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Slip and Fall Suit Against Out-Of-Possession Landlord Properly Dismissed

The Third Department affirmed the dismissal of the complaint against the out-of-possession landlord (SJM).  The plaintiff slipped and fell because of a loose stairway-tread block.  The stairway was constructed by defendant-company, Stanley, with which SJM had contracted.  However SJM did not supervise or control Stanley’s work. There was evidence the stairway (used only by employees of the tenant, not the general public) did not conform to the tread-width requirements of the building code:

As a general rule, “‘an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'” … . There are exceptions. For example, a landlord has a “‘nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'” … . Liability may attach where the out-of-possession landlord has contracted to repair or maintain the premises, has affirmatively created the condition … or has retained a right to reenter the premises for inspection or repairs and the injury arises from a structural defect or specific statutory violation … . …

SJM’s nondelegable duty to the public is not relevant because plaintiff’s injury did not occur in an area open to the public * * * Although SJM retained a right under the lease to re-enter the premises, this “‘is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord'” … .

….[T]he condition of the stairway was not sufficient to impose liability upon SJM. Assuming, without deciding, that the stairway did not conform to the New York State Building Code provision with regard to the width of stair treads (see 9 NYCRR former 713.1), the condition does not constitute a significant structural defect or statutory violation as would be necessary to find that SJM had constructive notice of the loose concrete block … . Accepting plaintiff’s descriptions of the accident, the stairway and the condition of the step, his fall was not attributable to the width of the tread, but rather its instability. …Supreme Court properly determined that SJM did not create the allegedly dangerous condition. Plaintiff’s expert does not assert that the stairs were negligently designed, but rather that they were not constructed in accordance with the specifications. Although SJM retained Stanley to construct the stairway in accordance with the architectural plans, as a general rule, SJM is not liable for the independent contractor’s alleged negligent construction … . Wayman v Roy Stanley Inc, 2014 NY Slip Op 08087, 3rd Dept 11-20-14

 

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Defendant-Doctor’s Failure to Mention He Was Under a Stayed License-Suspension In His Affidavit In Support of His Motion for Summary Judgment Was One Factor In Finding the Affidavit Insufficient to Meet Defendant’s Burden on the Motion

The Third Department determined defendant’s motion for summary judgment in a medical malpractice action was properly denied on several grounds.  The court noted that it was troubled that the defendant doctor’s (Stanger’s) license was under a stayed suspension at the time he wrote his affidavit in support of the summary judgment motion, and he failed to mention the stayed suspension in his affidavit.  For that reason, among others, the court deemed the affidavit an insufficient basis for summary judgment:

…[W]e nonetheless are … by the fact that Stanger failed to disclose the status of his medical license when he prepared his affidavit in support of defendants’ motions for summary judgment. The very first paragraph of Stanger’s affidavit recites, “I am a physician duly licensed to practice in the State of New York.” Noticeably absent from both that opening paragraph and Stanger’s affidavit as a whole is any mention of the fact that, only two months earlier, a one-year stayed suspension of his medical license had been imposed and that he was practicing medicine subject to certain terms of probation. This glaring omission is entirely inconsistent with Stanger’s ethical obligations as a practicing physician and, in our view, [*4]seriously calls into question the medical opinion he has rendered regarding his diagnosis, care and treatment of decedent. Additionally, further review of Stanger’s affidavit reveals that the opinion set forth therein was “[b]ased on [Stanger’s] review of the [medical] records in this matter, as well as [his] personal recollection of the care and treatment rendered to [decedent].” In this regard, Stanger acknowledged that he did not complete his charting of decedent’s January 29, 2009 hospital visit until after he (1) learned that decedent had returned to the emergency department the following day, (2) was advised that decedent had died, and (3) had been questioned by another physician regarding the care and treatment he had provided to decedent the previous day. Under these circumstances, we do not find Stanger’s affidavit to be sufficient to satisfy defendants’ initial burden on the motions for summary judgment, thereby warranting the denial thereof. Howard v Stanger, 2014 NY Slip Op 08088, 3rd Dept 11-20-14

 

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Pursuant to the NYC Administrative Code, Abutting Property Owners Are Not Responsible for the Maintenance of Tree Wells Within the Sidewalk

The Second Department noted that the abutting property owner’s responsibility for the safety of the sidewalk (under the New York City Administrative Code) does not extend to tree wells within the sidewalk:

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” … . “Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner; however, a tree well is not part of the sidewalk’ for purposes of that section of Administrative Code of the City of New York”… . Avezbakiyev v Champion Commons LLC, 2014 NY Slip Op 07966, 2nd Dept 11-19-14

 

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Defendant Homeowner Demonstrated She Did Not Have Actual or Constructive Notice of the Dangerous Condition and Did Not Create the Dangerous Condition (Deck Collapsed When Plaintiff Was Inspecting the Property Prior to Beginning Work)

The Second Department affirmed the grant of summary judgment to the defendant homeowner.  While inspecting defendant’s property before beginning work, the deck collapsed when plaintiff was walking on it.  The plaintiff sued under Labor Law 200 and common law negligence, alleging a dangerous condition.  Defendant demonstrated she did not have actual or constructive notice of the condition:

Where, as here, a plaintiff’s alleged injury arose from a dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing that he or she neither created the dangerous condition nor had actual or constructive notice of it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the she did not have actual or constructive notice of the defect in the deck, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that she did not create the defect. Nicoletti v Iracane, 2014 NY Slip Op 07991, 2nd Dept 11-19-14

 

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Evidence of General Inspection Practices, As Opposed to the Specific Inspection and Cleaning Practices Re: Where the Plaintiff Slipped and Fell, Insufficient to Entitle Defendant to Summary Judgment

The Second Department affirmed the denial of defendant’s motion for summary judgment in a slip and fall case.  The plaintiff slipped on a wet floor in the ladies room.  The defendant submitted only general information about its inspection practices without any specifics about the inspection or cleaning of the area where plaintiff fell:

“A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” … . “A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case” … . Moreover, a defendant’s reference to general inspection practices, without evidence as to when the area at issue was inspected relative to the plaintiff’s slip-and-fall, will not suffice to establish the lack of constructive notice of the existence of a dangerous condition … .

Here, the Supreme Court properly denied the defendant’s motion for summary judgment, since the defendant failed to submit any evidence regarding particularized or specific inspections or cleaning procedures that were utilized in the subject area relative to the time of the plaintiff’s accident … . Fernandez v Festival Fun Parks LLC, 2014 NY Slip Op 07978, 2nd Dept 11-19-14

 

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Plaintiff’s Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action—the Deposition Testimony Was Not Overcome by a “Feigned Issue” Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall

The Second Department determined that plaintiff’s deposition testimony that she did not look down and did not know the cause of her fall was fatal to the action.  The court determined that plaintiff’s affidavit in opposition to the summary judgment motion stated a “feigned issue” designed to avoid the consequences of her deposition testimony.  In addition, the expert affidavit alleging the cause of the fall was a depression could not overcome the plaintiff’s ignorance of the cause of the fall:

Here, the defendant established its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, in which she admitted to not knowing what her foot had been caught on, or what caused her to fall. Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, looking forward, and did not look down … .

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . The deposition testimony of the plaintiff’s friend, who was present when the accident occurred, also failed to raise a triable issue of fact, as this witness was unable to identify what caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expert who alleged that the proximate cause of the plaintiff’s injuries was a depression of the walkway pavers, which created a one-inch height difference between the pavers and the abutting concrete curb, thereby causing a tripping hazard. However, since the plaintiff did not know what caused her to fall, it would be speculative to assume that this alleged condition proximately caused her fall … . Rivera v J Nazzaro Partnership LP, 2014 NY Slip OP 08001, 2nd Dept 11-19-14

 

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The Toll of the Statute of Limitations Under the Continuing Representation Doctrine Ceased When the Attorney Was Discharged, Not When the Consent to Change Attorney Was Subsequently Filed—Various Ways In Which the Attorney-Client Relationship Can Be Terminated In this Context Explained In Some Depth

The Second Department, in a full-fledged opinion by Justice Dillon, held that the continuing representation toll of the statute of limitations ceases when the attorney is actually discharged and not when the consent to change attorney is subsequently filed:

An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim (see CPLR 214[6]…). Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court … , regardless of when the operative facts are discovered by the plaintiff … . However, “causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” … . The three-year statute of limitations is tolled for the period following the alleged malpractice until the attorney’s continuing representation of the client on a particular matter is completed … . For the doctrine to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . * * *

There are different ways that attorney-client relationships can be ended. One way is for the client to discharge the attorney, which can be done at any time with or without cause … . A second way is for the attorney and client to execute a Consent to Change Attorney or for counsel to execute a stipulation of substitution, which is then filed with the court in accordance with CPLR 321(b) (see Vincent Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C321:2). Alternatively, if the attorney deems it necessary to end the relationship without the consent of the client, such as where there is an irretrievable breakdown in the relationship or a failure of cooperation by the client, the attorney may move, on such notice as may be directed by the court, to be relieved as counsel by court order (see e.g. CPLR 321[2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c]…).

An affirmative discharge of an attorney by the client is immediate. By contrast, from the standpoint of adverse parties, counsel’s authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321 … . This rule protects adverse parties from the uncertainty of when or whether the authority of an opposing attorney has been terminated …, even when the adverse party is informally aware that a discharge or substitution of an opposing counsel is pending or imminent … . * * *

The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered … . “One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties”‘ … . What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions. Farage v Ehrenberg, 2014 NY Slip OP 07977, 2nd Dept 11-19-14

 

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25 Minute Response Time by Fire Department Was Not Actionable—No Special Relationship Between Plaintiffs and Fire Department—Fire Department’s Duty Is to the Public At Large

In reversing Supreme Court, the Second Department determined a complaint against a fire department alleging a “delinquent” (25 minute) response to a 911 call should have been dismissed.  The fire department’s duty is to the public at large and there was no special relationship between the plaintiffs and the fire department:

Generally, a municipality may not be held liable for the failure to provide fire protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual … . An exception to this rule exists where there is a special relationship between the municipality and the injured parties … . “The elements of this special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Contrary to the Supreme Court’s conclusion, there was no question of fact as to whether there was “direct contact” between the defendant and the plaintiffs. * * *

Moreover, there was no question of fact as to whether the plaintiffs justifiably relied upon any affirmative undertaking by the defendant. In this respect, the plaintiffs failed to raise a triable issue of fact as to whether the defendant’s conduct “lulled [them] into a false sense of security, induced [them] either to relax [their] own vigilance or forgo other avenues of protection, and thereby placed [them] in a worse position than [they] would have been had the [defendant] never assumed the duty” … . Kirchberger v Senisi, 2014 NY Slip Op 07986, 2nd Dept 11-19-14

 

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Although “Zone of Danger” Damages Were Asserted in the Complaint, the Failure to Request a “Zone of Danger” Jury Instruction and the Failure to Object to the Verdict Sheet (Which Did Not Mention “Zone of Danger” Damages) Precluded the Trial Court from Setting Aside the Verdict and Ordering a New Damages Trial

The Court of Appeals determined the trial court should not have set aside the verdict because “zone of danger” damages to loved ones who witnessed the death of plaintiff’s decedent (apparently caused by a collapse of a roof) were not presented to the jury. Although asserted in the complaint, no jury instruction on “zone of danger” damages was requested and no mention of “zone of danger” damages appeared on the verdict sheet.  Plaintiffs did not object to the jury charge or verdict sheet:

The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court’s charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of “Steven Motelson’s injuries and death,” and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages. Motelson v Ford Motor Co, 2014 NY Slip Op 07926, CtApp 11-18-14

 

Plaintiff’s Double-Parked Vehicle Furnished a Condition for the Accident But Was Not a Proximate Cause of the Acciden

The First Department reversed Supreme Court finding the fact that plaintiff was double-parked furnished the condition for the event but was not one of the causes of the accident.  The defendant driver had pulled around in front of plaintiff’s vehicle and then backed into it:

The fact that a vehicle is double parked “does not automatically establish that such double parking was the proximate cause of the accident” … . Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the location of her vehicle merely furnished the condition or occasion for the occurrence of the event but was not one of its causes … .

The record demonstrates that plaintiff’s vehicle was double parked on a one way street. Defendants’ vehicle, moving in the same direction, successfully passed plaintiff’s vehicle on the left and pulled approximately three to four car lengths in front of it before stopping. One to two seconds later, defendants’ vehicle drove in reverse in an erratic manner and struck the front of plaintiff’s car, which was stationary at all times. Cervera v Moran, 2014 NY Slip Op 07945, 1st Dept 11-18-14

 

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