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DEFENDANTS “EVANGELICAL LUTHERAN CHURCH IN AMERICA (ELCA)” AND “UPSTATE NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA (SYNOD)” HAD THE POWER TO DISCIPLINE AND TERMINATE A PASTOR ACCUSED OF ABUSE; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THOSE DEFENDANTS WERE THE PASTOR’S EMPLOYERS; THE NEGLIGENT HIRING, SUPERVISION AND RETENTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent hiring, retention and supervision causes of action against Evangelical Lutheran Church in America (ELCA) and Upstate New York Synod of the Evangelical Lutheran Church in America (Synod) should not have been dismissed on the ground that the alleged abuser (a pastor) was not an employee. Although the abuser was hired by a third-party church, St. Nicodemus, the ELCA’s and the Synod’s constitution provided that ELCA and Synod exercised control over discipline and termination of the pastor. Therefore there were questions of fact about ELCA’s and Synod’s status as employers:

… According to the ELCA Constitution and Bylaws, the authority to discipline pastors within the ELCA was granted to the synods and the ELCA. The authority to remove a pastor from the roster of ordained ministers remained with the synods and the ELCA. Once a pastor was removed from the roster of ordained ministers, a congregation that chose to retain that pastor could be removed from the ELCA. The entire disciplinary process was created by and governed by the ELCA Constitution and Bylaws. Under these circumstances, we conclude that plaintiffs’ submissions raised an issue of fact whether the ELCA and the Synod exercised sufficient control over the retention and supervision of plaintiffs’ alleged abuser so as to constitute his employers … . PB-20 Doe v St. Nicodemus Lutheran Church, 2024 NY Slip Op 03246, Fourth Dept 6-14-24

Practice Point: Here, although the pastor accused of abuse was hired by a specific Lutheran church (St. Nicodemus), the defendants Evangelical Lutheran Church in America (ELCA) and Upstate New York Synod of the Evangelical Lutheran Church in America (Synod) had the power to discipline and terminate the pastor. Therefore there was a question of fact whether defendants were the pastor’s employers such that the negligent hiring, retention and supervision causes of action should not have been dismissed.

 

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THE CLAIM IN THIS CHILD VICTIMS ACT PROCEEDING DID NOT SET FORTH ANY FACTUAL BASIS FOR THE ALLEGATION THE STATE WAS OR SHOULD HAVE BEEN AWARE OF SEXUAL ABUSE BY ANOTHER CHILD IN A FOSTER HOME AND BY AN EMPLOYEE OF A CHILDREN’S FACILITY; THE CLAIM SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim did not set forth any factual basis for the allegation defendants were or should have been aware of the abuse by a child in a foster home and by a staff member of a children’s facility. The claim, therefore, should have been dismissed:

Here, as to the abuse alleged at the foster home, the verified claim alleges only bare legal conclusions and lacks any factual specificity as to how defendant was put on notice of the danger posed by the minor perpetrator. As to the facility, the allegation that other staff members knew about the adult perpetrator’s participation in the off-campus overnight trips would not have put defendant on notice about the adult perpetrator’s propensity to sexually abuse children … . Although the allegation that a counselor discovered the sexual abuse may suffice to provide actual notice about the foreseeability of future abuse, the claim fails to allege that any such subsequent abuse took place … . Even granting the verified claim a liberal construction, presuming its allegations true and providing claimant the benefit of every possible inference, said claim failed to set forth any factual basis upon which defendant could have reasonably anticipated the perpetrators’ harmful conduct and, thus, it failed to “provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . As such, the Court of Claims erred in denying defendant’s motion to dismiss … . Berg v State of New York, 2024 NY Slip Op 03206, Third Dept 6-13-24

Practice Point: Here the allegation that the state was aware or should have been aware of the sexual abuse of the claimant by another child in a foster home and by a staff member of a children’s facility were not supported by any facts which would allow the state to investigate. Therefore the claim should have been dismissed by the Court of Claims.

 

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ALTHOUGH THERE WAS NO QUESTION PLAINTIFF’S CAR HYDROPLANED AND SLID INTO DEFENDANT’S LANE, DEFENDANT INCLUDED PLAINTIFF’S DEPOSITION TESTIMONY IN HIS MOTION FOR SUMMARY JUDGMENT WHICH RAISED A QUESTION OF FACT ABOUT HOW LONG PLAINTIFF’S CAR WAS IN DEFENDANT’S LANE BEFORE IT WAS STRUCK (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s own motion papers, which included the deposition testimony of plaintiffs, raised questions of fact about whether the emergency doctrine applied in this car accident case. Plaintiff testified her car hydroplaned on rain water and slid into the oncoming lane where her car was struck by defendant’s. Plaintiff testified he car came to a complete stop for as much as 20 seconds before the collision. Defendant alleged he had no time to brake when plaintiff’s car entered his lane:

“[I]n order for a driver to be entitled to summary judgment based upon the emergency doctrine, he or she must demonstrate, as a matter of law, that the emergency situation with which he or she was confronted was not of his or her own making and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision” … . There is no question that an emergency situation may arise “when a car going in the opposite direction crosses into the driver’s lane” … . Nevertheless, “summary judgment is only appropriate where it is established that the driver invoking the doctrine ‘did not contribute to the creation of the emergency situation, and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision’ ” … . Lee v Helsley, 2024 NY Slip Op 03213, Third Dept 6-13-24

Practice Point: If a party includes the opposing party’s deposition testimony in a summary judgment motion and the opposing party’s testimony raises a question of fact, summary judgment will be denied without the need to consider the opposing papers.

 

GENERAL OBLIGATIONS LAW 9-103 PROVIDES IMMUNITY FROM NEGLIGENCE SUITS STEMMING FROM AUTHORIZED RECREATIONAL USE OF THE OWNER’S PROPERTY, BUT DOES NOT PROVIDE IMMUNITY FOR ACTIONS OR OMISSIONS BY THE OWNER ALLEGED TO BE “WILLFUL OR MALICIOUS” (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff mountain biker’s (Fleming’s) cause of action alleging defendants’ failure to properly maintain a wooden bridge on a trail was properly dismissed pursuant to General Obligations law section 9-103. But the cause of action alleging the negligent failure to maintain the bridge and the negligent failure to to warn of the dangerous condition, which further alleged the failure was “willful or malicious,” should not have been dismissed. Willful and malicious actions are not within the scope of the immunity provided by General Obligations Law 9-103:

Plaintiffs [allege] that defendants had constructed and maintained the bridge in a manner that created a dangerous condition, and that, by failing to maintain the bridge and failing to warn of the dangerous condition, defendants’ actions had been willful and malicious. … [T]he limitation of liability provided by General Obligations Law § 9-103 does not extend to the failure to warn of a dangerous condition if that failure was “willful or malicious” … .

… Fleming avowed that he was riding a mountain bike on trails that were publicized to be suitable for such activity by the Town of Malta. Because the first cause of action alleged only ordinary negligence, defendants were entitled to the immunity afforded by General Obligations Law § 9-103 if they could establish that Fleming was “engaged in one of the enumerated recreational activities on land suitable for that activity” … .  Fleming v Jenna’s Forest Homeowners’ Assn., Inc., 2024 NY Slip Op 03216, Third Dept 6-13-24

Practice Point: General Obligations Law 9-103 protects property owners from negligence suits based on the authorized recreational use of the property, but does not protect property owners from suits alleging injury from “willful or malicious” actions or omissions.

 

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ALTHOUGH THE PHOTOGRAPH OF THE SIDEWALK DEFECT WAS TAKEN A YEAR BEFORE THE SLIP AND FALL, PLAINTIFF’S TESTIMONY THE PHOTO ACCURATELY AND FAIRLY DEPICTED THE CONDITION OF THE SIDEWALK AT THE TIME OF THE FALL WAS SUFFICIENT (FIRST DEPT). ​

The First Department, reversing Supreme Court’s denial of plaintiff’s summary judgment motion, determined the raised sidewalk flag which caused plaintiff’s slip and fall was sufficiently proven by a photograph taken a year before the accident because plaintiff testified the photo accurately depicted the condition of the sidewalk at the time of the accident:

Plaintiff demonstrated prima facie, through his deposition testimony, photographs and other evidence, that his accident was caused by a hazardous defect in the sidewalk, i.e. a raised sidewalk flag … . Although the photographs were taken over a year prior to plaintiff’s accident and in connection with a different accident at the same location, plaintiff’s testimony that they “fairly and accurately” depicted the condition of the sidewalk at the time of his accident rendered the photographs “probative on the issue of whether the defect was dangerous” … .

The record also demonstrates that the Condo had actual and constructive notice of the sidewalk defect and that the defect existed, unremedied, for a significant period of time prior to plaintiff’s accident. Richard v 1550 Realty LLC, 2024 NY Slip Op 03236, First Dept 6-13-24

Practice Point: Even if the photo of the dangerous condition, here a raised sidewalk flag in a slip and fall case, predates the accident, plaintiff’s testimony the photo fairly and accurately depicts the condition of the sidewalk at the time of slip and fall renders the photo admissible and sufficient.

 

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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S SLIP AND FALL ON ICE AND SNOW AFTER GETTING OUT OF A VEHICLE RESULTED FROM OPERATION OF THE VEHICLE SUCH THAT THE INSURER IS OBLIGATED TO DEFEND THE OWNER OF THE VEHICLE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over a partial dissent, determined the insurer, Progressive, was obligated to defend the owner of a vehicle for injuries suffered by a passenger (Malone) who slipped and fell on ice and snow after getting out of the car. The question was whether the injury resulted from “operation” of the vehicle:

“Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines” … . While a claim that an accident occurred during unloading “does not require a showing that the vehicle itself produced the injury . . . , it is insufficient to show merely that the accident occurred during the period of loading or unloading. Rather, the accident must be the result of some act or omission related to the use of the vehicle” … .

… Malone specifically alleged in the underlying action that Anthony (the vehicle-owner’s son) parked his vehicle in a negligent manner on a slippery surface and that such negligence was a proximate cause of her accident. Progressive submitted an affidavit from Malone … in which she stated, “I slipped on the snowy and icy condition as I was taking my first steps toward the house. I dropped my child and my legs slid, along the gradient, underneath the CAPERNA Vehicle.” Progressive further submitted Malone’s deposition testimony in the underlying action, which demonstrated that the door of the vehicle was open and that she had only taken two steps away from the vehicle when she slipped and fell on snow and ice located on the lawn. As such, Progressive failed to establish its prima facie entitlement to judgment as a matter of law declaring that the accident was not a covered event, as there is a triable issue of fact as to whether Malone had completed unloading the vehicle. As there are allegations that the vehicle was used negligently and that such negligence contributed to the accident, Progressive was not entitled to summary judgment declaring that it is not obligated to defend or indemnify Arthur (the vehicle owner) in the underlying action … . Matter of Progressive Dr. Ins. v Malone, 2024 NY Slip Op 03178, Second Dept 6-12-24

Practice Point: “Operation” of a vehicle may include parking the vehicle in a manner which makes getting out of it dangerous. Here a passenger slipped and fell on ice and snow after getting out of the parked vehicle and the insurer was obligated to defend the owner of the vehicle.

 

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PLAINTIFF IN THIS CHILD VICTIMS ACT CASE RAISED A QUESTION OF FACT WHETHER DEFENDANT SUMMER CAMP WAS AWARE OR SHOULD HAVE BEEN AWARE OF ITS EMPLOYEE’S PROPENSITY FOR SEXUAL ABUSE; THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case alleging abuse at defendant’s summer camp in 1970, determined plaintiff had raised a question of fact supporting the negligent hiring, retention and supervision cause of action. Plaintiff alleged he informed defendant of the abuse by the employee (Puello):

“Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, the employer may still be held liable under theories of negligent hiring and retention of the employee” … . “To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . “The employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the [supervision,] hiring and retention of the employee” … .

Here, the defendant demonstrated, prima facie, that it lacked actual or constructive notice of Puello’s alleged propensity for the conduct that caused the plaintiff’s injury. However, in opposition, the plaintiff raised a triable issue of fact as to whether the defendant had constructive notice of Puello’s alleged propensity for sexual abuse, given, among other things, the frequency and nature of the alleged abuse perpetrated by Puello … . Moreover, the plaintiff averred in his affidavit submitted in opposition to the defendant’s motion that he “clearly told” Thomas Brown, an employee in the camp’s infirmary, about the first of Puello’s alleged assaults, which continued thereafter, raising a triable issue of fact as to whether the defendant had actual notice of Puello’s alleged propensity for sexual abuse. Hammill v Salesians of Don Bosco, 2024 NY Slip Op 03170, Second Dept 6-12-24

Practice Point: Here in this child victims act case alleging abuse of the plaintiff in 1970, plaintiff raised a question of fact whether defendant summer camp was aware of its employee’s propensity for sexual abuse. Among other allegations, plaintiff alleged he told an infirmary employee about the abuse and it continued thereafter.

 

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PLAINTIFF ALLEGED THE DRIVER WORKING FOR A LIVERY CAB COMPANY (CURB) AND THE NEW YORK CITY TRANSIT AUTHORITY (NYCTA) DROPPED HIM OFF NEAR A HOLE IN THE ROAD WHICH CAUSED HIM TO FALL; THE RESPONDEAT SUPERIOR (AGENCY) CAUSE OF ACTION SURVIVED; BUT THE COMPLAINT DID NOT SUPPORT THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the complaint did not state a cause of action for negligent hiring, retention and supervision. Plaintiff alleged the driver of car which provided a service to the New York City Transit Authority (NYCTA) through a livery cab company called Curb was negligent in dropping plaintiff off near a hole in the road. Although the negligence action against the NYCTA and Curb survived under an agency (respondeat superior) theory, there were no factual allegations in the complaint which supported the negligent hiring, retention and supervision cause of action:

“An employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . “[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Although such causes of action need not be pleaded with specificity … , the complaint must contain more than bare legal conclusions unsupported by factual allegations … . Here, the complaint did not allege that Curb or the NYCTA knew or should have known of the driver’s propensity for the conduct which caused the injury, nor contain any factual allegations to support such an inference. The bare legal conclusions were insufficient to state a cause of action alleging negligent hiring, training, and retention … . Bailey v City of New York, 2024 NY Slip Op 03156, Second Dept 6-12-24

Practice Point: Conclusory, as opposed to fact-based, allegations of negligent hiring, retention and supervision will not survive a pre-discovery motion to dismiss.

 

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IN THIS CROSSWALK SLIP AND FALL CASE, THE FACT THAT THE MUNICIPALITY REPAIRED THE AREA FIVE MONTHS BEFORE DID NOT CONSTITUTE AN EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fact that the municipality repaired the crosswalk where plaintiff slipped and fell five months before did not constitute an exception to the prior written notice requirement:

Prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City, in the absence of a recognized exception … . The only recognized exceptions to the prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence or where a special use confers a benefit upon the municipality … . The affirmative negligence exception is limited to work which immediately results in the existence of a dangerous condition … . In support of her motion, plaintiff submitted evidence that the most recent repair work was performed five months prior to the accident in the general area of the subject defect. This does not raise an issue of fact as to whether defendants created the defect that caused plaintiff’s fall through an affirmative act of negligence at the location where the injury occurred, which immediately resulted in the existence of a dangerous condition … . Smith v City of New York, 2024 NY Slip Op 03150, First Dept 6-11-24

Practice Point: Unless the plaintiff can allege the dangerous condition which caused the slip and fall was created by the municipality at the time the repair was made, prior written notice of the defect is a condition precedent for the lawsuit. Here the allegation the area was repaired five months before the slip and fall was not sufficient.

 

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PLAINTIFF MODEL SUFFICIENTLY ALLEGED PHOTOSHOOTS DONE WHEN SHE WAS 16 AND 17 FOR A SUNTANNING-PRODUCT MARKETING CAMPAIGN CONSTITUTED “SEXUAL PERFORMANCES” TRIGGERING THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined certain causes of action against the modeling agency which represented plaintiff and the seller of suntanning products which used the photos of plaintiff should not have been dismissed as time-barred under the extended statute of limitations in the Child Victims Act [CVA] (CPLR 214-g). The photoshoots took place when plaintiff was 16 and 17. One of the issues was whether the complaint adequately alleged the photoshoots constituted a “sexual performance” with triggered the applicability of the CVA. After a comprehensive discussion too detailed to summarize here, the First Department held the complaint stated causes of action based on the “sexual performance” criteria in Penal Law 263.05:

At the pleading stage, as to both defendants, we find that a reasonable inference to be drawn from plaintiff’s allegations regarding the photographing of her while she was unclothed is that the resulting photographs may have captured plaintiff’s genitalia, thus satisfying the “sexual conduct” component of a Penal Law § 263.05 sexual performance. It is not merely the allegation of nudity that suffices, but the permissible inference that nudity occasioned the exhibition of genitalia, lewdly, in a photographic performance. We need not and do not reach whether plaintiff will ultimately be successful … , and at this stage, in light of the allegations contained in the complaint and the reasonable inferences to be drawn therefrom, we need not confine our analysis of the allegations to photographs that were ultimately used in Cal Tan’s marketing campaign, as submitted on the appeal.  * * *

We … find that a plaintiff’s age at the time of the alleged acts, so long as under 18 years of age, does not prevent application of the CVA to revive claims otherwise meeting CPLR 214-g’s requirements. Thus, plaintiff adequately pleaded that, with respect to her age at the time of the alleged acts, the CVA applies to her. Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 03081, First Dept 6-6-24

Practice Point: Here photoshoots for a suntanning-product marketing campaign were sufficiently alleged to constitute “sexual performances’ triggering the extended statute of limitations in the Child Victims Act.

 

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