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PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case was properly denied. The medical-treatment excuse was inadequate. The late notice of claim which petitioner attempted to serve on the city was rejected. It therefore was a nullity which would not be deemed to inform the city of the nature of the claim. The petitioner was unable to show the city was not prejudiced by the delay:

Contrary to the petitioner's contention, she failed to demonstrate that her injuries and medical care constituted a reasonable excuse for her failure to timely serve a notice of claim. Rather, the medical evidence she submitted in support of her petition demonstrated that she had substantially healed and no longer required any pain medication long before the expiration of the statutory 90-day period for timely filing her notice of claim. Thus, she failed to medically substantiate that her injury and treatment prevented her from making timely service, or that she did not learn of the full extent of her injuries until after the statutory period had expired … . Furthermore, the petitioner failed to establish any reasonable excuse for her additional nine-month delay in seeking leave to serve a late notice of claim after her original notice of claim was rejected as untimely … .

Similarly, we agree with the Supreme Court's determination that the respondents did not acquire actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter by reason of the late notice of claim which the respondents rejected as untimely. “A late notice of claim served without leave of court is a nullity”… . Under the circumstances presented, where the respondents rejected the notice of claim and disallowed the claim based on the untimely service, the petitioner's late notice of claim did not provide the respondents with actual knowledge … .

Additionally, given the transitory nature of the defect upon which the petitioner allegedly fell… , she failed to sustain her initial burden of presenting “some evidence or plausible argument” … that granting the petition would not substantially prejudice the respondents in maintaining their defense on the merits … . Matter of Ashkenazie v City of New York, 2018 NY Slip Op 06734, Second Dept 10-10-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, LATE NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))

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STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT’S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the state was entitled to qualified immunity in this motorcycle-car accident case. Claimant's decedent was killed when his motorcycle struck a car, driven by Carranca, as Carranca entered Sunrise Highway and crossed three lanes of traffic. Claimant's decedent alleged negligent design of the roadway. However the state had commissioned a study of the area which found no safety concerns and claimant's decedent's expert did not fault the study:

“To establish its entitlement to qualified immunity, the governmental body must demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process. A municipality is entitled to qualified immunity where a governmental planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the State submitted the Urbitran Report as evidence that it had studied the intersection at issue, as part of a larger study of a 1.2-mile stretch of Sunrise Highway. The Urbitran Report considered safety conditions and accident history, traffic volumes, “speeds and delay studies,” and traffic control devices. The State concluded that no additional safety measures were necessary regarding the right turn from Old Sunrise Highway onto eastbound Sunrise Highway. The claimant's expert conceded that the Urbitran Report found no safety problems with traffic from Old Sunrise Highway merging with eastbound Sunrise Highway, and further conceded that she found no deficiencies with the Urbitran Report. The subsequent placement of a traffic light at the intersection for reasons other than preventing the type of accident that occurred in this case does not affect the State's entitlement to qualified immunity for decisions pertaining to the right turn from Old Sunrise Highway onto eastbound Sunrise Highway. Iovine v State of New York, 2018 NY Slip Op 06723, Second Dept 10-10-18

COURT OF CLAIMS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/IMMUNITY (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/NEGLIGENCE (HIGHWAY DESIGN,  STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/HIGHWAYS AND ROADS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))

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THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, modifying Supreme Court, determined the summary judgment motions brought by two of the defendants in this traffic accident case should have been granted. There was a question of fact whether the driver (Koureichi) who allegedly injured the plaintiff was an employee or a subcontractor of defendant Hudson. But the other two defendants, Stop & Shop and Subcontracting Concepts (SCI), demonstrated Koureichi was not an employee:

As a general rule, an employer who hires an independent contractor, as distinguished from an employee or servant, is not liable for the negligent acts of the independent contractor … . Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability … . Factors relevant to assessing control include whether a worker (1) worked at [her or] his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule … .

Contrary to Hudson's contention, the evidence it submitted in support of its motion, including, inter alia, a transcript of Koureichi's deposition testimony, did not eliminate all triable issues of fact as to whether Koureichi was an independent contractor when the accident occurred … . Among other things, the evidence submitted by Hudson indicated that Koureichi worked for Hudson six days per week, from 10:00 a.m. to 7:00 p.m., that he was required to call a supervisor employed by Hudson if he could not report to work, that he wore a t-shirt provided by Hudson, for which he paid Hudson, which had “Same-Day Delivery” printed on it, and that he had a two-way radio provided by Hudson, for which Koureichi also paid Hudson. In light of Hudson's failure to establish its prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's denial of Hudson's motion for summary judgment dismissing the complaint insofar as asserted against it, without regard to the sufficiency of the plaintiffs' opposition papers … .

However, the Supreme Court should have granted Stop & Shop's motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by Stop & Shop established, prima facie, its entitlement to judgment as a matter of law. That evidence included Koureichi's deposition testimony that he did not know the names of any of Stop & Shop's managers, that he had no contact with them, and that Stop & Shop's managers did not control the hours that he worked or how he made deliveries. That evidence established, prima facie, that Stop & Shop did not control the means and method of Koureichi's work. In opposition, the plaintiffs failed to raise a triable issue of fact.

The Supreme Court also erred in denying SCI's motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by SCI, including Koureichi's deposition testimony that he did not have any contact with anyone at SCI, and that he didn't know SCI's function, other than to issue his paychecks, established that SCI did not control the means and method of Koureichi's work, and therefore, established SCI's prima facie entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact. Nachman v Koureichi, 2018 NY Slip Op 06752, Second Dept 10-10-18

NEGLIGENCE (EMPLOYMENT LAW, TRAFFIC ACCIDENTS, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, EMPLOYMENT LAW, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/SUBCONTRACTORS (NEGLIGENCE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))

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SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the negligent supervision cause of action against the school district properly survived summary judgment, but the inadequate security cause of action should have been dismissed. Plaintiff was stabbed by another student in the hallway at school. The school district did not demonstrate the assault was not foreseeable and did not demonstrate negligent supervision was not the proximate cause of plaintiff’s injuries. However the inadequate security cause of action should have been dismissed because no special relationship between the school and the plaintiff was demonstrated:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision”… . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated”… . Actual or constructive notice to the school of prior similar conduct generally is required, and “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence” … . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained … . The adequacy of a school’s supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff’s injury … .

Here, the District failed to demonstrate, prima facie, that the assault on the plaintiff was not foreseeable or that the District’s alleged negligent supervision was not a proximate cause of the plaintiff’s injuries … . The District failed to eliminate triable issues of fact as to whether it had knowledge of the offending student’s dangerous propensities based on his involvement in other assaultive altercations with fellow students in the recent past … . Thus, the District failed to establish, prima facie, that it lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the plaintiff. As to proximate cause, the District failed to demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . …

However, the District established, prima facie, its entitlement to judgment as a matter of law dismissing the cause of action alleging inadequate security by demonstrating that there was no special relationship giving rise to a special duty to protect the plaintiff. Gaston v East Ramapo Cent. Sch. Dist., 2018 NY Slip Op 06720, Second Dept 10-10-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/INADEQUATE SECURITY (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/THIRD PARTY ASSAULT (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT THE CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the contractual and common law indemnification causes of action against defendant STAT should have been dismissed, but the contribution cause of action properly survived summary judgment. Plaintiff alleged he slipped and fell on construction debris and brought actions under Labor Law 240 (1) and 241 (6). The indemnification causes of action should have been dismissed because the defendants (Granite and Kulka) would not be able to prove they were free from negligence. The contribution claim was viable because STAT employees played some role in the accumulation of the debris:

STAT demonstrated that Granite and Kulka had certain responsibilities with respect to the removal of the construction debris and, thus, that they would not be able to prove themselves free from negligence in the event that the injured plaintiff was successful on his claims against Granite (seeGeneral Obligations Law § 5-322.1 ,,,). For this same reason, STAT established its prima facie entitlement to judgment as a matter of law dismissing the common-law indemnification third third-party cause of action and cross claim against it … .

However, we agree with the Supreme Court's determination to deny those branches of STAT's motion which were for summary judgment dismissing Granite's third third-party cause of action for contribution and Kulka's cross claim for contribution. As opposed to indemnification, which shifts the entire liability to the negligent party, “where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy” … . In the context of a construction site accident, where a plaintiff's injuries arise not from the manner in which the work was performed but rather due to an allegedly dangerous condition present thereat, liability under a common-law negligence theory “may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it” … . Fedrich v Granite Bldg. 2, LLC, 2018 NY Slip Op 06717, Second Dept 10-10-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/INDEMNIFICATION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/CONTRIBUTION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/CONTRACT LAW (INDEMNIFICATION, LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/NEGLIGENCE (PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))

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ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT).

The Second Department determined summary judgment was properly granted to the elevator maintenance company in this (allegedly)”misaligned elevator” slip and fall case. The maintenance company demonstrated it did not have notice of the condition and plaintiffs did not demonstrate that the doctrine of res ipsa loquitur applied:

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found”… . Here, the defendant submitted sufficient evidence to establish, prima facie, that it did not have actual or constructive notice of a misleveling condition, and that it did not fail to use reasonable care to correct a condition about which it should have been aware … .

In opposition, the plaintiffs failed to raise a triable issue of fact. The affidavit of the plaintiffs' expert, which was speculative, lacking in foundation, and conclusory, was insufficient to raise a triable issue of fact … .

The doctrine of res ipsa loquitur was not applicable as the plaintiffs failed to demonstrate that the accident “was one that would not ordinarily occur in the absence of someone's negligence” … . Daconta v Otis El. Co., 2018 NY Slip Op 06716, Second Dept 10-10-18

NEGLIGENCE (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/ELEVATORS (SLIP AND FALL, ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/SLIP AND FALL (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/RES IPSA LOQUITUR  (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))

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PETITIONER’S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner's request for leave to file a late notice of claim in a potential Labor Law 200, 240 (1) and 241 (6) action should not have been granted. Petitioner was struck by a falling plank when he was standing on a scaffold during renovation work at a school:

Although the petitioner made no attempt to proffer a reasonable excuse for the failure to serve a timely notice claim, “[n]either the presence nor absence of any one factor is determinative”; thus, “[t]he absence of a reasonable excuse is not necessarily fatal” … .

The petitioner failed to establish that the municipal parties acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or within a reasonable time thereafter. Notably, the record is devoid of evidence showing that any of the municipal parties was aware, prior to the commencement of this proceeding, that the petitioner's accident had occurred—let alone that the petitioner was claiming violations of Labor Law §§ 200, 240(1), and 241(6) … . Contrary to the petitioner's contention, a delay of four months following the expiration of the 90-day notice period does not constitute a “reasonable time” within the meaning of General Municipal Law § 50-e(5) … .

Further, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the municipal parties were not substantially prejudiced by the four-month delay from the expiration of the 90-day statutory period … . Matter of Moroz v City of New York, 2018 NY Slip Op 06743, Second Dept 10-10-18

NEGLIGENCE (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT). ​

The Second Department determined a rusty drainage pipe under the water at a town beach was a culvert within the meaning of the town code, requiring written notice of the condition before the town could be held liable for an injury, Infant plaintiff cut his foot on the pipe when he was walking in the water:

… [T]he Town demonstrated by the submission of the affidavit of its expert engineer, that the drainage pipe at issue is a culvert and, thus, falls within the ambit of the statute. In opposition, the plaintiffs failed to raise a triable issue of fact as to the nature of the subject drainage pipe.

“A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” … .

Insofar as is relevant here, the Town established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect through the submission of, inter alia, the affidavit of an employee of the Town's Department of Highways, who averred that his search of the Town's records revealed no prior written notice of any hazardous condition of the culvert where the accident occurred … . Coventry v Town of Huntington, 2018 NY Slip Op 06715, Second Dept 10-10-18

NEGLIGENCE (TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT))

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LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Labor Law 200 and common-law negligence causes of action should not have been dismissed:

This Labor Law and common-law negligence action arises from injuries sustained by Michael W. Parkhurst (decedent) when he slipped and fell on plastic sheeting covering newly-laid carpet after descending a ladder while performing drywall finishing work. …

Where, as here, “the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and [has created or has] actual or constructive notice of the dangerous condition” … . “Thus, [d]efendants, as the parties seeking summary judgment dismissing those claims, were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises” … , and defendants failed to meet that burden here. Parkhurst v Syracuse Regional Airport Auth., 2018 NY Slip Op 06670, Fourth Dept 10-5-18

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

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PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF’S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT).

The First Department determined plaintiff's legal malpractice action based upon advice to plead guilty to an election law violation was not viable because he pled guilty without any assertion of innocence. However, the legal malpractice action based upon the advice that his travel abroad would not affect his immigration status was viable. Plaintiff, a legal resident, was detained for four months when he attempted to return to the US from abroad:

We affirm dismissal of part of the malpractice claim … . Plaintiff's claim that he pleaded guilty to criminal charges in reliance on defendants' negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v Lunney, 70 NY2d 169, 173 [1987]… ).

However, the policy underlying the rule established in Carmel v Lunney, supra, does not require dismissal of the entirety of plaintiff's legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction … . Further, plaintiff's allegations that he relied on defendants' faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Sehgal v DiRaimondo, 2018 NY Slip Op 06619, First Dept 10-4-18

LEGAL MALPRACTICE (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ATTORNEYS (MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/IMMIGRATION LAW (ATTORNEYS, LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ELECTION LAW (IMMIGRATION LAW, LEGAL MALPRACTICE, (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))

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