You are here: / Negligence
, , ,

PLAINTIFF, A PASSENGER ON A MOTORCYCLE, WAS ENTITLED TO SUMMARY JUDGMENT AGAINST THE VAN DRIVER AND THE EMPLOYER OF THE VAN DRIVER WHO MADE A LEFT TURN INTO THE MOTORCYCLE’S PATH, THE GRAVES AMENDMENT MAY APPLY TO THE LESSOR OF THE VAN, PLAINTIFF DID NOT HAVE TO DEMONSTRATE SERIOUS INJURY AS SHE WAS NOT A COVERED PERSON UNDER THE NO-FAULT INSURANCE LAW (SECOND DEPT).

The Second Department addressed several issues in this motorcycle-vehicle accident case. Plaintiff was a passenger on a motorcycle that collided with a van which attempted to make a left turn across the motorcycle’s path. The court held: (1) plaintiff was entitled to summary judgment against the van driver who violated Vehicle and Traffic Law 1146 and 1126 in making the turn; (2) the van driver’s employer was vicariously liable because the driver was operating the van during the course of his employment, the employer leased the van for more than 30 days and therefore was the owner of the van under Vehicle and Traffic Law 388; (3) the Graves Amendment may insulate the lessor of the van from liability; (4) plaintiff was not a covered person under the no fault provisions of the Insurance Law and therefore did not have to demonstrate serious injury before bringing suit. Jung v Glover, 2019 NY Slip Op 01066, Second Dept 2-13-19

 

​

LOCK BOX ON THE OUTSIDE OF A BUILDING ON WHICH PLAINTIFF STRUCK HIS HEAD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the key lock box on the outside of building, on which plaintiff struck his head, was open and obvious and not inherently dangerous:

The plaintiff alleges that …, as he was walking out of the defendants’ Wendy’s restaurant, he turned right and struck his head on a black Fire Department key lock box that was affixed to the exterior of the red brick wall of the building. The plaintiff commenced this action against the defendants, alleging negligence in, among other things, the maintenance of their premises. In his pleadings, the plaintiff alleged that the presence and positioning of the lock box on the exterior wall constituted a dangerous condition. …

On their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that the subject condition was both open and obvious, and not inherently dangerous  … . In opposition, the plaintiff failed to raise a triable issue of fact … . Erario v Wen Shirley, LLC, 2019 NY Slip Op 01059, Second Dept 2-13-19

 

NISSAN, AS THE LESSOR OF THE VEHICLE, WAS ENTITLED TO DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE PURSUANT TO THE GRAVES AMENDMENT, THE COMPLAINT ALLEGED NEGLIGENT MAINTENANCE OR MECHANICAL MALFUNCTION, NISSAN DEFENDANTS DEMONSTRATED THEY DO NOT INSPECT, REPAIR, MAINTAIN OR SERVICE THE VEHICLES THEY LEASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Nissan’s motion to dismiss the complaint in this traffic accident case should have been granted pursuant to the Graves Amendment:

Under the Graves Amendment, in order for recovery to be barred, the owner, or an affiliate of the owner, must be engaged in the trade or business of renting or leasing motor vehicles, and the owner, or its affiliate, must not be negligent … .

Here, the Nissan defendants demonstrated that they were the owners of the subject vehicle and were engaged in the business of renting or leasing motor vehicles… . Additionally, to the extent that the plaintiff’s theory of negligent maintenance or mechanical malfunction was supported by factual allegations, the Nissan defendants established that the allegations were not facts at all through its submissions showing that the Nissan defendants never possess, inspect, repair, maintain, or service the vehicles they lease and that it was the sole responsibility of the lessee of the subject vehicle … to maintain that vehicle … . Cukoviq v Iftikhar, 2019 NY Slip Op 01057, Second Dept 2-13-19

 

, ,

IN THESE MARITIME LAW ACTIONS STEMMING FROM A FATAL BOATING ACCIDENT, THE TOWN DID NOT DEMONSTRATE ITS ENTITLEMENT TO SUMMARY JUDGMENT, THE COMPLAINTS ALLEGED NEGLIGENT PLACEMENT OF BUOYS (SECOND DEPT).

The Second Department, reversing Supreme Court in this boat-accident case, determined that the town was not entitled to summary judgment. Four boat passengers were killed and others were injured. The complaints alleged the town was negligent in the placement of buoys:

Maritime law, which is applicable in this case, recognizes a general theory of liability for negligence… . “[N]egligent conduct on the navigable waters that causes loss to another constitutes a maritime tort”… . Once the Town set a channel through the use of navigational aids, it had a duty to maintain those navigational aids in a reasonable and prudent manner … .

Upon applying maritime law, we conclude that the Town failed to establish its prima facie entitlement to judgment as a matter of law. Although the Town submitted evidence suggesting that the accident may have been at least partly caused by negligence on the part of the boat’s operator, the Town failed to meet its prima facie burden of demonstrating the lack of any triable issues of fact regarding the Town’s comparative fault based on its placement and maintenance of the buoys … . Sugamele v Town of Hempstead, 2019 NY Slip Op 01118, Second Dept 2-13-19

 

,

JUDGE SHOULD NOT HAVE GRANTED RELIEF WHICH WAS NOT REQUESTED IN THE MOTION PAPERS, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON SOME ISSUES IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined questions of fact precluded summary judgment on some issues in this slip and fall case. The decision addresses too many issues to fairly summarize here. The court noted that Supreme Court should not have granted relief (dismissal of cross-claims) not requested in the motion papers. Plaintiff slipped and fell on ice in a delivery area behind defendant Cafe in a plaza owned by defendant Pixley. There was some evidence the Cafe exercised control over at least part of the delivery area (snow removal):

… [W]e conclude that the court erred in granting that part of the Café’s motion for summary judgment dismissing the complaint against it insofar as the complaint alleges that the Café had constructive notice of the icy condition; the court also erred in denying that part of Pixley’s motion for summary judgment dismissing the complaint against it insofar as the complaint alleges that Pixley had actual notice of the icy condition. Johnson v Pixley Dev. Corp., 2019 NY Slip Op 01040, Fourth Dept 2-8-19

 

,

PLAINTIFF’S DEPOSITION TESTIMONY DEEMED INCREDIBLE AS A MATTER OF LAW IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, made the unusual finding that certain testimony did not raise a question of fact in this traffic accident case because it was incredible as a matter of law. Defendant’s motion for summary judgment should have been granted:

Although we agree with the dissent that as a general premise “the contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve,” there are rare instances where credibility is properly determined as a matter of law … . This Court is not “required to shut its eyes to the patent falsity of a claim]” … . Here … we conclude that plaintiff’s deposition testimony was demonstrably false and should be rejected as incredible as a matter of law, permitting summary judgment in favor of defendant. Carthen v Sherman, 2019 NY Slip Op 00954, First Dept 2-7-19

 

PLAINTIFF ASSUMED THE RISK OF INJURY CAUSED BY AN OPEN AND OBVIOUS CRACK IN A BASKETBALL COURT (FIRST DEPT).

The First Department determined plaintiff assumed the risk of injury from a crack in an outdoor basketball court:

Defendant made a prima facie showing of its entitlement to judgment as a matter of law, by submitting evidence that plaintiff frequently played basketball on the subject outdoor basketball court, which has an open and obvious crack which runs the length of the court and has a marked tar surface … . The court correctly rejected plaintiff’s contention that grass growing out of the crack concealed its depth, finding instead that the grass served to highlight the defect, which was also one of the risks assumed by plaintiff when he chose to play basketball at this location … . Alvarado v City of New York, 2019 NY Slip Op 00962, First Dept 2-7-19

 

, ,

MANAGER OF COOPERATIVE DID NOT HAVE A DUTY TO PROVIDE SECURITY IN EXTERIOR PUBLIC AREAS IN THIS THIRD PARTY ASSAULT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the manager of a cooperative complex could not be liable for a third party assault occurring in exterior public areas:

Plaintiff Sander Palaj, and his wife suing derivatively, commenced this action to recover for personal injuries he allegedly sustained when he was shot outdoors in the co-operative complex known as Co-op City, which was managed by defendant Marion Scott Real Estate, Inc. at the time. However, a landowner’s duty to take minimal security precautions does not extend to exterior public areas, such as walkways and vestibules … . Palaj v Marion Scott Real Estate, Inc., 2019 NY Slip Op 00958, First Dept 2-7-19

 

ONE INCH GAP AT THE TOP OF EXTERIOR STEPS ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined this slip and fall case properly survived summary judgment. Plaintiff alleged her foot was caught in a one-inch gap at the top of exterior steps:

While testifying at her deposition, the plaintiff identified photographs that demonstrated that the gap was at least one inch wide and at least one inch deep and three feet long, and ran the entire length of the steps. The defendants’ witness, Monsignor Jamie Gigantiello, testified that he had been assigned and came to the defendant St. Bernard Church in January 2013. Gigantiello testified that upon his arrival, he found that the church building and rectory needed work, and his focus was on renovating those buildings. He further testified that, despite being on the site daily and making regular observations and inspections as he traversed the area, he did not notice thegap before the plaintiff’s accident, but noticed it every time he traversed the area thereafter. He also identified the same photographs of the gap that were identified by the plaintiff, and agreed that they accurately depicted the condition that he observed following the accident. Thus, we agree with the Supreme Court’s determination that the defendants failed to establish, prima facie, that the subject steps were not in a defective condition and that the defendants did not have constructive notice, as a reasonable inspection would have revealed the defective condition … . Fasano v St. Bernard Church, 2019 NY Slip Op 00856, Second Dept 2-6-19

 

, , ,

EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT MAINTENANCE CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS PLAYGROUND INJURY CASE (SECOND DEPT).

The Second Department determined Supreme Court should have considered evidence submitted by the defendant in its reply papers and further determined that the negligent maintenance cause of action properly survived summary judgment in this playground injury case. Infant plaintiff was injured when she fell from playground equipment during recess. The negligent supervision cause of action was dismissed. But there was evidence the area beneath the playground equipment was dangerous:

… [W]e disagree with the Supreme Court’s decision to not consider the evidence submitted by the defendant in its reply papers. “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief” … . The evidence submitted by the defendant in its reply papers addressed arguments made by the plaintiff and the plaintiff’s expert in opposition to its motion. Thus, the court should have considered the evidence. …

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent maintenance of its premises by submitting evidence which demonstrated that it adequately maintained the playground, and that it did not create an unsafe or defective condition … . In opposition, however, the plaintiff raised a triable issue of fact by the submission of her expert’s affidavit which opined, in part, that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet standards established by the Consumer Product Safety Commission (see General Business Law § 399-dd). Boland v North Bellmore Union Free Sch. Dist., 2019 NY Slip Op 00849, Second Dept 2-6-19

 

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