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PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE.

The Court of Appeals, in a full-fledged opinion by Judge Stein, concerning a lawsuit alleging the Erie County Sheriff was negligent in failing to protect plaintiff from sexual assault while in jail, determined: (1) plaintiff did not need to file a notice of claim because the county can not, under the NYS Constitution, indemnify and defend the sheriff in connection with the action; (2) the complaint stated a cause of action in negligence (failure to keep an inmate safe); and (3) governmental immunity is an affirmative defense on which the sheriff bears the burden of proof which cannot be addressed at the pleading stage. The fact that the county provided law enforcement liability insurance for the sheriff did not trigger the notice of claim requirement under the Municipal Law:

… [T]hat the County agreed to provide “Liability Insurance” for the Sheriff in exchange for consideration because “policies of law enforcement liability insurance paid for by the County” had become prohibitively expensive. In resolving to act as an insurer, the County recognized — as was commonly understood at the time — that it could not statutorily obligate itself to defend and indemnify the Sheriff, as it had agreed to do for the Sheriff’s employees, under the New York State Constitution … . Absent the existence of any statutory obligation on the County to indemnify the Sheriff — as opposed to an agreement to act as his insurer — the Appellate Division correctly ruled that service of a notice of claim was not required under General Municipal Law § 50-e. …

While the State is by no means an insurer of inmate safety or required to provide unremitting surveillance in all circumstances … , we explained in Sanchez [99 NY2d 247] that, “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” … . Inasmuch as “the Sheriff is [similarly] prescribed, by law, to safely keep inmates of the County Jail” … , the rule set forth in Sanchez applies equally here. Villar v Howard, 2016 NY Slip Op 06944, CtApp 10-25-16

 

MUNICIPAL LAW (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NEGLIGENCE (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NOTICE OF CLAIM (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/SHERIFF (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)

QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING.

The Third Department, reversing Supreme Court, determined there was a question of fact whether the operators of a tubing hill unreasonably increased the risk of injury. The issues included whether there was adequate supervision, whether there was adequate protection at the bottom of the hill (hay to slow the tubes), and whether mother and son should have been allowed to tube together (thereby increasing speed):

… [I]t was plaintiff’s burden to demonstrate “facts from which it could be concluded that defendant . . . unreasonably enhanced the danger . . . or created conditions which were unique or above those inherent in [the] activity …”. A supervisor for defendants testified that on busy days, two people were assigned to work at the base of the tubing hill to spread and “fluff” the hay as needed based on conditions. At the time of the accident, however, there was only one attendant working in this area. Further, the supervisor decided to limit the tandem riders to a parent and a child based on conditions and confirmed that weight affected the speed of the tubes, i.e., the greater the weight, the greater the speed. Plaintiff testified that just before the accident, the attendant at the top of the tubing hill assured her that it was safe for her to ride in tandem with her adult-sized son, who was nearly six feet tall and weighed approximately 250 pounds. Plaintiff’s son testified that “there wasn’t a whole lot of hay” spread at the bottom of the course. A nonparty witness testified that the tubing park was very busy and that, before the accident, he observed that the hay had diminished to the point where tubers were dragging their feet to stop their tubes. Notably, defendant’s base attendant testified that once the tandem riders were limited to one adult and one child, no other groups went past the hay, while plaintiff and her son “blew through everything.” She recalled being surprised to see two adult-sized people coming down in tandem because “it was supposed to be an adult and a child.” Connolly v Willard Mtn., Inc., 2016 NY Slip Op 06937, 3rd Dept 10-20-16

NEGLIGENCE (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/ASSUMPTION OF THE RISK (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/TUBING (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)

EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL.

The Third Department, reversing Supreme Court, determined defendant, Oak Mountain Ski Center, was entitled to summary judgment based upon plaintiff’s (Schorpp’s) assumption of the risk. Plaintiff, who had decades of skiing experience, and who had skied at Oak Mountain weekly, flipped over when he struck a depression on a “black diamond” trail. It was the first time plaintiff used that particular trail:

Regarding downhill skiing, an individual “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain” … . The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” … .

We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing … . Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope … . Schorpp v Oak Mtn., LLC, 2016 NY Slip Op 06932, 3rd Dept 10-20-16

 

NEGLIGENCE (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)/ASSUMPTION OF THE RISK (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)/SKIING (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)

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MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY.

NEGLIGENCE, MEDICAL MALPRACTICE, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined the trial court did not abuse its discretion when it denied plaintiff’s motion to strike defendant’s expert’s testimony. The “expert-evidence” notice indicated the expert would testify about the cause of plaintiff’s decedent’s death but did not indicate the substance of the testimony. At trial the expert did not agree with the cause described in the autopsy report (pneumonia) and testified death was attributable to cardiac arrhythmia. The motion to strike argued the “expert notice” was deficient because it did not provide any detail about the expert’s opinion. Because the lack of detail was obvious pre-trial, the mid-trial objection was properly overruled:

Plaintiff made her motion mid-trial immediately prior to the expert’s testimony. Plaintiff argues that at the time of the expert exchange, she had no reason to object to the disclosure statement because the statement gave no indication that defendant would challenge plaintiff’s theory of decedent’s cause of death. Assuming defendant’s disclosure was deficient, such deficiency was readily apparent; the disclosure identified “causation” as a subject matter but did not provide any indication of a theory or basis for the expert’s opinion. This is not analogous to a situation in which a party’s disclosure was misleading or the trial testimony was inconsistent with the disclosure. Rather, the issue here was insufficiency.

The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine, based on the facts and circumstances of this particular case, that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised — and potentially cured — before trial. Rivera v Montefiore Med. Ctr., 2016 NY Slip Op 06854, CtApp 10-20-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/MEDICAL MALPRACTICE (MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)

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ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE.

The Second Department determined the common law negligence cause of action brought by a police officer against the owner of property abutting the sidewalk where the officer allegedly slipped and fell, was properly dismissed. The applicable village and town codes did not make an abutting landowner liable in tort to someone injured on the sidewalk. However, the police officer’s action under General Municipal Law 205-e properly survived summary judgment. A property owner’s violation of a code provision requiring maintenance of the sidewalk was a proper basis for an action under General Municipal Law 205-e:

… [ t]he Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the second cause of action, which seeks to recover damages pursuant to General Municipal Law § 205-e. “A police officer seeking to recover under General Municipal Law § 205-e must identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be inferred that the defendant’s negligence directly or indirectly caused harm to him or her” … . As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear legal duties … .

* * * Section 302.3 of the 2007 Property Maintenance Code of New York State (see 19 NYCRR 1226.1) has been found by this Court to be a proper predicate for recovery under General Municipal Law § 205-e … .

Further, § 181-11 of the Town Code and § 250-27 of the Village Code are well-developed bodies of law that impose clear duties upon every property owner to keep his or her sidewalk in good and safe repair. Lewis v Palazzolo, 2016 NY Slip Op 06686, 2nd Dept 10-12-16

 

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE)/MUNICIPAL LAW (ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE)/SLIP AND FALL (POLICE OFFICERS, (ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE)/SIDEWALKS (POLICE OFFICERS, (ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE)/POLICE OFFICERS (SLIP AND FALL, ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE)

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ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION.

The Second Department determined the company (Mainco) under contract with the Bronx Center (a nursing home) to maintain an elevator could be liable to plaintiff, who was injured when the elevator fell. The court explained the analytical criteria for liability in tort to third parties stemming from a contract:

Mainco failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that it did not have a duty to the plaintiff. ” 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'” … . Further, “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 has entirely displaced the other party’s duty” of safe maintenance … .

Here, the maintenance agreement between Mainco and Bronx Center required Mainco to periodically “inspect” the elevator and to “perform the New York City Local Law #10 mandated annual inspection.” The evidence demonstrated that, if there were any problems with the elevator, Bronx Center called Mainco, and Mainco inspected the elevator to determine and report on the cause of the problem. The evidence further indicated that if the cause of the problem was not a repair covered by the maintenance contract, Mainco issued a repair proposal, and would perform the repair upon acceptance of its proposal. Under these circumstances, Mainco failed to demonstrate as a matter of law that it did not assume a duty to the plaintiff and that the plaintiff’s claims did not fall within the scope of that duty. Fajardo v Mainco El. & Elec. Corp., 2016 NY Slip Op 06678, 2nd Dept 10-12-16

 

NEGLIGENCE (ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION)/CONTRACT LAW (TORT LIABILITY STEMMING FROM CONTRACT, ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION)/TORT LIABILITY STEMMING FROM CONTRACT ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION)

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE HE DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant property-owner should not have been granted summary judgment in this sidewalk slip and fall case. Under the NYC Administrative Code the property owner had a duty to keep the sidewalk clear of ice and snow. The evidence submitted by defendant did not demonstrate a lack of constructive notice of the snow and ice or that he did not create the hazard by efforts to remove snow and ice:

Administrative Code of the City of New York § 7-210 imposes a duty upon property owners to maintain the sidewalk adjacent to their property, and shifts tort liability to such owners for the failure to maintain the sidewalk in a reasonably safe condition, including the negligent failure to remove snow and ice … . However, Administrative Code of the City of New York § 7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable … . Thus, to prevail on his summary judgment motion, the defendant was required to establish that he neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … .

Here, in support of his motion, the defendant submitted evidence which included his own deposition testimony. The defendant’s deposition testimony indicated that while he regularly cleared snow from the sidewalk in front of his building during the winter months, he had no specific recollection of what days it snowed during February 2013, or what snow removal efforts he undertook during that month. Kabir v Budhu, 2016 NY Slip Op 06682, 2nd Dept 10-12-16

NEGLIGENCE (DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE DEFENDANT DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE DEFENDANT DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE DEFENDANT DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (SLIP AND FALL, SNOW AND ICE, DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE DEFENDANT DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD.

The Second Department, reversing Supreme Court, determined the doctrine of equitable estoppel should have been applied to deny the NYC Transit Authority’s (NYCTA’s) motion to dismiss for failure to timely serve a notice of claim. The notice of claim had been timely served on the Metropolitan Transit Authority (MTA) and a 50-h hearing had been held:

Although the MTA and NYCTA share an affiliation, they are separate entities … . Thus, service of a notice of claim upon the MTA does not satisfy the condition precedent of serving a notice of claim upon the NYCTA … . However, a municipal corporation may be equitably estopped from asserting lack of notice of claim when it has wrongfully or negligently engaged in conduct that misled or discouraged a party from serving a timely notice of claim or making a timely application for leave to serve a late notice of claim, and when that conduct was justifiably relied upon by that party … . “By applying the doctrine of equitable estoppel to notice of claim situations, the courts may insure that statutes like section 50-e of the General Municipal Law, do not become a trap to catch the unwary or the ignorant'” … .  Konner v New York City Tr. Auth., 2016 NY Slip Op 06683, 2nd Dept 10-12-16

MUNICIPAL LAW (DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/NEGLIGENCE (MUNICIPLA LAW, NOTICE OF CLAIM, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/CIVIL PROCEDURE (EQUITABLE ESTOPPEL, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/NOTICE OF CLAIM (DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/EQUITABLE ESTOPPEL (MUNICIPAL LAW, NOTICE OF CLAIM, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)

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VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined summary judgment in favor of the defendant village should not have been granted in this sidewalk slip and fall case.  Although the village demonstrated it did not have written notice of snow and ice on the sidewalk, it did not demonstrate its practice of piling snow did not create the hazard:

While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence … , a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement … . The defendant’s evidence demonstrated that the temperature rose and remained above freezing for an extended period of time on the day before the plaintiff’s accident, after the defendant created the snow piles. On the day of the plaintiff’s accident, however, the temperature dropped to below freezing. While the defendant submitted an affidavit of an employee who stated that he applied sand and salt to the area of the sidewalk where the plaintiff fell sometime between 7:30 a.m. and 4:00 p.m. on the day of plaintiff’s accident, the plaintiff testified at his hearing held pursuant to General Municipal Law § 50-h that there was no sand or salt on the sidewalk at the time of his fall. Evidence submitted by the defendant also indicates that the ice upon which the plaintiff fell was located on a portion of the sidewalk that sloped down from the snow piles. Larenas v Incorporated Vil. of Garden City, 2016 NY Slip Op 06684, 2nd Dept 10-12-16

MUNICIPAL LAW (NEGLIGENCE,VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL; FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR.

Although the facts were not explained, the Second Department determined proof of “specific,” as opposed to “general,” cleaning practices, “under the circumstances,” was sufficient to meet defendant’s burden demonstrating the absence of constructive notice of the condition which caused plaintiff to fall (not specified in the decision). In addition, because plaintiff did not allege any of the “Espinal” exceptions, proof the plaintiff was not a party to the building owner’s contract with the cleaning contractor was sufficient to warrant summary judgment in favor of the contractor:

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … . To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … . Although submission of evidence as to the defendant’s general cleaning practices is generally insufficient to meet the defendant’s burden on the issue of lack of constructive notice, specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case … .

Here, the owner satisfied its prima facie burden through submission of the deposition testimony of an employee of the contractor and the building concierge employed by the owner. The testimony of the building concierge, and the testimony of the contractor’s employee regarding the frequency of the employee’s inspections of the area where the injured plaintiff fell, established, prima facie, that the owner did not have constructive notice of the allegedly dangerous condition … . Mavis v Rexcorp Realty, LLC, 2016 NY Slip Op 06476, 2nd Dept 10-5-16

NEGLIGENCE (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/EVIDENCE (SLIP AND FALL, PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/CONTRACT LAW (SLIP AND FALL, FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR)

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