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SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the court should not have searched the record and awarded summary judgment to the plaintiff in this sidewalk slip and fall case based upon a theory raised for the first time in reply papers, (2) the city defendants did not demonstrate that they did not have written notice of the condition or that they did not create the condition, and (3) evidence submitted by the city defendants for the first time in reply papers could not be considered with respect to a prima facie showing of entitlement to summary judgment:

The plaintiff alleged, for the first time in opposition to the motion and cross motion for summary judgment, that the defendants were strictly liable under an absolute nuisance theory. However, a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting, for the first time in opposition to the motion, a new theory of liability that was not pleaded in the complaint or bill of particulars … . …

… [T]he City defendants’ … “failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that they had no prior written notice as they failed to submit proof of such lack of notice from the proper municipal official”…, or that they did not create the alleged dangerous condition through an affirmative act of negligence… . The evidence submitted by the City defendants for the first time in their reply papers cannot be considered for the purpose of determining whether they met their prima facie burden … . Troia v City of New York, 2018 NY Slip Op 04770, Second Dept 6-27-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/REPLY PAPERS (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SUMMARY JUDGMENT (REPLY PAPERS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))

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DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT).

The First Department determined defendant general contractor was not entitled to dismissal of the punitive damages claim in connection with a high rise fire during demolition. 42 feet of the water standpipe had been removed, stairways were blocked and a no smoking policy was not enforced. One hundred firefighters were injured and two were killed fighting the blaze. The court found that the general contractor (Bovis) could be held liable for punitive damages based upon the acts and omissions of its safety manager, Melofchik. The court further found that the motion court properly considered plaintiffs’ new motion papers which were submitted before Bovis’s reply papers were due and which did not change the substance of the prior papers or prejudice Bovis:

Conduct justifying punitive damages “must manifest spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton'” … . Although issues of fact exist as to whether Bovis’s site safety manger, Jeff Melofchik, was present shortly after the subcontractor removed the 42-foot section of the pipe in November 2006, and whether Melofchik became aware at that point that the segment was part of the standpipe, it is undisputed that Melofchik did not test the standpipe system to ensure that it was operational during the 16-month period from March 2006 (when Bovis became the general contractor on the project) to August 2007 (when the fire occurred). …

An employer may be assessed punitive damages for an employee’s conduct “only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit servant,” such that it is complicit in that conduct … . Complicity is evident when “a superior officer in the course of employment orders, participates in, or ratifies outrageous conduct” … . Although Melofchik was not a “superior officer” and nothing suggests that Bovis management authorized or ratified Melofchik’s conduct, an issue of fact exists as to whether management was aware of Melofchik’s incompetence but still “deliberately retained the unfit servant … .”  Borst v Lower Manhattan Dev. Corp., 2018 NY Slip Op 04679, First Dept 6-26-18

​NEGLIGENCE (PUNITIVE DAMAGES, DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/DAMAGES (PUNITIVE DAMAGES, DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/PUNITIVE DAMAGES (DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/EMPLOYMENT LAW (NEGLIGENCE, PUNITIVE DAMAGES, DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/CIVIL PROCEDURE (MOTION PAPERS, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))

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MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT).

The First Department determined the motions to dismiss the legal malpractice causes of action against original (Neimark defendants) and successor counsel (Budin defendants) were properly denied. Original counsel did not file a notice of claim and successor counsel did not seek leave to file a late notice of claim:

The Budin defendants, as successor counsel, had an opportunity to protect plaintiff’s rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e(5), to serve a late notice of claim. Whether the Budin defendants would have prevailed on such motion will have to be determined by the trier of fact … . We do not find this determination to be speculative given that Supreme Court will weigh established factors in exercising its General Municipal Law § 50-e(5) discretion … .

We agree with plaintiff’s argument that the Neimark defendants’ failure to serve a timely notice of claim, as of right, on the New York City Department of Education in the underlying personal injury action remains a potential proximate cause of his alleged damages. Plaintiff has a viable claim against the Neimark defendants despite the fact that the Budin defendants were substituted as counsel before the expiration of time to move to serve a late notice of claim. Thus, the Budin defendants’ substitution can only be deemed a superseding and intervening act that severed any potential liability for legal malpractice on the part of the Neimark defendants if a determination is made that a motion for leave to serve a late notice of claim would have been successful in the underlying personal injury action … . Liporace v Neimark & Neimark, LLP, 2018 NY Slip Op 04668, First Dept 6-26-18

​ATTORNEYS (MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/LEGAL MALPRACTICE (MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/EDUCATION-SCHOOL LAW (NOTICE OF CLAIM, LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))

QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, in response to defendant’s motion for summary judgment, had raised a question of fact about whether mats outside shower stalls created a dangerous condition, Plaintiff alleged she tripped on the exposed edge of a mat, which was nine-sixteenths of an inch thick:

… [P]laintiff submitted, among other things, her affidavit, photographs of the mats and the affidavit of Frederick Bremer, an architect who investigated the condition of the locker room. Plaintiff also relied on her own deposition testimony. Plaintiff testified that she was familiar with the locker room and showers because she had been utilizing them five days each week for 11 years and that the photographs accurately depict the condition of the mats. She noted that there were two large, square mats in the shower area that were each comprised of nine smaller interlocking squares. Plaintiff claimed that because the larger mats were never connected, they often moved in relation to each other so that they sometimes overlapped and at other times were located several inches apart — a condition that she claimed had existed continuously since the mats were installed. Plaintiff also stated that she had personally rearranged the mats on several occasions prior to her injury to eliminate the risk of her tripping on them. According to plaintiff, she fell when the toe of her sneaker caught the exposed edge of a mat near the exit to the shower in the location that she marked on one of the photographs that she had submitted.

Bremer concluded that the mats were not properly installed. Specifically, he opined that a gap was created between the mats because they were neither attached to each other nor otherwise properly secured. The resulting gap exposed the edges of the mats, and Bremer opined that the nine-sixteenth-inch height of the exposed mat edges constituted a tripping hazard that violated applicable design standards. He also noted that the manufacturer of the mats recommended installation of a sloped transition piece to eliminate such exposed edges, and that transition pieces were not utilized in the location where plaintiff fell. Facteau v Mediquest Corp., 2018 NY Slip Op 04631, Third Dept 6-21-18

​NEGLIGENCE (QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))/FLOOR MATS (SLIP AND FALL, QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))

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DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT).

The Third Department determined defendant Kain had raised two non-negligent explanations for rear-ending the car in front of him and therefore plaintiffs’ motion for summary judgment was properly denied. Kain had testified that his brakes didn’t work properly and the cars in front of him stopped abruptly. Although Kain had not raised brake failure as an affirmative defense, the court noted that the defense could be considered in opposition to a summary judgment motion absent surprise and provided the moving party has a chance to respond:

The claim that an accident was unavoidable due to brake failure is an affirmative defense … . However, “[e]ven an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent” … .. Accordingly, a nonmovant may invoke a waived defense to defeat a motion for summary judgment if the movant has the opportunity to respond … . Kain testified at his deposition that the brakes in his vehicle failed, and plaintiffs addressed that issue in their moving papers and again in their reply.

… [D]efendants met their burden to provide a nonnegligent explanation for the accident. Kain testified that the brakes did not operate normally when he applied them and, further, that the application of the brakes did not appreciably slow the speed of the vehicle as he approached the vehicles that were stopped at the traffic signal. Further, he testified that his vehicle was relatively new and was in good working order, and that the only mechanical problems he had experienced prior to the accident were unrelated to the brakes. He further testified that the brakes operated properly prior to the accident, the inspection was current and the malfunction caused him to apply his emergency brake. …

Kain also testified [the two cars in front of him] abruptly stopped directly in front of his vehicle. He specifically stated that [plaintiffs’] vehicle approached the intersection without slowing, as if it was going to proceed, and that it stopped immediately when the light turned red, thereby forcing the [car behind plaintiffs’] to also stop abruptly. He further testified that he was traveling at or below the speed limit and that he applied his brakes immediately upon seeing that both vehicles had stopped abruptly in his path. Warner v Kain, 2018 NY Slip Op 04630, Third Dept 6-21-18

​NEGLIGENCE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/REAR-END COLLISIONS (DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/SUMMARY JUDGMENT (A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/AFFIRMATIVE DEFENSES (SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/BRAKE FAILURE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))

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FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT).

The First Department determined summary judgment was properly granted to the plaintiff in this slip and fall case because the defendant store did not preserve video which would have shown the condition of the floor prior to the fall:

Although it was demanded within days of plaintiff’s slip and fall, defendants failed to preserve a video recording of its store that depicted the area of plaintiff’s fall prior to it occurring. Instead, a store employee selectively edited the video to retain only that portion showing approximately 30 seconds prior to plaintiff’s fall and the fall itself. Without the video recording, plaintiff may be unable to establish the origin of the liquid on the floor that she claims caused her to fall, and thus be unable to establish the requisite notice of the alleged condition … . Despite a court order and a discovery conference stipulation, defendants failed to explain why the remainder of the video became unavailable. Davis v Pathmark, 2018 NY Slip Op 04656, First Dept 6-21-18

​NEGLIGENCE (SLIP AND FALL, EVIDENCE, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/EVIDENCE (SLIP AND FALL, SPOLIATION,  FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/SPOLIATION (SLIP AND FALL, VIDEO, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/VIDEO (EVIDENCE, SPOLIATION, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))/NOTICE (SLIP AND FALL, VIDEO, SPOLIATION, FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT))

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COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT).

The Second Department, in a comprehensive and informative analysis, determined plaintiff had stated a negligence cause of against the town for the shooting death of plaintiff’s decedent, Nigro. The town police had responded to Nigro’s residence where she told the police her live-in companion, Groesbeck, had assaulted her. She also told the police Groesbeck, a former New Jersey police officer, had an unlicensed handgun. The police did not arrest Groesbeck, but took possession of the handgun. The police later returned the handgun to Groesbeck who subsequently shot and killed Nigro with it. The Second Department found that the complaint adequately alleged a special relationship between Nigro and the town, and further found that the town did not demonstrate the doctrine of governmental immunity applied as matter of law:

… [C]onstruing the complaint liberally and according the plaintiff the benefit of every possible favorable inference, it was sufficient to allege the existence of a special relationship between the Town and Nigro. The complaint adequately alleged “direct contact” between the agents of the Town and Nigro … , and that the Town police department undertook “through promises or actions” an affirmative duty, on behalf of Nigro, to safeguard Groesbeck’s handgun … . In addition, the complaint adequately alleged circumstances indicating that the Town, through its agents, knew that the return of the handgun to Groesbeck “could lead to harm” … . The Town’s evidentiary submissions failed to “utterly refute” these factual allegations as a matter of law … .

… [T]he complaint was also sufficient to allege Nigro’s “justifiable reliance” on the Town’s affirmative undertaking to safeguard Groesbeck’s handgun … .  * * *

… [A] factfinder could reasonably conclude that Groesbeck’s use of the allegedly illegal handgun to harm Nigro was a “foreseeable consequence of the situation created by the [Town’s] negligence” … . * * *

The issue of whether a defendant is entitled to governmental immunity is distinct from the issue of whether a special duty exists in a particular case… . The doctrine of governmental immunity refers to “an affirmative defense on which [a defendant] bears the burden of proof” … . * * *

Even assuming that the allegedly negligent act of returning the handgun was discretionary in nature, it cannot be said, as a matter of law, that “the discretion possessed by [the Town] was in fact exercised” … , or that any such exercise of discretion was “in compliance with the municipality’s procedures” … . Santaiti v Town of Ramapo, 2018 NY Slip Op 04584, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/POLICE (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/THIRD PARTY ASSAULT, LIABILITY FOR (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))

PLAINTIFF INJURED WHEN LAWN CHAIR SANK INTO A HOLE CONCEALED BY GRASS, QUESTION OF FACT WHETHER LANDOWNER HAD ACTUAL NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment should not have been granted. Plaintiff was injured when she sat down in a lawn chair which sank into a hole concealed by grass:

Landowners have a duty to maintain their property in a reasonably safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, and the burden of avoiding the risk… . Contrary to the defendants’ contention, viewing the evidence in the light most favorable to the plaintiff, the defendants failed to demonstrate, prima facie, that the alleged concealed hole in the lawn was a ” naturally occurring topographic condition,'” inherent in the nature of the property, that the defendants ” could not reasonably be expected to remedy'” … .

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating, prima facie, that they did not create the allegedly dangerous condition or have actual or constructive notice of it prior to the subject accident… . However, in opposition, the plaintiff raised a triable issue of fact, at least, as to whether the defendants had actual notice of the condition prior to the accident. Mustafaj v Macri, 2018 NY Slip Op 04554, Second Dept 6-20-18

​NEGLIGENCE (PLAINTIFF INJURED WHEN LAWN CHAIR SANK INTO A HOLE CONCEALED BY GRASS, QUESTION OF FACT WHETHER LANDOWNER HAD ACTUAL NOTICE OF THE CONDITION (SECOND DEPT))/LAWN CHAIRS (NEGLIGENCE, PLAINTIFF INJURED WHEN LAWN CHAIR SANK INTO A HOLE CONCEALED BY GRASS, QUESTION OF FACT WHETHER LANDOWNER HAD ACTUAL NOTICE OF THE CONDITION (SECOND DEPT))

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TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT)

The Second Department determined defendant landlord’s motion for summary judgment in this negligence action by a tenant was properly denied. Plaintiff was injured attempting to move a heavy radiator that was in the common area outside his apartment. Plaintiff’s family members had complained that the radiator obstructed the path from the apartment to the staircase, but the radiator had remained there for months:

… [T]he defendant landlord moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff’s conduct was the sole proximate cause of the accident. …

The defendant landlord failed to establish, prima facie, that it was not foreseeable that the plaintiff would attempt to move the heavy radiator and that the plaintiff’s conduct constituted a superseding and intervening act which severed any nexus between the defendant landlord’s alleged negligence and the plaintiff’s injuries … . Munoz v Kiryat Stockholm, LLC, 2018 NY Slip Op 04552, Second Dept 6-20-18

​NEGLIGENCE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SOLE PROXIMATE CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SUPERSEDING CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/FORESEEABILITY (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))

,

APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in this sidewalk slip and fall case should have been granted. Petitioner’s counsel served a timely notice on the city but the abutting owner was the NYC Housing Authority (NYCHA). The notice was served on the NYCHA two weeks after the expiration of the 90-day period:

… [W]hile the petitioner’s counsel’s error concerning the identity of the responsible public corporation does not provide a reasonable excuse for the delay in giving notice … , the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application …. Notably, considering that the petitioner’s application was made approximately two weeks after the expiration of the 90-day period, NYCHA acquired actual knowledge of the essential facts constituting the claim within a “reasonable time” after the expiration of the 90-day period (General Municipal Law § 50-e[5]…).

Moreover, the petitioner met her initial burden of showing that the late notice will not substantially prejudice NYCHA, thereby requiring NYCHA “to rebut that showing with particularized evidence” … . NYCHA’s conclusory assertion of substantial prejudice was insufficient to rebut the petitioner’s showing. Matter of Ramos v New York City Hous. Auth., 2018 NY Slip Op 04547, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))

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