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PROOF DID NOT DEMONSTRATE THE PLACEMENT OF A RUG CONSTITUTED A DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the proof did not establish the placement of a rug was a dangerous condition in this slip and fall case:

Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly tripped and fell on a rug while walking through a restaurant owned and operated by defendant. We agree with defendant that Supreme Court erred in denying its motion seeking summary judgment dismissing the complaint. We therefore reverse the order, grant the motion, and dismiss the complaint. “Although the issue whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide . . . , summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous’ ” … . Here, defendant established its entitlement to judgment as a matter of law by submitting evidence that the placement of the rug in the restaurant did not constitute a dangerous condition, and in opposition plaintiff failed to raise a triable issue of fact … . Glosek v Bella Pizza, 2020 NY Slip Op 00933, Fourth Dept 2-7-20

 

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ALTHOUGH THE LEASE DID NOT IMPOSE A DUTY ON THE TENANT TO MAINTAIN THE SIDEWALK, THE VILLAGE CODE DID; THE TENANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant tenant’s (Invite Health’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although, under the lease, the tenant had no duty to maintain the sidewalk, the village code imposed that duty on owners and tenants:

Here, Code of the Village of New Hyde Park § 165-40.1 requires “owners, tenants or other persons occupying or entitled to the possession and control of any lands, whether vacant or improved” to, among other things, maintain the abutting public sidewalk “in a good state of repair and free and clear of any physical defects or other unsafe, hazardous or dangerous obstructions, encumbrances or conditions” and imposes joint and several liability upon them for injuries caused by their breach of that duty (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1). Given the Code’s imposition of an obligation on a tenant or occupant to maintain an abutting public sidewalk, Invite Health, as a tenant and occupant of the abutting property, had a statutory duty to maintain the public sidewalk where the accident occurred (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1 …) . As such, the mere fact that Invite Health had no duty under the lease agreement to maintain the abutting sidewalk was not dispositive of the issue of whether it owed the injured plaintiff a duty of care. Mule v Invite Health at New Hyde Park, Inc., 2020 NY Slip Op 00869, Second Dept 2-5-20

 

ALTHOUGH DEFENDANT PROVED IT IS ENGAGED IN THE BUSINESS OF LEASING VEHICLES AND THE VEHICLE INVOLVED IN THE TRAFFIC ACCIDENT WAS LEASED AT THE TIME, DEFENDANT DID NOT PROVE THE CONDITION OF THE VEHICLE; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT UNDER THE GRAVES AMENDMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the truck rental company’s (MTLR’s) motion for summary judgment in this traffic accident case should not have been granted. Although MTLR proved that the truck was rented out at the time of the accident, it failed to offer any proof of the condition of the truck:

… [T]he Graves Amendment provides “that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle by reason of being the owner of the vehicle for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)'” … . However, where “a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle” … , the vehicle owner is not afforded protection under the Graves Amendment if it fails to demonstrate that it did not negligently maintain its vehicle … .

Here, MTLR failed to meet its prima facie burden demonstrating its entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it. Although MTLR submitted evidence showing that it owned the subject vehicle, that it was engaged in the business of leasing vehicles, and that the subject accident occurred during the period of the rental … , MTLR failed to submit any admissible evidence demonstrating the condition of the vehicle at the time of delivery or at any time up to the happening of the accident … . Couchman v Nunez, 2020 NY Slip Op 00844, Second Dept 2-5-20

 

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DEFENDANT DEFAULTED; SUPREME COURT SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES AT THE INQUEST TO DETERMINE DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have considered issues of liability because defendant had defaulted and thereby admitted liability:

In this action, inter alia, to recover damages for personal injuries, the defendant failed to appear or answer the complaint. In an order … , the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment against the defendant and directed an inquest on the issue of damages. After conducting the inquest, the court … determined that the plaintiff had failed to establish, prima facie, that the defendant was negligent and that her negligence was a substantial factor in causing the plaintiff’s injuries, and thereupon, sua sponte, directed the dismissal of the complaint.

By defaulting, the defendant admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Arluck v Brezinska, 2020 NY Slip Op 00839, Second Dept 2-5-20

 

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DEFENDANTS’ MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS SHOULD NOT HAVE BEEN GRANTED IN THIS PRODUCTS LIABILITY ACTION, DESPITE THE FACT THAT ONLY TWO OF THE 19 PLAINTIFFS RESIDED IN NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss on forum non conveniens grounds should not have been granted. Nineteen plaintiffs brought this production liability action alleging damage caused by defendants’ “Just For Men” dyes and products. Only two plaintiffs resided in New York and defendants’ motion to dismiss was granted on that ground, without any further proof:

“The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum'” (… CPLR 327[a]). The burden was on the defendants to show that “considerations relevant to private or public interest militate against accepting or retaining the litigation” … . Factors to consider are the residency of the parties, potential inconvenience to proposed witnesses, especially nonparty witnesses, availability of an alternative forum, the situs of the actionable events, the location of the evidence, and the burden that retaining the case would have on New York courts … .

Here, the defendants asserted no facts other than that the nonresident plaintiffs were out-of-state residents. The defendants did not meet their burden of proof on the issue of convenience of the witnesses, since, among other things, there was no statement as to whom the witnesses are and where they reside. Moreover, Just For Men’s design, manufacturing, labeling, advertising, and executive decision-making all allegedly occurred in White Plains, where Combe Incorporated has a principal place of business. Further, there is no per se rule stating that out-of-state plaintiffs cannot, on the ground of forum non conveniens, sue in New York based upon products liability … , despite the fact that evidence of damages would most often be found where the plaintiff resides. Albright v Combe Inc., 2020 NY Slip Op 00837, Second Dept 2-5-20

 

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TOWN DID NOT DEMONSTRATE IT DID NOT RECEIVE WRITTEN NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the town’s motion for summary judgment in this sidewalk slip and fall case should not have been granted because the town did not demonstrate it had not received written notice of the defect. The Second Department noted that Supreme Court properly rejected plaintiff’s theory that inadequate lighting was a factor because that theory was not in the notice of claim and permission to amend the notice of claim was not sought by the plaintiff:

To prevail on its motion, it was the Town’s burden to establish, prima facie, that no prior written notice of the alleged condition was given to either the Town Clerk or Town Commissioner of Highways (see Code of the Town of Hempstead § 6-3; Town Law § 65-a[2]). In support of its motion for summary judgment, the Town submitted, inter alia, the affidavit of a records access officer for the Town’s Highway Department, wherein she specifically averred that she searched the Highway Department records, but did not state that she searched the Town Clerk’s records. Thus, the Town failed to establish, prima facie, that neither the Town Clerk nor the Commissioner of Highways received prior written notice of the alleged condition … . Weinstein v County of Nassau, 2020 NY Slip Op 00890, Second Dept 2-5-20

 

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MEDICAL MALPRACTICE ACTIONS REINSTATED AGAINST SEVERAL DEFENDANTS; TWO JUSTICE DISSENT ARGUED THE ACTIONS WERE REINSTATED BASED UPON A NEW THEORY WHICH SHOULD NOT HAVE BEEN CONSIDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, reinstated the medical malpractice action against several defendants. The dissent argued that evidence submitted in opposition to defendants’ motion for summary judgment presented a new theory and should have been rejected on that ground. The dissent argued that the new theory was raised for the first time in a “supplemental” bill of particulars which, the majority concluded, had been properly struck by Supreme Court:

… [W]e conclude that the court properly granted the motions to strike plaintiff’s “supplemental” bills of particulars inasmuch as they were actually amended bills of particulars. We further conclude that the amended bills of particulars are “a nullity” inasmuch as the note of issue had been filed and plaintiff failed to seek leave to serve amended bills of particulars before serving them upon defendants … .

From the dissent:

… [P]laintiff’s expert’s opinions on malpractice and causation cannot create a question of fact because they are based on a new condition and new injury. Plaintiff’s expert opined that: plaintiff’s son developed Henoch-Schonlein Purpura (HSP) in the days before presenting to the emergency room and was suffering from HSP when he presented to the emergency room; plaintiff’s son was misdiagnosed and the correct diagnosis was HSP; as a result of the mistriage, plaintiff’s son went into hypovolemic shock; and, if properly triaged, plaintiff’s son’s condition, i.e., HSP, never would have progressed to hypovolemic shock.

Plaintiff’s expert’s opinion regarding failure to triage and diagnose relates to a new condition, HSP, and his opinion on proximate cause relates to a new injury, hypovolemic shock, neither of which were included in plaintiff’s original bill of particulars and both of which were included in the “supplemental” bills of particulars, which this Court unanimously agrees were properly struck. Inasmuch as plaintiff’s expert’s opinions regarding the defendants’ negligence and proximate cause involve a new condition and new injury not included in plaintiff’s original bill of particulars, they constituted a new theory of recovery and thus could not be used to defeat the defendants’ motions … . Jeannette S. v Williot, 2020 NY Slip Op 00743, Fourth Dept 1-31-20

 

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DEFENDANT’S EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ARM-WRESTLED WITH PLAINTIFF; THEREFORE THE EMPLOYER WAS NOT LIABLE FOR THE ALLEGED INJURY TO PLAINTIFF UNDER A RESPONDEAT SUPERIOR THEORY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s action against the owner of a defendant strip club for injuries incurred when plaintiff was arm-wrestling with defendant’s employee should have been dismissed. Defendant’s employee was not acting within the scope of his employment and defendant therefore could not be liable under a respondeat superior theory:

… [W]e conclude that defendants met their initial burden on the motion by establishing that the employee’s act of arm wrestling plaintiff was not within the scope of his employment and that plaintiff failed to raise a triable issue of fact in response … . The uncontroverted evidence submitted by defendants demonstrated that, although the employee had various responsibilities at the club, he was not required to entertain the club’s patrons, and he arm wrestled plaintiff out of personal motives unrelated to any of his job responsibilities … . Gehrke v Mustang Sally’s Spirits & Grill, Inc., 2020 NY Slip Op 00741, Fourth Dept 1-31-20

 

DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE; DEFENDANT MADE A LEFT TURN IN FRONT OF PLAINTIFF’S MOTORCYCLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this traffic accident case should have been granted. Defendant made a left turn in front of plaintiff’s motorcycle:

A court should be guided by the rule that, “if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” … . Here, as the court charged the jury, “defendant had a common-law duty to see that which [he] should have seen through the proper use of [his] senses” … . The evidence undisputedly established that the area of the accident did not have any obstructions and that defendant had a clear line of sight of oncoming traffic. Inasmuch as defendant admitted at trial that he never saw plaintiff or his motorcycle prior to the accident, we conclude that the finding that defendant was not negligent could not have been reached on any fair interpretation of the evidence … . Cramer v Schruefer, 2020 NY Slip Op 00728, Fourth Dept 1-31-20

 

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PLAINTIFF ALLEGEDLY INJURED HIS HAND WHEN HE SAW HIS DAUGHTER START TO SLIP OUT OF A SWING ON A SCHOOL PLAYGROUND AND STOPPED THE SWING; THE ALLEGEDLY DEFECTIVE SWING WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY; THE COURT NOTED THAT THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY TO THIS SCENARIO (SECOND DEPT).

The Second Department determined plaintiff failed to demonstrate the allegedly defective swing was the proximate cause of his injury. Plaintiff alleged the swing was crooked causing his daughter to begin to slip off the seat and he fractured his hand trying to stop the swing. The Second Department noted that the assumption of the risk doctrine did not apply to this scenario:

The concept of assumption of the risk has been “generally restricted . . . to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … . “As a general rule application of assumption of the risk should be limited to cases . . . 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 pushing his young daughter in a plastic molded bucket seat swing at a playground on the School District defendants’ property when, while attempting to stop the swing, he “jammed” his hand on the back of it and fractured his hand. Pushing a swing is not the type of activity to which the doctrine of assumption of the risk is applicable … . Moreover, jamming one’s hand in the back of a swing “is not a risk inherent in the activity and flowing from it” … . * * *

… [T]he plaintiff’s deposition testimony describing the accident leads to the conclusion, as a matter of law, that under the circumstances of this case the risk of the plaintiff’s injury was not forseeable … . It is not reasonably foreseeable that the allegedly negligent installation of the swing, which caused it to swing crookedly, would have resulted in the plaintiff “jamm[ing]” his hand on the back of the swing and fracturing his hand. The alleged negligent installation of the swing merely furnished the occasion for the unrelated act of the plaintiff reaching out to grab the swing and jamming his hand … . Raldiris v Enlarged City Sch. Dist. of Middletown, 2020 NY Slip Op 00630, Second Dept 1-29-20

 

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