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DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined the lead paint poisoning complaint should have been dismissed because plaintiff was unable to show defendants had actual or constructive knowledge of the condition and defendants were not under a duty to test for lead:

Defendants submitted affidavits and deposition testimony establishing that they were not aware of any peeling or chipping paint on the premises prior to the inspection conducted by the [Monroe County Department of Health]. Defendants also established that neither plaintiff nor the relatives with whom plaintiff resided at the premises ever complained to either defendant of any peeling or chipping paint on the premises. Contrary to plaintiff’s contention, he failed to raise an issue of fact whether defendants were aware of chipping and peeling paint on the premises … , or whether defendants retained the requisite right of entry to the apartment to sustain a claim for constructive notice … . Furthermore, “[w]ithout evidence legally sufficient to permit a jury to rationally infer that the defendant had constructive notice of a dangerous condition, the defendant cannot be held liable for failure to warn or to remedy the defect” … . Consequently, absent evidence raising a triable issue of fact whether defendants had actual or constructive notice of a dangerous condition on the premises, the court erred in denying that part of the motion seeking dismissal of the failure to warn claim. …

“The Court of Appeals in Chapman (97 NY2d at 21) expressly decline[d] to impose a new duty on landlords to test for the existence of lead in leased properties based solely upon the general knowledge of the dangers of lead-based paints in older homes” … . Taggart v Fandel, 2017 NY Slip Op 02177, 4th Dept 3-24-17

 

NEGLIGENCE (LEAD PAINT, DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE BEEN DISMISSED)/LEAD PAINT (DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE BEEN DISMISSED)

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LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS.

The Fourth Department determined the application for leave to file a late notice of claim was properly granted, despite the absence of an adequate excuse and the lack of timely notice of the underlying facts:

Here, even assuming, arguendo, that claimants failed to provide a reasonable excuse for their delay, we conclude that the remaining factors support the court’s exercise of discretion in granting their application. Although respondents did not obtain knowledge of the facts underlying the claim until approximately nine months after the expiration of the 90-day period, we conclude under the circumstances of this case that “this was a reasonable time, particularly in light of the fact that respondent[s] do[ ] not contend that there has been any subsequent change in the condition of the [premises] which might hinder the investigation or defense of this action’ ” … . Moreover, claimants made a sufficient showing that the late notice will not substantially prejudice respondents, and respondents failed to “respond with a particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed” … . We therefore conclude that the court “properly exercised its broad discretion in granting [claimants’] application pursuant to General Municipal Law § 50-e (5)” … . Matter of Diegelman v City of Buffalo, 2017 NY Slip Op 02316, 4th Dept 3-24-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS)/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS)

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PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED.

The Second Department determined plaintiff’s slip and fall complaint was properly dismissed because plaintiff could not identify the cause of his fall:

During his 50-h hearing, the injured plaintiff testified that he was walking on the sidewalk and was about to cross the street when his right foot caught on “some sort of stone,” causing him to fall. He did not see the stone before the accident, but after he fell, he looked and saw stones embedded in the earth around a tree, which caught his foot. At his deposition, however, the injured plaintiff testified that as he was about to cross the street, he was paying attention to traffic and his foot “hit something” causing him to lose his balance and fall. This time, he identified a raised portion of the sidewalk, approximately three feet away from the tree, as the cause of his fall. He distinguished this area from the cobblestones around the tree and testified that he did not make contact with the cobblestones, as he was “further down, to the side of the tree.” Contrary to the plaintiffs’ contention, the injured plaintiff’s own contradictory testimony does not create a question of fact … . Rather, it demonstrates that he is unable to identify the cause of his fall and any determination by the trier of fact as to causation would be based upon sheer speculation … . Vojvodic v City of New York, 2017 NY Slip Op 02085, 2nd Dept 3-22-17

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/SLIP AND FALL (PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/SIDEWALKS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)

DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. The defendant city owned the sanitation truck (driven by McPhillips) which struck the car in which plaintiff was a passenger:

… [T]he plaintiffs submitted, inter alia, transcripts of the parties’ deposition testimony, which demonstrated, prima facie, that the injured plaintiff was not comparatively at fault for the happening of the subject accident, and that McPhillips was negligent. Contrary to the City’s contention, the transcript of McPhillips’s deposition testimony did not reveal a triable issue of fact as to whether he demonstrated a nonnegligent explanation for the rear-end collision into the other vehicle. Even if, as McPhillips testified, the other vehicle came to a sudden stop at the subject intersection’s yellow traffic light, McPhillips should have anticipated that the other vehicle might come to a stop at the intersection … . Furthermore, McPhillips’s deposition testimony did not rebut the inference of negligence from the rear-end collision, as he testified that he knew that the road was wet from a recent rain shower and he failed to demonstrate that his skid on known road conditions was unavoidable … . Tumminello v City of New York, 2017 NY Slip Op 02083, 2nd Dept, 3-22-17

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/REAR-END COLLISION (DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/COMPARATIVE NEGLIGENCE (REAR-END COLLISION, DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)

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PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE.

The Second Department determined the petition for leave to file a late notice of claim should have been granted, despite of the lack of an adequate excuse. The plaintiff was involved in an accident with a police car. The police report noted that plaintiff was injured. Therefore the city had timely notice of essential elements of the claim:

Here, the City and the NYPD acquired timely actual notice of the facts underlying the claim. The subject motor vehicle accident involved a police department vehicle and police department employee. The NYPD responded to the scene and conducted an investigation into the facts and circumstances surrounding the accident. Indeed, the police accident report specifically noted that the petitioner, as well as the driver of the vehicle in which she was a passenger, made statements alleging that [the officer] was liable. The police accident report also noted that the petitioner was injured and that a copy of the report was being provided to the Office of the Comptroller, as well as the Motor Transport Division and Personal Safety Unit of the NYPD. Thus, the overall circumstances of this matter support an inference that the City effectively received actual notice of the essential facts constituting the claim … . In light of the City’s actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to the City in maintaining a defense … . “[W]here there is actual notice and an absence of prejudice, the lack of reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Jaffier v City of New York, 2017 NY Slip Op 02039, 2nd Dept 3-22-17

NEGLIGENCE (PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)/MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)

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LANDLORD (SUBLESSOR) DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED.

The Second Department determined defendant nonprofit did not owe a duty of care to plaintiff’s subrogee for the actions of a tenant which apparently started a fire in the tenant’s apartment. Defendant nonprofit leased apartments to tenants suffering from mental illness. The tenants lived independently with little supervision:

Under limited circumstances, the relationship between a lessor and a lessee can give rise to a duty of care inasmuch as the lessor “must exercise reasonable care not to expose third persons to an unreasonable risk of harm” … . … [T]he relevant inquiry [is] whether the defendant, as sublessor, exposed the plaintiff’s insured in this case to an unreasonable risk of harm. Moreover, in evaluating the existence and scope of the duty of care, we are mindful that where, as here, the action involves only property damage, “the public policies, factors, and other analytical considerations used in setting the orbit of duty are different from those at play in cases involving physical injury” … .

Under the circumstances presented, the defendant established, prima facie, that it owed no duty to the plaintiff’s insured to take affirmative steps to prevent the tenant from smoking in the demised premises … . The evidence showed, inter alia, that all participants in the defendant’s housing program had to be able to live independently, and the degree of oversight provided by the defendant under the terms of its agreement with the tenant was limited. …

“[I]n the absence of fault or a specific contract provision to the contrary, neither the landlord nor the tenant is obligated to perform repairs after a fire” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the breach of contract cause of action by showing that the subject lease did not impose an obligation on it to repair the premises after a fire … , or to answer in damages for a fire caused by its sublessee … . Tower Ins. Co. of N.Y. v Hands Across Long Is., Inc., 2017 NY Slip Op 02082, 2nd Dept 3-22-17

 

NEGLIGENCE (LANDLORD DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED)/INSURANCE LAW (LANDLORD DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED)/LANDLORD-TENANT (LANDLORD DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED)

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DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.

The Second Department, reversing Supreme Court, determined defendants Tuapanta and Hanif (driver and owner of the car involved in an accident) were not employees of defendant car service, Church Ave. Therefore the car service was not liable to plaintiff passenger:

Here, Church Ave established, prima facie, that Tuapanta and Hanif were independent contractors, not its employees. The evidence submitted by Church Ave showed that it is a licensed livery base station in the business of dispatching for-hire vehicles. Specifically, Church Ave receives calls from customers seeking transportation services and then dispatches such calls to drivers of vehicles affiliated with it. Church Ave further demonstrated that it does not own the vehicles to which it dispatches calls and that it does not provide any services to drivers other than transmitting a customer’s request for transportation services. Drivers are responsible for their own schedules, choosing when to turn on their two-way radios and deciding which dispatches to accept. Drivers are free to provide their services to other car services and they retain all of the monies paid by the customers. Drivers pay Church Ave $100 per week to use the service. Church Ave does not provide a salary to the drivers, nor does it provide them with any tax forms. Drivers are also responsible for maintaining their own insurance. There were no written agreements or meetings between the drivers and Church Ave, nor did Church Ave provide any manuals, policies, or procedures for the drivers outside of establishing prices. Under these circumstances, Church Ave established, prima facie, that it did not exercise sufficient control to give rise to liability under the doctrine of respondeat superior … . Castro-Quesada v Tuapanta, 2017 NY Slip Op 02014, 2nd Dept 3-22-17

EMPLOYMENT LAW (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/INDEPENCENT CONTRACTOR (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/NEGLIGENCE (RESPONDEAT SUPERIOR, DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)

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DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.

The Second Department, reversing Supreme Court, determined defendants Tuapanta and Hanif (driver and owner of the car involved in an accident) were not employees of defendant car service, Church Ave. Therefore the car service was not liable to plaintiff passenger:

Here, Church Ave established, prima facie, that Tuapanta and Hanif were independent contractors, not its employees. The evidence submitted by Church Ave showed that it is a licensed livery base station in the business of dispatching for-hire vehicles. Specifically, Church Ave receives calls from customers seeking transportation services and then dispatches such calls to drivers of vehicles affiliated with it. Church Ave further demonstrated that it does not own the vehicles to which it dispatches calls and that it does not provide any services to drivers other than transmitting a customer’s request for transportation services. Drivers are responsible for their own schedules, choosing when to turn on their two-way radios and deciding which dispatches to accept. Drivers are free to provide their services to other car services and they retain all of the monies paid by the customers. Drivers pay Church Ave $100 per week to use the service. Church Ave does not provide a salary to the drivers, nor does it provide them with any tax forms. Drivers are also responsible for maintaining their own insurance. There were no written agreements or meetings between the drivers and Church Ave, nor did Church Ave provide any manuals, policies, or procedures for the drivers outside of establishing prices. Under these circumstances, Church Ave established, prima facie, that it did not exercise sufficient control to give rise to liability under the doctrine of respondeat superior … . Castro-Quesada v Tuapanta, 2017 NY Slip Op 02014, 2nd Dept 3-22-17

EMPLOYMENT LAW (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/INDEPENCENT CONTRACTOR (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/NEGLIGENCE (RESPONDEAT SUPERIOR, DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)

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DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.

The Second Department, reversing Supreme Court, determined defendants Tuapanta and Hanif (driver and owner of the car involved in an accident) were not employees of defendant car service, Church Ave. Therefore the car service was not liable to plaintiff passenger:

Here, Church Ave established, prima facie, that Tuapanta and Hanif were independent contractors, not its employees. The evidence submitted by Church Ave showed that it is a licensed livery base station in the business of dispatching for-hire vehicles. Specifically, Church Ave receives calls from customers seeking transportation services and then dispatches such calls to drivers of vehicles affiliated with it. Church Ave further demonstrated that it does not own the vehicles to which it dispatches calls and that it does not provide any services to drivers other than transmitting a customer’s request for transportation services. Drivers are responsible for their own schedules, choosing when to turn on their two-way radios and deciding which dispatches to accept. Drivers are free to provide their services to other car services and they retain all of the monies paid by the customers. Drivers pay Church Ave $100 per week to use the service. Church Ave does not provide a salary to the drivers, nor does it provide them with any tax forms. Drivers are also responsible for maintaining their own insurance. There were no written agreements or meetings between the drivers and Church Ave, nor did Church Ave provide any manuals, policies, or procedures for the drivers outside of establishing prices. Under these circumstances, Church Ave established, prima facie, that it did not exercise sufficient control to give rise to liability under the doctrine of respondeat superior … . Castro-Quesada v Tuapanta, 2017 NY Slip Op 02014, 2nd Dept 3-22-17

EMPLOYMENT LAW (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/INDEPENCENT CONTRACTOR (DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)/NEGLIGENCE (RESPONDEAT SUPERIOR, DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR)

DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the defendant owner (In LIne) and restaurant manager (Spanburgh) did not demonstrate entitlement to summary judgment in this slip and fall case. Plaintiff, a restaurant patron, was injured when he stepped in a hole in the front lawn of the property while playing a game (apparently sanctioned by the restaurant):

Defendants failed to establish that In Line did not create the hole in its front lawn by submitting Spanburgh’s deposition testimony and affidavit, because Spanburgh did not state that the lawn was inspected after it was last maintained by the outside company In Line had hired to mow the grass. They also failed to satisfy their initial burden to show that In Line lacked actual notice of the hole in its lawn, because they submitted no evidence that its employees and the outside company had received no complaints about the defect prior to the incident and that there were no similar accidents at the subject location … . The fact that Spanburgh testified and averred that he did not receive any complaints about the condition of the lawn does not establish that In Line lacked actual notice, because he did not state that he was working when the accident happened.

Defendants also failed to satisfy their initial burden to show that In Line lacked constructive notice of the hole in its lawn, because Spanburgh’s testimony and averment that he would inspect the entire premises every time the restaurant was open is insufficient to establish when the lawn was last checked before the accident … . Clarkin v In Line Rest. Corp., 2017 NY Slip Op 02004, 1st Dept 3-21-17

 

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL)/NOTICE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL)

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