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QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant's motion for summary judgment in this skiing accident case should not have been granted. Plaintiff was injured in a collision with defendant. The assumption of the risk doctrine did not preclude the suit because a question of fact had been raised about whether defendant acted recklessly:

… [P]laintiffs submitted, inter alia, an affidavit from an emergency room physician who was also an 11-year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff's injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff's] left side and back was immense” and that plaintiff's injuries were “not consistent with [defendant's] deposition testimony” that he had come to or nearly come to a complete stop. The expert further opined that, “[g]iven that [plaintiff] was skiing slowly at the time of the collision, the severe injuries sustained by [both] men, and their unanimous testimony that the collision was severe, it [was] clear [that defendant] was snowboarding at an extremely high rate of speed at the time of the collision.” The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff by cutting across the beginner trail “at an extremely high rate of speed . . . knowing that there would be skiers and snowboarders traveling down [the beginner trail]” and that defendant's conduct constituted “an egregious breach of good and accepted snowboarding practices.” * * *

… [T]the record establishes that the collision was exceedingly violent and, inasmuch as we must accept as true plaintiff's testimony that he was the one who was skiing slowly … , there is “at least a question of fact . . . whether . . . defendant's speed in the vicinity and overall conduct was reckless” … . Contrary to defendant's contention, the affidavit of plaintiffs' expert was neither conclusory nor speculative … . Sopkovich v Smith, 2018 NY Slip Op 06342, Fourth Dept 9-28-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SKIING (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (SKIING ACCIDENT, QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT).

The First Department determined that defendant's motion for summary judgment in this slip and fall case was properly denied. Defendant did not demonstrate when the area of the fall was last inspected or cleaned and did not demonstrate a lack of constructive notice of water on the floor:

Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water in the vestibule of defendant's building. Defendant failed to make a prima facie showing that it lacked constructive notice because the superintendent failed to testify or aver that his assistant adhered to a janitorial schedule on the day of the accident or when the area was last inspected prior to plaintiff's fall … . Since defendant failed to meet its initial burden to establish that it lacked constructive notice of the alleged defect as a matter of law, the burden never shifted to plaintiff to establish how long the condition existed … .

Defendant also failed to establish that it lacked constructive notice on the basis that the water was not present in the vestibule for a sufficient period to afford defendant an opportunity to discover and remedy the condition … . Whether the water was present for that sufficient period presents an outstanding factual issue, as the time it took plaintiff and her friend to return to the premises from the store is unclear, and defendant failed to clarify the issue at the deposition. Hill v Manhattan N. Mgt., 2018 NY Slip Op 06323, First Dept 9-27-18

NEGLIGENCE (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT))/EVIDENCE (SLIP AND FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT))/SLIP AND FALL (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT))

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ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT).

The Second Department determined the action based upon exposure to lead in utero was properly dismissed. Plaintiff alleged his father’s clothes were saturated with lead at work:

At common law, employers have a duty to provide a safe workplace, but this duty has been limited to employees (see Labor Law § 200…). It has not, as the plaintiff contends, been extended to encompass individuals who were not employed at the worksite such as the plaintiff or his mother during her pregnancy … .

While “[a] landowner generally must exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises'” … , the facts alleged in this case differ from those to which a landowner’s duty to exercise reasonable care for the protection of individuals off site has been held to extend … .

Contrary to the plaintiff’s contention, the alleged violations of Occupational Safety and Health Administration (hereinafter OSHA) regulations … , the Occupational Health and Safety Act of 1970 , specifically 29 USC § 654(a), and Labor Law § 27-a do not constitute negligence per se. The violation of OSHA regulations provides only evidence of negligence … . Moreover, neither the plaintiff nor his mother during her pregnancy belonged to the class intended to be protected by OSHA or its implementing regulations, 29 USC § 654(a), or Labor Law § 27-a, namely employees … . Campanelli v Long Is. Light. Co., 2018 NY Slip Op 06225, Second Dept 9-26-18

NEGLIGENCE (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW  (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/TOXIC TORTS  (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/ENVIRONMENTAL LAW  (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))

THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF’S VEHICLE (SECOND DEPT).

The Second Department determined defendant in this rear-end collision case did not raise a question of fact about whether there was a nonnegligent explanation for striking plaintiff's vehicle:

… [T]he defendants submitted the affidavit of the defendant driver, which failed to provide a nonnegligent excuse for striking the rear of the plaintiff's vehicle. The defendant driver averred that the plaintiff's vehicle struck a vehicle in front of it and came to a short stop. According to the defendant driver, there was heavy, stop-and-go traffic at the time, and the vehicle he was operating was traveling approximately 5 to 10 miles per hour and was approximately 20 feet behind the plaintiff's vehicle when the plaintiff's vehicle stopped short. The defendant driver asserted that he could not stop his vehicle in time to avoid the impact. “While a nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic conditions must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead” … . Given the traffic conditions as related by the defendant driver, his assertion that the plaintiff's vehicle came to a sudden stop was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision between the plaintiff's vehicle and the defendants' vehicle … . Arslan v Costello, 2018 NY Slip Op 06221, Second Dept 9-26-18

NEGLIGENCE (THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF'S VEHICLE (SECOND DEPT))/TRAFFIC ACCIDENTS (THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF'S VEHICLE (SECOND DEPT))/REAR-END COLLISIONS (THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF'S VEHICLE (SECOND DEPT))

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MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF’S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff's motion for leave to amend her notice of claim in this slip and fall case should have been granted:

“[I]n making a determination on the sufficiency of a notice of claim, a court's inquiry is not limited to the four corners of the notice of claim” … . “A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim” … . Where the defendant is provided with such evidence correcting the notice of claim within a reasonable time after the accident, there is no prejudice… .

Here, the defendant did not demonstrate, prima facie, that the notice of claim was insufficient. The information contained in the notice of claim, supplemented by the testimony of the plaintiff given a few months thereafter at the General Municipal Law § 50-h hearing, was sufficient to allow the defendant to conduct a meaningful investigation into the plaintiff's claim … .

Moreover, the defendant did not demonstrate, prima facie, that it would be prejudiced by the plaintiff's proposed amendment to the notice of claim, which was to state the address of the accident. The plaintiff had testified that there were witnesses to the accident. As such, the defendant could have ascertained the location of the accident ” with a modicum of effort'” … . Moreover, the defendant did not submit any evidence demonstrating that it was misled by the error, or that it conducted an investigation at the wrong location … . Finally, even if the original notice of claim had contained the address of the defect, the plaintiff testified that the road was resurfaced approximately three weeks after her fall, which was prior to service of the notice of claim … . Ruark v City of Glen Cove, 2018 NY Slip Op 06286, Second Dept 9-26-18

NEGLIGENCE (MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, SLIP AND FALL, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. Petitioner alleged she tripped and fell over unsecured floor mats as she was leaving the school after her grandson's basketball game. The Second Department noted that the school had done an investigation and thereby had timely notice of the facts of the claim:

… [A]lthough the petitioner's notice of claim was not served within 90 days of the accident, the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident … . In fact, the respondent conducted an investigation into whether it was a proper defendant in a personal injury action. In addition, the petitioner made an initial showing that the respondent was not substantially prejudiced by the delay, since the respondent acquired timely, actual knowledge of the essential facts constituting the claim within the 90-day period, conducted an investigation, and notified its insurance carrier of the accident … .

In opposition, the respondent failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice was allowed … . The respondent's contention that it was prejudiced because the particular mats over which the petitioner tripped had been replaced after the accident is without merit. The record shows that the respondent's Director of Facilities sent an email on the morning following the petitioner's accident in which he indicated that he was aware of the fact that the petitioner tripped over the mats in the vestibule. Contrary to the respondent's contention, any prejudice resulting from the replacement of the subject mats was due to the respondent's practice of changing the mats on a weekly basis rather than from the petitioner's delay in serving a notice of claim. Under these circumstances, the failure of the respondent to inspect the mats that were on the ground on the date of the petitioner's accident was not caused by the delay in serving a notice of claim … .

…[W]hile the excuses proffered by the petitioner for her failure to file a timely notice of claim were not reasonable, the absence of a reasonable excuse is not in and of itself fatal to the petition where, as here, there was actual notice and an absence of prejudice … . Matter of Messick v Greenwood Lake Union Free Sch. Dist., 2018 NY Slip Op 06244, Second Dept 9-26-18

EDUCATION-SCHOOL LAW (SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SLIP AND FALL, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, SLIP AND FALL, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/SLIP AND FALL  (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))

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MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF’S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff's motion for leave to amend her notice of claim in this slip and fall case should have been granted.

“[I]n making a determination on the sufficiency of a notice of claim, a court's inquiry is not limited to the four corners of the notice of claim” … . “A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim” … . Where the defendant is provided with such evidence correcting the notice of claim within a reasonable time after the accident, there is no prejudice… .

Here, the defendant did not demonstrate, prima facie, that the notice of claim was insufficient. The information contained in the notice of claim, supplemented by the testimony of the plaintiff given a few months thereafter at the General Municipal Law § 50-h hearing, was sufficient to allow the defendant to conduct a meaningful investigation into the plaintiff's claim … .

Moreover, the defendant did not demonstrate, prima facie, that it would be prejudiced by the plaintiff's proposed amendment to the notice of claim, which was to state the address of the accident. The plaintiff had testified that there were witnesses to the accident. As such, the defendant could have ascertained the location of the accident ” with a modicum of effort'” … . Moreover, the defendant did not submit any evidence demonstrating that it was misled by the error, or that it conducted an investigation at the wrong location … . Finally, even if the original notice of claim had contained the address of the defect, the plaintiff testified that the road was resurfaced approximately three weeks after her fall, which was prior to service of the notice of claim … . Ruark v City of Glen Cove, 2018 NY Slip Op 06286, Second Dept 9-26-18

NEGLIGENCE (MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, SLIP AND FALL, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined that an exposed root in a town park, over which plaintiff tripped and fell, was an open and obvious condition that was not actionable:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property” … . A landowner, however has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the exposed tree root was an open and obvious condition which was inherent or incidental to the nature of the property, and known to [plaintiff] prior to the subject accident … . Moreover, the location of the exposed tree root in relation to the picnic table was both open and obvious and, as a matter of law, not inherently dangerous … . Ibragimov v Town of N. Hempstead, 2018 NY Slip Op 06231, Second Dept 9-26-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/SLIP AND FALL ( EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/TREE ROOTS (SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))

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DEFENDANT PROPERTY OWNERS BORROWED A LIFT FROM DEFENDANT MIS, PLAINTIFF WAS INJURED USING THE LIFT, THE LABOR LAW 200 CAUSE OF ACTION AGAINST MIS WAS PROPERLY DISMISSED AS INAPPLICABLE, BUT THE NEGLIGENCE ACTION AGAINST MIS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that summary judgment was properly granted for the Labor Law 200 cause of action, but should not have been granted on the negligence cause of action. Plaintiff was injured using a telescoping lift. The lift belonged to MIS and defendant property owners had borrowed it. The Labor Law 200 action against MIS was dismissed because Labor Law 200 applies only to owners, contractors and their agents. The negligence action against MIS should not have been dismissed because MIS did not demonstrate the lift was not in a defective or dangerous condition:

We agree with the Supreme Court's determination granting that branch of MIS's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 200 insofar as asserted against it. “Labor Law § 200 is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work”… . The evidence MIS submitted in support of its motion established, prima facie, that MIS was not an owner, contractor, or agent with regard to the plaintiff's work … . In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court should have denied that branch of MIS's motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against it. Contrary to its sole contention regarding this cause of action, MIS failed to establish, prima facie, that the lift was not in a defective or dangerous condition. Hill v Mid Is. Steel Corp., 2018 NY Slip Op 06230, Second Dept 9-26-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANT PROPERTY OWNERS BORROWED A LIFT FROM DEFENDANT MIS, PLAINTIFF WAS INJURED USING THE LIFT, THE LABOR LAW 200 CAUSE OF ACTION AGAINST MIS WAS PROPERLY DISMISSED AS INAPPLICABLE, BUT THE NEGLIGENCE ACTION AGAINST MIS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENCE  (DEFENDANT PROPERTY OWNERS BORROWED A LIFT FROM DEFENDANT MIS, PLAINTIFF WAS INJURED USING THE LIFT, THE LABOR LAW 200 CAUSE OF ACTION AGAINST MIS WAS PROPERLY DISMISSED AS INAPPLICABLE, BUT THE NEGLIGENCE ACTION AGAINST MIS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the medical malpractice action should not have been consolidated with an contract action to determine an insurance-coverage obligation in the malpractice action:

… Salvatore Leone and Santa Leone (hereinafter together the Leones) commenced an action to recover damages for medical malpractice against Alvin Hershfeld and Medical Office of Howard Beach, P.C. (hereinafter together Hershfeld; hereinafter the malpractice action). … Hershfeld commenced the instant action against JM Woodworth Risk Retention Group, Inc. (hereinafter JM Woodworth), seeking a declaration that JM Woodworth was obligated to defend and/or indemnify Hershfeld in the malpractice action, and to recover damages for breach of contract, and also named the Leones as defendants. * * *

The Supreme Court improvidently exercised its discretion in consolidating the two actions for the purpose of a joint trial and in amending the caption accordingly. In the malpractice action, the issues involve, inter alia, the alleged negligence of Hershfeld and the alleged damages suffered by the Leones. In the instant action, the issue to be resolved is JM Woodworth's alleged contractual obligation to provide insurance coverage to Hershfeld in the malpractice action. The two actions do not involve common questions of law or fact (see CPLR 602[a]…). Moreover, a joint trial of the two actions could result in substantial prejudice to JM Woodworth. Indeed, it has long been recognized that it is inherently prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims, even where common questions of law and fact exist … . Hershfeld v JM Woodworth Risk Retention Group, Inc., 2018 NY Slip Op 06229, Second Dept 9-26-18

CIVIL PROCEDURE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/CPLR 602  (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/INSURANCE LAW (CIVIL PROCEDURE, MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))

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