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QUESTION OF FACT WHETHER STAIRS AND HANDRAIL CONSTITUTED A DANGEROUS CONDITION.

The Second Department determined questions of fact precluded defendant's motion for summary judgment in this slip and fall case. Plaintiff alleged the stairway where she fell was defective in that the treads were too narrow and the handrail was tight against the wall. Defendant argued the condition was open and obvious:

“A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … , and must warn of any dangerous or defective condition of which he or she has actual or constructive notice … . However, “[a] property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous” … .

Here, the defendant, who relied only on the plaintiff's deposition testimony in support of her motion, failed to establish, prima facie, that the dimensions of the stairs and the position of the handrail were not inherently dangerous as a matter of law … . Rigatti v Geba, 2016 NY Slip Op 04193, 2nd Dept 6-1-16

NEGLIGENCE (QUESTION OF FACT WHETHER STAIRS AND HANDRAIL CONSTITUTED A DANGEROUS CONDITION)/SLIP AND FALL (QUESTION OF FACT WHETHER STAIRS AND HANDRAIL CONSTITUTED A DANGEROUS CONDITION)/STAIRS  (QUESTION OF FACT WHETHER STAIRS AND HANDRAIL CONSTITUTED A DANGEROUS CONDITION)

QUESTIONS OF FACT RAISED ABOUT CAUSE OF FALL AND CONSTRUCTIVE NOTICE OF CONDITION.

The Second Department determined plaintiff had raised a question of fact whether a slimy substance caused the ladder to slip (causation) and whether defendant had constructive notice of the condition:

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify what had caused the ladder to move without engaging in speculation … . In opposition, the plaintiff submitted the deposition testimony of a nonparty witness, which raised a triable issue of fact as to whether the alleged slimy substance had caused the ladder to move and, consequently, the plaintiff to fall and sustain personal injuries … . Additionally, a triable issue of fact exists as to whether the defendant, who did not inspect the garage within the week prior to the accident, had constructive notice of the alleged slimy condition … . Giordano v Giordano, 2016 NY Slip Op 04177, 2nd Dept 6-1-16

NEGLIGENCE (QUESTIONS OF FACT RAISED ABOUT CAUSE OF FALL AND CONSTRUCTIVE NOTICE OF CONDITION)/SLIP AND FALL (QUESTIONS OF FACT RAISED ABOUT CAUSE OF FALL AND CONSTRUCTIVE NOTICE OF CONDITION)

QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION.

The First Department determined a question of fact about the applicability of the emergency doctrine precluded summary judgment in favor of the plaintiff in this rear-end collision case. Plaintiff's car was stopped because of a flat tire. Defendant alleged he did not see plaintiff's car because his line of sight was blocked by a car in front which merged left just prior to the collision:

Although there is a presumption of liability based upon the rear-end collision (see Francisco v Schoepfer, 30 AD3d 275 [1st Dept 2006]), questions of fact exist as to whether the emergency doctrine applies so as to provide defendant with a reasonable excuse for the collision. Such issues include whether plaintiff's hazard lights were flashing, whether defendant maintained a safe distance behind the car driving in front of him, and whether under the circumstances defendant acted reasonably to avoid the collision … . Gonzalez v Marescot, 2016 NY Slip Op 04105, 1st Dept 5-26-16

NEGLIGENCE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/REAR-END COLLISION (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/EMERGENCY DOCTRINE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)

PLAINTIFF’S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL.

The Third Department, reversing Supreme Court, determined plaintiff's (Costello's) statement in this slip and fall case, coupled with her affidavit in opposition to defendant's motion to dismiss, created a question of fact about the cause of her fall:

We reject defendant's argument that Costello will be unable to demonstrate proximate cause in this matter because she was unable, or perhaps unwilling, to immediately ascertain the cause of her fall. Defendant asserts that Costello was equivocal about the cause, based upon her statement that she “believe[d]” that the flooring was bowed. Even assuming that Costello's use, on one occasion, of what might be characterized as a mere figure of speech may be read as an expression of uncertainty about the cause of her fall, her affidavit clarifies any ambiguity. In her affidavit, Costello asserted that the “wood floor . . . was bowed and did not provide [her] with a proper walking surface.” Read together with the testimony of the two nonparty witnesses regarding the uneven, grooved state of the floor, there is adequate record proof to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation” Costello v Pizzeria Uno of Albany, Inc., 2016 NY Slip Op 04087, 3rd Dept 5-26-16

NEGLIGENCE (PLAINTIFF'S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL)/SLIP AND FALL (PLAINTIFF'S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL)

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INSURER’S DUTY TO DEFEND MUST BE DETERMINED SOLELY UPON THE INFORMATION WITHIN THE COMPLAINT, MATTERS OUTSIDE THE COMPLAINT MUST BE RAISED IN A SUMMARY JUDGMENT MOTION OR AT TRIAL.

The First Department determined, in this declaratory judgment action, the insurer has the duty to defend the city in this slip and fall case. The fact that information which is outside the four corners of the complaint may indicate the insurer does not have the duty to defend must be raised in a summary judgment motion or at trial:

Under the circumstances presented, the City’s cross motion is granted to the extent of declaring that plaintiff is obligated to defend it in the underlying litigation. The duty of an insurer to provide a defense for its insured is “exceedingly broad,” arising “whenever the allegations of the complaint suggest. . . a reasonable possibility of coverage” … . Accordingly, “a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence,” even if “facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered” … . Thus, an insurer may be contractually bound to defend “even though it may not ultimately be bound to pay, either because its insured is not factually or legally liable or because the occurrence is later proven to be outside the policy’s coverage” … .

Here, the four corners of the complaint in the underlying action place the allegations squarely within the responsibilities of plaintiff’s insured, triggering the duty to defend. Plaintiff’s primary argument, that the accident was not within its insured’s area of responsibility, is properly made to Supreme Court in a motion for summary judgment dismissing Bari’s complaint or at trial and cannot be resolved by this Court on a motion seeking declaratory relief… . Axis Surplus Ins. Co. v GTJ Co., Inc., 2016 NY Slip Op 04106, 1st Dept 5-26-16

INSURANCE LAW (INSURER’S DUTY TO DEFEND MUST BE DETERMINED SOLELY UPON THE INFORMATION WITHIN THE COMPLAINT, MATTERS OUTSIDE THE COMPLAINT MUST BE RAISED IN A SUMMARY JUDGMENT MOTION OR AT TRIAL)/NEGLIGENCE (INSURER’S DUTY TO DEFEND MUST BE DETERMINED SOLELY UPON THE INFORMATION WITHIN THE COMPLAINT, MATTERS OUTSIDE THE COMPLAINT MUST BE RAISED IN A SUMMARY JUDGMENT MOTION OR AT TRIAL)

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ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK.

The Second Department, reversing Supreme Court, determined defendant property owner could not be held liable for the condition of a NYC-owned tree well within the abutting sidewalk:

Administrative Code of the City of New York § 7-210(a) places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells … . Thus, liability may be imposed on the abutting landowner in such instances only where she or he has “affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area” … . Gibbons v City of New York, 2016 NY Slip Op 04019, 2nd Dept 5-25-16

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/MUNICIPAL LAW (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SLIP AND FALL (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SIDEWALKS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/TREE WELLS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)

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INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs' motion for leave to file a late notice of claim against defendant school district should have been denied. Although infancy tolls the one-year-ninety-days statute of limitations, it does not toll the 90-day period for filing a notice of claim. The motion for leave to file a late notice was not made until more than four years after the expiration of the 90-day filing period:

Here, the plaintiffs failed to establish that the defendant had “acquired actual knowledge of the essential facts constituting the claim” within 90 days of the accident or a reasonable time thereafter (General Municipal Law § 50-e[5]). The school's principal prepared an accident claim form on the day of the accident, and the infant plaintiff's parents completed the medical claim portion of that form a couple of weeks after the accident. Contrary to the plaintiffs' contention, this form, which merely indicated that the infant plaintiff lost his left front tooth and part of his right front tooth when he hit his mouth on the gymnasium floor in an attempt to “duck from a ball” during physical education class, did not establish that the defendant had timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising the students, in failing to provide a safe play area, and in allowing the infant plaintiff to engage in an inappropriate activity … . Accordingly, the defendant had no reason to conduct a prompt investigation into the purported negligent supervision and alleged unsafe condition of the gymnasium floor … . Horn v Bellmore Union Free Sch. Dist., 2016 NY Slip Op 04021, 2nd Dept 5-25-16

NEGLIGENCE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)

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STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL.

The Second Department determined plaintiff-student assumed the risk of being struck by a baseball during his high-school team’s practice:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” … . “An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … . “Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . “[I]t is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results'” … . Kaminer v Jericho Union Free Sch. Dist., 2016 NY Slip Op 04024, 2nd Dept 5-25-16

 

NEGLIGENCE (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)/ASSUMPTION OF THE RISK (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)/EDUCATION-SCHOOL LAW (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE.

The Second Department determined plaintiff's motion for summary judgment in this rear-end collision case was properly granted, despite defendant's (McCrowell's) claim plaintiff stopped 150 feet from the car in front:

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting McCrowell's deposition testimony, the injured plaintiff's deposition testimony, and the injured plaintiff's affidavit, which demonstrated that the injured plaintiff's vehicle was stopped in heavy traffic when it was struck in the rear by the appellants' vehicle … .

In opposition, the appellants failed to raise a triable issue of fact. McCrowell's statement in his affidavit that the injured plaintiff brought his vehicle to a stop at least 150 feet behind the stopped vehicle in front of him did not adequately rebut the inference of negligence given McCrowell's deposition testimony that he was able to bring his vehicle to a stop behind the injured plaintiff's vehicle on two occasions prior to the accident in heavy stop-and-go traffic without incident during the one minute that the injured plaintiff was traveling in front of McCrowell's vehicle … . Even if the injured plaintiff's vehicle came to a sudden stop, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Melendez v McCrowell, 2016 NY Slip Op 04028, 2nd Dept 5-25-16

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE)/REAR-END COLLISION (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE)

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RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION.

The First Department, applying contract interpretation principles to a release, determined the release, narrowly interpreted by its precise terms, applied to the Cabrini Center for Nursing and Rehabilitation, but did not apply to a private attending physician (Nicolescu) at Cabrini:

Assuming arguendo that defendant Nicolescu, a private attending physician at Cabrini, could be considered a “staff” member of Cabrini, the release is unambiguously limited only to “causes of action” that plaintiffs had against Cabrini, and does not release any other tortfeasors not expressly named therein from liability for causes of action asserted against them (General Obligations Law § 15-108[a]…). Interpreting the release as urged by defendant Nicolescu to release him from liability for causes of action asserted against him individually would return to the common law rule in effect before enactment of General Obligations Law § 15-108(a), when general releases were “a trap for the average man who quite reasonably assumes that settling his claim with one person does not have any effect on his rights against others with whom he did not deal” … . Linn v New York Downtown Hosp., 2016 NY Slip Op 03992, 1st Dept 5-24-16

NEGLIGENCE (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION)/GENERAL OBLIGATIONS LAW (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION)/CONTRACT LAW (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION) RELEASES (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION)

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