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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))

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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))

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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))

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PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT).

The Second Department determined the defendants’ motion to strike the purported supplemental bills of particulars was properly granted. The supplemental bills of particulars alleged new injuries in this rear-end collision case. The supplemental bills of particulars were actually amended bills of particulars. Plaintiff failed to demonstrate the defendants were not prejudiced by the new allegations and failed to explain the delay:

Contrary to the plaintiff’s contention, the documents he denominated the “second supplemental bill of particulars” and “third supplemental bill of particulars” were, in reality, amended bills of particulars, as they sought to add new injuries (see CPLR 3403[b]… ). While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise, here, the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries … . Kirk v Nahon, 2018 NY Slip Op 02604, Second Dept 4-18-18

​CIVIL PROCEDURE (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/BILLS OF PARTICULARS ( PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/SUPPLEMENTAL BILLS OF PARTICULARS (PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/AMENDED BILLS OF PARTICULARS (PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/CPLR 3403 (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/NEGLIGENCE (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))

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NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR, SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court determined negligence causes of action against the distributor (Durst) and (Canje) retailer of a sulfuric acid drain opener, and a negligent discharge of a contractual obligation (launching an instrument of harm) cause of action against the distributor should not have been dismissed:

Because defendant Canje, the retail outlet at which the product was purchased, never agreed to abide by the sale policy of the manufacturer, third-party defendant Hercules Chemical Company, Inc., to restrict the sale of the product to plumbing and/or building professionals, it cannot be held liable for launching a force of harm in negligent discharge of a contractual obligation (see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, issues of fact exist whether defendant Durst, the distributor that sold the product to Canje, had a contractual duty to refrain from selling the product to Canje and whether Durst breached this duty and its acknowledged contractual undertakings to take appropriate steps to assure the proper sale and use of the product and to comply with the Seller’s Notice prohibiting sales to non-professionals and the display of the product where it was easily accessible. Durst argues that even if it breached such a duty it did not launch a force or instrument of harm. However, … [t]his case, in which there is evidence that Durst created the unsafe condition by supplying the product without proper safeguards, is … akin to Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]), in which the Court of Appeals found that the allegation that the defendant’s negligent testing procedures subjected the plaintiff to legal proceedings stated a cause of action based on the launch of a force of harm. Janiya W.-G. v Smith, 2018 NY Slip Op 02557, First Dept 4-12-18

​NEGLIGENCE (NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/CONTRACT LAW (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/ESPINAL (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, LAUNCH OF IN INSTRUMENT OF HARM, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/INSTRUMENT OF HARM, LAUNCH OF (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, ESPINAL, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT).

The Third Department determined the action for negligent entrustment of a motorcycle properly survived a summary judgment motion. The motorcycle was borrowed by Perkins from Hines. When Zimmer pulled out of his driveway, Perkins, who was operating the motorcycle, swerved and hit a tree. Perkins sued Zimmer and Zimmer sued Hines for negligent entrustment. Perkins had a driving permit but did not have a driver’s license:

… [T]his appeal deals with a negligent entrustment cause of action; the issue is not Perkins’ negligence in operating the motorcycle, but whether Hines should have entrusted the motorcycle to him in the first instance … . Thus, the fact that Perkins did not possess a motorcycle license “is a factor to consider in determining whether” Hines knew or should have known if Perkins was competent to operate her motorcycle. …

We reject Hines’ argument that a negligent entrustment cause of action cannot stand under the present circumstances because the person who was injured (Perkins) was the one to whom a dangerous instrument was allegedly negligently entrusted … . Similarly, it is irrelevant that Zimmer was not physically injured. The injury alleged to him here is “financial harm resulting from potential liability of a ‘concurrent’ tort-feasor” for Perkins’ injuries while using the dangerous instrument … . Zimmer is not precluded from obtaining a recovery from Hines merely because Perkins may not be able to directly recover from Hines based on her negligent entrustment of the motorcycle to him; the situation is analogous to one in which a third-party tortfeasor “may implead for contribution or indemnity the employer of an injured employee, despite the employee’s inability to recover from the employer directly” due to the Workers’ Compensation Law … . Perkins v County of Tompkins, 2018 NY Slip Op 02530, Third Dept 4-12-18

​NEGLIGENCE (MOTORCYCLE, NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))/NEGLIGENT ENTRUSTMENT (MOTORCYCLE, NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))/MOTOCYCLES (NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))/DRIVER’S LICENSE ( (MOTORCYCLE, NEGLIGENT ENTRUSTMENT ACTION SURVIVED SUMMARY JUDGMENT, DEFENDANT ENTRUSTED HER MOTORCYCLE TO AN OPERATOR WHO DID NOT HAVE A DRIVER’S LICENSE (THIRD DEPT))

DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department determined defendants did not eliminate all trial issues of fact in this ice and snow slip and fall case. The defendants did not demonstrate when the area had last been cleared or inspected. The fact that the fall occurred in a restricted area was not determinative because defendants were aware the area was used by people and there were no signs instructing people not to use it:

Even if we agreed with defendants that they did not create the alleged dangerous condition, we conclude that defendants did not meet their initial moving burden inasmuch as their own proof failed to eliminate all triable issues of fact on the issue of constructive notice… .. In this regard, defendants’ proof, including the photographs, did not suffice to show when they last cleaned or inspected the area in question … . Additionally, even though the area where plaintiff slipped and fell was a restricted area, the record evidence shows that defendants were aware that people would cross through this area and there were no signs instructing people not to do so. Hurley v City of Glens Falls, 2018 NY Slip Op 02529, Third Dept 4-12-18

​NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))/SLIP AND FALL ( DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))/CONSTRUCTIVE NOTICE (NEGLIGENCE, SLIP AND FALL, DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))/ICE AND SNOW (SLIP AND FALL, DEFENDANTS DID NOT ELIMINATE ALL TRIABLE ISSUES OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ICY CONDITION IN THIS SLIP AND FALL CASE (THIRD DEPT))

QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant municipality and hockey club were negligent in failing to adequately protect the plaintiff, a spectator, from being struck by a hockey puck, The goals had been repositioned in areas where there was no protective netting behind them:

It is well-settled that an owner or operator of an athletic field or facility “is not an insurer of the safety of its spectators” … and that, under the assumption of risk doctrine, consenting “[s]pectators and bystanders . . . assume risks associated with a sporting event or activity, even at times when they are not actively watching the event” … . However, “a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks”… . Notwithstanding a spectator’s assumption of risk, an owner or occupier of land remains under a duty to exercise reasonable care under the circumstances to prevent injury to those who are present on the property … . In the context of hockey rinks, “the owner’s duty owed to spectators is discharged by providing screening around the area behind the hockey goals, where the danger of being struck by a puck is the greatest, as long as the screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire to view the game from behind such screening” … . …

… [P]laintiffs’ proof demonstrating that defendants’ repositioning of the hockey goals along the less protected sides of the rink — “where the danger of being struck by a puck is greatest” …  — was sufficient to show the existence of a triable issue of fact as to whether defendants satisfied their reasonable duty of care owed to the child walking down the ramp behind the repositioned goal. Smero v City of Saratoga Springs, 2018 NY Slip Op 02521, Third Dept 4-12-18

​NEGLIGENCE (HOCKEY RINK, QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))/ASSUMPTION OF THE RISK (HOCKEY RINK, QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))/SPECTATORS (HOCKEY RINK, QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))/HOCKEY (QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT))

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MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff maintenance worker’s back injury, caused by picking up a heavy bag of garbage, was not actionable because the injury was from a risk inherent in the work:

The defendant [lessee] established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence demonstrating that the subject garbage bag was not over a weight accepted or contractually agreed upon by the defendant and the plaintiff’s employer at the time of the alleged incident, and that the plaintiff’s injury resulted from a risk inherent in his assigned work as a maintenance worker … . Moody v Kelly Drye & Warren, LLP, 2018 NY Slip Op 02454, Second Dept 4-11-18

​NEGLIGENCE (MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, PERSONAL INJURY, MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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