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Although Plaintiff Could Not Identify the Cause of Her Fall, A Question of Fact Was Raised Re: the Cause by Circumstantial Evidence

The Second Department determined that, although the plaintiff was unable to identify the cause of her fall, she was able to raise a question of fact about the cause from circumstantial evidence:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall … . However, that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury … .

Here, the defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her accident without engaging in speculation … . However, in opposition, the plaintiff raised a triable issue of fact, inter alia, through circumstantial evidence, as to whether the cause of her fall was a cracked and/or unlevel condition on the defendants’ driveway … . Buglione v Spagnoletti, 2014 NY Slip Op 08801, 2nd Dept 12-17-14

 

Although There Was Evidence the Plaintiff Failed to Yield the Right-of-Way, There Was a Triable Question of Fact Whether Defendant Could Have Taken Steps to Avoid the Collision

The Second Department reversed Supreme Court finding that, although there was evidence failed to yield the right-of-way in violation of Vehicle & Traffic Law 1142 (a), defendant (Tiao) failed to demonstrate the absence of comparative fault on his part:

A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (see Vehicle and Traffic Law § 1141…). Moreover, a driver is negligent where he has failed to see that which through proper use of his senses he should have seen … . At the same time, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … . “There can be more than one proximate cause of an accident” …, and the issue of comparative fault is generally a question for the jury to decide … . Thus, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault … .

In support of their motion, the defendants relied upon, inter alia, the deposition transcripts of the plaintiff and Tiao. While the defendants submitted evidence that the plaintiff failed to yield the right-of-way to their vehicle in violation of Vehicle and Traffic Law § 1142(a), their submissions in support of their motion failed to establish Tiao’s freedom from comparative fault and that the plaintiff’s violation was the sole proximate cause of the accident… . Tiao recalled at his deposition that, prior to entering the intersection, when he was about five to eight feet therefrom, he observed the plaintiff’s vehicle stopped at the stop sign on 72nd Street. Thereafter, he testified that three to four seconds elapsed between his seeing the plaintiff’s vehicle initially and the collision. Tiao did not testify as to the movement of the plaintiff’s vehicle from the point he initially observed it to the point of impact between the vehicles, and he admitted that he could not recall where he was looking at the point of impact. He further admitted that he did not take any evasive action to avoid the impact with the plaintiff’s vehicle in the intersection. Based on Tiao’s testimony, the defendants failed to eliminate all triable issues of fact as to whether Tiao took reasonable care to avoid the collision with the plaintiff’s vehicle in the intersection… . Arias v Tiao, 2014 NY Slip Op 08796, 2nd Dept 12-17-14

Similar issue and result in Canales v Arichabala, 2014 NY Slip Op 08803, 2nd Dept 12-17-14

 

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Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)

The Second Department reversed Supreme Court’s determination that the complaint be deemed a late notice of claim against the city in a slip and fall case.  The court noted that Supreme Court did not have the power to accept the complaint as a late notice of claim, did not have the power to grant an application to file a late notice of claim after the statute of limitations had passed, the city was under no obligation to plead the absence of a notice of claim as a defense, and the city was not precluded from raising the defense by participating in discovery:

Here … the Housing Authority … was “under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement” … . “Furthermore . . . participation in pretrial discovery did not preclude [it] from raising the untimeliness of the notice of claim” … . In short, there is no evidence in the record demonstrating that the Housing Authority engaged in any misleading conduct which would support a finding of equitable estoppel … . Furthermore, there is no indication in the record that the plaintiff relied upon any alleged act or omission of the Housing Authority or that such reliance caused the plaintiff to change her position to her detriment or prejudice … . Accordingly, the Supreme Court should have granted the Housing Authority’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve a timely notice of claim, and denied that branch of the plaintiff’s cross motion which was to deem the complaint to be a late notice of claim and to deem it to have been timely served nunc pro tunc.  Feliciano v NYC Hous Auth, 2014 NY Slip OP 08807, 2nd Dept 12-17-14

 

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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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Landlord Properly Granted Summary Judgment in Action Stemming from an Assault on Landlord’s Premises—Plaintiff Unable to Raise a Question of Fact Whether the Assailants Were Intruders, as Opposed to Tenants or Invitees

The First Department determined summary judgment was properly awarded to the landlord in an action based upon an attack upon plaintiff on the landlord’s premises.  Plaintiff was not able to raise a question of fact about whether the assailants were intruders, as opposed to tenants or invitees:

A landlord has a common-law duty to take minimal precautions to protect tenants from a third party’s foreseeable criminal conduct … . In order to recover damages, a tenant must establish that the landlord’s negligent conduct was a proximate cause of the injury … . Where a plaintiff alleges that a criminal attack in a building was proximately caused by a landlord’s failure to provide adequate security, “[the] plaintiff can recover only if the assailant was an intruder” (id. at 551). “To defeat a motion for summary judgment, a plaintiff need not conclusively establish that the assailants were intruders, but must raise triable issues of fact as to whether it was more likely than not that the assailants were intruders who gained access to the premises through the negligently-maintained entrance” … . Applying these principles, no triable issue of fact exists here because there is no evidence from which a jury could conclude, without pure speculation, that the assailants were intruders, as opposed to tenants or invitees. Hierro v New York City Hous Auth, 2014 NY Slip Op -8734, 1st Dept 12-11-14

 

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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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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