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Defendant’s Motion for a Judgment as a Matter of Law, Made Prior to the Close of Plaintiff’s Case, Was Premature and Should Not Have Been Granted Irrespective of the Improbability of Plaintiff’s Ultimate Success

The Second Department determined Supreme Court should not have granted defendant’s motion for a judgment as a matter of law, which was made (and granted) before plaintiff had completed putting in his case.  Plaintiff fell from a ladder at a work site and alleged a violation of Labor Law 200 and common-law negligence:

Prior to the close of the plaintiff’s case, the Supreme Court granted the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, concluding that there was no evidence of a dangerous condition at the work site. The Supreme Court thereafter entered judgment in favor of the defendants and against the plaintiff dismissing the complaint. …

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. “A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Schultz v Hi-Tech Constr & Mgt Serv Inc, 2015 NY Slip OP 00521, 2nd Dept 1-21-15

 

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Grassy Area Where Plaintiff Fell Was Not Part of a Highway or a Sidewalk–Prior Written Notice of the Defect (to the Town) Not Required

The Third Department determined the town’s requirement that it be provided with written notice of a defect before the town can be held liable for a related slip and fall did not apply to the grassy area where plaintiff fell:

Where, as here, a municipality has enacted a prior written notice provision (see Code of the Town of Clifton Park § 176-1 [A]), “a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given” … . Hence, in order to prevail upon its motion for summary judgment dismissing the complaint, the Town was required to establish as a matter of law that the grassy area in question constituted — insofar as is relevant here — either a highway, a sidewalk or a site that serves the same “functional purpose” as a highway or sidewalk… .

To be sure, a highway “encompasses the associated shoulders, guardrails, embankments, retaining walls and culverts” (…see Highway Law § 2 [4]…). As relevant here, whether the land adjacent to a highway is paved or otherwise improved does not determine its status as a shoulder; rather, the inquiry is whether the area in question creates “a general right of passage for the traveling public” … . Here, the Town failed to establish that the grassy area where plaintiff fell was designed or intended to provide a general right of passage; further, it is readily apparent from the photographs contained in the record on appeal that the grassy area where plaintiff’s accident occurred is too far removed from the edge of Old Route 146 to be considered an adjacent shoulder or to otherwise fall within the definition of a highway … .

We reach a similar conclusion with respect to whether the grassy area may be deemed to fall within the definition of a sidewalk. In this regard, “a grass strip between the sidewalk and the pavement of the road [indeed] is part of the sidewalk” … . Here, however, the grassy area depicted in the relevant photographs does not lie between a sidewalk and a roadway and, contrary to the Town’s contention, the mere fact that plaintiff and her son were traversing the grassy area to access the nearby parking lot (owned by Northway 9 Associates) does not render this area the functional equivalent of a sidewalk … . Cieszynski v Town of Clifton Park, 2015 NY Slip Op 00423, 3rd Dept 1-15-15

 

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Question of Fact About Whether ATV Driven with Owner’s Permission Based Upon Owner’s Restrictions on Use of the ATV

The Third Department determined a question of fact had been raised about whether an all terrain vehicle (ATV) was being operated with the owner’s consent at the time of a collision (a requirement for vicarious liability–Vehicle and Traffic Law 2411).  The owner claimed only his grandson had permission to operate the ATV and operation of the ATV on a public highway was not permitted by him.  The accident occurred when the ATV was driven by someone other than the owner’s grandson (with the grandson’s permission) on a public highway.  The grandson was driving an ATV which had just been damaged in an accident and they were using the public highway to return to the off-road trails:

Although [the owner] and his grandson both confirm that the restrictions regarding where the ATV could be operated had been imposed, when the “the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury” … . Here, the testimony of [the owner] is self-interested and his grandson–who is not a party–has no interest of his own in contradicting his grandfather’s position. Under these circumstances, we are persuaded that the grandson’s alleged directions and assurances to [the driver of the ATV] could imply, when viewed in the light most favorable to plaintiffs, [the owner’s] restrictions were flexible and had been lifted under the circumstances. Accordingly, the issue of implied permission should be determined by a jury … .

Sepsi v Watson, 2015 NY Slip Op 00414, 3rd Dept 1-15-15

 

Photographs Demonstrated Defect Was “Trivial” and Not Actionable

In a slip and fall case, the Second Department reversed Supreme Court and dismissed the complaint, finding the defect “trivial:”

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury … . However, property 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” .. .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the “clump” that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable … . Adler v QPI-VIII. LLC, 2015 NY Slip OP 00320, 2nd Dept 1-14-15

 

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Even Though the Landlords Maintained Offices Adjacent to the Leased Property (a Restaurant), the Plaintiff Was Not Able to Raise a Question of Fact About Whether the Landlords Retained Control Over the Leased Premises Such that the Landlords Would Be Liable for an Assault by Employees and Patrons of the Tenant-Restaurant

The Second Department determined that out-of-possession landlords (AYT and 6010) could not be held liable for an assault by employees and patrons of the tenant restaurant, even though the landlords maintained offices adjacent to the rented property:

An owner is obligated to take reasonable precautionary measures to minimize the risk of criminal acts and make the premises safe for visitors when the owner is aware, or should be aware, that there is a likelihood of conduct on the part of third parties that would endanger visitors (…see generally Restatement [Second] of Torts: Negligence § 344). To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

However, an out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security … .   Here, the defendants … established, prima facie, that they were out-of-possession landlords, and that they did not retain control over the premises and were not contractually obligated to provide security. The mere fact that Sam Fridman, the principal of AYT, had an office “right next door” to the subject premises for approximately 15 years prior the incident, and Abraham Sprei, the principal of 6010, maintained a plumbing business adjacent to the premises, was not sufficient to create a triable issue of fact as to whether AYT and 6010 retained control of the premises  Tambriz v PGK Luncheonette Inc, 2015 NY Slip Op 00356, 2nd Dept 1-14-15

 

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Negligent Supervision Cause of Action Properly Survived Summary Judgment—Question of Fact Raised Whether Criminal Act by Defendant’s Employee Was Foreseeable

Plaintiff’s child was injured when assaulted by an employee of defendant New York City Transit Authority (NYCTA) during the course of a NYCTA community service program.  The Second Department determined defendant could not be held liable under the doctrine of respondeat superior because the actions of the employee were outside the scope of employment.  However, the cause of action for negligent supervision properly survived the motion for summary judgment because there was a question of fact whether the criminal act of the employee was foreseeable:

“Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the evidence submitted by the NYCTA demonstrated that Clay’s conduct clearly was not in furtherance of the NYCTA’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . * * *

The Supreme Court properly denied that branch of the NYCTA’s motion which was for summary judgment dismissing so much of the complaint as alleged that it negligently supervised the plaintiff’s child. The standard for determining whether a duty to supervise a minor was breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision” … . “Where third-party criminal acts intervene between defendant’s negligence and plaintiff’s injuries, the causal connection may be severed, precluding liability. The criminal intervention of third parties may, however, be a reasonably foreseeable’ consequence of circumstances created by the defendant” … . Mayo v New York City Tr Auth, 2015 NY Slip OP 00342, 2nd Dept 1-14-15

 

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Question of Fact Whether Defendant’s Snow Removal Efforts Created Dangerous Condition (Black Ice)

The Second Department determined there was a question of fact whether the defendant had created the dangerous condition (black ice) on its property by its snow removal efforts:

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it … . Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition … .

In support of its motion, the defendant failed to eliminate all triable issues of fact as to whether the patch of black ice upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts in the days prior to the accident … . Smith v New York City Hous Auth, 2015 NY Slip Op 00355, 2nd Dept 1-14-15

 

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Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised

The Second Department determined the school district’s motion for summary judgment was properly denied because plaintiff had raised triable questions of fact about whether infant plaintiff assumed the risk of injury in a self-defense tournament and whether the school was negligent in supervising the self-defense tournament:

The infant plaintiff allegedly was injured while competing in her high school’s “self-defense tournament,” a voluntary competition open to female students who were enrolled in a self-defense class taught by Joseph Biddy, a physical education teacher. The self-defense class was one of several electives that female students could take to satisfy the district’s physical education requirement. The plaintiffs allege, inter alia, that, since the self-defense class was in actuality a mixed martial arts class, the defendant breached its duty of care to the infant plaintiff by allowing the class to be instructed by a person with little martial arts training, and allowing that person to referee the tournament. The plaintiffs contend that the infant plaintiff and the other students in the class were not properly or sufficiently trained and that Biddy did not have the requisite knowledge and experience to recognize the dangers posed by the moves being performed in the tournament. * * *

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[T]he plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist” … . However, the doctrine of primary assumption of risk does not apply to bar a cause of action where the risks at issue were unassumed, concealed, or unreasonably increased … .

On its motion for summary judgment, the defendant failed to establish, prima facie, that by voluntarily participating in the self-defense tournament, the infant plaintiff consented to the risks associated with the move that ultimately caused her injuries. Rather, the defendant’s submissions demonstrated that the risks of the move that ultimately caused the infant plaintiff’s injuries were concealed and unreasonably increased. Pierre v Ramapo Cent Sch Dist, 2015 NY Slip Op 00348, 2nd Dept 1-14-15

 

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Owners/Occupiers of a Single Family Residence Not Responsible for Maintaining Abutting Sidewalk Pursuant to the NYC Administrative Code

The Second Department exercised its discretion to hear an appeal which had been dismissed for failure to perfect and affirmed the dismissal of the complaint.  Defendants owned and occupied a single-family residence.  Therefore, pursuant to the Administrative Code of the City of New York, defendants were not responsible for maintaining the sidewalk abutting the property:

On February 20, 2008, the injured plaintiff allegedly tripped and fell on a sidewalk abutting the defendants’ property. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of NY § 7-210[b]), thus exempting them from liability pursuant to Administrative Code of the City of New York § 7-210(b) for the alleged failure to maintain the sidewalk abutting their property … . Saunders v Tarsia, 2015 NY Slip Op 00352, 2nd Dept 1-14-15

 

Plaintiff Was Unable to Pinpoint the Cause of Her Fall—“Feigned Issue” Raised In an Affidavit Could Not Stave Off Summary Judgment

The Second Department determined plaintiff’s inability to identify the cause of her fall was fatal to the lawsuit:

“A plaintiff’s inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion, in which she identified the cause of her fall as “water or cleaning liquid that was on the floor,” merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . Trapani v Yonkers Racing Corp, 2015 NY Slip Op 00357, 2nd Dept 1-14-15

 

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