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THE “NOTICE-OF-A-DANGEROUS-CONDITION” REQUIREMENT FOR A SLIP AND FALL CAUSE OF ACTION BROUGHT BY A POLICE OFFICER PURSUANT TO GENERAL MUNICIPAL LAW 205-E IS IDENTICAL TO THE NOTICE REQUIREMENT IN A COMMON LAW SLIP AND FALL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the General Municipal Law standard for negligence includes the requirement that the municipal defendant have notice of the dangerous condition. General Municipal Law section 205-e provides police officers with a cause of action for negligence where a well-developed body of law is violated. The question raised by the appeal of the denial of the municipal defendant’s motion for summary judgment is whether the notice requirement in a General Municipal Law 205-e action is the same as at common law. The Fourth Department held that it is: The police officer slipped and fell on icy metal stairs but failed to demonstrate the municipal defendant had notice of the condition … .

[U]nder General Municipal Law § 205-e, a defendant is, in fact, entitled to notice of the dangerous condition at issue before liability may attach. Indeed, courts have made plain that “[n]otice is clearly material to recovery under the statute … . * * *

… [A]ccepting plaintiffs’ contention that notice is not required would unjustifiably expand the duty owed by premises owners to one discrete class of putative plaintiffs beyond any reasonable interpretation contemplated by the language of the statute, existing precedent or established policy. We decline to impose liability without fault upon those legally responsible for premises conditions when police officers are present, especially when the statute was not designed to provide them with greater protections than ordinary citizens. Alternatively stated, the duty owed by landowners to police officers under the statute is not broader than it is for any other class of individuals … . * * *

… [P]laintiffs failed to raise a triable issue of material fact with respect to the issue of notice; indeed, plaintiffs’ opposition to the motion did not address the issue of notice at all … . Plaintiffs also have not contended that the icy condition at issue here was sufficiently recurrent, or was of such a longstane been aware of the need to more promptly remedy it … . Whelan v Buffalo Mun. Hous. Auth.,2026 NY Slip Op 04624, Fourth Dept 7-24-26

 

IN THE CONTEXT OF A SLIP AND FALL, “FAILURE TO WARN” OF A DANGEROUS CONDITION AND “FAILURE TO MAINTAIN A PREMISES IN A REASONABLY SAFE CONDITION” ARE DISTINCT CAUSES OF ACTION AND A PLAINTIFF MAY PROCEED ON ONE OR BOTH THEORIES; IN THIS “NEGLIGENT MOPPING” “EXCESS WATER ON THE FLOOR” CASE, THE “FAILURE TO WARN” CAUSE OF ACTION WAS PROPERLY DISMISSED, BUT THE “FAILURE TO MAINTAIN THE PREMISES IN A REASONABLY SAFE CONDITION” CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

​The Fourth Department, reversing (modifying) Supreme Court in this slip and fall case, noted that a “failure to warn” of a dangerous condition, and a “failure to maintain a premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both theories. Here the “failure to warn” cause of action was properly dismissed. But the “failure to maintain the premises in a reasonably safe condition” cause of action should not have been dismissed. It was alleged mopping was negligently done leaving excess water on the floor:

… [D]efendants had the initial burden on their motion of establishing that they did not create the allegedly dangerous condition and that they did not have actual or constructive notice thereof … . We conclude that defendants failed to meet that burden inasmuch as they failed to establish that they did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor … * * * Failure to warn of an alleged hazard is a separate and distinct theory of liability from the failure to maintain premises in a reasonably safe condition, and a plaintiff may proceed on one or both of those theories … . Brennan v Kandon, LLC, 2026 NY Slip Op 04685, Fourth Dept 7-24-26

Practice Point: In the context of a slip and fall, “failure to warn” and “failure to maintain the premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both.​

 

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DEFENDANT DRIVER STRUCK PLAINTIFF PEDESTRIAN AS HE ATTEMPTED TO CROSS THE ROAD; DEFENDANT DID NOT DEMONSTRATE SHE COULD NOT HAVE SEEN PLAINTIFF AND COULD NOT HAVE AVOIDED STRIKING PLAINTIFF; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant driver did not demonstrate she could not have seen plaintiff pedestrian and could not have avoided striking plaintiff as he attempted to cross the road:

… [D]efendant, “as the movant for summary judgment, had the burden of establishing as a matter of law that [she] was not negligent or that, even if [she] was negligent, [her] negligence was not a proximate cause of the accident” … . Defendant failed, however, to meet her initial burden with respect to either her negligence or proximate cause. Although the evidence submitted by defendant established that she was not speeding, was not impaired and had not committed any traffic violations, defendant’s evidence included, inter alia, deposition testimony from a driver of an eastbound vehicle who observed plaintiff begin to cross his lanes of traffic, and that driver testified that he was able to swerve and avoid colliding with plaintiff. Defendant’s submissions indicate that plaintiff then proceeded through the median area between the eastbound and westbound lanes and then attempted to cross the westbound lanes, whereupon he collided with defendant’s vehicle.

We agree with plaintiff that defendant’s own evidence raises triable issues of fact whether she ” ‘could have seen [plaintiff] before the accident and failed to exercise due care to avoid the accident’ ” (Uhteg, 200 AD3d at 1697). In Uhteg, as here, “the pedestrian had already crossed a few lanes of traffic and had done so at a pace faster than a walk but not fully a run” … . Moreover, there is no evidence that defendant’s view of the oncoming lanes or median area was obscured … . Koff v Lawson, 2026 NY Slip Op 04582, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of what a defendant must demonstrate for summary judgment where defendant driver strikes plaintiff pedestrian as plaintiff attempted to cross the road.

 

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A DISCOVERY RULE ENACTED IN 2018 REACHED BACK TEN MONTHS BEFORE THE RULE WAS ENACTED TO RENDER TIMELY THIS MEDICAL MALPRACTICE CAUSE OF ACTION ALLEGING THE NEGLIGENT FAILURE TO DIAGNOSE CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice cause of action alleging the negligent failure to diagnose cancer was rendered timely by a discovery rule which reaches back ten months before the discovery rule was enacted:

The causes of action arising from negligent failure to diagnose cancer accrued on October 23, 2014, when the defendants failed to advise [plaintiff] to submit to additional testing, such as a mammogram. However, the 2018 enactment also includes a provision providing for the revival of certain causes of action, such that an action may be commenced within six months after the effective date, i.e., by July 31, 2018, when it alleges a failure to diagnose cancer or a malignant tumor, and when it became time-barred within 10 months prior to the effective date of the statute—January 31, 2018, that is, on or after March 31, 2017 (see L 2018, ch 1, § 4…). Here, the causes of action qualify for revival pursuant to that provision, as they became time-barred in April 2017, within the 10-month period prior to the act’s effective date, and this action was commenced on June 11, 2018, prior to the July 31, 2018 deadline … . Rhodes v Dilena, 2026 NY Slip Op 04444, Second Dept 7-15-26

Practice Point: Consult this decision for an explanation of the application of the discovery rule enacted in 2018 providing for the revival of a medical malpractice action alleging negligent failure to diagnose cancer after the statute of limitations expired.

 

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CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S SLIP AND FALL, INCLUDING A VIDEO AND PLAINTIFF’S DESCRIPTION OF THE FALL, WERE SUFFICIENT TO WITHSTAND A SUMMARY JUDGMENT MOTION (THRID DEPT). ​

The Third Department, reversing Supreme Court, determined the defendant grocery store’s motion for summary judgment in this slip and fall action should not have been granted. A video depicted plaintiff coming around the corner of a bottled water display and falling. She testified cases of water protruded into the aisle. Although she she could not say exactly what caused her to trip, the circumstantial evidence of the cause of the fall was sufficient to create a question of fact:

…”[E]ven when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … . It is true that Grant never observed the actual item he tripped over, nor its precise location. However, given Grant’s deposition testimony indicating that he tripped over something made of soft plastic, plaintiff’s deposition testimony that there were cases of water hanging over the edge of the endcap and the video portraying a case being knocked off the display as Grant tripped and fell, defendant’s negligence could reasonably be inferred.

Even if defendants had met their initial burden of showing entitlement to judgment as a matter of law, plaintiff raised a triable issue of fact as to whether the endcap display was inherently dangerous … . In opposition to the motion, plaintiff submitted the affidavit of a commercial space designer and retail safety expert who opined that the endcap display was hazardous, inasmuch as the bottom layers of water cases were stacked below a customer’s typical line of sight, which ranges between three to six feet from the ground. According to the expert, defendants failed to conform with certain industry standards concerning the proper height of floor displays and the need for endcap displays to be fully stocked to prevent tripping hazards. Grant v Golub Corp., 2026 NY Slip Op 04013, Third Dept 6-24-26

Practice Point: Consult this decision for an example of sufficient proof of causation of a slip and fall by circumstantial evidence. Usually the failure to pinpoint the exact cause of a slip and fall will be fatal to the action.

 

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HERE IN THIS SIDEWALK SLIP AND FALL CASE THE DEFENDANTS DID NOT DEMONSTRATE THE PROPERTY ADJACENT TO THE UNEVEN SIDEWALK WAS “OWNER OCCUPIED” SUCH THAT THE NYC ADMINISTRATIVE CODE EXCEPTION TO THE SIDEWALK-MAINTENANCE OBLIGATION APPLIED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. The NYC Administrative Code creates an exception to the sidewalk-maintenance requirement for “owner occupied” properties. That term is undefined. Here the defendants did not submit sufficient proof that the “owner-occupied” exception applied:

“‘Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain city sidewalks abutting their land in a reasonably safe condition'” … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . “The statute does not expressly contain a primary residence requirement as part of the owner-occupied exemption, but the term ‘owner occupied’ generally is used to mean that the owner regularly occupies the property as a residence” … . Although “owner occupied” is not defined in the statute, it is clearly a lower standard than that of a primary residence. Furthermore, “[t]he purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. The defendants failed to establish, prima facie, that they were entitled to the exemption from liability under Administrative Code § 7-210(b). Although the defendants submitted proof that they are the owners of the subject property, which is a one-family home, they failed to eliminate triable issues of fact as to whether the property was “owner occupied” within the meaning of the statute … . Mantinaos v City of New York, 2026 NY Slip Op 03957, Second Dept 6-24-26

Practice Point: Consult this decision for insight into the meaning of “owner occupied” in the NYC Administrative Code such that the sidewalk-maintenance obligation does not apply.

 

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FOR PURPOSES OF THE “RELATION-BACK DOCTRINE,” A DEFENDANT CAN BE VICARIOUSLY LIABLE FOR THE WORK OF AN INDEPENDENT CONTRACTOR IF THE WORK IS “INHERENTLY DANGEROUS;” THE EXCAVATION WORK WAS “INHERENTLY DANGEROUS;” THE PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD THE INDEPENDENT CONTRACTORS AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court., determined plaintiff’s motion to amend the complaint by adding independent contractors hired in connection with excavation work on adjacent property should have been granted. The excavation work caused plaintiff’s building to collapse. The statute of limitations for the negligence causes of action had run. A defendant can be vicariously liable for the actions of independent contractors if the work is “inherently dangerous.” Because this work was “inherently dangerous,” the defendants and the independent contractors are “united in interest” such that the relation-back doctrine applies:

… [T]he plaintiff satisfied the second prong of the relation-back test with respect to the causes of action sounding in negligence and gross negligence, as the plaintiff established that the proposed defendants and the original defendants were united in interest as to those causes of action. “As a general rule, ‘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'” … . However, this general rule is subject to various exceptions, including where the work performed is inherently dangerous … . In this case, the amended complaint and the proposed second amended complaint alleged sufficient facts demonstrating that the work being performed was inherently dangerous and, thus, the original defendants could be held vicariously liable for the negligent acts or omissions of the proposed defendants … . Further, the plaintiff satisfied the third prong of the relation-back test, as the plaintiff demonstrated that the proposed defendants knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against them as well … . Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the amended complaint to add the proposed defendants as defendants with respect to the causes of action sounding in negligence and gross negligence … . Crossbay Assoc., LLC v Singh, 2026 NY Slip Op 03941, Second Dept 6-24-26

Practice Point: A party can be vicariously liable for the work done by an independent contractor if the work is “inherently dangerous.” The excavation work at issue in this case was deemed inherently dangerous.

 

PLAINTIFF SUED THE DEVELOPER OF PROPERTY ADJACENT TO PLAINTIFF’S BUILDING ALLEGING EXCAVATION WORK CAUSED PLAINTIFF’S BUILDING TO SETTLE AND LEAN; THE CITY ISSUED A STOP-WORK ORDER STEMMING FROM PLAINTIFF’S COMPLAINT; DEFENDANT-DEVELOPER THEN COUNTERCLAIMED ALLEGING PLAINTIFF WAS NEGLIGENT IN NOT MAINTAINING PLAINTIFF’S BUILDING SUCH THAT THE EXCAVATION WORK WOULD NOT DAMAGE IT, RESULTING IN THE STOP-WORK ORDER AND CAUSING THE DEVELOPER PURELY ECONOMIC LOSS OF AT LEAST $16 MILLION; SUPREME COURT LET THE COUNTERCLAIM STAND BUT THE FIRST DEPARTMENT DISMISSED IT; PLAINTIFF DID NOT OWE A DUTY TO THE DEVELOPER AND THE DEVELOPER WAS NOT ENTITLED TO PURELY ECONOMIC DAMAGES (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the defendant-developer’s counterclaim alleging plaintiff was negligent should have been dismissed. Plaintiff sued the developer alleging excavation and construction on the developer’s property, which is adjacent to plaintiff’s building, caused plaintiff’s building to settle and lean. Defendant-developer counterclaimed alleging plaintiff was negligent in not maintaining plaintiff’s building such that the excavation would would not damage it. The counterclaim alleged economic harm ($16 million) stemming from a stop-work order triggered by the plaintiff’s complaint:

The negligence counterclaim asserts that plaintiff “had a duty to construct and maintain the 1992 Building in compliance with the [Building] Code” and “a duty to maintain the 1992 Building in a reasonable and safe condition.” It contends that, as evidenced by three structural engineering reports, the building was “not constructed in compliance with the Code,” “remains in violation of the Code” and “was constructed and remains in an unsafe condition.” … The counterclaim further asserts that, on December 13, 2023, as a result of these conditions, “the DOB issued a partial Stop Work Order for the Project Site, forcing [the developer] to stop construction on its own property because of structural instability of the 1992 Building that was caused by the 1992 Building’s non-compliance with the Code and [plaintiff’s] failure to maintain the 1992 Building in a reasonable condition.” According to the developer, it was “harmed by the delay in construction . . . due to this stoppage” in an amount not less than $16 million. The developer does not allege that plaintiff’s negligent design, construction, and maintenance of its building caused any bodily injury or property damage.

This appeal raises two novel issues: 1) whether Supreme Court correctly held that plaintiff owes the developer a common-law duty as an adjacent landowner to protect the developer’s excavation/foundation work from construction delays arising out of the stop work order and, 2) assuming the existence of a duty based on plaintiff’s status as an adjacent landowner, whether the court correctly held that the developer could recover purely economic damages.

We now answer both questions in the negative and reverse. 1992 Third Realty LLC v Third Ave NY Realty LLC, 2026 NY Slip Op 03871, First Dept 6-18-26

Practice Point: The owner of a building which is damaged by excavation work on an adjacent building by a developer, does not owe a duty to the developer to maintain his building such that the excavation work would not damage it.

 

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PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT CALL HER TREATING PHYSICIAN AS A WITNESS AND DID NOT DEMONSTRATE THE PHYSICIAN WAS UNAVAILABLE OR THAT HIS TESTIMONY WOULD BE CUMULATIVE; PLAINTIFF RELIED SOLELY ON THE TESTIMONY OF A PSYCHIATRIST WHO FIRST SAW PLAINTIFF SIX YEARS AFTER THE ACCIDENT; DEFENDANT’S REQUEST FOR A “MISSING WITNESS” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; VERDICT SET ASIDE (FIRST DEPT).

The First Department, granting defendant’s motion to set aside the jury verdict and direct a new trial in this sidewalk slip and fall case, determined plaintiff’s failure to call her treating physician as a witness warranted the “missing witness” jury instruction. Plaintiff called only, Dr. Guy, a psychiatrist who saw plaintiff only a few times six years after the injury:

Plaintiff alleges that she was injured when she was walking on the sidewalk adjacent to defendant’s property when her foot became trapped in a hole, causing her to fall. At trial, plaintiff alleged that because of the accident, she suffered a cervical herniation that caused radiculopathy and required surgery. She further alleged that injuries to her knee and her lumbar spine would require future surgery.

The trial court should have given the jury a missing witness charge with regard to Dr. Jason Gallina, plaintiff’s treating physician and surgeon from the period beginning months after the accident until at least a year afterward. Dr. Gallina was the orthopedic surgeon who performed plaintiff’s cervical fusion surgery, and he was the doctor who allegedly recommended the lumbar surgery that plaintiff contended she would need in the future.

The law is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable or not under the party’s control, or that the witness’s testimony would be cumulative … . * * *

Although the burden was on plaintiff to show that Dr. Gallina was unavailable or not under her control, she made no such showing  … . … [T]he testimony from Dr. Gallina would not have been cumulative. Dr. Guy is a physiatrist, while Dr. Gallina is the orthopedic surgeon who performed plaintiff’s surgery. Encarnacion v St. Barnabas Hosp., 2026 NY Slip Op 03630, First Dept 6-9-26

Practice Point: The plaintiff in a personal injury action must call the treating physician as a witness or adequately explain the failure to do so. In the absence of an adequate explanation, the defendant is entitled to a “missing witness” jury instruction.​

 

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MOTHER DEMONSTRATED THE SCHOOL DISTRICT HAD TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE ALLEGATION THE SCHOOL DISTRICT WAS NEGLIGENT IN ADDRESSING THE BULLYING OF HER SON; MOTHER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant-mother demonstrated the school district had timely knowledge of the underlying facts of the potential negligence action against the district stemming from the bullying of her son. In addition, mother had a valid excuse for failing to file a timely notice of claim, i.e., she was involved in related Family Court proceedings against her son. Mother’s application for leave to file a late notice of claim should have been granted:

“General Municipal Law § 50-e (5) permits a court, in its discretion, to [grant leave] extend[ing] the time for a [claimant] to serve a notice of claim” (id. at 460-461). “The decision whether to grant such leave ‘compels consideration of all relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)” … . ” ‘It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are [1] whether the claimant has demonstrated a reasonable excuse for the delay, [2] whether the [school district] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and [3] whether the delay would substantially prejudice the [school district] in maintaining a defense on the merits’ ” … . “The presence or absence of any given factor is not determinative of the application and, moreover, the factors are ‘directive rather than exclusive’ ” … .

We agree with claimant that respondent possessed actual knowledge of the essential facts constituting the claim within 90 days of its accrual …  Claimant averred in her affidavit in support of the application that, during the relevant time period, she made numerous calls to the Waterloo Middle School and the Waterloo Village Police about the ongoing abuse and bullying of her son. Additionally, claimant submitted documentation pertaining to a Family Court proceeding that was brought against her son due to actions he took apparently out of his frustration with the alleged abuse and bullying. The documentation states that the school counselor was involved in that investigation and that claimant’s son was “well known” to him. The school counselor also expressed the opinion that the bullying incidents were “unfounded.” Cindy W. v Waterloo Cent. Sch. Dist., 2026 NY Slip Op 03554, Fourth Dept 6-5-26

Practice Point: Here, demonstrating that the school district had timely actual knowledge of the facts underling a negligence allegation against the district was a major factor in granting the application tor leave to file a late notice of claim.​

 

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