You are here: / Negligence
, , ,

THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

, ,

THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE OPEN MANHOLE PLAINTIFF DROVE OVER; PLAINTIFF UNSUCCESSFULLY TRIED TO RAISE, FOR THE FIRST TIME, AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT IN RESPONSE TO THE CITY’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality proved it did not have written notice of the road defect and plaintiff’s attempt to raise for the first time an exception to the written notice requirement in response to the summary judgment motion was improper:

The plaintiff allegedly was injured when she drove her vehicle over an uncovered manhole … .

“A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” … . “Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality” … .

Here, the plaintiff did not dispute that the defendants established, prima facie, that they had no prior written notice of the alleged roadway defect. In opposition, the plaintiff instead argued that the special use exception applied. The plaintiff, however, failed to allege that exception in either the notice of claim or the complaint … . Therefore, that new theory of liability was improperly raised in opposition to the defendants’ motion for summary judgment dismissing the complaint … . Anderson v City of New York, 2025 NY Slip Op 00414, Second Dept 1-29-25

Practice Point: Here plaintiff raised an exception to the written-notice prerequisite to municipal liability for road defects for the first time in response to the municipality’s motion for summary judgment. That is too late. The exception should be raised in the notice of claim and/or the complaint.

 

,

EVIDENCE THAT THE AREA BELOW THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL HAD BEEN RECENTLY MOPPED, TOGETHER WITH TESTIMONY THAT THE STAIRS WERE WET, WARRANTED SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the evidence that the stairs had recently been mopped and were wet when plaintiff slipped and fell was sufficient to warrant summary judgment:

… [T]he plaintiffs submitted a transcript of the injured plaintiff’s deposition testimony, wherein she noted that after she fell, her pants and the bottom of her shirt became wet. The plaintiffs also submitted a transcript of the deposition testimony of their son, who testified that when he came to the lobby to help his mother, the floor and the stairs were wet and the stairs felt slippery under his feet. That testimony, along with the surveillance video [of the area below the stairs being mopped], established the plaintiffs’ entitlement to judgment as a matter of law on the issue of liability against the defendant. In opposition, the defendant failed to raise a triable issue of fact. Tkachuk v D&J Realty of N.Y., LLC, 2025 NY Slip Op 00472, Second Dept 1-29-25

Practice Point: Video evidence showing the area below the stairs being mopped, together with testimony the stairs were wet, warranted the award of summary judgment to the plaintiffs.

 

,

THE COMPLAINT ALLEGED THE FAILURE TO CLEAR ICE AND SNOW AND CERTAIN BUILDING CODE VIOLATIONS CAUSED HER SLIP AND FALL; THE “STORM IN PROGRESS” RULE ONLY NEGATED THE CAUSE OF ACTION BASED UPON THE FAILURE TO CLEAR THE ICE AND SNOW; THE DEFENDANTS DID NOT DEMONSTRATE THE BUILDING CODE VIOLATIONS WERE INAPPLICABLE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that, although the “storm in progress” applied to this slip and fall because it was snowing at the time, summary judgment should not have been awarded to defendants. In addition to alleging the negligent failure to clear ice and snow, the complaint alleged the ramp where plaintiff fell violated certain provision of the NYC Building Code. The defendants did not demonstrate the code did not apply. Because there can be more than one proximate cause  the defendants were not entitled to summary judgment:

… “[T]here can be more than one proximate cause of an accident, and generally, it is for the trier of fact to determine the issue of proximate cause” … . Although there is no disagreement that the snow and ice from the storm was a proximate cause of the plaintiff’s fall, Avenue L and the Sesame defendants each failed to establish, prima facie, that the provisions of the 1968, 2008, and 2014 New York City Building Codes relied upon by the plaintiff were inapplicable and that an alleged violation of those provisions did not proximately cause the plaintiff to fall … . Wechsler v Ave. L., LLC, 2025 NY Slip Op 00347, Second Dept 1-22-25

Practice Point: Here plaintiff conceded it was snowing when she slipped and fell, triggering the “storm in progress” rule which let defendants off the hook for any failure to clear ice and snow. But the plaintiff also alleged certain building code violations caused her fall. The defendants did not demonstrate the code was inapplicable so they were not entitled to summary judgment. There can be more than one proximate cause of a slip and fall.

 

, , ,

HERE THE ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE BROUGHT A WRONGFUL DEATH ACTION IN SUPREME COURT AND DEFENDANTS MOVED FOR SUMMARY JUDGMENT ARGUING PLANTIFF’S EXCLUSIVE REMEDY WAS WORKERS’ COMPENSATION; RATHER THAN DECIDE THE MOTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD WHICH HAS PRIMARY JURISDICTION RE: THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department reversed Supreme Court’s denial of defendants’ summary judgment motion in this wrongful death action and referred the matter to the Workers’ Compensation Board. Whether, as defendants argued in their motion, plaintiff’s decedent’s exclusive remedy is Workers’ Compensation must be determined by the Workers’ Compensation Board before a court can consider the issue:

“The Workers’ Compensation Law ‘is designed to insure that an employee injured in course of employment will be made whole and to protect a coemployee who, acting within the scope of his [or her] employment caused the injury'” … . “[P]rimary jurisdiction” for determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board (hereinafter the Board) … , and it is therefore inappropriate for the courts to express views with respect thereto in the absence of a determination by the Board … . “Where the issue of the applicability of the Workers’ Compensation Law is in dispute, and a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but should refer the matter to the Board because the Board’s disposition of the plaintiff’s compensation claim is a jurisdictional predicate to the civil action … . Guang Qi Lin v Xiaoping Lu, 2025 NY Slip Op 00309, Second Dept 1-22-25

Practice Point: Here in this wrongful death action defendants argued plaintiff’s exclusive remedy was Workers’ Compensation. Because that issue had not been determined by the Workers’ Compensation Board, Supreme Court could not rule on it and should have referred the matter to the Board which has primary jurisdiction on the applicability of the Workers’ Compensation Law.

 

, , ,

PLAINTIFF POLICE OFFICER WAS PARTICIPATING IN A TRAINING SESSION WHEN HE WAS BITTEN BY A POLICE DOG; THE TRAINING WAS A GOVERNMENTAL FUNCTION; THEREFORE THE MUNICIPALITY MUST HAVE OWED PLAINTIFF A SPECIAL DUTY TO BE LIABLE, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security and Emergency Services when the unleased dog bit plaintiff:

As part of the training, the police dogs were off-leash. The plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by Officer McDonald’s police dog.

When a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty to the injured party … . Such a special duty can arise, as relevant here, where “the municipality took positive control of a known and dangerous safety condition” … . Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff. There was no evidence that Officer McDonald [the dog handler] took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries … . The defendants established that Officer McDonald was an attendee at a training program conducted by the New York State Homeland Security and Emergency Services at a New York State facility, that he merely participated in the training exercise, and that he took direction from the NYPD canine instructor. Mahar v McDonald, 2025 NY Slip Op 00315, Second Dept 1-22-25

Practice Point: Here the police dog handler did not have control of the unleashed dog when it bit plaintiff. The dog and the handler were participating in an explosive-detection training session conducted by a third party. Because the dog handler had not taken control of a known and dangerous safety condition (the dog) at the time plaintiff was injured, the dog handler did not owe plaintiff a special duty, a prerequisite to municipal liability.

 

,

THE PRIOR WRITTEN NOTICE RULE RE: MUNICIPAL LIABILITY FOR DANGEROUS CONDITIONS APPLIES TO MORE THAN JUST SURFACE DEFECTS; HERE THE RULE APPLIED TO AN ARCH-SHAPED BOLLARD OR BARRIER WHICH FELL OVER WHEN A CHILD WAS SWINGING FROM IT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming the dismissal of the complaint, over a two-justice dissent, determined the “written notice” requirement in the City of Ithaca code applied to an arch-shaped bollard or barrier placed to protect a tree from being damaged by cars using a parking lot. As plaintiff’s child grabbed onto the bollard and swung from it, it came loose from the ground and fell over, injuring the child’s hand. The city demonstrated it did not have written notice of the condition, which, under the code, is a prerequisite for liability. The dissenters argued a bollard was not in any category which triggers the written-notice requirement:

… [T]he operative query is not whether there is a surface defect affecting safe passage but, more broadly, whether there is a defective condition that would not have come to the municipality’s attention unless it was notified of it … . As such, the prior written notice rule has been applied to conditions as varied as a low-hanging tree branch …, a sharp metal beam … and a bent parking meter pole … . Therefore, the prior written notice rule governs.

From the Dissent:

First, in our opinion, the defective bollard that crushed plaintiff’s child’s hand was not in one of the six locations that General Municipal Law § 50-e authorizes municipalities to cover with a prior written notice law. And second, defendants failed to submit any proof that they installed the bollard properly, in accordance with industry standards. Thus, the burden never shifted to plaintiff, and defendants’ summary judgment motion should have been denied regardless of the adequacy of plaintiff’s proof. Finally, even if defendants had shifted the burden, we believe that plaintiff submitted proof presenting a question of fact as to whether the bollard was unreasonably dangerous when installed, precluding a grant of summary judgment. Gurbanova v City of Ithaca, 2025 NY Slip Op 00252, Third Dept 1-16-25

Practice Point: The written-notice rule, which requires that a municipality have written notice of a dangerous condition before it can be held liable for injury caused by the condition, applies to more than just surface defects. Here the rule applied to an arch-shaped bollard or barrier which fell over when a child swung on it.

 

, , ,

THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

, ,

THE TREE WELL IN THE SIDEWALK WHERE PLAINTIFF TRIPPED AND FELL WAS THE RESPONSIBILTY OF THE CITY, NOT DEFENDANT ABUTTING PROPERTY OWNER (FIRST DEPT). ​

The First Department, reversing Supreme Court in this slip and fall case, determined that maintenance of the tree well within the sidewalk where plaintiff fell was the responsibility of the city, not the defendant property owner:

Defendant established its prima facie entitlement to summary judgment by submitting plaintiff’s pleadings and deposition testimony, along with photographic evidence showing the area where the sidewalk connects to the tree well and marked by plaintiff at her deposition to show where she fell. This evidence, taken together, establishes that plaintiff fell when she stepped into and out of the perimeter of the tree well, not when she stepped on an uneven sidewalk slab or other sidewalk defect … . The perimeter of the tree well is not part of the sidewalk whose maintenance is the responsibility of the abutting property owner under Administrative Code of City of NY § 7-210 … . Rather, the perimeter of the tree well is part of the tree well itself, which the City, not the property owner responsible for the sidewalk, has the obligation to maintain in a safe condition … .

Defendant also submitted an affidavit and deposition testimony from one of its owners, stating that the tree wells near the property were installed by the City and that neither defendant nor any building tenant constructed the tree well, maintained it, repaired it, or put it to special use. This evidence was sufficient to show that defendant did not affirmatively create the dangerous condition, negligently make repairs to the area, or cause the dangerous condition to occur through a special use of the area. Thus, there was no basis to impose liability on the defendant … . Cabral v Triangle, LLC, 2025 NY Slip Op 00187, First Dept 1-14-25

Practice Point: In NYC tree wells, as opposed to the surrounding sidewalks, are the responsibility of the city, not the abutting property owner. Here plaintiff tripped and fell stepping into a tree well. Defendant abutting property owner was off-the-hook.

 

, ,

PLAINTIFF WAS NOT IN AN AREA IN WHICH FALLING OBJECTS COULD BE ANTICIPATED, SO THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; PLAINTIFF WAS STRUCK BY A BOARD INTENTIONALLY THROWN INTO THE EXCAVATED AREA WHERE HE WAS WORKING; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240(1) and 241(6) causes of action should have been dismissed. Plaintiff was in an excavated area four or five feet below ground level when a worker at ground level threw a board into the excavated area which struck plaintiff. Apparently throwing boards into the excavated area was part of the work, so the Labor Law 200 and negligent supervision causes of action survived:

Defendant thus demonstrated prima facie entitlement to judgment as a matter of law by showing that plaintiff was not injured by an “object [that] fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .T he burden thus shifted to plaintiff to raise a triable issue of fact, which plaintiff failed to do” … , requiring dismissal of the Labor Law § 240 (1) cause of action. * * *

Defendant’s proof showed that the dig area was not “normally exposed to falling material or objects” (12 NYCRR 23-1.7 [a] [1]), and, in any event, plaintiff was working only four to five feet below grade. Thus, defendant demonstrated the “overhead protection” regulation was not applicable … . Accordingly, defendant met its preliminary burden to show that plaintiff could not recover under Labor Law § 241 (6) as a matter of law … . Plaintiff’s proof does not raise an issue of fact on this point, thus dismissal of the Labor Law § 241 (6) claim should have been granted … . James v Marini Homes, LLC, 2025 NY Slip Op 00132, Second Dept 1-9-25

Practice Point: If the safety precautions related to falling objects are not applicable because the plaintiff was working in an area where falling objects could not be anticipated, then the “falling objects” protections in Labor Law 240(1) and 241(6) will not be triggered.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy