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Out-Of-Possession Landlord Liability Criteria Explained

The Third Department determined an out-of-possession landlord was not liable to an employee of the tenant who slipped and fell on a loose stair tread.  Neither the terms of the lease nor a course of conduct rendered the out-of-possession landlord responsible for repairing the condition.  The Third Department explained the relevant analytical criteria:

“Generally, ‘an out-of-possession landlord who relinquishes control of the premises is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'” … . “‘Exceptions to this rule include situations where the landlord retains control of the premises, has specifically contracted to repair or maintain the property, has through a course of conduct assumed a responsibility to maintain or repair the property or has affirmatively created a dangerous condition'” … . Whittington v Champlain Ctr N LLC, 2014 NY Slip Op 08691, 3rd Dept 12-11-14

 

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Statutory Privilege Afforded Emergency Vehicles (Imposing a “Reckless Disregard” Standard for Accident-LiabilIty) Is Not Dependent Upon Whether the Emergency Lights and Siren Were Activated

The First Department determined summary judgment was properly granted to the city in a case stemming from a collision with a police car.  The evidence that the police car, which was “performing an emergency operation,” stopped at a stop sign before proceeding into the intersection where it was struck by the taxi in which plaintiff was a passenger was sufficient to demonstrate the police officer did not act recklessly.  It did not matter whether the emergency lights and siren were activated:

As the police vehicle was an authorized emergency vehicle (Vehicle and Traffic Law § 101), performing an emergency operation by “pursuing an actual or suspected violator of the law” (Vehicle and Traffic Law § 114-b), the operator was authorized to proceed through the red light, once it slowed down “as may be necessary for safe operation” (Vehicle and Traffic Law § 1104 [a],[b][2]). Thus, in order to hold the municipal defendants liable, plaintiff must demonstrate that the officer driving the police vehicle acted with “reckless disregard for the safety of others,” which requires a showing that he “has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … .

Here, the officer’s uncontroverted testimony was that he came to a complete stop prior to entering the intersection. That he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless … . That issues of fact exist as to whether the police lights were on (which plaintiff saw prior to the accident, but the taxi driver testified he did not), or whether the siren was activated, is not material, as a police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light (Vehicle and Traffic Law § 1104[c]). Thus, the evidence demonstrates that the officer driving the police vehicle lawfully exercised the privilege, and appellants have produced no evidence of any other facts or circumstances which would raise a triable issue as to any reckless conduct by the officer.  Flynn v Sambuca Taxi LLC, 2014 NY Slip OP 08723, 1st Dept 12-11-14

 

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Motion to Strike Errata Sheet “Correcting” Substantive Discrepancies in Deposition Testimony Should Have Been Granted

The Second Department reversed Supreme Court and dismissed the complaint.  In her deposition plaintiff testified at length about where she tripped and fell but identified a very different location from that described in the complaint.  Plaintiff then sought to “correct” the “errors” in the deposition transcript by executing an errata sheet:

Notwithstanding the detailed, consistent, and emphatic nature of the plaintiff’s deposition testimony regarding the location of her accident, she subsequently executed an errata sheet containing numerous substantive “corrections” which conflicted with various portions of her testimony and which sought to establish that she actually fell at 197 Fifth Avenue, not 140 Fifth Avenue. The only reason proffered for these changes was that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs. The defendants … moved, to strike the errata sheet and for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions. We reverse.

Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony (see CPLR 3116[a]…). Horn v 197 5th Ave Corp, 2014 NY Slip Op 08605, 2nd Dept 12-10-14

 

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Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered

The Second Department determined plaintiff's alleged statements about the trip and fall which were referenced in hospital records were not admissible because the statements were not germane to diagnosis and treatment and were not prior inconsistent statements.  The defense was therefore prohibited from calling the triage nurse who heard the statements.  Plaintiff's counsel, however, was erroneously allowed to comment on the absence of the nurse from the trial (the defense had indicated in its opening that she would testify about discrepancies in the plaintiff's account of the accident).  A new trial was therefore ordered:

Supreme Court providently exercised its discretion in precluding the admission into evidence of the entries in the injured plaintiff's hospital records. The evidence, which purportedly constituted statements by the injured plaintiff indicating that the accident did not occur on the defendants' premises, were not germane to the injured plaintiff's diagnosis and treatment … . Further, those statements were either equivocal as to how the accident occurred, or consistent with the injured plaintiff's testimony at trial … . Accordingly, they were not admissible as prior inconsistent statements to impeach her credibility. Since those entries were not admissible, the testimony of the triage nurse with respect to those entries was not admissible.

However, permitting the plaintiffs' counsel to comment on the failure to call the triage nurse as a witness was error, since the defendants in fact produced the witness and were precluded from calling her to testify by the trial court. Further, the comments by the plaintiffs' counsel in summation were not supported by the evidence, and were inflammatory and unduly prejudicial, depriving the defendants of a fair trial … . Nelson v Bogopa Serv Corp, 2014 NY Slip Op 08612, 2nd Dept 12-10-14

 

Single Step Was Open and Obvious and Not Inherently Dangerous

The Second Department determined a single step separating the carpeted dining area from the rest of the restaurant was open and obvious and not inherently dangerous:

A property owner has a duty to maintain his or her property in a reasonably safe manner … . However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Here, the defendants … submitted evidence sufficient to establish, prima facie, that the single step separating the carpeted dining area from the rest of the restaurant in which the plaintiff allegedly fell, which consisted of wooden flooring, was open and obvious, and not inherently dangerous … . Dillman v City Cellar Wine, Bar & Grill, 2014 NY Slip Op 08598, 2nd Dept 12-10-14

Similar issue and result in Varon v New York City Dept of Educ, 2014 NY Slip Op 08633, 2nd Dept 12-10-14.

 

There Can Be More than One Proximate Cause of an Accident—Plaintiff, to Prevail On a Motion for Summary Judgment, Must Demonstrate Both Defendant’s Negligence as a Matter of Law and Plaintiff’s Freedom from Comparative Fault

The Second Department determined plaintiff's motion for summary judgment was properly denied, in part, because she failed to demonstrate she was free from comparative fault.  Defendant's truck and plaintiff's vehicle were stopped side by side in two left-turn lanes. When the light turned green both vehicles turned left.  Plaintiff alleged that defendant's truck crossed into her lane during the turn, striking her vehicle.  The court noted that there was a question of fact whether the truck crossed into plaintiff's lane, as well as whether plaintiff was comparatively negligent (two possible proximate causes of the accident):

A driver is negligent if he or she violates Vehicle and Traffic Law § 1128(a) by, inter alia, failing to drive “as nearly as practicable entirely within a single lane” (Vehicle and Traffic Law § 1128[a]…). However, there can be more than one proximate cause of an accident … . Accordingly, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault … .

Here, the deposition testimony of the parties, which the plaintiff submitted in support of her motion, was insufficient to demonstrate, prima facie, her entitlement to judgment as a matter of law. The deposition testimony raised triable issues of fact as to whether the defendant driver violated Vehicle and Traffic Law § 1128(a) by failing to drive the tractor-trailer “as nearly as practicable entirely within a single lane,” and whether negligence, if any, on the part of the plaintiff, who admitted that she was not aware of what the defendant driver was doing while she made her turn, contributed to the happening of the accident. Kaur v Demata, 2014 NY Slip Op 08607, 2nd Dept 12-10-14

 

Sudden and Frequent Stops In Traffic Must Be Anticipated by Drivers

The Second Department, in finding no question of fact had been raised about the existence of a non-negligent explanation for a rear-end collision, explained the relevant law:

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … .

“One of several nonnegligent explanations for a rear-end collision [may be] a sudden stop of the lead vehicle” … . However, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Le Grand v Silberstein, 2014 NY Slip OP 08608, 2nd Dept 12-10-14

 

Defendant Driver Could Not Avoid Striking Bicyclist Who Did Not Stop at a Stop Sign

The Second Department determined summary judgment was properly granted to the defendant re:  a bicycle/car collision in which the bicyclist was killed.  Defendant driver demonstrated plaintiff's decedent rode through a stop sign and there was no time to avoid the collision:

The defendant was entitled to anticipate that the plaintiffs' decedent would stop at the stop sign and yield the right-of-way to him … . Moreover, the evidence submitted by the defendant eliminated any triable issue of fact as to the defendant's alleged negligence in failing to avoid the impact … . The defendant established, prima facie, that he had only a second to react … . The evidence further established that, in an attempt to avoid impact, the defendant braked and slowed his vehicle to a stop immediately after impact. In opposition, the plaintiffs failed to raise a triable issue of fact. Under the circumstances presented, the defendant's alleged failure to reduce speed or alter his direction prior to impact did not raise a triable issue of fact as to whether he was negligent … . Yun Lu v Saia, 2014 NY Slip Op 08635, 2nd Dept 12-10-14

 

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Fight On School Bus Was Not Foreseeable and Could Not Have Been Prevented

The Second Department determined that the duty to supervise students on a school bus is identical to the duty to supervise students in school.  Here infant plaintiff was injured on the bus when punched by another student.  The bus driver did not see the incident and neither the infant plaintiff nor the assailant had been involved in or witnessed any other fights on the school bus. The court held that brief incident was not foreseeable and could not have been prevented:

Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances … . However, schools and school bus companies are not insurers of their students' safety; rather, for liability to result, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it … .

Here, the bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant. Rather, the assailant's act of punching the infant was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries … . Braun v Longwood Jr High School, 2014 NY Slip Op 08595, 2nd Dept 12-10-14

 

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Action Dismissed Because Letters of Administration Had Not Been Issued to Plaintiff at the Time the Action Was Commenced

The Second Department affirmed the dismissal of the action because the plaintiff had not received letters of administration at the time the summons with notice was filed and because the plaintiff did not allege any injury to him individually.  The court also noted that the plaintiff did not have standing (no representative capacity at the time the action was commenced) to request more time to serve the complaint:

A personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death … . Here, at the time the action was commenced by the filing of the summons with notice, the plaintiff had not yet received letters of administration of the decedent's estate and, thus, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff in a representative capacity … . Moreover, although the action was commenced by the plaintiff, both individually and as “executor” of the decedent's estate, no cause of action asserted any injury or wrongdoing to him … . Thus, the Supreme Court also properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff individually.

Moreover, as the plaintiff lacked standing to sue in his representative capacity at the time he commenced the action, he could not establish any meritorious basis to extend his time to serve the complaint … . Shelley v Sooth Shore Healthcare, 2014 NY Slip Op 08625, 2nd Dept 12-10-14

 

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