You are here: / Negligence
,

DEFENDANT’S ALLEGATION PLAINTIFF’S VEHICLE STOPPED SUDDENLY FOR NO APPARENT REASON DID NOT DEFEAT SUMMARY JUDGMENT ON LIABILITY IN THIS REAR-END COLLISION CASE; HOWEVER PLAINTIFF’S COMPARATIVE NEGLIGENCE, IF ANY, COULD OFFSET THE AMOUNT OF DAMAGES AT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the allegation plaintiff’s vehicle came to a sudden stop for no apparent reason did not raise a question of fact in this rear-end collision case:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (id. [internal quotation marks omitted]). “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” … .

“An assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle” … , although such an assertion may be sufficient to raise a triable issue of fact on the issue of comparative fault … . * * *

[Defendant driver] asserted that the plaintiff brought his vehicle to a sudden stop for no apparent reason and “without any vehicle slowing or stopping ahead of plaintiff.” In essence, “this explanation amounts to nothing more than a claim that the plaintiff’s vehicle came to a sudden stop which, without more, failed to raise a triable issue of fact” as to the defendants’ liability … .

… Supreme Court erred in denying the plaintiff’s motion for summary judgment on the issue of liability.

Comparative negligence on the part of the plaintiff, if any, which would offset the amount of damages, must abide the trial … . Brindisi v ARJ Transp., Inc., 2026 NY Slip Op 02958, Second Dept 5-13-26

Practice Point: The allegation that plaintiff’s car stopped suddenly for no apparent reason will not defeat summary judgment in a rear-end collision case.

Practice Point: However if plaintiff is shown to be comparatively negligent at trial, the amount of damages could be offset.

 

,

A PRIOR PROPERTY OWNER CAN BE LIABLE FOR A DANGEROUS CONDITION UNDER LABOR LAW 200 AND COMMON LAW NEGLIGENCE (PREMISES LIABILITY); BUT A PRIOR PROPERTY OWNER CANNOT BE LIABLE UNDER LABOR LAW 240(1) OR 241(6) FOR CONSTRUCTION-RELATED ACTIVITIES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined a prior owner of property may be liable pursuant to Labor Law 200 and common law negligence for a dangerous condition which the new owner did not have time to remedy, but prior owners cannot be liable under Labor Law 240(1) and 241(6) which relate to construction activities:

… Supreme Court properly denied those branches of Federal Brick’s motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it to the extent that they sounded in premises liability. … Federal Brick failed to establish, prima facie, that it could not be held liable for the allegedly dangerous premises condition as a former owner. Inasmuch as “Labor Law § 200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work” … .

… T]he “narrow exception” that allows for premises liability to be extended to prior owners of property … does not apply to the statutory liability imposed by Labor Law §§ 240(1) and 241(6). Those statutes apply to certain construction-related activities … , rather than premises conditions for which a prior owner might remain responsible. Quintero v MBH Capital, LLC, 2026 NY Slip Op 03010, Second Dept 5-13-26

Practice Point: Under some circumstances a prior property owner may be liable for injury caused by a dangerous condition if the new owner has not yet had time to learn of it and remedy it. This prior-owner liability may be pursunat Labor-Law-200 and common-law negligence theories.

 

, , ,

TENANTS AND THE PROPERTY MANAGER COULD BE LIABLE FOR INJURY CAUSED BY FURNITURE BLOWN OFF A 12TH STORY TERRACE BY WIND (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the plaintiff’s actions against the property manager and tenants should not have been dismissed. Plaintiff alleged she was injured by a heavy wooden lounge chair that was blown off a 12th story apartment terrace:

In this personal injury action, plaintiff seeks damages for injuries that she allegedly sustained when a heavy wooden lounge chair struck her after it was blown off the terrace of a 12th floor apartment in Manhattan. The building was owned by 15 Union Square West and managed by BHS; the apartment itself was owned by GR Realty and was rented to the tenant defendants.

Supreme Court should not have dismissed the complaint as against the tenant defendants and BHS. There are issues of fact as to whether the tenant defendants, who owe a common-law duty of reasonable care to maintain the premises in a reasonably safe condition independent of any obligation that might be imposed by their lease, had constructive notice of the potentially hazardous condition created by the unsecured lounge chair … . Although the lease stated that tenant defendants were not permitted to change the location of any furniture in the apartment, there were occasions when GR Realty granted tenant requests to move furniture. The record also presents evidence that the tenant defendants used the terrace during their occupancy, and issues of fact exist as to whether the risk posed by this furniture was visible and apparent during this period.

Similarly, there are issues of fact as to whether BHS, which managed the property, had constructive notice of the potentially hazardous condition and exercised control over the use of the terraces yet failed to take sufficient precautions in order to prevent or remedy a hazardous condition … . There is evidence in the record that BHS had previously been involved in notifying owners of potential hazards posed by windy conditions, and in fact had helped owners to secure furniture or bring it inside during bad weather…. . Sen v GR Realty Holdings LLC, 2026 NY Slip Op 02947, First Dept 5-12-26

Practice Point: Consult this decision for insight into the various theories of liability triggered by injury caused by furniture which was blown off a 12th story apartment terrace.​

 

, ,

ALTHOUGH DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT PLEAD THE EMERGENCY DOCTRINE AS AN AFFIRMATIVE DEFENSE, THE DEFENSE WAS PROPERLY RAISED IN OPPOSITION TO PLAINTIFFS’ SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant raised a question of fact in this rear-end collision case. Although defendant had not pleaded the emergency doctrine as an affirmative defense, the doctrine was properly raised in opposition to plaintiffs’ summary judgment motion. Defendant was travelling behind a box car on the interstate when the box car suddenly moved into the right lane to avoid plaintiff’s vehicle which was stopped or disabled. Defendant alleged she was unable to stop or change lanes before striking plaintiffs’ vehicle

… Jakubcin [defendant] raised a triable issue of fact by offering a nonnegligent explanation for the collision … . Jakubcin testified that she was travelling southbound in the center lane on Interstate 95 and that she was following a box car for about 10 miles at 60 miles per hour, when the box car suddenly moved into the right lane after signaling, at which time Jakubcin first observed plaintiffs’ car. Jakubcin testified that plaintiffs’ car was slow moving or became disabled and abruptly stopped in the center lane, only “seconds” in travel time ahead of Jakubcin’s car. The box car had obstructed Jakubcin’s view of the center lane conditions. Jakubcin quickly discerned she could not safely move into either the left or right lanes of the highway due to cars travelling in those lanes near her vehicle. Thus, Jakubcin’s testimony “raises a triable issue as to whether [s]he was entitled to expect that traffic would continue unimpeded” … . Further, there was evidence that plaintiffs’ car was not working and had no lights or emergency lights activated … . While Jakubcin did not plead the emergency doctrine as an affirmative defense, she was not precluded “from raising the issue in response to [plaintiffs’] summary judgment motions” … .  Pearson v Jakubcin, 2026 NY Slip Op 02930, First Dept 5-12-26

Practice Point: Here in this rear-end collision case, defendant successfully raised the emergency doctrine in opposition to summary judgement, despite not pleading the doctrine as an affirmative defense.

 

,

THE STORM-IN-PROGRESS RULE DOES NOT APPLY TO WATER INSIDE A BUILDING TRACKED IN DURING A RAIN STORM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Taylor, clarified and reiterated the principle that the storm-in-progress rule does not apply to tracked-in water inside a building:

… [T]his Court has not expanded the storm in progress rule to include hazards that have been tracked-in to interior spaces … , and we decline [defendant property owner’s] invitation to do so. A property owner’s efforts to remove tracked-in hazards during an ongoing storm are simply not subject to the same exigencies as when removing exterior hazards. In other words, removing tracked-in hazards during an ongoing storm is not a fruitless endeavor, and therefore the suspension of a property owner’s duty of care with respect to such hazards is not justified.

Rather, tracked-in conditions from a storm in progress are to be treated by the principles governing premises liability generally … . Rowland v Brooklyn Hosp. Ctr., 2026 NY Slip Op 02861, Second Dept 5-6-26

Practice Point: The storm-in-progress rule does not apply to water inside a building tracked in during a rain storm.​

 

,

IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendants did not demonstrate the defect was trivial as a matter of law:

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the “‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . Photographs that “‘are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … . When “deciding in a given case whether photographs may sufficiently show triviality without objective measurement, it depends on what the photographs depict” … . The “persuasiveness of photographs will depend on what reasonable inferences regarding the alleged defect may be drawn from them” … .

Here, the evidence submitted by the defendants, including, among other things, a transcript of the plaintiff’s deposition testimony and photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically, the height of the allegedly misleveled portion of the sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or reasonably infer the extent of the defect from the photographs submitted … . Rosario v Wyckoff Supermarket Assoc., Inc., 2026 NY Slip Op 02860, Second Dept 5-6-26

Practice Point: Consult this decision for insight into the evidence required to demonstrate a sidewalk defect is trivial where no measurements are submitted in support of the summary judgment motion.

 

, ,

LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR A DEFAULT IN RESPONDING TO A SUMMARY JUDGMENT MOTION; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that law office failure was an adequate excuse for plaintiffs’ default in responding to defendant’s motion for summary judgment in this traffic accident case:

… [P]laintiffs proffered a reasonable excuse of law office failure for the brief delay in serving their opposition papers to defendant’s motion (see CPLR 2005…). Although plaintiffs’ counsel admittedly failed to properly calendar the motion opposition date, counsel did attempt to seek defendant’s consent for an adjournment prior to the return date of the motion, which plaintiffs’ counsel apparently believed to be the due date for the opposition to defendant’s motion. Further, plaintiffs’ counsel submitted opposition papers on the return date, albeit after business hours, upon the mistaken belief that the motion was to be taken on submission. There is no evidence of a willful default and the negligible delay cannot be said to have prejudiced defendant … . April I.O. v Taylor, 2026 NY Slip Op 02741, Fourth Dept 5-1-26

Practice Point: Consult this decision for a rare instance of law office failure serving as an adequate excuse for a default in responding to a motion for summary judgment.

 

,

IN A REAR-END COLLISION CASE, IN ORDER TO RAISE A QUESTION OF FACT ABOUT WHETHER BRAKE-FAILURE WAS THE CAUSE, THE DEFENDANT MUST DEMONSTRATE THE FAILURE WAS UNANTICIPATED AND REASONABLE CARE WAS TAKEN TO KEEP THE BRAKES IN GOOD WORKING ORDER; NOT THE CASE HERE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendants’ claim that the brakes failed did not raise a question of fact:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause” … . Where the defendants lay the blame for the accident on brake failure, it is incumbent upon them to show that the brake failure was unanticipated and that reasonable care was exercised to keep the brakes in good working order … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit wherein he averred that his vehicle had been stopped for approximately 10 seconds for a red traffic light when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact as to whether the alleged brake failure was unanticipated and whether reasonable care was exercised to keep the brakes in good working order … . Wesa v Consolidated Bus Tr., Inc., 2026 NY Slip Op 02690, Second Dept 4-29-26

Practice Point: Where a defendant in a rear-end collision case claims brake failure was the cause, in order to survive summary judgment defendant must demonstrate the failure was unanticipated and reasonable care had been taken to keep the brakes in good working order.

 

, ,

THE EXPERT TESTIMONY OFFERED TO DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN LOW-BIRTH-WEIGHT AND AUTISM SHOULD HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiffs’ verdict in this medical malpractice action and ordering a new trial, determined the expert testimony offered to demonstrate low-birth-weight has a causal relationship with autism should have been precluded:

There was no testimony at the Frye hearing that any of the studies Rubenstein [plaintiffs’ expert] relied upon concluded that premature birth causes autism. Rather, Rubenstein’s testimony established that the exact mechanism of how autism develops is unknown and that studies found a causal inference or association between prematurity and autism, not a causal relationship. Further, there was no testimony elicited at the Frye hearing that demonstrated that the medical community, specifically pediatric neurologists, have accepted that prematurity causes autism or even that a child’s birth at 25 weeks versus 27 weeks increases that child’s risk of later being diagnosed with autism. In any event, the gap between the statistical analysis relied upon by Rubenstein regarding the prevalence of autism in preterm, low-birth-weight infants and his testimony that the pathophysiology and causes of autism are unknown was too great to allow him to opine as to his theory of causation in this action. Based upon the foregoing, the Supreme Court erred in denying that branch of the defendants’ motion which was to preclude Rubenstein’s testimony on this theory of causation. Terehoff v Frenkel, 2026 NY Slip Op 02688, Second Dept 4-29-26

Practice Point: Consult this decision for insight into when observational studies will not support an expert’s testimony about causation. Here the testimony purporting to link low-birth-weight to autism should have been precluded.

 

, , ,

THE DREXEL UNIVERSITY COOPERATIVE EDUCATION PROGRAM (CO-OP) ARRANGES FOR STUDENTS TO WORK FOR PARTICIPATING EMPLOYERS FOR COLLEGE CREDIT; DREXEL DID NOT EXERCISE SUFFICIENT SUPERVISION OVER THE STUDENTS TO BE HELD VICARIOUSLY LIABLE FOR ANY WORKPLACE NEGLIGENCE ON THE STUDENTS’ PART (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Drexel University was not the employer of two students who were operating a forklift which allegedly caused injury to plaintiff. The students were participating in a Drexel Cooperative Education Program. The Second Department found that Drexel was not exercising sufficient supervision and control over the students such that Drexel could be held vicariously liable for the forklift accident:

… [T]he Drexel Cooperative Education Program [the co-op] … permits students to apply for and obtain paid work experience with participating employers for a period of up to six months. * * *

Drexel demonstrated, prima facie, that it lacked the requisite control over the students’ work and conduct during their employment with Jaidan [a participating co-op employer] to give rise to either an employer-employee or principal-agent relationship. Drexel’s evidence demonstrated that it provided an online recruiting platform on which students searched job descriptions submitted by participating employers and applied for jobs with those employers. Drexel also required that students work 32 hours per week to receive academic credit for the co-op, that students follow Drexel’s code of conduct during the co-op, and that students complete a survey at the end of the co-op to report on their experience. However, the co-op employers decided whether to hire a particular student, paid the co-op students’ salaries, and provided IRS documents. Additionally, employers set the students’ work schedule and were responsible for supervising and training the students. While participating employers were encouraged to communicate with Drexel if there were performance issues so that Drexel could provide support, the participating employer had the authority to terminate the students’ employment. During the time that the students worked at their co-op location, they would have little to no contact with Drexel, which, in the case of the students at issue here, was located approximately 130 miles from where the students were living and working for [the co-op employer]. Sager v Frontpage Invs., 2026 NY Slip Op 02686, Second Dept 4-29-26

Practice Point: Consult this decision for insight into the level of supervision required for an employer-employee or principal-agent relationship which will trigger vicarious liability.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy