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JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB.

The First Department, reversing Supreme Court, determined plaintiff janitor could not sue for a slip and fall because the fall was caused by the condition he attempting to remedy as part of his job:

Dismissal of the complaint as against defendants is warranted in this action where plaintiff janitor alleges that he was injured when he slipped on pebbles on the bathroom floor of the building he was hired to clean. It is well established that a maintenance or cleaning worker has no claim at law for injury suffered from a dangerous condition that he was hired to remedy … , and here, plaintiff stated that as part of his job cleaning the bathroom, he frequently removed the pebbles from the floor. Black v Wallace Church Assoc., 2017 NY Slip Op 01480, 1st Dept 2-23-17

NEGLIGENCE (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/SLIP AND FALL (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/EMPLOYMENT LAW (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/JANITORS (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)

THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the owner of the lead car struck from behind was entitled to summary judgment. The allegation the lead car stopped suddenly was not sufficient to raise a question of fact:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of that driver to “come forward with an adequate nonnegligent explanation for the accident” … . A claim by the rear driver that “the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Bajrami v Twinkle Cab Corp., 2017 NY Slip Op 01458, 1st Dept 2-23-17

NEGLIGENCE (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/REAR-END COLLISIONS  (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)

PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR; ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Third Department, reversing Supreme Court, determined questions of fact precluded summary judgment in favor of defendant restaurant. Plaintiff’s decedent fell down a flight of stairs leading from an unmarked door to the basement of the restaurant. Although no one witnessed the accident, circumstantial evidence supported the view that the stairway and unmarked door presented a dangerous condition which caused plaintiff’s fall:

The evidence established numerous questions of fact as to whether the staircase presented a dangerous condition to those using it, the most obvious being that the door opened over descending stairs … . [The owner’s] regular use of the stairs and his personal installation of the handrail established a question of fact as to notice or creation of the dangerous condition … . Finally, although the fall was unwitnessed, a jury could logically infer from the evidence regarding the risks that the staircase posed, the evidence of previous falls on the staircase and the evidence that decedent was healthy, agile and not visibly intoxicated at the time of the accident that the dangerous condition of the staircase caused her fall … . Acton v 1906 Rest. Corp., 2017 NY Slip Op 01431, 3rd Dept 2-23-17

NEGLIGENCE (PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR, ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/STAIRWAYS (PLAINTIFF’S DECEDENT FELL DOWN A STAIRWAY LEADING TO THE RESTAURANT BASEMENT WHICH WAS ACCESSED BY AN UNMARKED, UNLOCKED DOOR, ALTHOUGH THE ACCIDENT WAS NOT WITNESSED, DEFENDANT RESTAURANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)

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DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it was the alter ego of plaintiff’s employer (which would trigger the Worker’s Compensation Law as plaintiff’s sole remedy). Defendant’s summary judgment motion on that ground should have been denied. Plaintiff was injured by a defective floor condition where he worked. He sued the owner of the building and the holder of the lease, Clean Rite Cleaners – Flatbush Avenue, LLC:

At the time of the accident, the plaintiff was employed by nonparty CRC-Management Co., LLC (hereinafter CRC-Management), and, after the accident, he sought Workers’ Compensation benefits from CRC-Management. CRC-Flatbush moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff’s causes of action were barred by the exclusive remedy provisions of the Workers’ Compensation Law. Among other things, CRC-Flatbush argued that it was “part of a single integrated entity” along with CRC-Management since they were both subsidiaries of nonparty Clean Rite Centers, LLC. …

… “[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … . Here, CRC-Flatbush failed to make a prima facie showing either that it and the plaintiff’s employer, CRC-Management, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other … . Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01350, 2nd Dept 2-22-17

 

WORKER’S COMPENSATION LAW (DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/CORPORATION LAW (WORKER’S COMPENSATION LAE, NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/ALTER EGO (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED; DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, over an extensive two-justice dissent, determined plaintiff’s motion for summary judgment based upon the common law right of sepulcher should have been denied and the defendant’s motion for summary judgment dismissing the cause of action based upon failure to timely perform an autopsy should have been granted. Plaintiffs elected to terminate a pregnancy because genetic testing indicated the fetus could not live. The defendant hospital provided plaintiffs with a burial form and plaintiffs consented to having the hospital bury the fetus. When plaintiffs allegedly were told the sex of the fetus was male (the genetic testing indicated the fetus was female), the plaintiffs asked for an autopsy. The fetus had been misplaced and was ultimately found in a bin with body parts. The autopsy was performed and confirmed the fetus was female. The hospital argued that the right of sepulcher only applied to “bodies” and the fetus, which was less than 20 weeks old, was not a “body.” The Second Department held that the hospital had essentially waived that argument by agreeing to bury the fetus. Although the plaintiffs, by signing the burial form, relinquished their right to prompt possession of the body, the cause of action alleging the mishandling of the remains was viable. The Second Department went on to hold that there was no cause of action for negligent infliction of emotional distress stemming from the delay of an autopsy:

The common-law right of sepulcher “gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and . . . damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … . Here, although the plaintiffs relinquished their right to prompt possession of the fetal remains when Linru Fan executed a written consent form authorizing the Hospital to arrange for the burial, the plaintiffs also alleged that the Hospital violated their right to sepulcher by mishandling the fetal remains … . However, damages attributable to emotional distress caused by the failure to timely perform an autopsy on the fetus are not recoverable … . Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 2017 NY Slip Op 01405, 2nd Dept 2-22-17

SEPULCHER, RIGHT OF (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)/AUTOPSY (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)

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SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND.

The Second Department determined Supreme Court should not have imposed sanctions on defendants in this medical malpractice action. The action was premised on the failure of a suture which had to be repaired by a subsequent surgery. The suture at issue was thrown away at the time of the second surgery. Plaintiff failed to demonstrate the defendants threw away the suture with a culpable state of mind:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind,’ and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . Where evidence has been intentionally or willfully destroyed, its relevance is presumed … . However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party’s claim or defense … . * * *

… Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion to impose sanctions against the defendants for the wilful spoilation and destruction of evidence, as the plaintiff failed to demonstrate that the defendants were obligated to preserve the broken suture at the time of its destruction, that the suture was destroyed with a “culpable state of mind,” and/or that the destroyed suture was relevant to the plaintiff’s claim … . In any event, the plaintiff failed to establish that the defendants were on notice that the suture might be needed for future litigation … . Golan v North Shore-Long Is. Jewish Health Sys., Inc., 2017 NY Slip Op 01342, 2nd Dept 2-22-17

 

NEGLIGENCE (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/MEDICAL MALPRACTICE (EVIDENCE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/EVIDENCE (MEDICAL MALPRACTICE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/SPOLIATION (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)

PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT.

The Second Department determined plaintiff’s reckless actions severed any connection between any alleged negligence and the accident. Plaintiff was hit by a train while walking in an area to which she was not allowed access:

… [T]he defendants … demonstrated, as a matter of law, that the plaintiff’s conduct, under the circumstances of this case, constituted an intervening and superseding cause which absolved the defendants of liability … . The defendants’ submissions demonstrated that the then-17-year-old plaintiff circumvented various barriers to access an elevated track area, proceeded to walk alongside the track area, and then attempted to cross a train bridge that had limited clearance and no protective railings or fencing. In doing so, she acted with reckless and extraordinary conduct, which, as a matter of law, constituted an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants … . Weimar v Metropolitan Transp. Auth., 2017 NY Slip Op 01403, 2nd Dept 2-22-17

NEGLIGENCE (PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)/PROXIMATE CAUSE (NEGLIGENCE, PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)/INTERVENING AND SUPERSEDING CAUSE (NEGLIGENCE, PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)

KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate, as a matter of law, the low table over which plaintiff tripped and fell was an open and obvious condition:

The plaintiff Concetta Dalton (hereinafter the plaintiff) was attending a wedding reception at the defendants’ catering hall and allegedly was injured when she tripped over a knee-high table in the lobby of the catering hall and fell. The plaintiff was walking through the lobby area, where there was a crowd of people, to reach the main dining area when the accident occurred. The plaintiff testified at her deposition that she did not see the table before she fell. …

Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury … . A condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The determination of “whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances” … . Dalton v North Ritz Club, 2017 NY Slip Op 01333, 2nd Dept 2-22-17

 

NEGLIGENCE (KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)/SLIP AND FALL (KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)/OPEN AND OBVIOUS CONDITION (SLIP AND FALL, KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)

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REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff’s request for leave to file a late notice of claim should have been denied. Plaintiff student was allegedly injured at school in a collision with another student at recess. The Second Department held that plaintiff (1) did not demonstrate the school’s timely awareness of the negligent supervision allegations (knowledge of plaintiff’s injury not enough), (2) did not present a reasonable excuse for the failure to timely file, and (3) did not demonstrate the school was not prejudiced by the delay (therefore the burden did not shift to the school to demonstrate prejudice):

… [A]s to the issue of substantial prejudice, the petitioners presented no “evidence or plausible argument” that their delay in serving a notice of claim did not substantially prejudice the appellant in defending on the merits … . The petitioners contend that the appellant has not been substantially prejudiced in its defense because the condition of the accident location has not changed. The condition of the accident location is irrelevant, however, to the petitioners’ claim of negligence—that the appellant was negligent in its supervision of students during a noon recess— and, thus, to the issue of substantial prejudice as well. The petitioners also assert that there were no known witnesses to the incident and, therefore, their delay in filing a notice of claim did not substantially prejudice the appellant in its ability to investigate. This contention runs counter to the petitioners’ allegation that the incident, a collision between the infant petitioner and another student, occurred during a group activity. Lastly, the petitioners contend that the availability of records as to the infant petitioner’s injuries establishes a lack of substantial prejudice. The medical records, however relevant to the issue of damages, have little, if anything, to do with the appellant’s ability to conduct an investigation as to its liability … . Thus, their availability does not support the petitioners’ argument that the appellant has not been substantially prejudiced. Inasmuch as the petitioners failed to present any evidence or plausible argument that the appellant has not been substantially prejudiced by the delay, the appellant never became required to make “a particularized evidentiary showing” that they were substantially prejudiced … . Matter of A.C. v West Babylon Union Free School Dist., 2017 NY Slip Op 01351, 2nd Dept 2-22-17

EDUCATION-SCHOOL LAW (REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED) /NEGLIGENCE (EDUCATION-SCHOOL LAW, REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

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EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE.

The Second Department ordered a new trial (in the interest of justice) in this elevator accident case because the trial judge excluded a witness representing the elevator company from the courtroom and prohibited any communication between the witness and defense counsel:

… [A] new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial … . Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense … . Perry v Kone, Inc., 2017 NY Slip Op 01395, 2nd Dept 2-22-17

CIVIL PROCEDURE (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/NEGLIGENCE (TRIALS, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/TRIALS (CIVIL, NEGLIGENCE, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/ELEVATORS (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE

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