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MOTION TO COMPEL ACCESS TO PLAINTIFF’S DEVICES, EMAIL ACCOUNTS AND SOCIAL MEDIA ACCOUNTS TO OBTAIN EVIDENCE OF PLAINTIFF’S PHYSICAL ACTIVITIES SINCE THE TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the motion to compel “access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities” should have been granted:

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” … . Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities … . Vasquez-Santos v Mathew, 2019 NY Slip Op 00541, First Dept 1-24-19

 

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DEFENSE VERDICT IN THIS SLIP AND FALL CASES SHOULD HAVE BEEN SET ASIDE, THE JURY FOUND DEFENDANT NEGLIGENT BUT FURTHER FOUND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE FALL, HOWEVER, THE NEGLIGENCE AND PROXIMATE CAUSE WERE INEXTRICABLY INTERTWINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the verdict in this slip and fall case should have been granted:

The plaintiff alleged that after entering the auditorium to attend the showing of a movie at the defendant’s multiplex theater, she entered a row of seats, slipped on what she believed to be popcorn oil, and fell. After the movie ended, the plaintiff realized that she was injured when she had difficulty rising from her seat.

… [T]he jury rendered a verdict finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries.

Where, as here, the issues of negligence and proximate cause were inextricably interwoven, the jury’s finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries, was not supported by a fair interpretation of the evidence … . The plaintiff, and her friend who accompanied her on the day of the accident, both consistently testified that the plaintiff slipped and fell on an oily substance on the floor of the auditorium. The defendants failed to submit any evidence to refute this testimony. Thus, the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict should have been granted. Mitchell v Quincy Amusements, Inc., 2019 NY Slip Op 00430, Second Dept 1-23-19

 

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A CORPORATION’S REGISTRATION WITH THE DEPARTMENT OF STATE IS NO LONGER DEEMED CONSENT TO BE SUED IN NEW YORK, FORD’S AND GOODYEAR’S MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED, THE SUIT STEMMED FROM A ROLLOVER ACCIDENT IN VIRGINIA (SECOND DEPT).

The Second Department, in full-fledged opinion by Justice Brathwaite-Nelson, determined that a products liability case (stemming from a traffic accident in Virginia) against Ford, the manufacturer of the vehicle which rolled over, and Goodyear, the manufacturer of a tire which allegedly failed, could not be brought in New York. The plaintiffs alleged general jurisdiction over both companies based upon business done generally in New York and registration with the NY Department of State. The plaintiffs did not allege long-arm jurisdiction. Neither the vehicle nor the tire was manufactured or purchased from the defendants in New York. The plaintiff had purchased the vehicle from a New York nonparty and had used the vehicle in New York.

We consider on these appeals whether, following the United States Supreme Court decision in Daimler AG v Bauman (571 US 117), a foreign corporation may still be deemed to have consented to the general jurisdiction of New York courts by virtue of having registered to do business in New York and appointed a local agent for the service of process. We conclude that it may not. * * *

We agree with those courts that asserting jurisdiction over a foreign corporation based on the mere registration and the accompanying appointment of an in-state agent by the foreign corporation, without the express consent of the foreign corporation to general jurisdiction, would be “unacceptably grasping” under Daimler (Daimler AG v Bauman, 571 US at 138).

The Court of Appeals does not appear to have … relied upon its consent-by-registration theory since International Shoe was decided. We think that this is a strong indicator that its rationale is confined to that era … and that it no longer holds in the post-Daimler landscape. We conclude that a corporate defendant’s registration to do business in New York and designation of the secretary of state to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation’s affiliations with New York. Aybar v Aybar, 2019 NY Slip Op 00412, Second Dept 1-23-19

CPLR 3211(a)(8)

 

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ALTHOUGH THE FREIGHT ELEVATOR WAS IN COMPLIANCE WITH ALL RULES, REGULATIONS AND CODES, THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF A GATE CREATED A DANGEROUS CONDITION OF WHICH THE BUILDING OWNERS WERE AWARE, THE OWNERS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the building owners’ motion for summary judgment in this elevator accident case should not have been granted. Although the freight elevator was in compliance with all applicable rules, regulations and codes, there was a question of fact whether the absence of a gate constituted a dangerous condition of which the defendants were aware:

… [T]he plaintiff raised a triable issue of fact as to whether the … defendants were negligent. The plaintiff submitted evidence demonstrating that prior to the accident, the Waterfront defendants were on notice of the dangerous condition of the elevator when they were provided with proposals from their own elevator service company, which proposals stated that because there was no gate on the inside of the elevator platform, an extremely dangerous condition existed … . Romero v Waterfront N.Y., 2019 NY Slip Op 00486, Second Dept 1-23-19

 

THE DEFECT, A PROTRUDING BOLT UNDER THE HANDRAIL IN A STAIRWAY, WAS TRIVIAL AND NONACTIONABLE, THE $650,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department determined defendant’s motion to set aside the verdict in this slip and fall case should have been granted. The defect, a protruding bolt, was deemed trivial and nonactionable:

… [T]he plaintiff’s evidence at trial included her own testimony, the testimony of her expert engineer, as well as photographs identified and marked by the plaintiff showing the alleged defect as it existed at the time of the subject accident. Accepting such evidence as true, and affording the plaintiff every favorable inference that may be properly drawn from the facts presented … , the alleged defect was not actionable. Considering the appearance and dimensions of the protruding bolt, as well as its location on the sidewall of the staircase, directly underneath a handrail and away from the walking surface of the stairway… , the defect was trivial as a matter of law. Accordingly, the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint should have been granted … . Rambarran v New York City Tr. Auth., 2019 NY Slip Op 00484, Second Dept 1-23-19

 

DEFENDANT’S UNATTENDED TOW TRUCK MOVED BACKWARDS INTO PLAINTIFF’S CAR, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT),

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. Defendant’s tow truck was left running and unattended when it moved backwards into plaintiff’s car:

Plaintiff established entitlement to judgment as a matter of law in this action where he was injured when defendants’ tow truck was left unattended by its driver, defendant Millar, and rolled backwards into plaintiff’s car, which was stopped behind the tow truck. When a driver fails to secure an unattended vehicle sufficiently to prevent it from starting to move on its own, the driver is negligent …

In opposition, defendants did not raise a triable issue of fact as they failed to offer a non-negligent explanation for the collision… . Defendants’ speculation that, even though Millar left the gear in “park” before exiting the tow truck, the gear must have slipped into reverse on its own due to some mechanical failure is insufficient to raise an issue of fact … . Defendants present no evidence of any type of mechanical failure or defect in the tow truck, which Millar was able to drive back to the depot after the accident without incident. Franco v City of New York, 2019 NY Slip Op 00377, First Dept 1-22-19

 

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THE LANDOWNER AND THE TENANT TAXI COMPANY HAD THE SAME PRINCIPAL, A HOSE WAS USED BY INDEPENDENT CONTRACTORS TO WASH THE TAXIS, PLAINTIFF ALLEGEDLY SLIPPED ON THE WATER FROM THE HOSE WHICH FROZE, THE LANDOWNER DID NOT ESTABLISH IT WAS AN OUT OF POSSESSION LANDLORD, THE LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, over a dissent, reversing Supreme Court, determined the landowner was not entitled to summary judgment in this slip and fall case. The principal of the property owner, 514 West, is also the principal of the tenant, Style, a taxi company. Independent contractors used a hose to wash the cars. Water from the hose froze and plaintiff allegedly slipped and fell on the ice. The First Department noted the close connection between 514 West and Style and found that 514 West did not establish it was on out-of-possession landlord:

514 West, which owns the building adjacent to the roadway in which plaintiff slipped and fell on ice, failed to make a prima facie showing of its entitlement to summary judgment, since the evidence it submitted raises genuine issues of fact about whether it created the dangerous condition … . For example, its principal, who is also the principal of codefendant Style Management Co., Inc. (Style), the taxi company housed at the building owned by 514 West, admitted that there is a hose attached to the building, which the independent contractors who work for the taxi company would use to wash the cars. It is water from this hose, which pooled in the street and then froze, that plaintiff allegedly slipped on. “It is . . . a general rule that an abutting owner is liable if, by artificial means . . . water from the property is permitted to flow onto the public sidewalk where it freezes”… . 514 West asserts that Style operated the hose, not it, thus absolving it of liability. However, 514 West fails to establish that it is an out-of-possession landlord; indeed, given the very close connection between 514 West and Style, which, again, have the same principal, it is not possible on this record to determine, as a matter of law, that the former is without liability as a landowner. Malik v Style Mgt. Co. Inc., 2019 NY Slip Op 00372, First Dept 1-22-19

 

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QUESTION OF FACT WHETHER CITY HAD PRIOR WRITTEN NOTICE OF THE DEFECTS IN THE SIDEWALK AND RAILING WHERE PLAINTIFF’S DECEDENT FELL INTO A GORGE, CITY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (THIRD DEPT).

The Third Department determined the city’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff’s decedent fell from a paved trail into a gorge. There were questions of fact about whether the city had prior written notice of the broken sidewalk and railing:

… [P]laintiff produced a police investigation report concluding that decedent had fallen along a part of the trail with multiple defects, including broken pavement, a “bent/unsecured hand railing . . . and huge gap spaces in sidewalk edge adjacent to [the] cliff side edge.” Plaintiff also demonstrated that, by the time of the fall, the Department of Public Works had received numerous written complaints about the condition of the trail. General complaints and the subsequent efforts of department personnel to evaluate the condition of the trail did not “obviate the need for prior written notice” of the particular defects implicated in decedent’s fall … . That said, one of the written complaints was a January 2012 email forwarded to an Assistant Superintendent of Public Works that was, according to his testimony, “probably” shared with the Superintendent of Public Works, and attached to the email is a map with photographs that appear to reference the defects in the area where decedent fell. Van Wageningen v City of Ithaca, 2019 NY Slip Op 00343, Third Dept 1-17-19

 

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APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT).

The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts underlying the claim and were not prejudiced by the the delay:

… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly, we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts underlying petitioners’ claims … . …

Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other than the passage of time, respondent has offered no particularized evidence in opposition to establish that it suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third Dept 1-17-19

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DEFENDANT GRANDFATHER DID NOT HAVE A DUTY TO CONTROL HIS COLLEGE-AGE GRANDSON IN THIS ROAD RAGE INCIDENT, THEREFORE THE NEGLIGENCE ACTION WAS PROPERLY DISMISSED, HOWEVER THE AIDING-AND-ABETTING ASSAULT CAUSE OF ACTION AGAINST DEFENDANT GRANDFATHER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined defendant Mancuso’s motion for summary judgment on the negligence cause of action was properly granted, but the motion for summary judgment on the aiding-and-abetting-assault cause of action should not have been granted. The action stemmed from a road rage incident. Defendant Mancuso was driving and his college-age grandson, Vaccaro, was a passenger. The grandson got out of the car and hit plaintiff in the face:

Mancuso established, prima facie, that he did not owe a duty to the plaintiff by virtue of the relationship Mancuso had with Vaccaro. The fact that Mancuso could have exercised control over Vaccaro, his college-aged grandson, did not create a duty to do so … . In addition, the mere fact that Vaccaro was a passenger in Mancuso’s vehicle did not create a duty on the part of Mancuso to control Vaccaro’s conduct … . …

To be liable for an assault under an aiding and abetting theory, a defendant must have committed some overt act, either by words or conduct, in furtherance of the assault … . Here, Mancuso established, prima facie, that he did not commit an overt act in furtherance of Vaccaro’s assault on the plaintiff … . In opposition, however, the plaintiff raised a triable issue of fact as to whether Mancuso’s actions preceding the assault constituted an overt act in furtherance of the assault … . McKiernan v Vaccaro, 2019 NY Slip Op 00267, Second Dept 1-16-19

 

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