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COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice. Whether an investigative report in plaintiff's possession precluded recovery by alerting plaintiff to the problem with the public offering underwritten by plaintiff could not be determined on a motion to dismiss:

Plaintiff, a lead underwriter on a public offering of a Chinese corporation, claimed that defendant law firm was negligent in failing to uncover material misrepresentations made by the corporation in connection with the offering. Plaintiff sufficiently asserted that but for defendant's negligence, plaintiff would have ceased its involvement in the public offering and avoided the fees, expenses and other damages it incurred in defending against, as well as settling claims against it … .

Defendant's argument that an investigative report gave plaintiff prior constructive notice of the material misrepresentations is unavailing … . … Here, on a pre-answer motion to dismiss, although plaintiff acknowledges that it had possession of the investigative report, the information contained in the report cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel's interpretation of the information. Defendant “may not shift to the client the legal responsibility it was specifically hired to undertake” … . Macquarie Capital (USA) Inc. v Morrison & Foerster LLP, 2018 NY Slip Op 00091, First Dept 1-9-18

ATTORNEYS (MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/NEGLIGENCE (ATTORNEYS, LEGAL MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/LEGAL MALPRACTICE (COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))

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DEFENDANT’S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT).

The First Department noted that defendant's statement memorialized in a police report, acknowledging he did not stop at a red light, was an admission and a conflicting statement made later presented only a feigned issue of fact:

The police accident report and the affidavit of plaintiff Jose Colon were sufficient to demonstrate that defendant Jason S. Gilbert's negligence in failing to stop for the red light and yield the right of way in the intersection was the sole proximate cause of the accident… . His affidavit also showed the absence of comparative negligence in that he stated that he was going 25 miles per hour, looking straight ahead in the direction of travel, and could not see defendants' van because of a chain link fence, train trestle, and the height of his motor scooter… .

Although Gilbert denied that he stated to the police that he did not know that he had to stop for the red light, the court correctly concluded that the affidavit was insufficient to raise an issue of fact because statements by a party in a police accident report may constitute admissions, and later conflicting statements containing a different version of the facts present only a feigned issue of fact … . Colon v Vals Ocean Pac. Sea Food, Inc., 2018 NY Slip Op 00097, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/EVIDENCE (POLICE REPORTS, NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/TRAFFIC ACCIDENTS (POLICE REPORTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/POLICE REPORTS (EVIDENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))

DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT).

The First Department determined defendant's motion for summary judgment in this personal injury case was properly granted. Plaintiff, a delivery truck driver, was injured unloading loose boxes from a trailer owned by defendant. Plaintiff alleged the shrink wrap securing the boxes broke, which led to his injury unloading the loose boxes. The defendant demonstrated it lacked actual and constructive notice of the failure of the shrink wrap. The fact that shrink wrap had failed on other occasions did not raise a question of fact. The court noted that plaintiff was not obligated to pick up the loose boxes, so the failed shrink wrap was a condition leading to his injury but was not the cause:

Defendant established its entitlement to judgment as a matter of law first by showing that it did not create the alleged hazardous condition. Defendant submitted, inter alia, plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor. Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident … . Defendant also showed that it lacked actual or constructive notice that there were boxes on the trailer's floor. Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day … . …

The possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so … .

Furthermore, plaintiff's certified packing expert failed to identify any professional or industry standard to substantiate his assertions … . The fact that defendant may have been aware that shrink-wrapping had previously come loose from other pallets did not establish that defendant had constructive notice that the subject pallet was loose before plaintiff sustained the injuries alleged … . Lynch v C & S Wholesale Grocers, Inc., 2018 NY Slip Op 00110, First Dept 1-9-18

NEGLIGENCE (NOTICE OF DANGEROUS CONDITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))/NOTICE (NEGLIGENCE, DANGEROUS CONDITION,  DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))

EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's testimony, which presented conflicting descriptions of where she slipped and fell, was sufficient to raise a question of fact whether the fall took place in the area which had been excavated by defendant (Empire):

Empire failed to establish its entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she tripped and fell on a defect located within a crosswalk. Empire failed to show that the work it performed in the vicinity of plaintiff's fall could not have caused the defect because it was outside the area where plaintiff stated her accident occurred … . Although plaintiff did testify that she fell “[a]t least three feet” from the curb that she was approaching and Empire records show that it excavated a trench about 10 to 14 feet from the subject curb, plaintiff also stated that she was not good at measurements and twice described the accident location as being “[a]bout three-quarters” of the way across the intersection, which would be in the area of Empire's trench work. Prunella v Empire City Subway Co., 2018 NY Slip Op 00100, First Dept 1-9-18

NEGLIGENCE (SLIP AND FALL, EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))/SLIP AND FALL (EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT’S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant's (Bishop's) motion for summary judgment should have been granted in this intersection traffic accident case. The driver of the car in which plaintiff was a passenger (Pulinario) failed to stop at a stop sign. No question of fact was raised about Bishop's comparative negligence:

Bishop met her prima facie burden for summary judgment by demonstrating that Pulinario was negligent as a matter of law, and that Bishop was not negligently operating her vehicle. Bishop and plaintiff testified that Pulinario failed to stop for a stop sign, which is a violation of Vehicle & Traffic Law §§ 1142(a) and 1172(a), which constitutes negligence as a matter of law… . Bishop, who had the right of way, was ” entitled to anticipate that other vehicles will obey the traffic laws that require them to yield,' and ha[d] no duty to watch for and avoid a driver who might fail to stop . . . at a stop sign'” … .

Although a driver lawfully entering an intersection may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection … , plaintiff and Pulinario failed to raise a triable material issue of fact as to whether Bishop was negligent. The evasive measures that Bishop took during the less than three seconds before impact did not constitute negligence, “under the emergency-like circumstances confronting her” … . Gonzalez v Bishop, 2018 NY Slip Op 00095, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT'S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT))/TRAFFIC ACCIDENTS (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS INTERSECTION COLLISION CASE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER DID NOT STOP AT A STOP SIGN, ALLEGATIONS OF DEFENDANT'S COMPARATIVE NEGLIGENCE INSUFFICIENT (FIRST DEPT))

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SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT).

The Third Department determined the defendants who had contracted with the property owner/manager to remove snow from the parking lot where plaintiff slipped and fell on ice were not liable to plaintiff under an Espinal exception:

It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless “(1) . . . the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties launche[d] a force or instrument of harm; (2) . . . the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties; [or] (3) . . . the contracting party has entirely displaced the other party's duty to maintain the premises safely” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] … ).

… [W]hile [the snow removal contractor] retained some independent authority, we cannot conclude that the agreement “displaced entirely” [the property owner's] duty to maintain the property … . …

[The defendants' meteorologist's] affidavit fails to raise a material question of fact, inasmuch as the evidence demonstrates only that defendants may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition … . Hutchings v Garrison Lifestyle Pierce Hill, LLC, 2018 NY Slip Op 00057, Third Dept 1-4-18

NEGLIGENCE (SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/SLIP AND FALL (SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/CONTRACT LAW (NEGLIGENCE, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/ESPINAL EXCEPTIONS (NEGLIGENCE, CONTRACT LAW, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))/SNOW REMOVAL CONTRACTORS (NEGLIGENCE, SLIP AND FALL, SNOW REMOVAL CONTRACTORS NOT LIABLE FOR PARKING LOT SLIP AND FALL, ESPINAL EXCEPTIONS DID NOT APPLY (THIRD DEPT))

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QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the denial of the defendants' motions for summary judgment in this third party assault case. The defendants are the owner-operators of a domestic violence shelter and the security company hired by the shelter. Plaintiff child, CB, was shot while CB and his father, Bobby B, were waiting for CB's mother to come down to the gate to accompany CB back to where she and CB were residing in the shelter. Bobby B had asked the guards to let the child in because Bobby B had been followed by several men. The child was not let in. The guards called CB's mother a couple of times telling her the child was waiting. One of the men who followed Bobby B approached with a gun and demanded Bobby B's jacket. In a struggle the gun discharged striking and paralyzing CB:

With respect to the common-law duty, landowners have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances”…, which includes taking minimal safety precautions to protect against reasonably foreseeable criminal acts of third persons … .

We reject defendants' contention that they had no common-law duty to CB because the shooting took place outside the building, i.e., because CB was on the street side of the gate. Plaintiffs raised issues of fact as to whether the security booth, gate, and recessed area that CB was standing in were part of the shelter property and not the public sidewalk. However, even if CB was not standing on shelter property, it cannot be said that under any circumstance [the owner] owed no duty to him. …

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Although the contract [with defendant security company] clearly provides that CB is an intended third-party beneficiary, there are issues of fact as to the benefits that CB is entitled to under the contract. It should be noted, however, that allowing a child in danger to enter the shelter does not appear to be in derogation of any rules prohibiting unarmed guards from intervening in an altercation. CB v Howard Sec., 2018 NY Slip Op 00087, First Dept 1-4-18

NEGLIGENCE (QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))/ASSAULT BY THIRD PARTY (NEGLIGENCE, QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))/CONTRACT LAW (THIRD-PARTY ASSAULT, SECURITY COMPANY, QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))/THIRD PARTY BENEFICIARY (CONTRACT LAW, SECURITY COMPANY, QUESTIONS OF FACT WHETHER THE OWNER OF A DOMESTIC VIOLENCE SHELTER AND THE SECURITY COMPANY HIRED BY THE SHELTER WERE LIABLE FOR THE SHOOTING OF A CHILD JUST OUTSIDE THE GATE OF THE SHELTER, THE CHILD WAS AN INTENDED BENEFICIARY OF THE CONTRACT BETWEEN THE SHELTER AND THE SECURITY COMPANY (FIRST DEPT))

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IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT).

The First Department determined there was a question of fact whether defendant bus company (Hudson) was liable for plaintiff's fall. She stepped in a hole in the sidewalk as she got off the bus. The court noted a duty to provide a safe place to get off the bus and a contractual duty to notify Port Authority of needed repairs:

Issues of fact exist as to whether Hudson breached its duty as a common carrier to provide plaintiff with a safe place to disembark … . The record shows that 15 or 20 passengers exited the bus before plaintiff. As she alighted, she stepped into a hole on the sidewalk and fell. The bus driver corroborated this testimony, stating that the hole was on the sidewalk, “[w]ithin one step” of where plaintiff disembarked. The bus driver further admitted that the hole caused plaintiff to fall. Additionally, plaintiff testified that, upon seeing where she fell, the bus driver exclaimed, “[Y]ou fell in that hole, they're supposed to fix that hole.” Under the circumstances, where plaintiff stepped into a hole immediately upon alighting from the bus, the fact that a number of passengers safely descended before she did does not entitled Hudson to summary judgment … .

Issues of fact as to, among other things, whether Hudson breached its contractual duty to notify Port Authority of any needed repairs at the gate where the accident occurred compel denial of summary judgment on Port Authority's contractual indemnification claim. Bruno v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 00069, First Dept 1-4-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/CONTRACT LAW (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/SLIP AND (FALL QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/CONTRACT LAW (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/BUSES  (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))

EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined there were questions of fact precluding defendants' motions for summary judgment in this elevator misleveling slip and fall case. There was evidence the building owner had notice of the problem and evidence the elevator company (Fugitec) may not have properly maintained the elevator. The doctrine of res ipsa loquitur was also applicable:

The record contained ample evidence from which a jury could find that the owner had actual notice of a recurring, misleveling problem with the elevator, based on prior similar incidents shown in the building's logbook and based on service records of Fujitec, which had contracted to maintain the elevator … . Fujitec's servicing of the elevator in response to those prior complaints raises an issue of fact as to notice … . …

… [T]here is an issue of fact as to whether the owner's liability, if any, is vicarious… . Due to the adverse inference charge the court previously granted against the owner, a jury might find that the owner had actual notice of the misleveling defect on the day of the accident, before plaintiff's injury. In addition, given the adverse inference charge, a jury could find that the owner was negligent in either failing to timely notify Fujitec of the misleveling defect, or in failing to remove the elevator from service. Such negligence would bar the owner from obtaining common-law indemnification from Fujitec … . …

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… [T]he doctrine of res ipsa loquitur precludes summary judgment… . “The misleveling of an elevator does not ordinarily occur in the absence of negligence” … . Further, the misleveling was apparently caused by an instrumentality within Fujitec's exclusive control and was not due to any voluntary action on plaintiff's part. The application of res ipsa loquitur is not “overcome by [Fujitec's] evidence that the elevator was regularly inspected and maintained”… . Given the applicability of res ipsa loquitur, plaintiff was not required to identify a malfunction or defect in the elevator … . Dzidowska v Related Cos., LP, 2018 NY Slip Op 00074, First Dept 1-4-18

 

NEGLIGENCE (SLIP AND FALL, EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))/ELEVATORS (SLIP AND FALL, EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT))

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IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT).

The First Department, modifying Supreme Court, limited the amount of discovery about the rear stairs of the bus where plaintiff fell and allowed representatives of defendants to be present when the bus was inspected and photographed by plaintiff:

… [D]iscovery [is limited] to documents concerning the rear stairs of the bus on which plaintiff fell, and the absence of warning signs and handrails in the rear of the bus, for a period of five years preceding the date of the accident, and records relating to any modifications or changes to the interior stairs, handrails, or warning signs in the rear of the bus from the day of the accident to the day of the inspection, and the production of the bus for inspection and photographing by plaintiff in the presence of defendants' representatives … .

Predecessor models of the bus on which plaintiff fell and buses with front-facing rear seating are not relevant to whether the bus on which plaintiff fell was defectively designed (CPLR 3101[a]… ). Similarly, while material concerning the rear stairs, handrails, and warning signs in the rear of the subject bus, i.e., the alleged dangerous conditions, is relevant, material concerning other sections of the bus or other defects is not relevant. The production of 15 years' worth of records is burdensome … . Curran v New York City Tr. Auth., 2018 NY Slip Op 00038, First Dept 1-2-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CPLR 3101 (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/SLIP AND FALL (DISCOVERY, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/BUSES (SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/DISCOVERY (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))

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