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MOTION FOR A JUDGMENT AS A MATTER OF LAW MADE DURING JURY SELECTION WAS PREMATURE, GRANTING THE MOTION ON SPOLIATION GROUNDS VIOLATED THE LAW OF THE CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to strike defendant’s answer on spoliation grounds in this medical malpractice and wrongful death action, made during jury selection, should not have been granted. It was not a proper motion for a judgment as a matter of law pursuant to CPLR 4401 and the ruling violated the law of the case:

During jury selection, the plaintiff made an oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability based on the defendant’s alleged spoliation of evidence relating to certain telemetry strips and the defendant’s failure to perform an autopsy on the decedent. In opposition, the defendant argued, among other things, that the Supreme Court had previously denied that branch of a prior motion by the plaintiff which was to strike the defendant’s answer based on the defendant’s alleged spoliation of evidence. …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the plaintiff’s oral application, which was made during jury selection, was not based on any admissions by the defendant, and the Supreme Court should not have considered the merits of the plaintiff’s application at that juncture … .

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . The doctrine forecloses reexamination of an issue previously determined by a court of coordinate jurisdiction “absent a showing of newly discovered evidence or a change in the law” … .

Here, the Supreme Court violated the doctrine of law of the case by disregarding the prior order denying that branch of the plaintiff’s earlier motion which was to strike the defendant’s answer based upon the same evidentiary issues … . Fishon v Richmond Univ. Med. Ctr., 2019 NY Slip Op 02682. Second Dept 4-10-19

 

BUS COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, THE BUS DRIVER SIGNALED TO DEFENDANT DRIVER TO PASS THE BUS AND THE DRIVER EITHER STRUCK THE WHEEL CHAIR LIFT OR THE PLAINTIFF WHO WAS STANDING ON THE LIFT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the bus company’s (Happy Child’s) motion for summary judgment in this traffic accident case should not have been granted. Plaintiff (Jaber) was standing on the bus’s wheel chair lift when the bus driver signaled to defendant driver (Todd) to drive past the bus. Todd stuck either the defendant or the lift:

The Happy Child defendants failed to establish, prima facie, that the bus driver’s alleged action in signaling Todd to maneuver his car through the narrow space between the extended lift—on which Jaber was still standing—and parked cars on the other side of the street did not set into motion an eminently foreseeable chain of events that resulted in Jaber’s injuries … . Accordingly, the Happy Child defendants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them should have been denied, regardless of the sufficiency of the plaintiffs’ or Todd’s opposing papers … . Jaber v Todd, 2019 NY Slip Op 02690, Second Dept 4-10-19

 

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DISTRIBUTOR’S AND SELLER’S MOTIONS FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY AND NEGLIGENT DESIGN ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF’S OWN ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S INJURY AND THE DANGER WAS OPEN AND OBVIOUS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the distributor’s (Skyfood’s) and seller’s (E & A’s) motions for summary judgment in this products liability and negligent design action should have been granted. Plaintiff lost several fingers when he tried to remove a piece of cheese from a meat grinder being used to grate cheese by reaching into the hopper without turning the machine off. The court held that the plaintiff’s own actions constituted to sole proximate cause of the injury and the danger was open and obvious (no duty to warn):

The Supreme Court should have granted that branch of Skyfood’s motion which was for summary judgment dismissing the causes of action alleging strict products liability and negligent design insofar as asserted against it. Skyfood established its prima facie entitlement to judgment as a matter of law dismissing those causes of action by submitting, inter alia, the deposition transcripts of the plaintiff and the affidavit of an expert, which showed that the plaintiff’s own conduct of knowingly placing his hand into the hopper of the operating cheese grater without turning it off was the sole proximate cause of his injuries … . In opposition, the plaintiff failed to raise a triable issue of fact … .

We agree with the Supreme Court’s determination granting those branches of the separate motions of Skyfood and E & A which were for summary judgment dismissing the causes of action alleging failure to warn insofar as asserted against each of them. Skyfood and E & A made a prima facie showing of entitlement to judgment as a matter of law dismissing those causes of action insofar as asserted against them by establishing, as a matter of law, that they had no duty to warn the plaintiff of the open and obvious danger of knowingly placing his hand into a cheese grater in close proximity to its spinning blade … . Hernandez v Asoli, 2019 NY Slip Op 02688, Second Dept 4-10-19

 

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PLAINTIFF WAS NOT ENTITLED TO THE PRESUMPTION DEFENDANT RECEIVED A LETTER ALLEGEDLY REQUESTING THAT SURVEILLANCE VIDEO BEFORE AND AFTER PLAINTIFF’S SLIP AND FALL BE PRESERVED AS THERE WAS NO PROOF OF MAILING, DEFENDANT SHOULD NOT HAVE BEEN SANCTIONED FOR SPOLIATION PURSUANT TO CPLR 3126 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff was not entitled to the “presumption of receipt” with respect to a letter alleged to have been sent to the defendant requesting that surveillance video from 6 hours before to 2 hours after plaintiff’s slip and fall be preserved. Only a two-minute clip showing plaintiff’s fall had been preserved and Supreme Court had precluded the defendant from presenting video evidence as a sanction for spoliation pursuant to CPLR 3126:

… [T]he plaintiff did not establish that the defendant failed to preserve all of the surveillance video footage taken on the date of the accident after the defendant was placed on notice that the evidence might be needed for future litigation … . The letter dated February 23, 2016, which was submitted for the first time with the plaintiff’s reply papers, may be considered, since the defendant had an opportunity to respond and submit papers in surreply … . However, the defendant denied receiving this letter and we reject the plaintiff’s argument that he is entitled to the presumption of receipt. The mere assertion in the reply affirmation of the plaintiff’s attorney that the letter dated February 23, 2016, was “sent” to the defendant, unsupported by someone with personal knowledge of the mailing of the letter or proof of standard office practice or procedure designed to ensure that the letter was properly addressed and mailed, was insufficient to give rise to the presumption of receipt that attaches to letters duly addressed and mailed … . Sanders v 210 N. 12th St., LLC, 2019 NY Slip Op 02737, Second Dept 4-10-19

 

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LEGAL MALPRACTICE COUNTERCLAIM SHOULD HAVE BEEN DISMISSED, SPECULATION ABOUT THE RESULT OF A HEARING HAD THE LAW FIRM APPEARED IS NOT ENOUGH TO SUSTAIN A CLAIM FOR LEGAL MALPRACTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff law firm’s motion for summary judgment dismissing the legal malpractice counterclaim should have been granted. Apparently plaintiff failed to appear at a hearing on a temporary restraining order (TRO):

… [P]laintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date … . Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice … . Salans LLP v VBH Props. S.R.L., 2019 NY Slip Op 02611, First Dept 4-4-19

 

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ALTHOUGH THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL, THERE WAS A QUESTION OF FACT WHETHER THE ICY CONDITION EXISTED PRIOR TO THE STORM, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendant demonstrated there was a storm in progress in this slip and fall case, there was a question of fact whether the icy condition existed before the storm:

Under the storm in progress rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition “occurring during an ongoing storm or for a reasonable time thereafter” … . Here, in support of its motion, the defendant submitted, inter alia, the affidavit and report of a meteorologist with attached certified climatological data, which demonstrated that, at the time of the plaintiff’s accident, a wintery mix of freezing rain, sleet, and rain was falling and the temperature may have been at or below freezing. Accordingly, the defendant established, prima facie, that a storm was ongoing at the time of the plaintiff’s fall … .

In opposition, however, the plaintiff raised a triable issue of fact, via her General Municipal Law § 50-h hearing testimony, her deposition testimony, and the affidavit of her brother, as to whether the icy condition that caused her fall existed prior to the storm in progress and whether the defendant had constructive notice of the hazard … . Isabel v New York City Hous. Auth., 2019 NY Slip Op 02506, Second Dept 4-3-19

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant did not demonstrate a lack of constructive notice of the sand and debris in a walkway in this slip and fall case. Therefore their motions for summary judgment were properly denied:

 “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” … . [Defendant’s] submissions in support of its motion failed to demonstrate, prima facie, a lack of constructive notice. The affidavit of its association president merely referenced his general inspection practices and failed to indicate when the area of the walkway where the alleged slip and fall occurred was last inspected or cleaned relative to the accident … . Butts v SJF, LLC, 2019 NY Slip Op 02491, Second Dept 4-3-19

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PLAINTIFF PRESENTED ONLY SPECULATION ABOUT THE CAUSE OF HER SLIP AND FALL, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the landlord’s motion for summary judgment in this slip and fall case should have been granted because plaintiff could not identify the cause of her fall:

… [T]he landlord met her prima facie burden on her motion for summary judgment dismissing the complaint by submitting the plaintiff’s deposition transcript which demonstrated, prima facie, that she was unable to identify the cause of her fall without resorting to speculation … . The plaintiff’s theory that she slipped on water dripping from the ceiling was speculative in light of, inter alia, her deposition testimony that she “personally didn’t see any water dripping, but there must have been a drip from the ceiling because the ground was wet.” Moreover, [third-party defendant] testified at his deposition that, although there had been a prior water leak coming from the ceiling into the kitchen, that leak was not near the location of the plaintiff’s accident. Bilska v Truszkowski, 2019 NY Slip Op 02490, Second Dept 4-3-19

 

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DEFENDANT DID NOT PRESENT EVIDENCE THAT THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS INSPECTED OR TREATED ON THE DAY OF THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF 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 defendant did not demonstrate it did not have constructive notice of the icy condition in this slip and fall case. The defendant presented evidence of the manager’s and superintendent’s general practices but did not present evidence was inspected or treated on the day of the fall:

“To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendant failed to demonstrate, prima facie, that it did not have constructive notice of the alleged ice condition that caused the plaintiff to fall. The deposition testimony of the defendant’s site manager merely referred to her general practice of traversing the breezeway where the accident allegedly occurred, one to two times per week, but provided no evidence regarding any specific inspection of the area prior to the plaintiff’s fall … . … The superintendent’s testimony failed to provide specific details of his snow removal efforts and salting near the time of the incident, and, thus, was too general to establish lack of constructive notice … . Ahmetaj v Mountainview Condominium, 2019 NY Slip Op 02489, Second Dept 4-3-19

 

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CAUSE OF ACTION BASED UPON A THEORY NOT ALLEGED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiff’s first cause of action was properly dismissed because it alleged a theory of liability in this slip and fall case that was not alleged in the notice of claim. Apparently the plaintiff fell after getting off defendants’ bus:

[In the notice of claim] the plaintiff alleged … that the accident was caused by “the carelessness, recklessness and negligence of . . . New York City Transit Authority in the ownership, operation, maintenance, repair, construction, renovation, supervision and control of the aforesaid location.” …

… [T]he … defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action … by submitting proof that the amended notice of claim contained no allegation that the bus operator was negligent in failing to provide the plaintiff with a safe place to alight … . Rojas v Hazzard, 2019 NY Slip Op 02573, Second Dept 4-3-19

 

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