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LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS.

In finding the out-of-possession landlord was entitled to summary judgment in this slip and fall case, the Second Department noted that the landlord’s reservation of a right to enter the property to inspect and make repairs does not impose a duty to make repairs. The plaintiff alleged she slipped on ice in the workplace parking lot:

Here, the plaintiff alleged that the defendant breached a common-law duty to keep the premises in a reasonably safe condition. The defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that it was an out-of-possession landlord and, thus, had no duty to perform repairs or remove snow and ice from the premises … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had a duty to remove snow or ice under statute or regulation, the terms of the lease, or a course of conduct … . A landlord’s reservation of the right to enter property to inspect and make repairs does not in itself give rise to a duty to make repairs … . Keum Ok Han v Kemp, Pin & Ski, LLC, 2016 NY Slip Op 05908, 2nd Dept 8-31-16

NEGLIGENCE (SLIP AND FALL, LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS)/LANDLORD-TENANT (SLIP AND FALL, LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS)/SLIP AND FALL (LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS)

FACT THAT PLAINTIFF SLIPPED AND FELL ON A MARBLE FLOOR DID NOT ESTABLISH THE CAUSE OF THE FALL, COMPLAINT SHOULD HAVE BEEN DISMISSED.

The Second Department, reversing Supreme Court, determined the slip and fall case should have been dismissed. Although plaintiff alleged she slipped on a marble floor, she did not know the cause of her fall:

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including a transcript of the plaintiff’s deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall … . Scimone v LT Propco, LLC, 2016 NY Slip Op 05915, 2nd Dept 8-31-16

 

NEGLIGENCE (FACT THAT PLAINTIFF SLIPPED AND FELL ON A MARBLE FLOOR DID NOT ESTABLISH THE CAUSE OF THE FALL, COMPLAINT SHOULD HAVE BEEN DISMISSED)/SLIP AND FALL (FACT THAT PLAINTIFF SLIPPED AND FELL ON A MARBLE FLOOR DID NOT ESTABLISH THE CAUSE OF THE FALL, COMPLAINT SHOULD HAVE BEEN DISMISSED)

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PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL.

The First Department, reversing Supreme Court’s dismissal of the complaint during trial, determined the plaintiff’s failure to turn over a videotape of the event during which plaintiff allegedly tripped on a cord and fell did not justify dismissing the complaint. On the third day of the trial plaintiff testified she had found a videotape of the event which had been misplaced. The videotape did not show the trip and fall, but allegedly did show the cord which caused the fall:

Under the particular circumstances of this case, the court abused its discretion in dismissing the complaint due to plaintiff’s belated disclosure of a video. Although CPLR 3101(i) requires disclosure of “any films, photographs, video tapes or audio tapes” of a party upon demand … , there was insufficient evidence of willful or contumacious conduct on plaintiff’s part, or prejudice to [defendant], to warrant the dismissal of her complaint in the midst of the jury trial ,,,, even if the dismissal was without prejudice.

There was no court order directing plaintiff to produce the video, and [defendant’s] discovery demands only requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced the video, did not seek to introduce the edited video, which did not show her fall, into evidence at trial, and was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of [defendant’s] principals standing in the vicinity. Fox v Grand Slam Banquet Hall, 2016 NY Slip Op 05897, 1st Dept 8-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)/EVIDENCE (CIVIL, PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)

ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW.

The First Department affirmed summary judgment to the defendants in this slip and fall case. Plaintiff fell off an elevated platform. However the platform and steps were well-marked and well-lit and plaintiff testified she fell because she was not looking down. The defendants therefore demonstrated the platform did not constitute a dangerous condition as a matter of law:

… [P]laintiff alleges that she was injured when she fell off an elevated display platform in defendants’ store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions as a matter of law through photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris … .

Furthermore, plaintiff testified that she turned and stepped without looking down because she was seeking a sales associate and that the steps played no part in her fall … . Pinkham v West Elm, 2016 NY Slip Op 05899, 1st Dept 8-25-16

 

NEGLIGENCE (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)/DANGEROUS CONDITION (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)/SLIP AND FALL (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)

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QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR.

The Second Department determined there was a question of fact whether the employer, Vertical, could be held vicariously liable for the actions of an independent contractor, On Guard. On Guard provided security for a parking lot owned by Vertical. Plaintiff was injured when struck by a remote-controlled toy car which was apparently being operated in the parking lot with a security guard’s knowledge:

“Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts'” … . “One of the exceptions to this general rule is the nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party ” is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated'” … .

Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether On Guard was negligent in performing its security duties, and whether the moving defendants were vicariously liable for On Guard’s negligence based on their nondelegable duty to keep the premises safe… . Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854, 2nd Dept 8-24-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/INDEPENDENT CONTRACTORS (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)

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LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE.

The Second Department determined the lessee of property abutting a sidewalk and the city (NYC) were entitled to summary judgment in this slip and fall case. The city argued it did not have prior written notice of the hole in the sidewalk. The lessee, El Fuerte, argued it did not create the dangerous condition, did not violate any statute or ordinance, and the lease imposed no duty to repair the sidewalk. With regard to the liability of the abutting property owner, the court noted that, although a curb cut and pedestrian ramp leading from a sidewalk to the street are not the responsibility of the abutting property owner, the defect here was not in the curb cut or ramp:

… [A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty … . * * * … [A] provision of a lease which obligates a tenant to repair a sidewalk does not impose on the tenant a duty to a third party, such as the plaintiff. Martin v Rizzatti, 2016 NY Slip Op 05797, 2nd Dept 8-17-16

NEGLIGENCE (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/MUNICIPAL LAW (SIDEWALK SLIP AND FALL, LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/LANDLORD-TENANT (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SIDEWALKS (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SLIP AND FALL (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)

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INVESTIGATION OF CHILD ABUSE IS A DISCRETIONARY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION.

The Second Department determined the City of New York was immune from a suit alleging the negligent investigation of child abuse, leading to the child’s death two years later. The court also noted that New York does not recognize a cause of action for negligent investigation or prosecution:

… [T]he defendants contended and established that they engaged in discretionary conduct in investigating the report of abuse in 2003, and thus cannot be held liable for the manner in which the investigation was performed under the doctrine of governmental immunity … . A government’s performance of a governmental function, when discretionary in nature, cannot result in liability .. . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results” … . The defendants demonstrated that the subject investigation consisted of a series of discretionary acts … , and that this was not a situation in which no discretion or judgment was exercised. In any event, the defendants also demonstrated their prima facie entitlement to judgment as a matter of law by establishing that New York does not recognize a cause of action sounding in negligent investigation or negligent prosecution … . Hines v City of New York, 2016 NY Slip Op 05794, 2nd Dept 8-17-16

NEGLIGENCE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/MUNICIPAL LAW (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/GOVERNMENTAL IMMUNITY (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/NEGLIGENT INVESTIGATION OF CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)

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IN THIS ACTION STEMMING FROM DEFECTIVE RESIDENTIAL MORTGAGE BACKED SECURITIES, MORGAN STANLEY’S ALLEGED FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF DEFECTIVE SECURITIES IS AN INDEPENDENT BREACH OF CONTRACT; GROSS NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED DESPITE SOLE REMEDY CONTRACTUAL PROVISION.

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Gische, in an action stemming from the sale of defective residential mortgage backed securities, determined defendant’s (Morgan Stanley’s) alleged failure to notify plaintiff of the discovery of defective securities constituted an independent breach of contract claim. The First Department further determined, despite the purported “sole remedy” contractual provision, the cause of action for gross negligence was adequately pled and should not have been dismissed:

… [U]nder similar RMBS agreements, a seller’s failure to provide the trustee with notice of material breaches it discovers in the underlying loans states an independently breached contractual obligation, allowing a plaintiff to pursue separate damages … .

… Where parties contractually agree to a limitation on liability, that provision is enforceable, even against claims of a party’s own ordinary negligence … . The purpose of provisions that limit liability or remedies available in the event of breach is to “allocat[e] the risk of economic loss in the event that the contemplated transaction is not fully executed” … . Courts will generally honor the remedies that the parties have contractually agreed to … . There are exceptions to this rule of law, however, and as a matter of long standing public policy, a party may not insulate itself from damages caused by its “grossly negligent conduct” … . Used in this context, “gross negligence” differs in kind, and not only degree, from claims of ordinary negligence. “It is conduct that evinces a reckless disregard for the rights of others or smacks’ of intentional wrongdoing” … . Morgan Stanley Mtge. Loan Trust 2006-13ARX v Morgan Stanley Mtge. Capital Holdings LLC, 2016 NY Slip Op 05781, 1st Dept 8-11-16

CONTRACT LAW (IN THIS ACTION STEMMING FROM DEFECTIVE RESIDENTIAL MORTGAGE BACKED SECURITIES, MORGAN STANLEY’S ALLEGED FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF DEFECTIVE SECURITIES IS AN INDEPENDENT BREACH OF CONTRACT; GROSS NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED DESPITE SOLE REMEDY CONTRACTUAL PROVISION)/SECURITIES (IN THIS ACTION STEMMING FROM DEFECTIVE RESIDENTIAL MORTGAGE BACKED SECURITIES, MORGAN STANLEY’S ALLEGED FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF DEFECTIVE SECURITIES IS AN INDEPENDENT BREACH OF CONTRACT; GROSS NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED DESPITE SOLE REMEDY CONTRACTUAL PROVISION)/NEGLIGENCE  (IN THIS ACTION STEMMING FROM DEFECTIVE RESIDENTIAL MORTGAGE BACKED SECURITIES, MORGAN STANLEY’S ALLEGED FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF DEFECTIVE SECURITIES IS AN INDEPENDENT BREACH OF CONTRACT; GROSS NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED DESPITE SOLE REMEDY CONTRACTUAL PROVISION)/GROSS NEGLIGENCE (IN THIS ACTION STEMMING FROM DEFECTIVE RESIDENTIAL MORTGAGE BACKED SECURITIES, MORGAN STANLEY’S ALLEGED FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF DEFECTIVE SECURITIES IS AN INDEPENDENT BREACH OF CONTRACT; GROSS NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED DESPITE SOLE REMEDY CONTRACTUAL PROVISION)/RESIDENTIAL MORTGAGE BACKED SECURITIES (IN THIS ACTION STEMMING FROM DEFECTIVE RESIDENTIAL MORTGAGE BACKED SECURITIES, MORGAN STANLEY’S ALLEGED FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF DEFECTIVE SECURITIES IS AN INDEPENDENT BREACH OF CONTRACT; GROSS NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED DESPITE SOLE REMEDY CONTRACTUAL PROVISION

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LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL.

The Second Department determined the jury was properly instructed to consider a tenant’s liability for a sidewalk slip and fall based upon the terms of the lease:

… [T]he Supreme Court properly submitted the issue of the tenant’s negligence to the jury. “Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property” … . Generally, the “provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as the plaintiff” … . However, where a lease agreement is “so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk,” the tenant may be liable to a third party … . Here, the owner demonstrated that a rider to the subject lease requiring the tenant to, at its own cost and expense, keep and maintain the sidewalk “in thorough repair and good order,” was so comprehensive and exclusive as to entirely displace the owner’s duty to maintain the sidewalk … . Paperman v 2281 86th St. Corp., 2016 NY Slip Op 05747, 2nd Dept 8-10-16

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SLIP AND FALL (LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SIDEWALKS (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)

QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE.

The First Department, reversing Supreme Court, over an extensive dissent, determined questions of fact about whether a zip line was negligently constructed and whether the risks of using the zip line were obvious precluded summary judgment in favor of defendant. Defendant (Skoler) designed and built the zip line with plaintiff’s assistance. Plaintiff alleged the braking system did not work when he used the zip line and he was injured when he struck the end-point tree and fell off the seat onto a boulder:

Plaintiff concedes that, had he merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, his claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty … .

The record is replete with facts that prevent us from determining, as a matter of law, that any risk encountered by plaintiff was inherent in zip-lining and not enhanced by Skoler’s negligence, or that it was, or should have been, obvious to plaintiff. Even in granting the motion, the motion court conceded that there was evidence that the brake malfunctioned. Indeed, plaintiff testified that he failed to slow down as Skoler had done only moments before, even though his ride was not otherwise any different from Skoler’s. Thus, we can assume for purposes of this motion that the brake failed … . Zelkowitz v Country Group, Inc., 2016 NY Slip Op 05732, 1st Dept 8-4-16

 

NEGLIGENCE (QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE)/ASSUMPTION OF THE RISK (QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE)/ZIP LINE (QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE)

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