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TENANT IN THE BUILDING ABUTTING A DEFECTIVE SIDEWALK WAS NOT LIABLE FOR A SLIP AND FALL; RELEVANT LAW CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, a tenant in the building abutting the sidewalk, could not be held liable for a sidewalk defect which allegedly caused plaintiff’s slip and fall. The Second Department concisely but completely laid out the law on the issues:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” … . “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect, make special use of the sidewalk, violate any applicable statute, or have a contractual duty to maintain the sidewalk where the accident occurred … . Leitch-Henry v Doe Fund, Inc., 2020 NY Slip Op 00112, Second Dept 1-8-20

 

DEFENDANT PROPERTY OWNER/MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF ANY PROBLEMS WITH A DOOR WHICH ALLEGEDLY MALFUNCTIONED CAUSING PLAINTIFF’S DECEDENT TO FALL OUT OF A WHEELCHAIR LIFT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ [property owner/manager’s ?] motion for summary judgment should have been granted. Plaintiff alleged the door to a wheelchair lift on the exterior of the building where plaintiffs lived malfunctioned causing plaintiff’s decedent to fall out of the lift. The defendants presented evidence they did not have notice of any problems with the door:

Defendants established prima facie entitlement to judgment as a matter of law in this action where plaintiff’s decedent was injured when the door to the wheelchair lift on the exterior of the building in which they lived malfunctioned causing him to fall out of the lift. Defendants submitted evidence demonstrating that they did not have notice of any malfunction in the subject door through service records showing no issues related to the door opening prematurely … .

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff did not submit any evidence that complaints about the lift were similar in nature or caused by similar contributing factors … . Nor is the doctrine of res ipsa loquitur applicable under the circumstances presented … . Pui Kum Ng Lee v Chatham Green, Inc., 2020 NY Slip Op 00069, First Dept 1-7-20

 

THE JURY WAS PROPERLY INSTRUCTED ON THE DOCTRINE OF RES IPSA LOQUITUR; PLAINTIFF WAS INJURED WHEN AN AUDITORIUM RISER COLLAPSED WHEN SHE WAS WALKING ON IT (THIRD DEPT).

The Third Department determined the jury in this personal injury action was properly instructed on the doctrine of res ipsa loquitur. A riser used for a choral rehearsal collapsed as plaintiff was walking on it:

To be entitled to a res ipsa loquitur jury charge, a plaintiff must establish (1) that the injurious event is “of a kind that ordinarily does not occur in the absence of someone’s negligence,” (2) that the event was “caused by an agency or instrumentality within the exclusive control of the defendant” and (3) that the event was not “due to any voluntary action or contribution on the part of the plaintiff” … . …

… [A] jury could reasonably conclude that the collapse of a stage riser being put to its intended use qualifies as an event that would not ordinarily occur in the absence of negligence ,,, , …  [Plaintiff} … proffered expert testimony demonstrating that the collapse was most likely caused by a flaring of the riser’s locking mechanism, a condition caused by “wear and tear” and which allegedly could have been discovered with proper inspection and maintenance. [P]laintiff’s … expert evidence of negligence did not preclude her from also relying on the doctrine of res ipsa loquitur … .

The evidence established that the auditorium was locked whenever it was not in use and that defendant’s agents exclusively assembled, disassembled, maintained and repaired the risers. * * * [ P]laintiff was not required to “conclusively eliminate the possibility” that someone intentionally disengaged the locking mechanism … . Rather, all that was required was that the likelihood of an intentional act “be so reduced that the greater probability lies at defendant’s door” … . Elsawi v Saratoga Springs City Sch. Dist., 2020 NY Slip Op 00019, Third Dept 1-2-20

 

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THE CARRIER WHICH HAD ISSUED A BUSINESS AUTOMOBILE INSURANCE POLICY COVERING THE INSURED’S FLATBED TRUCK WAS OBLIGATED TO DEFEND THIS ACTION STEMMING FROM AN INJURY INCURRED WHILE UNLOADING A TRACTOR FROM THE FLATBED TRUCK; UNLOADING A TRUCK IS CONSIDERED OPERATION OF THE TRUCK UNDER VEHICLE AND TRAFFIC LAW 388 (THIRD DEPT).

The Third Department determined plaintiff-insurer was obligated to defend and the insured in this personal injury case stemming from the unloading of a tractor from a flatbed truck owned by the insured. The tractor rolled over the insured’s son as it was being unloaded. The son and his wife sued the insured and the insured’s farm. Plaintiff carrier brought this action for a declaratory judgment that it was not obligated to defend or indemnify, apparently claiming the (insured’s) truck was not being operated when the accident occurred:

If anything within the “four corners of the complaint suggest[s] . . . a reasonable possibility of coverage,” the insurer must defend, even though it may not ultimately be bound to pay because the insured may not be liable … . …

Pursuant to the Vehicle and Traffic Law, “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for . . . injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner” (Vehicle and Traffic Law § 388 [1]) … . * * * “The policy of insurance issued must be as broad as the insured owner’s liability for use of the vehicle by the owner or anyone using the vehicle with his [or her] permission” … .

Loading and unloading of a covered vehicle constitute “use or operation” pursuant to Vehicle and Traffic Law § 388 (1) … , and a vehicle does not have to be in motion to be in “use or operation” … . * * *

George Henderson [the insured] loaded and secured the tractor on the flatbed truck, drove the flatbed truck to the farm, rolled the bed back and tilted it, and operated the winch that was supposed to be holding the tractor in place. He also regularly requested or allowed Charles Henderson [his son} and the other individual to unload machinery from the flatbed truck. Charles Henderson asserted that, due to George Henderson not paying attention, the winch cable went slack, causing it to release from the tractor and allow the tractor to roll. George Henderson is potentially both directly and vicariously liable for negligence in the personal injury action … , and there is prima facie “reasonable possibility of coverage” … . Thus, plaintiff is obliged to defend George Henderson and the farm in the underlying action. Farm Family Cas. Ins. Co. v Henderson, 2020 NY Slip Op 00021, Third Dept 1-2-20

 

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VERDICT FINDING THE SCHOOL DISTRICT WAS NEGLIGENT BUT FURTHER FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE STUDENT’S SUICIDE WAS NOT AGAINST THE WEIGHT OF EVIDENCE; PLAINTIFFS ALLEGED BULLYING AT SCHOOL CAUSED THEIR SON’S SUICIDE (THIRD DEPT).

The Third Department determined the verdict finding the school district was negligent but further finding the negligence was not the proximate cause of plaintiff-student’s suicide was not against the weight of the evidence. Plaintiffs alleged bullying at school was the reason for their son’s suicide and claimed the school was liable under a negligent-supervision theory:

“… [A] jury’s finding that a party was at fault but that [such] fault was not a proximate cause of [decedent’s] injuries is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . …

The conduct of defendant’s employees was not blameless … — indeed, it appears that several minor incidents involving decedent provided missed opportunities for them to uncover what was going on — but the fact remains that the trial proof neither established the degree of the bullying that decedent received at school nor showed that defendant could have anticipated its impact upon him. Therefore, the jury could logically find that defendant was negligent by failing “to adequately supervise” decedent in some respects … , but that the pain, suffering and suicide of decedent were not foreseeable consequences of that negligence … . The issues of negligence and proximate cause were not inextricably interwoven as a result and, after viewing the evidence in the light most favorable to the nonmoving party, “we find that the evidence did not so preponderate in plaintiff[s’] favor that the jury’s verdict could not have been reached on any fair interpretation of the evidence” … . C.T. v Board of Educ. of S. Glens Falls Cent. Sch. Dist., 2020 NY Slip Op 00023, Third Dept 1-2-20

 

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AFTER JURISDICTIONAL DISCOVERY, PLAINTIFF DID NOT DEMONSTRATE NEW YORK HAD JURISDICTION OVER THREE OF FOUR NEW JERSEY DEFENDANTS IN THIS MEDICAL MALPRACTICE CASE; WITH RESPECT TO ONE NEW JERSEY DEFENDANT, THE JURISDICTION ISSUE MUST BE DECIDED BY THE JURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that New Jersey defendant Princeton Radiology Associates (PRO) and the associated defendant doctors (Tsai and Chon) had demonstrated New York did not have jurisdiction over them in this medical malpractice action. With regard to another related New Jersey defendant, Princeton Procure Management, LLC (PPM), the First Department held its lack-of-jurisdiction affirmative defense should not have been dismissed and a jury must decide the issue:

After defendants PPM, PRO, Tsai and Chon moved to dismiss for lack of personal jurisdiction, the motion court found that plaintiff had made a “substantial start” in demonstrating a basis for personal jurisdiction over those defendants. PPM appealed and this Court affirmed, noting the evidence that PPM had identified a principal place of business in New York, and that it “marketed its Somerset, New Jersey, location to target New York residents, touting its proximity to New York in advertising,” and “entered into an agreement with a consortium of New York City hospitals for the referral of cancer patients for treatment at its facility” … . …

Plaintiff did not meet her ultimate burden of establishing that Drs. Tsai and Chon, New Jersey doctors who treated her in New Jersey, projected themselves, on their own initiative, into New York to engage in a sustained and substantial transaction of business related to her claims, such that specific long-arm jurisdiction existed over them under CPLR 302(a)(1) … . …

… [Re: PPM] we conclude that the evidence submitted by plaintiff … does not warrant dismissal of PPM’s affirmative defense of lack of jurisdiction. As to general jurisdiction under CPLR 301, plaintiff presented documents in which PPM listed a New York place of business, but PPM submitted an affidavit of its president, who identified PPM’s principal place of business as in New Jersey and denied having a New York principal office. …

Plaintiff also failed to establish that specific long-arm jurisdiction exists over PPM under CPLR 302(a)(1). The evidence presented by plaintiff, including various contracts and the radio interviews and billing documents discussed above, provides a “sufficient start” in demonstrating a basis for asserting personal jurisdiction … , but does not warrant dismissal of PPM’s affirmative defense … . Robins v Procure Treatment Ctrs., Inc., 2020 NY Slip Op 00047, First Dept 1-2-20

 

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THERE IS A QUESTION OF FACT WHETHER A DRUG, WHICH CAN DISSOLVE BLOOD CLOTS IN MINUTES, SHOULD HAVE BEEN ADMINISTERED TO PLAINTIFF WHO WAS SUFFERING FROM A PULMONARY EMBOLISM UPON ADMISSION; SUPREME COURT REVERSED; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissent, determined that the defendants’ motion for summary judgment in this medical malpractice case should not have been granted. The opinion is fact-specific and too detailed to fairly summarize here. The majority concluded there was a question of fact whether the administration of a drug, which defendants averred was contraindicated, would have saved decedent’s life. Decedent  was suffering from a pulmonary embolism upon admission. The staff waited hours for blood tests and an angiogram to confirm the diagnosis. A drug which can dissolve blood clots in minutes was not administered. Barry v Lee, 2019 NY Slip Op 09397, First Dept 12-26-19

 

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DEFENDANTS PRESENTED NO EVIDENCE OF SNOW REMOVAL EFFORTS OR LACK OF CONSTRUCTIVE NOTICE IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in the ice-on-sidewalk slip and fall case should not have been granted:

[Defendants] failed to sustain their initial burden of demonstrating that they neither created nor had actual or constructive knowledge of the icy condition of the sidewalk … . Neither presented evidence concerning snow removal immediately prior to plaintiff’s accident and/or their lack of notice of the condition … . Burton v Khedouri Ezair Corp., 2019 NY Slip Op 09379, First Dept 12-26-19

 

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IT WAS AN ABUSE OF DISCRETION TO STRIKE PLAINTIFF’S COMPLAINT BASED UPON AN ALLEGED FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined it was an abuse of discretion to grant defendants’ motion to strike the complaint for plaintiff’s alleged failure to comply with discovery orders. Discovery had been ongoing for years with several conferences with the judge and several orders to comply with new discovery demands:

… [I]t is undisputed that defendants’ motion to strike the complaint failed to include an affirmation of good faith as required by 22 NYCRR 202.7 … . Moreover, this error is compounded by the lack of other record evidence demonstrating that defendants engaged in good faith efforts to resolve the ongoing discovery issues without the need for judicial intervention. Despite plaintiff having at least partially complied with defendants’ discovery demands, the record is devoid of any correspondence or other documentation indicating that defendants ever specifically informed plaintiff’s counsel, other than in a generalized conclusory manner, in what manner the subject discovery responses were deficient or inadequate. Further, following the filing of defendants’ April 2018 motion to strike, defendants’ counsel failed to respond to four separate letters sent by plaintiff’s counsel in May 2018 wherein he provided certain additional discovery and otherwise attempted to ascertain from defendants what, if any, paper discovery remained outstanding. Notably, defendants have provided no explanation as to why they failed to provide any such response prior to the filing of defendants’ second motion to strike plaintiff’s complaint … .

Although we appreciate Supreme Court’s concern regarding the length of time that this action has been pending and the fact that the various discovery responses that plaintiff’s counsel did provide were unquestionably untimely, we do not find that defendants have established a “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay [by plaintiff] that would be deserving of the most vehement condemnation” … . Mesiti v Weiss. 2019 NY Slip Op 09343. Third Dept 12-26-19

 

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THE BUILDING OWNER AND MANAGER WERE ADDITIONAL INSUREDS UNDER A POLICY ISSUED TO THE CONTRACTOR HIRED TO RENOVATE CONCRETE WALKWAYS; THE OWNER AND MANAGER ARE ENTITLED TO COVERAGE FOR A SLIP AND FALL ALLEGED TO HAVE BEEN CAUSED BY PAINTING THE WALKWAYS ALL THE SAME COLOR AND THEREBY DISGUISING A CHANGE IN ELEVATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined plaintiffs are additional insureds under an insurance policy issued by defendant to nonparty Upgrade, the contractor hired to restore concrete catwalks. Plaintiffs, Windsor Apartments and Argo Real Estate, are entitled to coverage for a slip and fall in plaintiffs’ building allegedly caused by painting the floor all the same color, thereby disguising a change in elevation:

Defendant State National issued a commercial general liability (CGL) policy to Upgrade during the relevant time period. The policy contained a “Blanket Additional Insured” Endorsement that limited coverage to operations performed by or on behalf of Upgrade:

“It is agreed that this Policy shall include as additional Insureds any person or organization to whom the Named Insured [Upgrade] has agreed by written contract to provide coverage, but only with respect to operations performed by or on behalf of the Named Insured and only with respect to occurrences subsequent to the making of such written contract.”

The State National policy also stated that its coverage was primary, with exceptions not applicable here, for damages arising out of the premises or operations for which an entity is added as an additional insured.

The policy issued by plaintiff Fireman’s Fund Insurance Company (Fireman’s) to Windsor and Argo provided that coverage was excess when its insureds, Windsor and Argo, have other primary insurance available to them covering liability for damages arising out of the premises or operations for which they have been added as an additional insured. * * *

… [S]ince the injury to the plaintiff in the underlying action here “arose out of” Upgrade’s operation of painting the walkways, plaintiffs are additional insureds under the State National policy and the policy is primary in connection with the underlying action. Fireman’s Fund Ins. Co. v State Natl. Ins. Co., 2019 NY Slip Op 09399, First Dept 12-26-19

 

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