You are here: / Negligence
, ,

COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT).

The Third Department determined the complaint stated causes of action in negligence against the town. Plaintiffs operated and owned property on which they were placing fill. The town issued a permit allowing the filling. The fill caused a substantial landslide. The Third Department found that the complaint alleged a special relationship between the town and plaintiffs, and further alleged that the town engineer did not have the discretion to issue the truncated permit which was issued. Therefore the complaint sufficiently alleged governmental immunity could not be invoked:

Plaintiffs alleged that the Town Engineer directly stated to them that he can “override” the requirements of the Town Code “if [he] is confident that the fill will ‘increase stability’ of the slope” and that, on this basis, he did not require plaintiffs to submit all of the mandated components of a fill permit application. The complaint also alleged that defendant was aware of prior landslides along the same creek and that, after the incident on plaintiffs’ property, the Town Engineer cited a recent study indicating that the local soil was prone to landslides but, regardless of this knowledge, he had suggested to third parties that they dispose of fill at the property. …

Alternatively, plaintiffs have alleged sufficient facts to show that a special relationship existed because defendant assumed positive direction and control in the face of a known, blatant and dangerous safety violation. Plaintiffs alleged that the filling activities at the property “created a blatant risk of catastrophic failure of the bank,” that defendant “had been made aware of this blatant risk when it intervened at the [p]roperty” and that defendant demonstrated control over the property by directing plaintiffs to cease filling activities and obtain a fill permit and referring third parties to the property to dispose of fill. … * * *

The complaint alleges that the Town Code requires that a full application be submitted for a fill permit, the Town Code mandates that the Town Engineer require that all application components be submitted and that, as regards plaintiffs, the Town Engineer did not require submission of a completed application. Considering these Town Code requirements, the Town Engineer did not have the authority to make a discretionary determination to either grant or deny a fill permit until he had received a completed application, which never occurred here because he told plaintiffs that they did not need to submit some of the components of the application that are required under the Town Code … . Normanskill Cr., LLC v Town of Bethlehem, 2018 NY Slip Op 02697, Third Dept 4-19-18

​NEGLIGENCE (MUNICIPAL LAW, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/SPECIAL RELATIONSHIP (NEGLIGENCE, MUNICIPAL LAW, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT).

The Third Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Defendant’s employee had recently mopped the area to clean up dog feces and then placed caution signs in the area. There was evidence the floor was extremely wet. The placement of the warning signs did not eliminate all questions of fact about defendant’s negligence:

Defendant’s submissions establish that approximately 20 minutes prior to plaintiff’s fall, defendant’s employee mopped the area where plaintiff fell due to dog feces having been tracked into the store. After the employee mopped the area, he placed two 3½-foot-tall yellow caution signs, one in close proximity to the entrance door, which plaintiff walked directly by when she entered the store. Deposition testimony of several witnesses and a surveillance video established that the floor was extremely wet. One witness, who assisted plaintiff after her fall, stated that the floor was so wet that plaintiff could not get enough traction to get up off the floor. This witness asked for paper towels to dry the floor around plaintiff and only after doing so was plaintiff able to get off the floor. This testimony expressly contradicted the affidavit of the employee who completed the mopping. Therefore, issues of material fact were raised as to whether defendant kept the entrance in a reasonably safe condition, created the condition or had actual or constructive notice of the condition … . Further, the presence of the warning signs does not prima facie establish entitlement to summary judgment as there is a question of fact as to the adequacy of the warning, particularly given the otherwise dry conditions outside, the placement and height of the signs and the heavy customer traffic where the signs were set … . Firment v Dick’s Sporting Goods, Inc., 2018 NY Slip Op 02700, Third Dept 4-19-18

​NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT))/SLIP AND FALL (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT))/WARNING SIGNS (NEGLIGENCE, SLIP AND FALL, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE.,RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT))

DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this “water on floor” slip and fall case was properly denied. The defendant did not demonstrate it did not create or have notice of the condition. The fact that plaintiff may have had prior awareness of the condition was a comparative negligence issue that does not preclude summary judgment:

Defendant failed to sustain its prima facie burden of showing that it did not create or have notice of the puddle of water in front of a nurses’ station in the emergency room. Although its operations manager testified to general cleaning and inspection procedures, he did not state that they were followed on the day of the accident, did not know if he worked that day, and did not know when the area was last inspected … .

Defendant’s argument that plaintiff’s negligence was the sole proximate cause of the accident in that she admitted that she saw the puddle several times before she fell, is unavailing. Plaintiff testified that she did not see the water immediately prior to the fall as she was looking straight ahead. Plaintiff did not deliberately undertake a course of action severing the nexus between defendant’s alleged negligence and her injury … . Plaintiff’s prior awareness of the water condition does not require dismissal of the complaint because it is relevant only to the issue of her comparative negligence … . Socorro v New York Presbyt. Weill Cornell Med. Ctr., 2018 NY Slip Op 02723, First Dept 4-19-18

​NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/NOTICE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, SUMMARY JDUGMENT, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/SUMMARY JUDGMENT (COMPARATIVE NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))

DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined the defendants’ motion for summary judgment in this “injury from a door” case was properly granted. Plaintiff alleged her foot was injured by a jagged edge at the bottom of a door. There had been no complaints about the door or any other injuries caused by the door. The defendants demonstrated that the door was inspected upon installation in 2008, no jagged edge was observed, and the door opened and closed properly:

Defendants established prima facie that they neither created nor had notice of the defect in the door … . They submitted evidence that an outside contractor installed the door in 2008, that defendant Art Farm’s manager inspected it at that time and saw no jagged edge or other visible defect, and tested it to ensure that it opened and closed properly, and that, before plaintiff’s accident, there had been no reports of difficulties with the door or complaints of injuries.

In opposition, plaintiffs failed to raise an issue of fact as to defendants’ creation or notice of the defect. There is no evidence that anyone ever saw or reported the door’s sharp, jagged bottom edge until after plaintiff’s accident, and therefore no evidence that the defect existed long enough for defendants to discover and remedy it … . Nor does the affidavit by plaintiff’s expert engineer raise any issues of fact. The engineer offered no opinion about the alleged jagged edge, which did not exist at the time of his inspection of the door nearly three years after the accident. Samuels v Lee, 018 NY Slip Op 02716, First Dept 4-19-18

​NEGLIGENCE (NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/NOTICE (NEGLIGENCE, NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/DOORS (NEGLIGENCE, NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

, , ,

PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Petitioner’s decedent was transported from a nursing home to a hospital by a town ambulance. He was pronounced dead at the hospital. Petitioner sought to file a notice of claim against the town one month after the deadline for the wrongful death cause of action (the deadline is 90 days following the appointment of a representative of the estate) and 11 months after the deadline for the medical malpractice and Public Health Law causes of action:

The petitioner failed to provide a reasonable excuse for her failure to serve a timely notice of claim. The failure of the petitioner and her attorneys to review the medical records and ascertain a claim against the appellants in a timely manner is not an acceptable excuse … .

Furthermore, the petitioner failed to submit evidence establishing that the appellants acquired actual knowledge of the facts constituting the claims within 90 days or a reasonable time thereafter. The petitioner provided no records or documentation in support of the petition demonstrating such actual knowledge on the part of the appellants … . The notice of claim was served on the appellants together with the petition more than 1 month after the 90-day statutory period applicable to the wrongful death claim had elapsed and 11 months after the 90-day statutory period applicable to the remaining claims had elapsed. This service occurred too late to provide the appellants with actual knowledge of the essential facts constituting the claims within a reasonable time after the expiration of the applicable statutory period … .

Inasmuch as the petitioner failed to present any evidence or plausible argument that the appellants have not been substantially prejudiced by the delay, the appellants never became required to make “a particularized evidentiary showing” that they were substantially prejudiced … . Matter of Mangino v Town of Mamaroneck, 2018 NY Slip Op 02625, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/TRUSTS AND ESTATES (NEGLIGENCE, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/WRONGFUL DEATH (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))

,

PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim was properly denied. Petitioner’s chlid, a pre-kindergarten student, fell and hit her head. Although a teacher filled out an accident report, the report did not inform the city of the essential facts of the negligence claim (i.e., clutter on the floor). The excuse for the delay was not sufficient and petitioner did not demonstrate the city was not prejudiced by the delay:

… [T]he petitioner failed to establish that the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the child’s accident or a reasonable time thereafter. Although a teacher prepared an accident report on the day of the incident, it merely indicated that the child ran into the classroom, “slipped,” and hit her head on a table. This report did not provide the City with timely, actual knowledge of the essential facts underlying the claims later asserted—that the City was negligent in allowing clutter and debris to accumulate on the floor which caused the child to “trip,” and that it was negligent in supervising the students by failing to have a sufficient number of teachers in the classroom … . Matter of Quinones v City of New York, 2018 NY Slip Op 02630, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW,  NOTICE OF CLAIM, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/ACCIDENT REPORTS (NEGLIGENCE, MUNICIPAL LAW, NOTICE OF CLAIM, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

,

TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the Town’s motion for summary judgment in this icy-road slip and fall case was properly denied. Although the Town demonstrated it did not have written notice of the condition, it did not demonstrate it did not create the condition:

The plaintiff alleges that he was injured when he slipped and fell on ice on a roadway in the vicinity of his residence in the Town … . He commenced this action against the Town … alleging that the Town affirmatively created, through its negligence in constructing and paving the road, a condition which allowed water to accumulate and freeze on the roadway, and that the condition caused his fall. …

In support of its motion, the Town was required to demonstrate that it did not receive prior written notice of the alleged defective condition, and that it did not create that condition through an affirmative act of negligence that permitted water to accumulate and freeze on the roadway … . The Town failed to establish … that it did not create the alleged defective condition through an affirmative act of negligence. … [T]he evidence submitted in support of its motion failed to demonstrate … that it did not negligently construct or pave the road in a manner that permitted water to accumulate and freeze on the roadway, or that it subsequently successfully repaired the alleged defective condition prior to the plaintiff’s accident … . Casciano v Town/Village of Harrison, 2018 NY Slip Op 02593, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined plaintiff, a passenger in a stopped car struck from behind by a bus, was entitled to summary judgment against the bus defendants. The court noted that whether the car in which plaintiff was a passenger stopped quickly did not preclude summary judgment:

The [bus defendants’] assertion that the vehicle [in which plaintiff was a passenger] was operating made a sudden stop, in and of itself, was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision … . …

… Supreme Court properly searched the record and awarded summary judgment to the plaintiff on the issue of liability against them. The issue of whether the plaintiff contributed to the happening of the accident was before the court… and the evidence showed that the plaintiff was an innocent passenger who did not engage in any culpable conduct that contributed to the happening of the accident… . In any event, to be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case … . Edgerton v City of New York, 2018 NY Slip Op 02598, Second Dept 4-18-18

NEGLIGENCE (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/REAR END COLLISIONS (PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/COMPARATIVE NEGLIGENCE (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/BUSES (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))

, , ,

COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion for summary judgment should not have been granted in this personal injury action. The plaintiff is a police officer employed by a town. He was a candidate for a position in a county counter-terrorism outfit (REACT). During a fitness test for the county plaintiff was injured (suffered heat stroke). The county moved for summary judgment arguing, inter alia, plaintiff was their special employee and therefore his only remedy was workers’ compensation:

The determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including who controls and directs the manner of the employee’s work, who is responsible for payment of wages and benefits, who furnishes equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business … . General employment is presumed to continue, and the presumption can only be rebutted by a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … .

Here, the County defendants failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact … . They did not submit sufficient evidence to rebut the presumption that [plaintiff] remained a general employee under the control of the Town at the time of the incident. [Plaintiff] was under the control of the County defendants for the limited purpose of the physical test to evaluate his ability to join REACT. However, his general employer, the Town, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers’ compensation benefits, and retained the authority to discharge or discipline him. Dube v County of Rockland, 2018 NY Slip Op 02597, Second Dept 4-18-18

​EMPLOYMENT LAW (COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/NEGLIGENCE (EMPLOYMENT LAW, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/WORKERS’ COMPENSATION LAW (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))

, ,

BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that although plaintiff did not demonstrate spoliation of evidence warranting striking the answer, the plaintiff was entitled to an order of preclusion regarding any requested documents which defendants claimed did not exist. Plaintiff was shot by an intruder in his apartment building and had demanded any documents concerning the doors, locks and security measures in force at the building:

… [T]he Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence. The plaintiff failed to sustain his burden of establishing that spoliation occurred as there was no evidence submitted that the requested documents ever actually existed … . The plaintiff also did not establish that the absence of any such documents deprived him of his ability to prove his claim … . …

… [U]nder the circumstances of this case, the Supreme Court should have exercised its discretion to grant the plaintiff the alternative relief of an order of preclusion. An order of preclusion may be entered where the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious … . “The willful and contumacious character of a party’s conduct may be inferred from the party’s repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time” … . Here, the defendants failed to produce relevant documents that were directed to be produced by the preliminary conference order. That failure led to two motions by the plaintiff to compel compliance, only to have the defendants assert that the building had been sold shortly after the preliminary conference order had been issued and that all documents had been transferred to the new owner. The new owner then denied having any of the requested documents. The defendants offer no excuse for their conduct. The defendants’ dilatory discovery conduct cannot be condoned, and it would be manifestly unfair to the plaintiff for the defendants to attempt to offer any of the subject documents at trial, should the documents be located. Watson v 518 Pa. Hous. Dev. Fund Corp., 2018 NY Slip Op 02666, Second Dept 4-18-18

​CIVIL PROCEDURE (NEGLIGENCE, EVIDENCE, DISCOVERY, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/DISCOVERY (NEGLIGENCE, EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/SPOLIATION (BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/PRECLUSION (NEGLIGENCE, EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/NEGLIGENCE (EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DISCOVERY, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))

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