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CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this slip and fall case should have been granted. Constructive notice of the liquid on the floor was not demonstrated with respect to the building owner (Berkshire) and none of the Espinal factors were alleged with respect to the cleaning service (Temco):

Here, the evidence submitted by Berkshire in support of its motion, including the transcript of the plaintiff’s deposition testimony, was sufficient to establish, prima facie, that Berkshire did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient period of time to have discovered and remedied it … . The plaintiff testified that when he traversed the accident site approximately 20 minutes before the incident, he did not see the condition that had caused him to slip. In opposition, the plaintiffs failed to raise a triable issue of fact.

With respect to Temco’s motion, “[g]enerally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely… .

Here, Temco established its prima facie entitlement to judgment as a matter of law by demonstrating, prima facie, that the plaintiff was not a party to its cleaning services contract, and that it, thus, owed him no duty of care … . Since the plaintiffs did not allege facts in the complaint or bill of particulars that would establish the applicability of any of the Espinal exceptions, Temco was not required to affirmatively demonstrate that these exceptions were inapplicable in order to establish its prima facie entitlement to judgment as a matter of law … . Hagan v City of New York, 2018 NY Slip Op 07415, Second Dept 11-7-18

NEGLIGENCE (SLIP AND FALL, CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ESPINAL FACTORS (SLIP AND FALL, SLIP AND FALL, CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (SLIP AND FALL, ESPINAL FACTORS, CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant Lucia Wager made a left turn into plaintiff’s path in violation of Vehicle and Traffic Law 1141. The unsourced statement in the medical record concerning plaintiff’s speed was not related to his diagnosis or treatment and should not have been admitted:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that Lucia Wager violated Vehicle and Traffic Law § 1141 when she made a left turn directly into the path of the injured plaintiff’s motorcycle. Lucia Wager was negligent in failing to see what was there to be seen, and in attempting to make a left turn when it was hazardous to do so … . Regardless of who entered the intersection first, the injured plaintiff, as the driver with the right-of-way, was entitled to anticipate that Lucia Wager would obey traffic laws which required her to yield … . In opposition, the defendants failed to submit evidence sufficient to raise a triable issue of fact as to whether Lucia Wager had a nonnegligent explanation for colliding with the injured plaintiff’s motorcycle  … . Contrary to the defendants’ contention, the statement contained in the injured plaintiff’s medical record as to how fast his motorcycle was traveling at the time of the collision was not admissible as an admission, since the source of the information was not identified and it did not contain information that was germane to his diagnosis or treatment … . Ming-Fai Jon v Wager, 2018 NY Slip Op 07304, Second Dept 10-31-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (INTERSECTION ACCIDENT, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/EVIDENCE (MEDICAL RECORDS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/MEDICAL RECORDS (NEGLIGENCE, STATEMENTS , DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/ADMISSIONS (NEGLIGENCE, MEDICAL RECORDS, TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))

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DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant town did not demonstrate the hump over which plaintiff allegedly tripped and fell was open and obvious. Therefore the town’s motion for summary judgment should not have been granted:

The Town had installed a drain to keep water off this particular ballfield and covered the drain with asphalt, creating a hump. This hump extended to the area between the players’ benches and the entrance to the ballfield on the third base side. The injured plaintiff was attempting to move through the entrance on the third base side when he tripped and fell over the hump. …

A landowner has a duty to maintain its premises in a reasonably safe condition … . There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . “A condition that is ordinarily apparent to a person making reasonable use of [his or her] senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .

Here, the Town failed to establish, prima facie, that the condition of the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident … . In support of the motion, the Town submitted, inter alia, transcripts of the testimony of the injured plaintiff at his hearing pursuant to General Municipal Law § 50-h and at his deposition. The injured plaintiff testified that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump. Since the Town failed to meet its initial burden as the movant, the burden never shifted to the plaintiffs to submit evidence sufficient to raise triable issues of fact … . Dillon v Town of Smithtown, 2018 NY Slip Op 07289, Second Dept 10-31-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the negligence and negligent infliction of emotional distress causes of action were property dismissed. Although defendant (Domnitser) may not have intended to strike plaintiff in an altercation with others, the complaint alleged only intentional conduct by the defendant:

Although “the same act may constitute battery or negligence depending on whether or not it was intentional, . . . there cannot be recovery for both”… . As such, “if the only inference that may be drawn from plaintiff’s evidence is that defendant’s contact with plaintiff was intentional, plaintiff may recover only in battery and the issue of negligence should not be submitted to the jury”. Accordingly, “[o]nce intentional offensive contact has been established, the actor is liable for battery, not negligence” … .

Here, the plaintiff alleged that he was injured as a result of Domnitser’s intentional acts which were directed toward third parties during the physical altercation. Contrary to the plaintiff’s contention, even if Domnitser lacked any intent to make physical contact with, or otherwise injure, the plaintiff, the conduct attributed to Domnitser in the amended complaint, even as amplified by the plaintiff’s affidavit, constituted intentional, rather than negligent, conduct … . …

“A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety” … . A negligent infliction of emotional distress cause of action “must fail where, as here, [n]o allegations of negligence appear in the pleadings'” … . Borrerro v Haks Group, Inc., 2018 NY Slip Op 07282, Second Dept 10-31-18

NEGLIGENCE (BATTERY, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (BATTERY, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/BATTERY (NEGLIGENCE, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))

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SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant school district’s motion for summary judgment in this third party assault case should have been granted. Infant plaintiff, Deb B, a special education student, alleged she was sexually assaulted by another special education student outside the school building before classes started. Deb B.’s education plan did not provide for a school aide to escort her to school from the bus or between classes:

After arriving at school one morning, she entered the building in the company of JG, another special education student who had been a passenger with her on the same school bus. After stopping by the school’s cafeteria, and before the first-period class, JG asked Deb B. to accompany him outside the school building to the bleachers near the athletic field, and Deb B. agreed to do so. Deb B. alleges that JG then sexually assaulted her while they were on the bleachers. …

“Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a special duty’ to the students themselves” … . Thus, schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “Schools are not, however, insurers of students’ safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students'” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . …

Here, in support of their motion for summary judgment, the defendants submitted evidence that Deb B.’s individualized education plan did not provide for a school aide to escort her from the school bus to the school building or to escort her throughout the building as she moved between classes. Deb B.’s mother testified that she was aware that Deb B. was not so escorted, and that she had no expectation that this would be done. The evidence submitted by the defendants also indicated that Deb B. had no history of leaving the school building improperly. Finally, neither the complaint nor the bill of particulars alleged that JG had a propensity to engage in dangerous conduct, or that the defendants knew or should have known of any such propensity … . Deb B. v Longwood Cent. Sch. Dist., 2018 NY Slip Op 07280, Second Dept 10-31-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, THIRD PARTY ASSAULT, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/ASSAULT, THIRD PARTY (NEGLIGENCE, EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/THIRD PARTY ASSAULT (EDUCATION-SCHOOL LAW, NEGLIGENCE, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))

DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment on the Dram Shop Act cause of action was properly granted, but the negligence cause of action in this third-party assault case should not have been granted. There was uncontested evidence the assailant did not appear to be drunk when served. But there was a question of fact whether the defendant restaurant took adequate measures to protect plaintiff from a second attack by the assailant:

Defendant was entitled to summary judgment dismissing plaintiff’s cause of action under the Dram Shop Act (General Obligations Law § 11-101; see also Alcohol Beverage Control Law § 65). A witness testified that plaintiff’s assailant did not appear visibly intoxicated at the time he was served two drinks by defendant. This evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that point in time until he attacked plaintiff … . …

While the first assault was sudden and unforseeable, and therefore not actionable, defendant failed to demonstrate as a matter of law that it took reasonable actions to protect plaintiff from the assailant on the second assault and that it was not foreseeable. It is true that the husband of defendant’s owner averred that he was escorting the assailant, who appeared to have calmed down “somewhat,” from the premises, when he suddenly lunged two or three feet to where plaintiff was standing, and struck him. However, another witness testified that immediately prior to assailant’s attack on plaintiff, he did not see anyone accompanying or escorting the assailant while the assailant exited defendant’s establishment. Ricaurte v Inwood Beer Garden & Bistro Inc., 2018 NY Slip Op 07242, First Dept 10-30-18

NEGLIGENCE (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/DRAM SHOP ACT (THIRD PARTY ASSAULT, (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/ASSAULT, THIRD PARTY  (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant property owner’s (Reda’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the area where plaintiff fell was in a designated bus stop, where the city would be responsible, or in an area the NYC Administrative Code requires that defendant maintain:

Plaintiff alleges that she tripped and fell over a gap between flagstones on a public sidewalk abutting property owned by Reda, and south of a bus shelter maintained by defendant City. Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk … , but the City continues to be responsible for maintaining any part of the sidewalk that is “within a designated bus stop location” … .

In support of her motion for summary judgment, Reda submitted evidence, including photographs showing where plaintiff fell near a bus shelter and next to a yellow-marked curb, and the City’s admission that it owns the bus stop pole shown in a photograph. However, absent any applicable statute or any evidence defining the parameters of a bus stop, a triable issue of fact exists as to whether the part of the sidewalk where plaintiff fell is within a designated bus stop that the City is required to maintain … . McCormick v City of New York, 2018 NY Slip Op 07175, First Dept 10-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/MUNICIPAL LAW (SIDEWALKS, BUS STOP, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SLIP AND FALL (MUNICIPAL LAW, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/BUS STOPS (MUNICIPAL LAW, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))

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OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff slipped and fell on water which appeared to be coming from the bathroom door in the leased premises:

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a “duty imposed by statute or assumed by contract or a course of conduct” … . Here, the plaintiff alleged the violation of a duty imposed by Administrative Code of the City of New York § 28-301.1, which provides that the owner of a building “shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner” … .. The defendant failed to meet its prima facie burden of demonstrating that it completely relinquished possession and control of the basement area of the building, such that it cannot be held liable under that Administrative Code provision for injuries caused by a defective condition therein … . Nieves v Pennsylvania, LLC, 2018 NY Slip Op 07134, Second Dept 10-24-18

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

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BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the lessee’s motion for summary judgment in this lead paint injury case should have been granted. The injured child was in the subtenant’s family. The subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek indemnification from the lessee. The indemnification clause in the lease, however, was not enforceable because it was not limited to the lessee’s negligence:

At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27-2013(h) (Local Law 1) … placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased premises where children under the specified age resided… . The owner of a cooperative corporation was considered the owner of a multiple dwelling for purposes of Local Law 1… .

Contrary to the [lessee’s] contention, the fact that Local Law 1 imposed a nondelegable duty on [the owner] to abate the lead paint hazard does not mean that [the owner] is precluded from recovering in indemnity, either contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed to the infant plaintiff’s injuries… . However, under the circumstances presented, [the owner] may not seek contractual indemnification from the [lessee] based on the indemnification provision contained in the proprietary lease. “A broad indemnification provision in a lease . . . which is not limited to the lessee’s acts or omissions, fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321” … . N.A. v Hillcrest Owners Assn., Inc., 2018 NY Slip Op 07133, Second Dept 10-24-18

CONTRACT LAW (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/LANDLORD-TENANT (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/NEGLIGENCE  (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/TOXIC TORTS (LEAD PAINT, (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/INDEMNIFICATION (LEASE, BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))

, ,

COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).

The Second Department determined the legal malpractice cause of action properly survived a motion to dismiss, but the Judiciary Law 487 cause of action should have been dismissed because there was no allegation of intentional as opposed to negligent conduct:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” …

Here, contrary to the defendant’s contention, the complaint adequately alleged the required element of causation. Specifically, the complaint, construed liberally… , alleged that the defendant proximately caused the plaintiff damages by, among other things, negligently failing … to assert a specific performance cause of action, on which the plaintiff would have prevailed. …

However, the Supreme Court should have directed dismissal of the second and third causes of action, alleging violations of Judiciary Law § 487. Under Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct”… .

… [Plaintiff’s] allegations do not set forth any facts from which an intent to deceive him could be inferred … . Aristakesian v Ballon Stoll Bader & Nadler, P.C., 2018 NY Slip Op 07084, Second Dept 10-24-18

NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/JUDICIARY LAW (ATTORNEYS, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/ATTORNEYS (MALPRACTICE, JUDICIARY LAW, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))

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