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EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff raised a question of fact in this sidewalk slip and fall case. Defendant presented evidence the sidewalk was clear. Plaintiff presented climatological expert evidence as well as evidence the ice was brown and dirty, indicating it had been there long enough to be noticed:

… [P]laintiff raised triable issues of fact as to whether a hazardous icy condition existed and whether defendant had notice of that condition. Plaintiff's climatological expert opined, after reviewing relevant climatological reports, that snow had ceased falling two days before plaintiff's accident, but snow and ice would have remained on the ground in untreated areas on the morning of his accident, thus giving defendant sufficient time to discover and remedy the hazardous ice condition … . Plaintiff also testified that before he fell he saw ice covering part of the sidewalk. He described the ice that he saw after his fall as “[b]rownish” and “dirty,” thereby raising issues as to whether the icy condition had been on the sidewalk long enough to clear it before the accident … .Furthermore, contrary to defendant's contentions, plaintiff identified the cause of his fall, since he testified that he saw ice on the ground when he looked sideways, when he fell, face down, onto it … . Jones v New York City Hous. Auth., 2018 NY Slip Op 00027, First Dept 1-2-18

NEGLIGENCE (EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))

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DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF’S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT).

The First Department determined defendant detoxification facility was not entitled to summary judgment on the negligence and wrongful death causes of action brought on behalf of decedent, DeJesus, who had been treated at the facility, left and was found dead a month later. The defendants pointed to the plaintiff's inability to prove causation as grounds for summary judgment. However, it was the defendants' burden to affirmatively demonstrate the absence of causation, which they did not do. (Another example of the strict analytical criteria used by the appellate courts for review of summary judgment motions.) The court also held the Public Health Law cause of action should have been dismissed because the detoxification facility was not a nursing home and therefore was not subject to the Public Health Law:

Defendants, however, failed to submit affirmative evidence establishing that their alleged negligence did not, as a matter of law, proximately cause DeJesus's death. The fact that DeJesus's body was discovered a month after he disappeared is not sufficient, in itself, to warrant summary judgment in defendants' favor. Although defendants submitted DeJesus's death certificate, that document states only that the manner and cause of death were undetermined, and does not definitively rule out the requisite causal connection. Further, the autopsy report submitted with defendants' motion papers is incomplete, and does not identify the cause of death.

Because defendants merely pointed to perceived gaps in plaintiff's proof, they are not entitled to summary judgment on the negligence and wrongful death claims … . Hairston v Liberty Behavioral Mgt. Corp., 2018 NY Slip Op 00004, First Dept 1-2-18

NEGLIGENCE (DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/SUMMARY JUDGMENT (DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT)/EVIDENCE (SUMMARY JUDGMENT, DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/DETOXIFICATION FACILITY (NOT A NURSING HOME, NOT SUBJECT TO THE PUBLIC HEALTH LAW (FIRST DEPT))/PUBLIC HEALTH LAW (DETOXIFICATION FACILITY, NOT A NURSING HOME, NOT SUBJECT TO THE PUBLIC HEALTH LAW (FIRST DEPT))

STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the single eight inch step which allegedly caused plaintiff to fall was open and obvious and, therefore, not actionable:

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Defendants established prima facie entitlement to summary judgment based on evidence that the single 8″ step onto the furniture display platform in defendants’ showroom — on which plaintiff wife tripped — was an illuminated, open and obvious condition which was readily observable by reasonable use of one’s senses … .Plaintiff wife, together with her family, had navigated the single step onto the furniture display platforms earlier that shopping day, and also during an uneventful visit to the same showroom just a few weeks prior to the date of her accident. There was no evidence to indicate that the single step, in its design, placement and maintenance, was inherently dangerous, and the defendants’ use of warning signs to give notice of the step’s presence did not, standing alone, render the steps unsafe.

Plaintiffs have not presented any proof that negligence on the part of defendants in the design, construction or maintenance of the subject step contributed to her fall, or that alleged showroom distractions support grounds to find liability on defendants’ part under the circumstances presented … . Faber v Place Furniture, Inc., 2017 NY Slip Op 09265, First Dept 12-28-17

 

NEGLIGENCE (SLIP AND FALL, STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))/OPEN AND OBVIOUS (STEP, SLIP AND FALL,  STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))/STEPS (SLIP AND FALL,  STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))

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ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s separate cause of action for punitive damages should have been dismissed. However, the demand for punitive damages in the ad damnum clause was proper. Plaintiff was a passenger in the car driven by defendant, who was drunk and lost control of the car:

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The plaintiff erroneously denominated her request for punitive damages as a separate cause of action. “New York does not recognize an independent cause of action for punitive damages”… . Accordingly, the Supreme Court erred in denying that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the separately pleaded sixth cause of action insofar as asserted against him.

However, the plaintiff’s request for punitive damages in the ad damnum clause of the complaint was proper. Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . With regard to the availability of punitive damages in personal injury cases involving drunk drivers, while this Court has held that “[e]vidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages”… , this Court has also held that “driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in wanton and reckless’ conduct evincing heedlessness and an utter disregard for the safety of others”… . Indeed, punitive damages were properly imposed where the driver was excessively drunk …  or was a repeat offender… . Accordingly, a request for punitive damages can be stated in a case arising from drinking and driving. Furthermore, at this stage it would be premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages … Thus, to the extent the plaintiff sought punitive damages in her ad damnum clause, she stated a request for such damages, and that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss that request for punitive damages insofar as asserted against him was properly denied … . Gershman v Ahmad, 2017 NY Slip Op 09117, Second Dept 12-27-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DAMAGES, DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CIVIL PROCEDURE (PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CRIMINAL LAW (DRUNK DRIVING, NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, DRUNK DRIVING, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/PUNITIVE DAMAGES (DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/DRIVING WHILE INTOXICATED (NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))

QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE THE EMPLOYEE’S GARBAGE CART COLLIDED WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact raised by the defendant housing authority’s evidence precluded summary judgment. Plaintiff was injured when a custodian pushing a cart collided with plaintiff’s scooter as plaintiff backed out of an elevator. The custodian’s claim that he could see clearly in front of him raised a credibility issue:

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Here the evidence the Housing Authority submitted in support of the motion was insufficient to establish its prima facie entitlement to judgment as a matter of law. The evidence did not eliminate any material issue of fact as to whether its employee was negligent in handling the garbage cart at the time of the incident. The employee testified at his deposition that he was told to watch for people in the hallways and to never fill the cart too high so as to block his vision at the front of the cart. He never loaded the cart higher than chest height, at the time of the accident there was nothing obstructing his view, and he always looked in front of him when pushing the cart to make sure no one was in front of him. At the time of the incident he could see clearly in front of him, he was not walking fast, and he was cautiously pushing the cart with his usual force. The employee further testified at his deposition that he first saw the plaintiff only after he felt the impact of his cart striking the plaintiff, and he stopped to see what had occurred. It is undisputed that the plaintiff had been on his scooter backing out of the elevator before the impact, which raises a question as to the credibility of the employee’s testimony that he could see clearly in front of him as he was pushing the cart, when he did not see or hear the elevator open or the plaintiff backing out of the elevator. Further, there is a question of fact as to whether the employee was negligent in failing to “see what should be seen” … . Since the Housing Authority failed to eliminate all questions of fact as to the happening of the accident, the Supreme Court should have denied its motion without regard to the sufficiency of the plaintiff’s opposition papers … . Richardson v County of Nassau, 2017 NY Slip Op 09187, Second Dept 12-27-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE COLLIDING WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT))

PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the benches near the field where plaintiff was playing football were open and obvious and plaintiff had assumed the risk of tripping over them:

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Under the doctrine of primary assumption of risk, “[i]f the risks of [a sporting] activity are fully comprehended or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” … . “This includes risks associated with the construction of the playing surface and any open and obvious condition on it” …  “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

Here, according to the infant plaintiff’s deposition testimony, which the defendants submitted in support of their motion, there was nothing marking the area where the benches were located as the end zone, but if the ball was caught in the vicinity of the bench, the campers would consider that a touchdown. The infant plaintiff also testified that he flipped over one of the benches as he was running for a pass and that, prior to turning to catch the ball, he had run the full length of the field looking ahead toward the benches, which were situated alongside the volleyball courts. Consequently, the bench was open, obvious, clearly visible, and known to the infant plaintiff … . Since the infant plaintiff, who had been playing football on this field for more than an hour when the accident occurred, was aware of that condition and voluntarily chose to play on the field, he assumed the risk of injury of colliding into one of the benches when attempting to score … . E.B. v Achim, 2017 NY Slip Op 09115, Second Dept 12-27-17

 

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/SLIP AND FALL (SPORTS, PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/SPORTS (SLIP AND FALL, PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))

DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-cemetery had demonstrated it did not have notice of the depression or hole plaintiff stepped in. The area was covered with grass and appeared to be level:

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As alleged by the plaintiff, she was visiting the graves of her family members and was walking behind her father when she took a step near one of the headstones and her left foot began to sink into the ground. The spot where her foot sank into the ground was covered with grass, and it appeared to be level. According to the plaintiff, her father had stepped in the exact spot seconds before her accident without incident. The plaintiff, and her husband suing derivatively, commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appeal.

In a premises liability case, a defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence… . To constitute constructive notice, a dangerous condition “must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create or have actual or constructive notice of the subject dangerous condition before the incident occurred … . Carriero v St. Charles/ Resurrection Cemetery, 2017 NY Slip Op 09112, Second Dept 12-27-17

NEGLIGENCE (DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ summary judgment motion in this traffic accident case should have been granted. Defendant bus driver was aware of an upcoming sharp curve and was aware the road was slippery due to rain. The bus crossed into the on-coming lane, striking plaintiffs’ vehicle. There was no question of fact about whether the bus driver had reacted to an emergency:

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“A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic” … . “Crossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver’s own making”… .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant driver’s negligence in crossing over the double yellow line and entering the opposite lane of traffic, in which the plaintiffs’ vehicle had been traveling, was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s deposition testimony indicated that she knew that there was a sharp curve in the road where she lost control of her vehicle and that rain, which had been falling for some time prior to the accident, had made the roadway slippery. Contrary to the defendants’ contention, the defendant driver merely speculated that there was oil on the ground. Thus, the defendants failed to raise a triable issue of fact as to whether the defendant driver was faced with an emergency situation not of her own making which contributed to the happening of the accident … . Browne v Logan Bus Co., Inc., 2017 NY Slip Op 09111, Second Dept 12-27-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))/TRAFFIC ACCIDENTS (BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))

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CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an off-duty police officer (Rodriguez) working security at a bar was not acting within the scope of his employment during the encounter with plaintiff. Therefore the causes of action against the city based upon vicarious liability or respondeat superior, alleging negligence, assault and false imprisonment, should have been dismissed:​

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… [W]here there are no material disputed facts and there is no question that the employee’s acts fall outside the scope of his or her employment, the determination is one of law for the court and not one of fact for the jury … . A municipality may be held vicariously liable for the conduct of a member of its police department if the officer was engaged in the performance of police business… . Here, in support of their motion, the City defendants established that Rodriguez was at all relevant times off-duty, was engaged in other employment as a private citizen, was not in uniform, did not arrest plaintiff, and did not display his police badge. We thus conclude that the City defendants met their prima facie burden of establishing that Rodriguez was not acting within the scope of his employment as a police officer during the encounter with plaintiff … . In opposition, plaintiff failed to raise a triable issue of fact … . We reject plaintiff’s contention that Rodriguez’s identification of himself as a police officer during the encounter raised an issue of fact sufficient to defeat the motion with respect to the issue of scope of employment … . Maloney v Rodriguez, 2017 NY Slip Op 08993, Fourth Dept 12-22-17

 

NEGLIGENCE (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/MUNICIPAL LAW (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))

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IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the village’s motion for summary judgment in this slip and fall case should have been granted. Where a municipality has a written notice requirement which has not been met, it still can be liable for a dangerous condition it created. However a defect which develops gradually over time, as opposed to immediately after some act by the municipality, is not actionable. Here the collapse of pavement near a storm drain was caused by water over time:

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There is no dispute that defendant established that it lacked prior written notice, thus shifting the burden to plaintiff to demonstrate that an exception to the general rule is applicable … . Such an exception exists where “the municipality affirmatively created the defect through an act of negligence” … . That exception, however, applies only “to work by the [municipality] that immediately results in the existence of a dangerous condition” … . Here, plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work … . Malek v Village of Depew, 2017 NY Slip Op 08998, Fourth Dept 12-22-17

 

NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/MUNICIPAL LAW (SLIP AND FALL, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))

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