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School Employee’s After-Hours Inappropriate Behavior Involving a Student Was Not Proximately Caused by Negligent Supervision/Retention of the Employee or Negligent Supervision of the Student on the Part of the School District

The Second Department reversed Supreme Court and granted the defendant school district’s motion to dismiss the complaint.  The school’s marching band director, Perna, engaged in inappropriate communications with plaintiff’s child, KS, a student who was in the marching band.  The communications by computer and cell phone took place off school grounds after hours.  The Second Department determined the band director’s after-hours behavior was not proximately caused by negligent retention or supervision of Perna or negligent supervision of KS:

Because the inappropriate conduct by Perna toward KS, the plaintiff’s child, occurred after school hours and off school grounds by means of their personal computers and cellular phones, the causes of action alleging negligent retention and supervision cannot provide a basis for liability against the appellants. Although KS first met Perna through the marching band, KS’s injuries were not proximately caused by any negligent retention or supervision by the appellants … . In opposition, the plaintiff failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted that branch of the appellants’ motion which was for summary judgment dismissing so much of the complaint as alleged negligent supervision of KS, since the appellants established, prima facie, that the wrongful acts occurred outside of the school grounds … and, in opposition, the plaintiff failed to raise a triable issue of fact. MS, etc. v Arlington Cent. School Dist., 2015 NY Slip Op 04290, 2nd Dept 5-20-15

 

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Release Null and Void Under the General Obligations Law–Plaintiff Paid a Fee to Participate in the Basketball Game In Which He Was Injured

Plaintiff paid a fee to participate in a basketball league and signed a release of liability.  He was injured during a game when his hand went through the glass of a door behind a basketball hoop. The defendants sought permission to amend their answer to assert the defense of release and Supreme Court allowed the amendment. The Second Department determined the motion for leave to amend the answer should have been denied because the affirmative defense was “patently devoid of merit.” General Obligations Law 5-326 nullifies any such release where the owner or operator of a sports facility charges a fee for use of the facility. Falzone v City of New York, 2015 NY Slip Op 04273, 2nd Dept 5-20-15

[General Obligations Law 5-326 provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”]

 

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Compliance With the Rules of the City of New York (RCNY) Re: a Sidewalk Vault Cover Did Not Override Cable Company’s General Duty Not to Create a Hazardous Condition

Plaintiff tripped on a sidewalk in front of defendant’s (Palm Beach’s) property in the vicinity of a vault cover installed by defendant cable company (Cablevision).  The Second Department determined the causes of action against both defendants properly survived summary judgment. There was no showing Palm Beach did not have constructive notice of the condition. Cablevision argued that dismissal was warranted because it had complied with the Rules of the City of New York (RCNY) concerning sidewalk installations.  Supreme Court properly held that the duties imposed by the regulations were in addition to the generally duty not to create a hazardous condition:

Contrary to the contention of the Cablevision defendants, they cannot be absolved of such liability by either the “guarantee period” set forth in 34 RCNY 2-11(e)(16)(ii) (“Permittees shall be responsible for permanent restoration and maintenance of street openings and excavations for a period of three years on unprotected streets”) or the 12-inch rule set forth in 34 RCNY 2-07(b)(1) and (2) (requiring owners of covers or gratings to “monitor[ ] the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware” and to “replace or repair” any defective cover or grating and any defective street condition found within twelve inches of the cover or grating). As the Supreme Court correctly concluded, the regulations relied on by the Cablevision defendants impose upon them a duty to maintain their vault and the surrounding area that is separate from, and in addition to, their duty not to create hazardous conditions … . Shehata v City of New York, 2015 NY Slip Op 04305, 2nd Dept 5-20-15

 

Question of Fact Whether Property Owners Owed a Duty to Protect Plaintiff from an Assault During a Fair on the Premises

he Second Department determined there was a question of fact whether the defendants, who held a fair on their premises, were liable to plaintiff who was attacked by two teenage boys during the fair. There was evidence a security guard had been notified that a fight was about to break out and did nothing:

“While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … . Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults … .

Here, the church defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the infant plaintiff’s injuries resulted from an unexpected and unforeseeable assault … . However, in opposition, the plaintiffs raised a triable issue of fact as to whether the assault of the infant plaintiff was unexpected and unforeseeable. The plaintiffs presented a transcript of the deposition testimony of the infant plaintiff’s girlfriend, who explained that, approximately 30 minutes before the subject incident, she spoke to a security guard at the fair and advised him that there was a “confrontation” and that it was “getting worse.” Bisignano v Raabe, 2015 NY Slip Op 04081, 2nd Dept 5-13-15

 

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Criteria for Setting Aside a Verdict as Against the Weight of the Evidence Explained

The Second Department determined plaintiff’s motion to set aside the defense verdict as against the weight of the evidence was properly denied.  Plaintiff, a bicyclist, was injured when he struck the open door of defendant’s (Roche’s) vehicle.  Defendant testified the door was ajar, not fully open: “A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence … .  A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … . [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view… . However, where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, because the only reasonable view of the evidence is that a defendant’s negligence was a proximate cause of the plaintiff’s injuries, that verdict must be set aside as contrary to the weight of the evidence … . In this case, it was within the jury’s province to credit Roche’s testimony that she did not open her car door into the plaintiff’s path. The jury reasonably could have concluded that Roche was negligent in some other respect—such as the positioning of her car or her act of leaving the door “slightly ajar”—but that, despite such negligence, the plaintiff should have been able to avoid the collision and, thus, his conduct was the sole proximate cause of the accident.” [quotations omitted] Membreno v Roche, 2015 NY Slip Op 04102, 2nd Dept 5-13-15

 

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In Order for a Municipality to Be Liable for the Creation of a Dangerous Condition, the Dangerous Condition Must Result Immediately from the Negligent Act—Here the Allegation the Dangerous Condition Developed Over a Period of Years Was Not Sufficient

The Second Department noted that the “prior written notice” requirement (as a prerequisite for municipal liability for a dangerous condition) is independent of any actual or constructive notice of a defect.  Although there is an exception to the “prior written notice” requirement where the municipality created the defect through an affirmative act of negligence, that act of negligence must immediately result in the existence of a dangerous condition. It is not sufficient to allege that the defect developed over a period of years (here allegedly stemming from work done in 2008):

“A municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice” … . A defendant’s actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement … . Further, although an exception to the prior written notice requirement exists where the municipality created the defect through an affirmative act of negligence …, that exception “[is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition”… . DeVita v Town of Brookhaven, 2015 NY Slip Op 04086, 2nd Dept 5-13-15

 

Defect Was Trivial As a Matter of Law—Criteria Explained

The Second Department determined the slip an fall case should have been dismissed.  The defect was trivial as a matter of law: “… [P]roperty owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . There is no minimal dimension test or per se rule that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable … “. [internal quotations omitted]  Santacruz v Taco Bell of Am., LLC, 2015 NY Slip Op 04111, 2nd Dept 5-13-15

 

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Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained

In the context of a motion to dismiss for failure to state a cause of action (where documentary evidence was submitted), the Second Department determined a mortgagee in possession of property (here because the property owner went bankrupt) has a duty to care for the property which is identical a property owner’s duty.  Here plaintiffs alleged the property, which had been damaged by fire, was allowed to deteriorate to the extent that plaintiffs’ neighboring property was damaged. The causes of action for nuisance, negligence and trespass survived the motion to dismiss.  The court noted its role when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . While the documentary evidence submitted by One West established that it did not own the defendants’ property at any relevant time … , that evidence did not “utterly refute” the plaintiffs’ contention that One West had a duty based on its status as a mortgagee in possession. In fact, the documents, which establish ownership, did not address the plaintiffs’ contention regarding One West’s alleged status as a mortgagee in possession … . Accordingly the Supreme Court erred in granting the motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1).

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … .

The plaintiffs’ contention that [defendant] was a mortgagee in possession has not been shown to be “not a fact at all” … . If [defendant] were, in fact, a mortgagee in possession, it was “bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his [or her] own property; he [or she] is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard” … . Thus, the complaint, as augmented by the affidavit of the plaintiff Emeta Allen, which was submitted in opposition to the motion to dismiss …, properly set forth causes of action alleging nuisance, negligence, and trespass, and the plaintiffs have causes of action sounding in nuisance, negligence, and trespass. Allen v Echeverria, 2015 NY Slip Op 04075, 2nd Dept 5-13-15

 

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A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity—The Party Seeking Contractual Indemnity Must Be Free from Negligence

Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a ” ‘court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed’ … . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability …”. Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15

 

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A Request for an Admission Which Goes to the Heart of the Litigation Is Improper—Defendant Should Have Been Allowed to Withdraw Its Admission that Its Employee Was Acting Within the Scope of His Employment When a Vehicle Accident Occurred

The Second Department determined Supreme Court should have allowed defendant to withdraw admissions made in response to a notice to admit. Plaintiff was involved in an accident with a vehicle driven by an employee of defendant, Islip Pizza.  In response to a notice to admit, the defendant stated that the employee was acting in the scope of his employment at the time of the collision. Because defendant’s liability, under the doctrine of respondeat superior, depended entirely on whether the employee was acting within the scope of his employment, the admission went to the heart of the matters at issue. A request for an admission which deals with an ultimate conclusion is improper (CPLR 3123 (a)). Defendant should have been allowed to withdraw it (CPLR 3123 (b)):

Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, “the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry” (CPLR 3123[a]). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by “eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper” … . Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission “on such terms as may be just” (CPLR 3123[b]…).  Altman v Kelly, 2015 NY Slip Op 04076, 2nd Dept 5-13-15

 

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