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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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LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE.

The Second Department determined the county’s written notice required precluded suit in this “slip and fall on ice” action:

Here, the County established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of a County employee, which indicated that she had conducted a search of the relevant records covering a five-year period prior to the date of the accident, and found no written notice of any dangerous or defective conditions at the accident site … .

… Contrary to the plaintiff’s contention, the County could require prior written notice of the icy condition because the landing on the exterior steps of the building where the accident occurred provided the public with a general right of passage, and thus served the same functional purpose as a sidewalk, which is one of the locations specifically enumerated in General Municipal Law § 50-e(4) … . Walker v County of Nassau, 2017 NY Slip Op 00683, 2nd Dept 2-1-17

 

MUNICIPAL LAW (LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE)/SLIP AND FALL (LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE)/NEGLIGENCE (LACK OF WRITTEN NOTICE OF AN ICY CONDITION PRECLUDED SUIT IN THIS SLIP AND FALL CASE)

SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE.

The First Department determined the allegation plaintiff bicyclist was going fast in the bike lane raised a question of fact about the plaintiff’s comparative negligence. Plaintiff was injured when he stopped fast after defendant taxi driver turned into the bike lane:

Plaintiff, a cyclist, made a prima facie showing of his entitlement to partial summary judgment based on his evidence, including averments of a nonparty witness, that he was lawfully traveling in a designated bicycle lane, with a yield sign in his favor, when defendant taxi driver attempted to make a left turn and, in the process, crossed over the bicycle lane just moments before plaintiff arrived at the same spot, causing plaintiff to brake sharply and be pitched over his handlebars in order to avoid a collision with the taxi (see 34 RCNY 4-12[p][2]…).

In opposition, defendant taxi driver’s observations that plaintiff was riding his bicycle very fast raised factual issues as to plaintiff’s potential comparative negligence … . An accident may have more than one proximate cause … . Bell v Angah, 2017 NY Slip Op 00613, 1st Dept 1-31-17

 

NEGLIGENCE (SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE)/BICYCLISTS (TRAFFIC ACCIDENT, SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE)/TRAFFIC ACCIDENTS (BICYCLISTS, SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE)

QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff had raised a question of fact in this slip and fall case. Plaintiff tripped on a step defendant claimed was open and obvious. Plaintiff raised a question of fact about optical confusion with photographs and an affidavit from an expert:

Plaintiff tripped and fell on a step on a walkway on defendant’s premises while crossing the campus during her lunch break. Assuming that defendant established prima facie that the step was open and obvious and not inherently dangerous … , plaintiff raised a triable issue of fact whether the condition was open and obvious by demonstrating through an expert’s affidavit and photographs that the color and position of the step created optical confusion, i.e., “the illusion of a flat surface, visually obscuring … [the] step[]” … . Buonchristiano v Fordham Univ., 2017 NY Slip Op 00586, 1st Dept 1-31-17

NEGLIGENCE (QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/OPEN AND OBVIOUS (STEP, SLIP AND FALL, QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/OPTICAL CONFUSION (STEP, SLIP AND FALL, QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS; HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED; THE MALPRACTICE ACTION WAS PROPERLY DISMISSED.

The First Department determined the legal malpractice action by plaintiff (Brookwood) against defendant law firm (A & B) was properly dismissed. The law firm defended plaintiff in a patent infringement action which eventually won (with new lawyers). Plaintiff incurred legal fees of $10 million. In this malpractice action, plaintiff alleged its legal fees would have been much lower had the law firm won certain motions early on in the case:

A focal point of this appeal is Brookwood’s claim that A & B, in the patent action, negligently litigated defenses that were available to Brookwood pursuant to 28 USC § 1498. 28 USC § 1498 provides that when a patent is infringed for the benefit of the United States government, the patent holder’s remedy is against the United States in the United States Court of Federal Claims. Brookwood alleges that had A & B not been negligent, the motions that A & B eventually brought based on 28 USC § 1498 would have been granted and Brookwood would have avoided the approximately $10 million it expended on defending itself at trial and on appeal. Important in this analysis is the fact that Brookwood ultimately prevailed in the underlying patent action, achieving a judgment of noninfringement. The theory of Brookwood’s malpractice case is not that but for A & B’s negligence it would have prevailed in the patent action; rather Brookwood’s claim is that but for the manner in which A & B interposed the defenses available to Brookwood under 28 USC § 1498, Brookwood would have prevailed without incurring the additional legal fees it expended. In other words, but for A & B’s negligence, Brookwood could have achieved the same result more expeditiously and economically. The Supreme Court granted A & B’s motion and dismissed the complaint in its entirety, holding, among other things, that the allegations did not support a finding of attorney negligence or of proximate cause. We now affirm. * * *

Decisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws. “[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is open to reasonable doubt” … . Moreover, an attorney’s selection of one among several reasonable courses of action does not constitute malpractice … . Brookwood has not alleged facts supporting its claim that A & B’s evidentiary decision, to rely on [the plaintiff’s] expert, rather than compromise the merits of Brookwood’s position on other arguments, was an unreasonable course of action. Brookwood Cos., Inc. v Alston & Bird LLP, 2017 NY Slip Op 00535, 1st Dept 1-26-17

 

ATTORNEYS (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/LEGAL MALPRACTICE (PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)

DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. Plaintiff was injured when a concrete step broke and gave way.  Defendants did not demonstrate when the area in question was last inspected and did not demonstrate the defect at issue was latent:

A defendant moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it did not create the alleged dangerous or defective condition or have either actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected … . “To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, in the absence of any evidence as to when the defendants last inspected the subject staircase before the accident, or that the condition of the step was a latent defect that could not have been discovered upon a reasonable inspection, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly defective condition of the subject step … . Gairy v 3900 Harper Ave., LLC, 2017 NY Slip Op 00458, 2nd Dept 1-25-17

 

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)/NOTICE (SLIP AND FALL, EFENDANT DID NOT DEMONSTRATE WHEN ALLEGEDLY DEFECTIVE STEP WAS LAST INSPECTED AND DID NOT DEMONSTRATE ANY DEFECT WAS LATENT, SUMMARY JUDGMENT PROPERLY DENIED)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER DEFENDANT STOPPED BEFORE ENTERING PLAINTIFF’S RIGHT OF WAY WAS NOT DISPOSITIVE.

The Second Department determined plaintiff was entitled to summary judgment in this intersection accident case. The court noted that whether the defendant’s truck (driven by Lindo) stopped at a stop sign before entering plaintiff’s right of way was not dispositive. It was enough that the truck entered plaintiff’s path, whether it had previously stopped or not:

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that Lindo, who was faced with a stop sign at the intersection, negligently drove the sanitation truck into the intersection without yielding the right-of-way to the plaintiff, and that this was the sole proximate cause of the accident … .

In opposition, the defendants failed to raise a triable issue of fact. The question of whether Lindo stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop … . Moreover, the defendants failed to contest the plaintiff’s deposition testimony that he was already in the intersection when he saw the sanitation truck one second prior to the impact, and therefore could not have avoided the accident … . Fuertes v City of New York, 2017 NY Slip Op 00457, 2nd Dept 1-25-17

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER DEFENDANT STOPPED BEFORE ENTERING PLAINTIFF’S RIGHT OF WAY WAS NOT DISPOSITIVE)/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION ACCIDENT CASE, WHETHER DEFENDANT STOPPED BEFORE ENTERING PLAINTIFF’S RIGHT OF WAY WAS NOT DISPOSITIVE)

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