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TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT.

The Second Department determined the tree root over which plaintiff tripped and fell was open obvious and not actionable:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the tree root was an open and obvious condition and inherent or incidental to the nature of the property, and was known to the plaintiff … . Dottavio v Aspen Knolls Estates Home Owners Assn., 2017 NY Slip Op 01182, 2nd Dept 2-15-17

NEGLIGENCE (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/SLIP AND FALL (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/OPEN AND OBVIOUS (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/TREE ROOT (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)

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CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the city’s motion for summary judgment in this bicycle accident case was properly denied. Although the city demonstrated it did not receive written notice of the alleged defective condition (a depression in the road), the city did not demonstrate it did not create the defective condition when street work was done:

Where, as here, the plaintiff has alleged that the affirmative negligence exception applies, the City was required to show, prima facie, that the exception does not apply … . Although the City established that it did not receive prior written notice of the alleged defect, it failed to establish, prima facie, that it did not create the alleged defect when its Sewer Maintenance Department opened up the street in the area of the plaintiff’s fall prior to the accident … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Lewak v Town of Hempstead, 2017 NY Slip Op 01189, 2nd Dept 2-15-17

NEGLIGENCE (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/BICYCLE ACCIDENT (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants’ summary judgment motion in this ice/snow sidewalk slip and fall action was properly denied. Although the defendants demonstrated they were entitled to NYC’s exemption from liability for owners of one, two and three family residences, they did not demonstrate they did not create the dangerous condition by their snow removal efforts:

Here, the defendants established, prima facie, that as owners of a two-family residential property which was owner occupied, they were exempt from liability pursuant to section 7-210(b) of the Administrative Code … . The defendants failed, however, to establish, prima facie, that they did not engage in snow and ice removal work prior to the accident or that their snow and ice removal work did not create or exacerbate the hazardous condition which allegedly caused the plaintiff to fall … . Ming Hsia v Valle, 2017 NY Slip Op 01193, 2nd Dept 2-15-17

NEGLIGENCE (ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NYC) (SIDEWALKS, SNOW-ICE, ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (SIDEWALKS, NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SNOW-ICE (SIDEWALKS, NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)

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BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK.

The Second Department, reversing Supreme Court, determine a basement business office did not deprive defendants of the residential exemption (for one, two and three family residences) from liability for a defective sidewalk:

In 2003, the New York City Council enacted section 7-210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability shifting provision does not, however, apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” … . “The purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

Here, the defendants established, prima facie, that they were exempt from liability pursuant to the subject code exception. Contrary to the plaintiff’s contention, the defendants’ partial use of the basement as an office space was merely incidental to their residential use of the property … . [Defendant] Alexander Dembitzer was the director of a summer camp located in upstate New York, and during the off-season, he used the basement to conduct the camp’s business. The defendants did not claim the home office as a tax deduction, their home address was only used to receive the camp’s mail during the off-season, and they did not use the office space with any regularity. Koronkevich v Dembitzer, 2017 NY Slip Op 01187, 2nd Dept 2-15-17

 

NEGLIGENCE (BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/NEGLIGENCE (BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/MUNICIPAL LAW (NYC) (SIDEWALKS, BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/SIDEWALKS (MUNICIPAL LAW (NYC), BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/SLIP AND FALL (SIDEWALKS, MUNICIPAL LAW (NYC), BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)

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QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR.

The Second Department determined questions of fact precluded summary judgment in favor of the landlord (New York City Housing Authority, NYCHA) in this assault liability case. Plaintiff-tenant alleged she was assaulted by an intruder who entered the apartment building through a broken door:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . Recovery against a landlord for an assault committed by a third party requires a showing that the landlord’s negligent failure to provide adequate security was a proximate cause of the injury … . “In premises security cases particularly, the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder” … .

Here, in support of its motion for summary judgment dismissing the complaint, NYCHA failed to demonstrate its prima facie entitlement to judgment as a matter of law. The deposition testimony of the plaintiff submitted in support of the motion raised issues of fact regarding whether the door was operating properly prior to, and on the day of, the incident, and whether [the assailant] was an intruder who gained access to the premises through a negligently maintained entrance … . Ramos v New York City Hous. Auth., 2017 NY Slip Op 01244, 2nd Dept 2-15-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)/LANDLORD-TENANT (LIABILITY FOR ASSAULT, QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)/ASSAULT (LANDLORD-TENANT, NEGLIGENCE, QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)

NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY.

The Second Department determined defendant, who suffered a stroke while driving, could not be held liable for the accident:

“The operator of a vehicle who becomes involved in an accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was unforeseen” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating through deposition testimony, the defendant driver’s medical records, and expert medical evidence that the accident was caused by the defendant driver experiencing an acute stroke at the time of the accident, which was unforeseeable … . Van De Merlen v Karpf, 2017 NY Slip Op 01251, 2nd Dept 2-15-17

NEGLIGENCE (NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)/TRAFFIC ACCIDENTS (NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)/MEDICAL EMERGENCY (TRAFFIC ACCIDENTS, NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)

BUILDING OWNER’S AND ELEVATOR COMPANY’S MOTIONS FOR SUMMARY JUDGMENT IN THIS ELEVATOR-INJURY CASE PROPERLY DENIED.

The building owner’s (Boston Properties’) and elevator company’s (Otis’) motions for summary judgment in the elevator-injury case were properly denied:

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” … . Similarly, a building owner that hires an elevator maintenance company to maintain the elevator may be found liable if the owner received notice of a defect and failed to notify the elevator company about it … .

Here, both Otis and the Boston Properties defendants failed to establish their respective prima facie entitlement to judgment as a matter of law. The evidence offered in support of their respective motions, which included a transcript of the injured plaintiff’s deposition testimony and the bill of particulars describing the accident, failed to demonstrate, prima facie, that the elevator operated properly and was not defective, or that they had no actual or constructive notice of any alleged defective condition … . Orahovac v CF Lex Assoc., 2017 NY Slip Op 01219, 2nd Dept 2-15-17

 

NEGLIGENCE (BUILDING OWNER’S AND ELEVATOR COMPANY’S MOTIONS FOR SUMMARY JUDGMENT IN THIS ELEVATOR-INJURY CASE PROPERLY DENIED/ELEVATORS (BUILDING OWNER’S AND ELEVATOR COMPANY’S MOTIONS FOR SUMMARY JUDGMENT IN THIS ELEVATOR-INJURY CASE PROPERLY DENIED)

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MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED.

The Second Department determined plaintiff’s motion to amend the notice of claim was properly granted. The slip and fall allegedly occurred around midnight on March 2/3. The notice of claim was one day late if the incident occurred on March 2 and was timely if it occurred on March 3. The amendment changed the date of the accident stated in the notice from March 2 to March 3:

Here, mere minutes constituted the difference between whether the plaintiff’s fall occurred on March 2, 2012, or March 3, 2012. Under these circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the notice of claim and the pleadings to reflect March 3, 2012, as the correct date of the accident. There is no indication that the date originally set forth in the notice of claim as the accident date, March 2, 2012, was set forth in bad faith, the Transit Authority did not demonstrate any actual prejudice as a result of the discrepancy, and the record discloses no basis to presume the existence of prejudice … . Bowers v City of New York, 2017 NY Slip Op 01174, 2nd Dept 2-15-17

MUNICIPAL LAW (MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED

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QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED, PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Second Department determined, re: plaintiff’s common law negligence cause of action, there was a question of fact whether defendants had constructive notice of a cracking concrete slap which collapsed. However plaintiff’s Labor Law 241 (6) cause of action should have been dismissed because no applicable provision of the Industrial Code was identified by the plaintiff:

… [T]he defendants submitted, inter alia, the deposition testimony of the plaintiff, in which he stated that for up to 10 days prior to the accident, he observed that the place where the concrete eventually collapsed had “lines . . . indicating the breaking points.” Thus, by their own submissions, the defendants raised an issue of fact as to whether the allegedly dangerous condition was visible and apparent and existed for a sufficient length of time prior to the plaintiff’s fall to permit them to discover and remedy it … . …

In order to establish a Labor Law § 241(6) claim, a plaintiff must allege a violation of a specific and applicable provision of the Industrial Code … . Here, although the plaintiff’s bill of particulars alleged a violation of Labor Law § 241(6), it failed to identify any specific provision of the Industrial Code that the defendants allegedly violated … . Furthermore, in opposition to summary judgment, the plaintiff failed to allege a violation of any specific provision of the Industrial Code, and did not address the issue … . Grabowski v Board of Mgrs. of Avonova Condominium, 2017 NY Slip Op 01185, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/NJEGLIGENCE (CONSTRUCTIVE NOTICE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)/CONSTRUCTIVE NOTICE (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)

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FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

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