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Parking Lot Concrete Wheel Stop Not a Dangerous Condition

The Second Department noted that a concrete wheel stop in a Costco parking lot is “open and obvious” and is not a dangerous condition.  Costco leased the parking lot from the out-of-possession owner:

While Costco had a duty to maintain the premises in a reasonably safe manner … , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally ” [a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm'” … .

Here, Costco established its prima facie entitlement to judgment as a matter of law by showing that the wheel stop over which the plaintiff tripped and fell, which was cement-colored in contrast to the color of the pavement to which it was affixed, was not an inherently dangerous condition and was readily observable by those employing the reasonable use of their senses … . Miller v Costco Wholesale Corp, 2015 NY Slip Op 01429, 2nd Dept 2-18-15

Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall–Defendant Therefore Not Entitled to Summary Judgment

The Second Department determined defendant in a slip and fall case was not entitled to summary judgment because it did not demonstrate its lack of constructive notice of the condition (glass debris):

A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant’s employees to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants did not proffer any evidence demonstrating when the area where the plaintiff fell was last cleaned or inspected prior to the plaintiff’s accident and, thus, failed to eliminate all triable issues of fact with regard to their contention that they lacked constructive notice of the glass debris … . The defendants’ failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Santiago v HMS Host Corp, 2015 NY Slip Op 01437, 2nd Dept 2-18-15

 

Property Owner and Snow Removal Contractor Should Have Been Awarded Summary Judgment in Snow/Ice Slip and Fall Case—Analytical Criteria Explained

The Second Department determined the defendant property owner and defendant snow-removal contractor should have been awarded summary judgment in a slip and fall case.  The court outlined the criteria for both causes of action:

” A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence'” … . Thus, to establish its prima facie entitlement to judgment as a matter of law, a property owner defendant moving for summary judgment is required to establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall … . Here, … [the property owner] … established its prima facie entitlement to judgment as a matter of law by submitting the transcripts of the deposition testimony of … a maintenance supervisor, and … the snow removal contractor, which established, prima facie, that [the property owner] did not have actual or constructive notice for a sufficient length of time to discover and remedy the ice condition which allegedly caused the plaintiff to fall… . * * *

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” … . “However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, or (3) where the contracting party has entirely displaced another party’s duty to maintain the subject premises safely” … .

Here, the plaintiff alleged [the snow-removal contractor] created the dangerous condition that caused her to slip and fall and, thus, launched a force or instrument of harm. In support of its motion, [the contractor] established, prima facie, that it did not create the allegedly dangerous condition which caused the plaintiff’s fall … . In opposition …, the plaintiff and [the property owner] failed to raise a triable issue of fact as to whether [the contractor] created or exacerbated the alleged hazardous condition … . The affidavit of the plaintiff’s expert as to the origin of the hazardous condition was speculative and conclusory and, thus, insufficient to defeat a motion for summary judgment … . Scott v Avalonbay Communities Inc, 2015 NY Slip Op -1438, 2nd Dept 2-18-15

 

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Criteria for Common Law Indemnification Explained (Not Met Here)—Property Owner Could Not Seek Indemnification from Independent Contractor Re: Dangerous Condition on the Property

In the context of a personal injury action based upon a dangerous condition, the Second Department explained the criteria for common law indemnification.  Here the dangerous condition was on property built by an independent contractor, Ambrosio, and owned by Wincoma.  Wincoma did not demonstrate it met the criteria for seeking indemnification from Ambrosio:

“The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “If . . . an injury can be attributed solely to negligent performance or nonperformance of an act solely within the province of [a] contractor, then the contractor may be held liable for indemnification to an owner” … . A party that has actually participated in the wrongdoing is not entitled to indemnification … .

Here, the record demonstrates that Wincoma, the owner of the property where the subject incident occurred, had actual and constructive notice of the allegedly defective condition which caused the plaintiff’s injuries … . Moreover, the record shows that the injury cannot be attributed solely to the negligent performance or non-performance of an act solely within the province of Ambrosio, which was an independent contractor … . Ambrosio built the subject structure approximately one year prior to the accident, the structure was built pursuant to specifications provided by Wincoma, and the record shows that those specifications were not “patently defective” … . Consequently, Wincoma could not be entitled to common-law indemnification from Ambrosio for any damages that may be assessed against it in this action … . Rappel v Wincoma Homeowners Assn, 2015 NY Slip Op 01434, 2nd Dept 2-18-15

 

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Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged

The Second Department noted that the issue whether the jury’s conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff’s injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged.  The court further noted that the jury’s conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):

The plaintiffs contend that the jury verdict finding that the defendant … School District … negligently supervised certain students who assaulted the plaintiff …, but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review … . Contrary to the plaintiffs’ further contention, the jury verdict was not against the weight of the evidence. The jury’s finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff’s] injuries, was based on a fair interpretation of the evidence… . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15

 

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Questions of Fact Raised Re: Whether Property Owner Liable for Work Done by Independent Contractor

The Second Department determined questions of fact existed about the liability of the property owner (Eastern) for work done by an independent contractor (Affraim).  Infant plaintiff was injured when he fell through a glass panel near the entrance of defendant’s building. The panel had been installed by an independent contractor.  The court explained the relevant analytical criteria:

“The general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts” … . One of the exceptions to this general rule is the “nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party “is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated” … .

Here, the Eastern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by presenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable City and State building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition … . However, in opposition, the plaintiffs’ submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated City and State building codes by failing to install safety glass in the panel … , and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition … . Horowitz v 763 E Assoc Inc, 2015 NY Slip Op 01417, 2nd Dept 2-18-15

 

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Defendant-Employer’s Motion for Summary Judgment Properly Denied—Defendant Did Not Submit Proof that Defendant’s Employee Was Not Acting Within the Scope of Employment When Employee Removed and Disseminated Photos from Plaintiff’s Cell Phone and Defendant Did Not Submit Proof Demonstrating It Did Not Know of the Employee’s Propensity for Such Conduct

The Second Department determined the motion for summary judgment made by defendant-employer, R & K,  was properly denied. The plaintiff alleged that defendant’s employee, Press, removed and disseminated photographs of her from a cell phone plaintiff had left with defendant for repair.  The Second Department noted that an employer can be liable for the negligence and the intentional torts of an employee, provided that the employee was acting within the scope of employment.  The court explained the criteria for vicarious liability under the doctrine of respondeat superior as well as direct liability for negligent hiring and supervision:

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment” … . “Intentional torts as well as negligent acts may fall within the scope of employment” … . Liability will not attach for torts committed by an employee acting solely for personal motives unrelated to the furtherance of the employer’s business …, or for conduct which could not have been reasonably expected by the employer … .

Here, R & K failed to establish, prima facie, that it could not be held vicariously liable for Press’s alleged acts, as it submitted no transcripts of testimony or affidavits from any of its employees, or business records, to support its contention that Press was acting outside the scope of his employment when he accessed and disseminated photographs from the plaintiff’s cell phone. * * *

“To establish a cause of action based on negligent hiring and 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” … . R & K failed to submit any proof establishing that it did not know and should not have known about Press’s alleged propensity to engage in the conduct at issue here, or that it was not negligent in hiring Press … . Hoffman v Verizon Wireless Inc, 2015 NY Slip Op 01416, 2nd Dept 2-18-15

 

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Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave to File a Late Notice of Claim Explained

The Second Department determined petitioner’s application for leave to file a late notice of claim was properly denied, as was petitioner’s request for discovery prior to the hearing.  The court explained the relevant analytical criteria:

In a special proceeding, where disclosure is available only by leave of the court (see CPLR 408), the Supreme Court has broad discretion in granting or denying disclosure …, although it must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality … . Contrary to the petitioners’ contention, they failed to demonstrate that the requested discovery was necessary and that providing the requested discovery would not unduly delay this proceeding … .

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner had a reasonable excuse for the delay, and (3) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). The injured petitioner’s assertion that she did not immediately appreciate the nature and severity of her injuries during the first 90 days after the subject incident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and to be diagnosed … . * * *

In addition, the petitioners failed to establish that the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter … . * * *

Finally, the petitioners failed to establish that the respondent would not be substantially prejudiced in its defense on the merits by the significant delay should leave be granted … . Matter of Bramble v New York City Dept of Education, 2015 NY Slip Op 01450, 2nd Dept 2-18-15

 

Defendant Seeking Summary Judgment Under the Storm in Progress Rule Must Demonstrate It Did Not Undertake Snow Removal During or Immediately After the Storm and Did Not Create or Exacerbate the Dangerous Condition

The Second Department, in denying defendant’s (Happy Nails’) motion for summary judgment, explained the analytical criteria for the “storm in progress” defense to a slip and fall case. Here the defendant failed to demonstrate it did not undertake snow removal efforts and did not create or exacerbate the dangerous condition during or immediately after the storm:

Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, ” until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . However, once a landowner or a tenant in possession elects to engage in snow removal, it is required to act with “reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … . Thus, New Happy Nails may be held liable for the allegedly hazardous condition on the sidewalk if it undertook snow and ice removal efforts during or immediately after the storm that made the naturally occurring condition more hazardous … .

Here, New Happy Nails failed to establish its prima facie entitlement to judgment as a matter of law. New Happy Nails failed to demonstrate that it did not undertake to remove snow and ice during or immediately after the storm, and failed to show that any such efforts on its part did not create or exacerbate the alleged icy condition … . Fernandez v City of New York, 2015 NY Slip Op 01410, 2nd Dept 2-18-15

 

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Labor Law 200 and Common Law Negligence Causes of Action Against Owner Properly Dismissed—Owner Did Not Exercise Supervisory Control Over Plaintiff’s Work

The Fourth Department determined the owner was entitled to summary judgment on the Labor Law 200 and common law negligence causes of action based upon evidence the owner did not exercise any supervisory control over plaintiff’s work:

It is well settled that, “[w]here the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . Here, defendants met their burden on the motion of establishing that they did not direct or control plaintiff’s work …. “There is no evidence that defendant[s] gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200” or under the common law.. . Matter of Mitchell v NRG Endergy Inc, 2015 NY Slip Op 01367, 4th Dept 2-13-15

 

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