip Op 03942, Second Dept 7-15-20

 

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QUESTIONS OF FACT ABOUT THE OWNERSHIP OF A SIDEWALK UTILITIES GRATE PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, in this slip and fall case, determined there were questions of fact about whether: (1) a sidewalk grate belonged to the abutting landowner (11 Madison) or the utility (Con Ed); and (2) whether the installation of the grate by the prior owner of the property constituted a special use of the sidewalk:

The record does not demonstrate conclusively that the owner of the sidewalk vault grate on which plaintiff Marie Saez allegedly tripped was defendant Con Ed, rather than the 11 Madison defendants, who owned the property abutting the sidewalk where the grate was located. There is an affidavit by the president of defendant Sapir Realty Management Corp. averring that the grates were already installed when the 11 Madison defendants acquired the property in 2003 and that the 11 Madison defendants had never been advised by Con Ed that they had any responsibility for maintaining the grates over Con Ed’s utility vaults or presented with any plans concerning the grates. There is also evidence that the 11 Madison defendants’ predecessor in interest had purchased and installed the non-standard vault gratings, and there is a note on the plot plan for the vault construction stating that this entity was to “supply, install and maintain” the non-standard gratings it had requested. As issues of fact exist whether Con Ed or the 11 Madison defendants owned the gratings, it cannot be concluded that Con Ed was responsible for maintaining the gratings and the area around them in safe condition … .

Issues of fact also exist as to whether the 11 Madison defendants’ predecessor’s installation of the non-standard vault grates constitutes a special use of the sidewalk by these defendants. Although there is evidence that they had no access to the grates and the vault, the evidence is not conclusive. Moreover, there is evidence that the transformers in the vaults provided electrical service solely to their property … . Saez v Sapir Realty Mgt. Corp., 2020 NY Slip Op 03863, First Dept 7-9-20

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON A GROUND NOT RAISED BY THE PARTIES, I.E., FINDING THE DEFECT TRIVIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this staircase slip and fall case should not have been granted. The defendant did not demonstrate it did not have constructive notice of salt (used to melt ice) on the steps. Supreme Court should not have, sua sponte, granted the motion on the ground the salt constituted a trivial defect because the parties did not raise that issue:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . To meet its burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the accident … .Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, in support of the motion, the defendant submitted, inter alia, the deposition testimony of the part-time porter and the deposition testimony of the property manager of the defendant’s building, which merely provided evidence as to the defendant’s general cleaning practices, with no evidence as to when the area at issue was last inspected or cleaned prior to the accident.

The Supreme Court should not have granted the defendant’s motion on the ground that the presence of the salt on the step at issue constituted a trivial defect since the parties did not raise this issue … . Johnson v 101-105 S. Eighth St. Apts. Hous. Dev. Fund Corp., 2020 NY Slip Op 03773, Second Dept 7-8-20

 

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ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this rear-end collision traffic accident case should have been granted. Although Supreme Court was correct in finding that a Frye hearing was not necessary because biomechanical engineering is an accepted scientific theory, no proper foundation was laid for the defense expert’s (Toosi’s) testimony:

The court properly relied upon a decision of this Court and a decision of the Appellate Term, First Department, in determining that biomechanical engineering is a scientific theory accepted in the field … . …

Separate and distinct from the Frye inquiry is the ” admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case'” … . “The question is whether the expert’s opinion sufficiently relates to existing data or is connected to existing data only by the ipse dixit of the expert” … . Here, the defendant failed to establish that Toosi’s opinions related to existing data and were the result of properly applied accepted methodology … . Thus, Toosi’s testimony should have been precluded. Guerra v Ditta, 2020 NY Slip Op 03771, Second Dept 7-8-20

 

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