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DEFENDANT RESTAURANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE GREASY OR SLIPPERY CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined defendant restaurant’s summary judgment motion in this slip and fall case was properly granted. The restaurant demonstrated the floor had been inspected ten minutes before plaintiff fell and the floor had been cleaned the night before:

Defendants established prima facie that they neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Among other things, defendants’ manager received no complaints concerning the floor and saw nothing on the floor when he inspected in the morning or later, around ten minutes before plaintiff fell … . The evidence that neither plaintiff nor defendants’ employees saw the slippery substance on the floor until after plaintiff fell demonstrates that it was not sufficiently visible and apparent to charge defendants with constructive notice … .

Furthermore, testimony by defendant’s manager that the porter cleaned the restaurant floor every night with a solution of water and vinegar is sufficient to establish a lack of constructive notice … .

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s speculation that her fall could have been caused by the porter’s use of a vinegar and water mixture to clean the floors is insufficient to sustain a cause of action … . The wet or greasy substance on the floor of a busy restaurant was a transient condition that could have appeared at any point after the porter finished cleaning the floors in the morning … . Valenta v Spring St. Natural, 2019 NY Slip Op 04118, First Dept 5-28-19

 

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DEFENDANT RESTAURANT CAN BE LIABLE FOR THE NEGLIGENCE OF THE VALET PARKING SERVICE WITH WHICH IT CONTRACTED IF THE RESTAURANT HAD THE ABILITY AND OPPORTUNITY TO CONTROL THE CONDUCT OF THE CONTRACTOR, IF ESPINAL EXCEPTIONS APPLY, AND UNDER AN AGENCY THEORY, THE RESTAURANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (FIRST DEPT).

The First Department determined the restaurant’s (Dolphin’s) motion for summary judgment in this action alleging negligence on the part of a valet parking service (APV) with which the restaurant had contracted was properly denied:

A restaurant providing valet parking services can be held liable for the negligence of the service whose attendants are alleged to have caused an accident to a third party. This is the case even where the service is an independent contractor with which the restaurant has contracted … .

This duty arises [under Espinal] when there is an ability and opportunity to control the conduct of the restaurant’s contractors and an awareness of the need to do so. Thus, Dolphin cannot assert that it signed a contract with the valet parking service and then “covered its eyes with a blindfold”; rather, Dolphin was required to select a company “with, at the minimum, both appropriate insurance and competent drivers”. Defendant restaurant w … as able to decline to enter into any contract for valet services it felt insufficient, and therefore in the best position to protect against the risk of harm.

Dolphin similarly failed to demonstrate that it did not create an unreasonable risk of harm to others or that APV entirely displaced its duty to maintain the valet parking area safely … . Indeed, the evidence showed, inter alia, that the restaurant and the valet service communicated on a daily basis to determine proper staffing. The restaurant, further, obtained parking spots for the valet service to utilize on its behalf. The restaurant informed the valet service in advance of functions so that staffing could be arranged. The parties’ agreement similarly provided that service was provided “as requested” by the restaurant, and that it was the restaurant’s obligation to provide the schedule for each week.

Dolphin may also be liable under the doctrine of ostensible agency or apparent authority and thus estopped from denying liability for an entity it held out as its agent … . Evans v Norecaj, 2019 NY Slip Op 04029, First Dept 5-23-19

 

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PLAINTIFF HAD NO MEMORY OF THE ACCIDENT AND THE JURY WAS GIVEN THE NOSEWORTHY CHARGE, DEFENDANT’S MOTION TO SET ASIDE THE VERDICT IN THIS TRAFFIC ACCIDENT CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the motion to set aside the verdict in this traffic accident case was properly denied. Plaintiff had no memory of the accident and testified about his habit or routine practice of riding his bicycle home from work. The court had given the Noseworthy jury instruction:

The plaintiff testified that, while he did not recall the accident, he did recall leaving work and getting on his bicycle with the intent of taking the route he usually took home, which route he detailed, explaining that he took the same route every day, except for when he took the bus. While that route would have had the plaintiff traveling with traffic at the time of the accident, the defendant testified, inter alia, that the plaintiff was traveling against traffic … . …

The jury could have credited the plaintiff’s testimony as to his habit or routine practice, as to which the plaintiff submitted sufficient evidence “to allow the inference of its persistence” at the time of this accident … , while also making reasonable inferences based on the defendant’s own testimony that, inter alia, the defendant failed to see that which through proper use of the driver’s senses she should have seen, for which the defendant could be found liable even if the plaintiff, as the defendant here argues, could not establish that he obeyed all the rules of the road … . Ortega v Ting, 2019 NY Slip Op 03977, Second Dept 5-22-19

 

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LESSEE RESPONSIBLE FOR MAINTAINING THE LAUNDRY ROOM COULD BE LIABLE FOR INJURY CAUSED BY A DEFECTIVE WASHING MACHINE, LESSEE DID NOT ELIMINATE QUESTION OF FACT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE DEFECT, DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that defendant Coinmach, which leased the laundry room, was not entitled to summary judgment in this personal injury case. Plaintiff alleged the soap tray on the washing machine she was using came all the way out of the machine when she pulled it open, causing her to fall backward from an elevated step in front of the machine. The Second Department determined Coinmach, the lessee of the laundry room, could be held liable because it was responsible for maintaining the laundry room. The court further held that Coinmach did not eliminate questions of fact concerning its constructive notice of the defect which caused the tray to pull out of the machine, because there was no evidence when the machine was last inspected:

Coinmach was the lessee of the laundry room with “the sole and exclusive occupancy, possession and control” for a term of seven years. In return, Coinmach agreed to make monthly rent payments. A tenant has a common-law duty to keep the premises it occupies in a reasonably safe condition, even when the landlord has explicitly agreed in the lease to maintain the premises … . …

Coinmach failed to make a prima facie showing that it did not have constructive notice that the soap tray was broken. Coinmach’s area vice president testified at his deposition that Coinmach did not perform any routine maintenance on the machines, which were serviced whenever Coinmach received a service call requesting repairs. The area vice president testified that at each such service call, the technician would perform a “touch and feel test” on each machine, which would include opening the soap tray to make sure it was secure. However, there is no evidence in the record as to the date of the last service call, and therefore no evidence as to when Coinmach last inspected the subject soap tray before the injured plaintiff’s accident … . Gatto v Coinmach Corp., 2019 NY Slip Op 03956, Second Dept 5-22-19

 

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DEFENDANT-SELLERS NOT LIABLE FOR MOLD AND MICE IN HOUSE SOLD TO PLAINTIFFS, UNDER THE MERGER DOCTRINE NO PROVISION OF THE CONTRACT SURVIVED THE DELIVERY OF THE DEED, THE DOCTRINE OF CAVEAT EMPTOR APPLIED, NO DUTY OF CARE OWED TO THE PLAINTIFFS OVER AND ABOVE THE CONTRACT PROVISIONS, THE PRIVITY ELEMENT OF NEGLIGENT MISREPRESENTATION WAS ABSENT (SECOND DEPT).

The Second Department determined the defendant-sellers were not liable under breach of contract or negligence theories for the presence of mold and mice in a house sold to plaintiffs:

The contract of sale contained language providing that, unless expressly stated, no covenant, warranty, or representation in the contract survived closing. A rider to the contract stated that the defendants were not aware of any mold or vermin infestation in the house. Prior to the closing, the plaintiffs conducted a home inspection which revealed, among other things, the presence of water staining and evidence of water infiltration on the interior of the house. The home inspection report stated that a mold evaluation was beyond the scope of the inspection and recommended that if the plaintiffs were concerned about potential mold issues, they should call a professional mold abatement company to perform an inspection. The report also stated that the need for some periodic general pest control should be anticipated. The plaintiffs did not undertake a mold inspection. * * *

… [O]nce title to the property closed and the deed was delivered, “any claims the plaintiff[s] might have had arising from the contract of sale were extinguished by the doctrine of merger” since there was no “clear intent evidenced by the parties that [the relevant] provision of the contract of sale [would] survive the delivery of the deed”. … Furthermore, “New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment” … . …

A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated … . …

“A claim for negligent misrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information” … . Here, the defendants demonstrated that there was no special or privity-like relationship between themselves and the plaintiffs in this arm’s length transaction … . Rosner v Bankers Std. Ins. Co., 2019 NY Slip Op 04015, Second Dept 5-22-19

 

DEFENDANT DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS CLEANED OR INSPECTED DURING THE THREE DAYS PRIOR TO THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE ICY CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant school district did not demonstrate that it did not have constructive notice of the icy condition in this slip and fall case. Although the district demonstrated that it removed snow and slush from the area as late as January 6, it did not demonstrate that it inspected or cleaned the area between January 6 and January 9 when plaintiff fell:

Here, the School District failed to meet its initial burden as the movant. The evidence submitted by the School District demonstrated that snow fell on January 2 and 3, 2014. On January 2, 3, and 4, 2014, the School District removed snow and ice from all of its property, including the subject elementary school. On January 6, 2014, between 5:00 a.m. and 7:00 a.m., the School District removed slush from all of its property. However, no evidence was submitted as to what the accident site looked like after the School District performed work on the premises on January 6, 2014, and what, if any, cleaning procedures or inspection procedures were performed from 7:00 a.m. on January 6, 2014, until the time of the plaintiff’s accident on January 9, 2014. Accordingly, the School District failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition that caused the plaintiff to fall … . Muzio v Levittown Union Free Sch. Dist., 2019 NY Slip Op 03974, Second Dept 5-22-19

 

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DEFENDANT DRIVER ATTEMPTED TO RAISE A FEIGNED FACTUAL ISSUE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BY CONTRADICTING A STATEMENT ATTRIBUTED TO DEFENDANT IN THE POLICE REPORT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this intersection traffic accident case should have been granted. Defendant driver (Karen) made a statement included in the police report indicating she did not see plaintiffs’ motorcycle before the accident. In response to plaintiffs’ motion for summary judgment defendant driver (Karen) averred that she came to a stop at the stop sign, pulled out into the intersection and then saw the motorcycle moving “extremely fast.” The Second Department held that defendant had raised a feigned factual issue. The court also noted that, although the motion for summary judgment was made before discovery was complete, defendants did not show that additional discovery would lead to relevant evidence:

In support of their motion, the plaintiffs submitted, among other things, affidavits from the injured plaintiff and a witness, Shahiem Smith, who observed the collision. According to those affidavits, Karen drove … into the intersection without yielding the right-of-way to the injured plaintiff’s motorcycle in violation of Vehicle and Traffic Law § 1142(a) and struck the motorcycle as it was lawfully proceeding through the intersection … . “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Moreover, the plaintiffs also submitted a copy of a police accident report which contained Karen’s statement that she did not see the injured plaintiff. Therefore, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability … . Kerolle v Nicholson, 2019 NY Slip Op 03959, Second Dept 5-22-19

 

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PETITIONER’S MOTION TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE CITY HAD TIMELY NOTICE OF THE FACTS UNDERLYING PETITIONER’S INJURIES, THE FACTS SUPPORTING THE CITY’S NEGLIGENCE COULD HAVE BEEN DISCOVERED DURING THE INVESTIGATION WITH A MODICUM OF EFFORT, CITY DID NOT DEMONSTRATE PREJUDICE RELATING TO THE DELAY, PETITIONER’S FAILURE TO OFFER A REASONABLE EXCUSE FOR THE DELAY WAS NOT FATAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined that petitioner’s motion to serve a late notice of claim should have been granted. Petitioner, a medical technician, alleged she was struck by an inmate in the custody of the Department of Correction (DOC) while the inmate was being treated at Bellevue Hospital. The petitioner reported and discussed the incident with a DOC captain (Obigumeda) on the day it happened and sought to file the notice of claim seven months late:

Supreme Court presumably agreed with respondent’s argument that it lacked notice because petitioner never specified that she had told Obigumeda the manner in which DOC was negligent (namely, by failing to ensure that a correction officer was present when she spoke with the inmate). We disagree.

To the extent that petitioner did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, “municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort” … . Here, negligence is the only theory of liability that could be implied by petitioner’s conversations with Obigumeda and, in any event, he could have determined who was in the room during the course of his investigation with “a modicum of effort.” To hold otherwise would turn the statute into a sword, contrary to its remedial purpose … . …

… [R]espondent never provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time. Instead, respondent made “[g]eneric arguments and inferences” which cannot establish substantial prejudice “in the absence of facts in the record to support such a finding” … .

While petitioner did not demonstrate a reasonable excuse for service of her late notice of claim, the lack of excuse is not fatal here … . Matter of Rodriguez v City of New York, 2019 NY Slip Op 03921, First Dept 5-21-19

 

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PLAINTIFF-STUDENT WAS WATCHING FOOTBALL PRACTICE FROM THE SIDELINES WHEN A BLOCKING SLED, PUSHED BY SEVERAL PLAYERS, VEERED OFF TO THE SIDE AND RAN OVER PLAINTIFF’S FOOT, THE ASSUMPTION OF THE RISK DOCTRINE APPLIES TO SPECTATORS, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent supervision action, determined plaintiff-student assumed the risk of injury from a blocking sled during football practice. Plaintiff was not feeling well and was on the sidelines watching practice. He was not paying attention when a blocking sled, pushed by several players, veered toward him and ran over his foot. The court noted that the assumption of risk doctrine applies to bystanders and spectators:

The doctrine of primary assumption of the risk applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, “particularly where the record shows that the plaintiff had viable alternatives to [his or] her own location” … . “[T]he spectator at a sporting event, no less than the participant, accepts the dangers that inhere in it so far as they are obvious and necessary'”… .

Here, the defendant established its prima facie entitlement to judgment as a matter of law. The defendant submitted evidence that the plaintiff fully comprehended the risks inherent in the sport of football, specifically, that a blocking sled could veer to the left or the right while it was being used in a drill … . M.F. v Jericho Union Free Sch. Dist., 2019 NY Slip Op 03781, Second Dept 5-15-19

 

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DEFENDANT DID NOT STRIKE PLAINTIFF AND WAS UNDER NO DUTY TO PROTECT PLAINTIFF FROM AN ASSAULT BY OTHERS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS BAR-FIGHT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this third-party assault bar-fight case should have been granted. Defendant did not strike the plaintiff and was not under a duty to protect plaintiff from the conduct of others:

The plaintiff commenced this action, inter alia, to recover damages for personal injuries he sustained on January 7, 2013, at premises owned by the defendant Bulldog Grille, when he allegedly was physically assaulted by the defendants John Heinbuch, John Doe #1, and/or John Doe #2, who were patrons of the Bulldog Grille. …

“Generally, there is no duty to control the conduct of third persons to prevent them from causing injury to others'”  … . Here, Heinbuch established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not strike the plaintiff and that he had no duty to control the conduct of the persons who assaulted the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether Heinbuch created the situation which led to the assault, or acted tortiously pursuant to a tacit agreement to assault or batter the plaintiff … . Lanfranchi v Grille, 2019 NY Slip Op 03780, Second Dept 5-15-19

 

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