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SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE.

The Fourth Department determined the complaint against the snow removal contractor (JB Landscaping) in this slip and fall case should have been dismissed. The fact that the property was inspected three hours before the incident did not warrant dismissal of the constructive notice cause of action against the property manager (Ciminelli) and the property owner (205 Park):

We conclude that the contract between JB Landscaping and Ciminelli was not so comprehensive and exclusive that it entirely displaced Ciminelli’s and 205 Park’s duty to maintain the premises safely, such that JB Landscaping assumed a duty to plaintiff. Although the contract in the case at bar delegated all of the snow and ice removal to JB Landscaping, along with responsibility for monitoring the property 24 hours per day, seven days per week, the contract also provided that 205 Park and the tenant of the property could request additional services from JB Landscaping, including snow and ice removal. In addition, the contract reserved Ciminelli’s rights “to determine the depth of snow at locations where JB Landscaping performs snowplowing” and to direct JB Landscaping to reposition or remove accumulated snow piles. The contract also required weekly submission of maintenance logs to Ciminelli and preapproval from Ciminelli to engage a subcontractor to assist with snow and ice removal. * * *

The weather records … recited … that from 3:01 a.m. until 6:24 a.m. the short term forecasts called for falling temperatures, and that any wet or untreated pavement could result in patchy black ice. Plaintiff testified that she fell at 7:45 a.m. In our view, the inspection of the area approximately three hours before the plaintiff fell does not establish ” that the ice formed so close in time to the accident that [defendant(s)] could not reasonably have been expected to notice and remedy the condition’ ” … . Waters v Ciminelli Dev. Co., Inc., 2017 NY Slip Op 00854, 4th Dept 2-3-17

 

NEGLIGENCE (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE)

DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR.

The Fourth Department, over a two-justice dissent, determined defendant’s motion for summary judgment in this negligent entrustment case was properly denied. Plaintiff alleged the defendant car rental company (BAR) knew or should have known that an unlicensed driver (Kirksey) would drive the car (which was rented to defendant Jones). The dissent argued that knowledge an unlicensed driver would use the car does not amount to knowledge the car would be driven by an incompetent driver:

The fact that Kirksey did not possess a driver’s license is a factor to consider in determining whether BAR knew that Kirksey was incompetent to operate the vehicle … . While we agree with the dissent that “the absence or possession of a driver’s license is not relevant to the issue of negligence” in the operation of a motor vehicle … , this is a negligent entrustment cause of action, where the issue does not concern the manner in which the accident occurred. Rather, the issue is whether BAR should have entrusted the vehicle to Kirksey in the first instance. Graham v Jones, 2017 NY Slip Op 00835, 4th Dept 2-3-17

NEGLIGENCE (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)/NEGLIGENT ENTRUSTMENT (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)/TRAFFIC ACCIDENTS (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)

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LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY.

The Fourth Department determined Supreme Court properly granted claimants leave to file a late notice of claim against the water authority which allegedly created a depression in the roadway (the cause of the injury). Claimants had filed a timely notice of claim against the city and only later learned the water authority was the general contractor:

An “[e]rror concerning the identity of the governmental entity to be served” can constitute a reasonable excuse for the delay “provided that a prompt application for relief is made after discovery of the error” … . …

Here, claimants demonstrated a reasonable excuse for the delay inasmuch as they served a timely notice of claim upon the City, and then promptly applied for leave to serve a late notice of claim upon respondents after discovering respondents’ alleged involvement in causing claimant’s injuries … . Furthermore, although respondents lacked actual knowledge of claimant’s injuries, respondents have ” made no particularized or persuasive showing that the delay caused [them] substantial prejudice’ ” … . Indeed, we note that the Water Board was the general contractor for the construction project that allegedly created the defect in the roadway, and thus respondents’ ability to investigate the facts underlying the claim is furthered by their possession of documents and other information related to the construction project. King v Niagara Falls Water Auth., 2017 NY Slip Op 00855, 4th Dept 2-3-17

 

MUNICIPAL LAW (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NOTICE OF CLAIM (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NEGLIGENCE (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)

CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE.

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the transit defendants in this bicycle-bus accident case. Plaintiff’s decedent was riding her bicycle when a car door opened in front of her. She struck the door and fell over into the path of a bus, which ran over her. Summary judgment was granted to the transit defendants under the emergency doctrine. However, the First Department held that evidence the bus driver’s vision to the side may have been blocked by standing passengers raised a question of fact about the applicability of the emergency doctrine:

Given the conflicting testimony in the record, including that there may have been passengers standing in front of the white line, which partially blocked the bus driver’s view as he passed the red light, it was error for the motion court to have determined the reasonableness of the bus driver’s response to the emergency situation presented, as a matter of law. This is an issue of fact that should be decided by a jury. Powers v Kyong Kwan Min, 2017 NY Slip Op 00716, 1st Dept 2-2-17

NEGLIGENCE (CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/BICYCLISTS (TRAFFIC ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/TRAFFIC ACCIDENTS (BUS-BICYCLE ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/EMERGENCY DOCTRINE (NEGLIGENCE, BUS-BICYCLE ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)

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WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION.

The Second Department, reversing Supreme Court, determined the negligent hiring and retention cause of action against a nursing home (Sunrise Manor) alleging improper care of a resident should have been dismissed. When it is alleged an employee acted within the scope of employment, the respondeat superior theory applies and a negligent hiring and retention cause of action will not lie:

Supreme Court should have granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the fourth cause of action, which was to recover damages for negligent hiring and retention, insofar as asserted against it. “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training” … . Here, in opposition to Sunrise Manor’s prima facie showing that its employees were acting within the scope of their employment, the plaintiff failed to raise a triable issue of fact. While an exception exists to the above general principle where the plaintiff seeks punitive damages from the employer “based on alleged gross negligence in the hiring or retention of the employee” … , here, that exception is inapplicable because the Supreme Court granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the cause of action seeking punitive damages. Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 2017 NY Slip Op 00634, 2nd Dept 2-1-17

NEGLIGENCE (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/EMPLOYMENT LAW (NEGLIGENCE, WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/NEGLIGENT HIRING AND RETENTION (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)

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STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined summary judgment should not have been granted to the school in this negligent supervision case. Plaintiff was injured while horsing around during gym class:

At the beginning of gym class, prior to attendance being taken, the infant plaintiff ran toward a fellow classmate, placed his hands on his shoulders, and jumped over him. The classmate asked the infant plaintiff to do it again, and the infant plaintiff jumped over the classmate again, without incident. The classmate then asked the infant plaintiff to jump over him once again, and when the infant plaintiff attempted to do so, “something popped” in his knee, which caused him to fall to the gym floor and allegedly sustain an injury. At the time of the incident, two teachers were nearby; however, neither saw the incident occur. The infant plaintiff stated that about four to five minutes elapsed between the first and third time he jumped over his classmate. A teacher, however, stated that class began at 1:11 p.m., and that the incident occurred at approximately 1:20 p.m. * * *

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Contrary to the defendant’s contention, it failed to establish, prima facie, that it adequately supervised the plaintiff or that, even if it had, the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision … . Cruz-Martinez v Brentwood Union Free Sch. Dist., 2017 NY Slip Op 00626, 2nd Dept 2-1-17

 

NEGLIGENCE (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SUPERVISION (EDUCATION-SCHOOL LAW, STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff moped operator should have been granted summary judgment in this traffic accident case. Defendant made a sudden left turn crossing plaintiff’s right of way:

The plaintiff established his entitlement to judgment as a matter of law by demonstrating, prima facie, that the defendant driver violated Vehicle and Traffic Law § 1141 when he suddenly made a left turn directly into the path of the moped operated by the plaintiff, who had no time to avoid the impact, when it was not reasonably safe to do so, and that this violation was the sole proximate cause of the accident … . Mei-Hua Gao v Makrinos, 2017 NY Slip Op 00639, 2nd Dept 2-1-17

NEGLIGENCE (DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS (DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)

EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE.

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Defendant offered evidence only of its general cleaning practices rather than specific evidence when the area was lasted cleaned or inspected:

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition that caused the plaintiff to fall. The deposition testimony of the defendant’s caretaker, submitted in support of the motion, did not establish when the accident site was last inspected in relation to the plaintiff’s fall. The caretaker merely testified about general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, which is insufficient to establish a lack of constructive notice … . Jeremias v Lake Forest Estates, 2017 NY Slip Op 00635, 2nd Dept 2-1-17

NEGLIGENCE (EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE)/SLIP AND FALL (EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE)

QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the city (NYC) did not demonstrate there was no question of fact whether plaintiff tripped over a portion of the sidewalk (for which the city would not be liable) or a tree well (for which the city would be liable):

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, absent certain exceptions not relevant to this case … . However, a tree well does not fall within the applicable Administrative Code definition of “sidewalk” and, thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Antonyuk v Brightwater Towers Condo Homeowners’ Assn., Inc., 2017 NY Slip Op 00619, 2nd Dept 2-1-17

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/TREE WELLS (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

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COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM; INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM; FLOOD DAMAGE RESULTED FROM DREDGING OPERATION.

The Second Department determined the county was not entitled to summary judgment on governmental immunity grounds and an independent contractor for the county was not entitled to summary judgment because of the contractual relationship. Plaintiffs alleged the county and the contractor were negligent in dredging a pond resulting in flood damage. The county could be liable in ordinary negligence for maintenance of the drainage system (as opposed to design) and the subcontractor could be liable for launching an instrument of harm:

Although a governmental entity may be entitled to immunity from liability arising out of claims that it negligently designed a sewerage or storm drainage system … , the immunity does not extend to claims that it negligently maintained the system … . Here, even assuming the subject project fell within the ambit of a governmental function, the plaintiffs contend that the County was negligent, inter alia, in its maintenance of the pond and oversight of the dredging operations. * * *

Generally, an independent contractor owes no tort duty of care to third parties … . However, there are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons … where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm … . Nachamie v County of Nassau, 2017 NY Slip Op 00657, 2nd Dept 2-1-17

MUNICIPAL LAW (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/NEGLIGENCE (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/IMMUNITY (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/CONTRACT LAW (INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)

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