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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED.

The First Department, partially reversing Supreme Court, determined defendants demonstrated they did not have constructive notice of a wet condition where plaintiff fell, but the cause of action based on the absence of a handrail should not have been dismissed:

Defendants established their prima facie entitlement to summary judgment by demonstrating that it had rained shortly before or at the time of plaintiff’s accident and continued shortly afterward, that they did not have constructive notice of the wet condition, as defendants’ porter averred that he had inspected the stairs 15 minutes prior to plaintiff’s fall and did not observe any wet condition, and they had no complaints of wetness prior to plaintiff’s fall. Moreover, defendants had a doormat in the vestibule to permit people to wipe their feet as they entered … .  In opposition, plaintiff did not submit any evidence as to the time elapsed between the cessation of the rain and his accident, and thus failed to raise an issue of fact as to whether defendants had a reasonable amount of time to remedy the wet condition … .

The court, however, improperly dismissed plaintiff’s claim that defendants failed to install handrails on the subject staircase. The stairs which led to the door providing egress from the building to the outside were interior stairs requiring handrails (Administrative Code §§ 27-232, 27-375 …). Plaintiff raised an issue of fact as to whether the absence of handrails was a proximate cause of his fall by submitting his expert’s affidavit stating that the absence of handrails was a dangerous departure from accepted standards and the applicable building code … . Lee v Alma Realty Corp., 2017 NY Slip Op 00101, 1jst Dept 1-10-17

 

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/EVIDENCE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/STORM IN PROGRESS (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/ADMINISTRATIVE CODE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/SLIP AND FALL (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/HANDRAILS (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/NOTICE (SLIP AND FALL, (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)

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METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED SHE WAS AN EMPLOYEE AND THE WORKERS’ COMPENSATION LAW WAS HER ONLY REMEDY.

The First Department, in a full-fledged opinion by Justice Acosta, determined the defendant Metropolitan Opera’s motion to dismiss the complaint was properly denied. Plaintiff is a singer who has performed with the Met for over twenty years as a featured soloist. Plaintiff, during a performance, fell from an elevated platform and was injured. She sued in negligence. The Met argued plaintiff was an employee and her only recourse was workers’ compensation benefits. The court concluded the negligence cause of action was viable:

WCL [Workers’ Compensation Law] § 2(4) defines “employee” to include “a professional musician or a person otherwise engaged in the performing arts who performs services as such for … a theatre … or similar establishment … unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter.” Here, plaintiff’s services were provided to the Met pursuant to a per-performance contractor’s agreement, entered into between her corporation and the Met, that provided that the corporation “agree[d] to furnish to The Met the services of its employee, Wendy White . . ., as singer on an individual performance basis.” Plaintiff’s corporation meets the definition of an “employer covered by this chapter,” inasmuch as it is a corporation “having one or more persons in employment” (WCL § 2[3]). Thus, by written contract, plaintiff was stipulated to be an employee of another employer … .

The Met is correct that the plain language of WCL § 2(4) … draws no distinction between regular performers and stars. * * * … Here, the legislative history supports plaintiff’s suggested distinction, since it indicates that the statutory definition of employees was intended to protect the vast majority of performers, who are not “stars,” and that the statutory exception was designed to exclude those performers with the clout to negotiate the terms of their own engagements. White v Metropolitan Opera Assn., Inc., 2017 NY Slip Op 00093, 1st Dept 1-5-17

NEGLIGENCE (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)/WORKERS’ COMPENSATION LAW (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)/STARS (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)/EMPLOYMENT LAW (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)

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BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE.

The First Department determined the city’s (NYC’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the Big Apple Map gave the city notice of the defect:

The affidavit of Ralph Gentles, an associate production manager of Sanborn Map Co., Inc. responsible for the legend on Big Apple Maps, wherein he averred that the symbol for a “raised or uneven portion of the side walk,” which appears on the Big Apple Map in the area where plaintiff tripped over a raised manhole cover, also applied to the manhole cover which would have been considered part of the sidewalk, was competent evidence of the business or professional custom or practice of the designations used by the company … . As such, it raised a triable issue of fact as to whether the Big Apple Map gave the City prior written notice of the defect, and the court should have denied the City’s motion for summary judgment predicated on the lack of such notice. Hennessey-Diaz v City of New York, 2017 NY Slip Op 00025, 1st Dept 1-3-17

NEGLIGENCE (BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/MUNICIPAL LAW (SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/SIDEWALKS (SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/SLIP AND FALL (MUNICIPAL LAW, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/WRITTEN NOTICE (MUNICIPAL LAW, SIDEWALKS, SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/BIG APPLE MAPS (MUNICIPAL LAW, SIDEWALKS, SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)

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QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL.

The Third Department, reversing Supreme Court, determined there was a question of fact whether the Workers’ Compensation Law precluded a lawsuit in negligence against the defendant, who was the president and a shareholder of plaintiff’s employer, Total Recall, and was the owner, in an individual capacity, of the building in which Total Recall is located. Plaintiff slipped and fell on ice in the parking lot behind the building:

… [W]hen an employee, during the course of his or her employment, is injured due to the negligence of a coemployee, the employee’s right to compensation lies under the exclusive provisions of the Workers’ Compensation Law (see Workers’ Compensation Law § 29 [6]…). Where the defendant is both the property owner and a corporate officer of the plaintiff’s employer, the defendant’s responsibility to provide the plaintiff with a safe place to work may be merged, in which case, workers’ compensation benefits are the sole remedy for the plaintiff … . If, however, the “defendant’s duty of care toward [the] plaintiff was owed purely in [the] capacity as owner of the property at the accident site, and not at all as a coemployee,” Workers’ Compensation Law § 29 (6) will not bar the plaintiff’s negligence action … .

The issue distills to whether the accident site was in an area that was exclusive to Total Recall and its employees such that defendant, as the property owner and an executive officer of Total Recall, had indistinguishable obligations to maintain the area in a reasonably safe condition. Garelle v Geinitz, 2016 NY Slip Op 08916, 3rd Dept 12-29-16

NEGLIGENCE (QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)/WORKERS’ COMPENSATION LAW (NEGLIGENCE, QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)/SLIP AND FALL (QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)/CORPORATION LAW (QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)

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PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION.

The Third Department, reversing Supreme Court, after finding the notice of claim was sufficient notice of the negligent supervision cause of action, determined the defendant town was entitled to summary judgment dismissing the complaint. Town workers were in the process of delivering a load of wood chips to plaintiff. When the wood chips stopped flowing from the dump truck, plaintiff attempted to free the chips by slamming the tailgate. Plaintiff's thumb and wrist were crushed by the tailgate. Although plaintiff alleged that he called out to the driver (Klopfer) to ask if he should slam the tailgate, there was no response. The Third Department found plaintiff's unilateral decision to slam the tailgate was the sole proximate cause of his injury:

The dispute centers on whether defendant owed a duty of care to plaintiff and, if so, whether defendant's breach of duty was a proximate cause of plaintiff's injuries. From a general perspective, we recognize that Klopfer had a duty to exercise reasonable care in the operation of a municipal dump truck. Moreover, Klopfer was certainly aware of plaintiff's presence during the unloading process. That said, the Court of Appeals has emphasized a “reluctance to extend liability to a defendant for failure to control the conduct of others” … . By his testimony, plaintiff confirmed that he acted of his own accord, slamming the tailgate twice within only a few seconds, providing little if any opportunity for Klopfer to respond — even if he heard plaintiff call out … . There was no defect in the tailgate and the risk of injuring one's hand when slamming a tailgate is obvious as a matter of common sense. No resident, including plaintiff, had ever previously attempted to intervene in the discharge process and, while [a second town worker] had stepped away, plaintiff knew he was on site and could have sought his assistance. Under these circumstances, we conclude that plaintiff's intervening action in slamming the tailgate was the sole proximate cause of his injuries … . Barone v Town of New Scotland, 2016 NY Slip Op 08927, 3rd Dept 12-29-16

NEGLIGENCE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/MUNICIPAL LAW (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/NOTICE OF CLAIM (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/PROXIMATE CAUSE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/NEGLIGENT SUPERVISION (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)

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INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES.

INSURANCE LAW, MUNICIPAL LAW, NEGLIGENCE.

In a decision too lengthy and fact-specific to fairly summarize here, the First Department determined whether the insurance company which insured a company that maintained street lighting and traffic control devices under a contract with the Bronx had a duty to defend against personal injury suits brought against New York City.  The city was named an additional insured in the policies. . The personal injury suits alleged improper street lighting, malfunctioning traffic control devices, and, in one case, injury from a falling traffic control device. A duty to defend was found in four of the five lawsuits. The court explained the applicable law as follows:

On a summary judgment motion in a case involving an insurance contract or policy, “[t]he evidence will be construed in the light most favorable to the one moved against” … . The insured, however, has the burden of showing that an insurance contract covers the loss for which the claim is made … .

The applicable standard holds that the duty to defend arises when at least one of two alternate criteria are met. “A duty to defend exists whenever the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing such a reasonable possibility” … . City of New York v Wausau Underwriters Ins. Co., 2016 NY Slip Op 08932, 1st Dept 12-29-16

 

INSURANCE LAW (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/MUNICIPAL LAW (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/NEGLIGENCE (INSURANCE LAW, MUNICPAL LAW, NSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/DUTY TO DEFEND (INSURANCE LAW, INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/STREET LIGHTING (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/TRAFFIC CONTROL DEVICES  (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/HIGHWAYS AND ROADS  (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)

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DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PREMATURE, PIERCING THE CORPORATE VEIL MIGHT BE AN ISSUE DETERMINING WHETHER WORKERS’ COMPENSATION IS THE SOLE REMEDY, FURTHER DISCOVERY NEEDED.

The Third Department determined defendant’s summary judgment motion in this wrongful death action should have been denied as premature. Plaintiff’s decedent was killed in a workplace accident and workers’ compensation death benefits were paid out. In addition to arguing that workers’ compensation was plaintiff’s sole remedy, defendant argued the corporation plaintiff sued had been dissolved and assets transferred to another corporation. Because piercing the corporate veil might be an issue, the Third Department held that plaintiff was entitled to discovery to flesh out the relationship among plaintiff’s decedent and the two corporations:

“[A] summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant or a codefendant” … . Although we have held that, “in certain situations, . . . more than one entity may be considered a plaintiff’s employer for purposes of workers’ compensation” … , defendant’s submissions fall far short of establishing that premise as a matter of law. A determination as to whether two entities are alter egos of each other requires a far more detailed record than is present here … . Pringle v AC Bodyworks & Sons, LLC, 2016 NY Slip Op 08924, 3rd Dept 12-29-16

CIVIL PROCEDURE (DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PREMATURE, PIERCING THE CORPORATE VEIL MIGHT BE AN ISSUE, FURTHER DISCOVERY NEEDED)/CORPORATION LAW (DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PREMATURE, PIERCING THE CORPORATE VEIL MIGHT BE AN ISSUE, FURTHER DISCOVERY NEEDED)/WORKERS’ COMPENSATION LAW (DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PREMATURE, PIERCING THE CORPORATE VEIL MIGHT BE AN ISSUE TO DETERMINE WHETHER WORKERS’ COMPENSATION IS THE SOLE REMEDY, FURTHER DISCOVERY NEEDED)/NEGLIGENCE (DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PREMATURE, PIERCING THE CORPORATE VEIL MIGHT BE AN ISSUE TO DETERMINE WHETHER WORKERS’ COMPENSATION IS THE SOLE REMEDY, FURTHER DISCOVERY NEEDED)/WRONGFUL DEATH (DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PREMATURE, PIERCING THE CORPORATE VEIL MIGHT BE AN ISSUE TO DETERMINE WHETHER WORKERS’ COMPENSATION IS THE SOLE REMEDY, FURTHER DISCOVERY NEEDED)

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DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS.

In an action against a veterinary clinic stemming from an alleged attack by a dog in the waiting room, the Third Department determined the clinic did not demonstrate documents sought by plaintiff’s discovery demands were entitled to conditional immunity as documents prepared for litigation. The matter was remitted for court review of the documents:

Inasmuch as “[t]he purpose of liability insurance is the defense and settlement of claims . . . once an accident has arisen,” documents contained in the insurance adjuster’s file are generally protected by “a conditional immunity . . . as material prepared for litigation” … . Accident reports that are prepared with “a mixed purpose and result at least in part from the internal operations of the defendant’s business” are not, however, exempt from disclosure … . It is therefore incumbent upon “the party resisting disclosure to[, in the first instance,] show that the materials sought were prepared solely for litigation and this burden cannot be satisfied with wholly conclusory allegations” … . Hewitt v Palmer Veterinary Clinic, PC, 2016 NY Slip Op 08926, 3rd Dept 12-29-16

INSURANCE LAW (DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS)/NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS)/CIVIL PROCEDURE (DISCOVERY, CONDITIONAL IMMUNITY, DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS)/CONDITIONAL IMMUNITY (DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS)/PRIVILEGE (DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS)/ACCIDENT REPORTS (DEFENDANT DID NOT DEMONSTRATE DOCUMENTS SOUGHT BY A DISCOVERY DEMAND WERE ENTITLED TO CONDITIONAL IMMUNITY AS DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION, MATTER REMITTED FOR COURT REVIEW OF THE DOCUMENTS)

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COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the county’s motion for summary judgment was properly denied in this vehicle-accident case alleging the negligent failure to install a guardrail. The county did not demonstrate it was entitled to qualified immunity based upon a relevant highway-safety study of the area, and did not demonstrate the absence of a guardrail was not a proximate cause of plaintiff’s injuries:

A municipal defendant is entitled to qualified immunity “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … . Here, the evidence presented by the County failed to establish that it undertook a study which entertained and passed on the very same question of risk that is at issue in this case … . …

… [T]he County failed to establish, prima facie, that it did not have a duty to place guardrails near the concrete headwall involved in the plaintiff’s accident. …

… [T]he County’s submissions failed to eliminate all triable issues of fact as to whether its alleged negligence in failing to place guardrails near the concrete headwall … was a substantial factor in aggravating the plaintiff’s injuries … . Bednoski v County of Suffolk, 2016 NY Slip Op 08832, 2nd Dept 12-28-16

 

NEGLIGENCE (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/IMMUNITY (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/GUARDRAILS (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)

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SCHOOL NOT ENTITLED TO SUMMARY JUDGMENT, PLAINTIFF INJURED WHEN A STUDENT FELL ON TOP OF HIM.

The Second Department determined the school’s motion for summary judgment in this negligent supervision action was properly denied. The plaintiff student was injured when another student fell on top of him. There was evidence the student who injured plaintiff had been acting up for 10 minutes prior to the incident:

“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” … . Here, the defendants failed to demonstrate, prima facie, that they properly supervised the infant plaintiff or that their alleged negligent supervision was not a proximate cause of his injuries … . In support of their motion, the defendants submitted the infant plaintiff’s deposition testimony in which he asserted that the student who fell on top of him had been running around the gym throwing basketballs at another student before he fell on the infant plaintiff, and that this behavior had been transpiring, unimpeded, for approximately 10 minutes before the accident. Roth v Central Islip Union Free Sch. Dist., 2016 NY Slip Op 08894, 2nd Dept 12-28-16

NEGLIGENCE (SCHOOL NOT ENTITLED TO SUMMARY JUDGMENT, PLAINTIFF INJURED WHEN A STUDENT FELL ON TOP OF HIM)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, SCHOOL NOT ENTITLED TO SUMMARY JUDGMENT, PLAINTIFF INJURED WHEN A STUDENT FELL ON TOP OF HIM)

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