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Disposing of Key Evidence Warranted Striking of Answer

The Second Department determined Supreme Court properly struck the defendant’s answer and awarded summary judgment to plaintiffs on liability because the defendant disposed of crucial evidence after having been asked to preserve it.  Students were directed to stand on a grate to pose for a class picture.  The grate collapsed and the students fell eleven feet.  The defendant disposed of the grate:

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126 … . Since the Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence …, it may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation … .

Here, the Supreme Court providently exercised its discretion in striking the defendant’s answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff’s attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant’s conduct in disposing of the grate. Biniachvili v Yeshivat Shaare Torah Inc, 2014 NY Slip Op 05826, 2nd Dept 8-20-14

 

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Criteria for Granting Leave to Serve a Late Notice of Claim Explained

The Second Department determined Supreme Court had properly granted plaintiff’s motion for leave to serve a late notice of claim. The infant plaintiff was injured at school and there was no doubt the school was aware of the injury, and the background of the injury, at the time it occurred.  The court included a succinct summary of the applicable analytical criteria:

General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim … . “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … .

Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5]…). The presence or absence of any one of these factors is not necessarily determinative … .  Kellman v Hauppauge Union Free School Dist, 2014 NY Slip Op 05844, 2nd Dept 8-20-14

 

Golfer Assumed the Risk of Tripping on Grate in Golf-Cart Path

The Second Department determined the doctrine of primary assumption of the risk precluded a suit by a golfer who tripped on a grate in a golf-cart path:

Under the doctrine of primary assumption of the risk, “by engaging in a sport or recreational activity, a participant 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” … . Those risks include risks associated with the construction of the playing surface and any open and obvious condition on it … . Here, contrary to the plaintiffs’ contention, the defendants established their prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied … . Simon  v Hamlet Windwatch Dev LLC, 2014 NY Slip Op 05855, 2nd Dept 8-20-14

 

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Town Not Liable for Negligently Picking Up Personal Items from Driveway During Garbage Collection—Garbage Collection Is a Ministerial Function—No Special Relationship with Plaintiff

The Second Department determined the town was not liable for picking up items plaintiff had placed in his driveway to dry out after a storm.  The items were picked up as “bulk garbage” prior to the date bulk-garbage collection was slated to begin:

Garbage collection is considered a governmental function … . A municipality cannot be held liable for negligence in the performance of discretionary acts, but can be held liable for negligence in the performance of ministerial acts, if there is a special relationship between the plaintiff and the defendant … . The difference between ministerial or discretionary acts is described thusly: ” discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'”… . Garbage collection falls within the definition of a ministerial function.

A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following elements: ” (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'” … . No facts were alleged indicating that the defendants undertook an affirmative duty to act on behalf of the plaintiff. Therefore, no basis was alleged to impose liability upon the defendants, based on the negligent destruction of property. Katz v Town of Clarkstown NY, NY Slip Op 05843, 2nd Dept 8-20-14 

 

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Ordinance Making Abutting Property Owners Responsible for Removal of Ice and Snow from a Sidewalk Did Not Impose Tort Liability on Abutting Property Owner

The Second Department determined that an abutting property owner (Atlantic) could not be held liable for an ice/snow slip and fall on a sidewalk in the absence of an ordinance specifically imposing tort liability on the property owner, even where, as here, an ordinance made the property owner responsible for removal of ice and snow:

“Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk” … . Although section 229-6 of the Code of the Village of Ossining (hereinafter the Village Code) requires a landowner to remove snow and ice from abutting public sidewalks, it does not specifically impose tort liability for a breach of that duty … . “In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous” … . In their pleadings, the plaintiffs did not allege that the Atlantic defendants created the icy condition. Rather, the pleadings alleged that the Atlantic defendants were negligent in, inter alia, failing to remove snow and ice from the sidewalk. Since the Atlantic defendants established that section 229-6 of the Village Code did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk, they demonstrated their prima facie entitlement to judgment as a matter of law … . Palka v Village of Ossining, 2014 NY Slip Op 05848, 2nd Dept 8-20-14

 

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Memorialized Telephone Notification About Pothole Does Not Satisfy Written Notice Requirement—Inadequate Repair Is Not Sufficient to Demonstrate Municipality Created the Dangerous Condition

The Second Department determined Supreme Court should have dismissed the complaint against the village because the village did not receive written notice of the pothole which allegedly caused plaintiff’s injury.  The court noted that phone calls to the village about the pothole, even if memorialized in writing, did not meet the written notice requirement.  The court also noted that an inadequate repair of the pothole is not enough to demonstrate the village created the defect:

The plaintiff contends that there is a triable issue of fact as to whether the Village received prior written notice of the defect, because the oral notice provided by residents of the street, including voicemail, could have been reduced to writing by an employee of the Village. However, Hempstead Village Code § 39-1 requires that “written notice of said defect causing the injuries or damages was actually given to the Village Clerk.” There are no provisions permitting other types of notice, such as a written acknowledgment of oral notice … . Therefore, a verbal or telephonic communication which was reduced to writing by the Village would not satisfy the prior written notice requirement … .

In Yarborough v City of New York (10 NY3d 726), the Court of Appeals noted that once the municipality establishes lack of written notice, “the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule —that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” A negligent repair of the defective condition is insufficient to establish that the municipality affirmatively created the defect … . To fall within the exception, the repair must immediately result in a dangerous condition …, which made the defective condition more dangerous than it was before any efforts were made to repair it … . Wilson v Incorporated Vil of Hempstead, 2014 NY Slip Op 05861, 2nd Dept 8-20-14

 

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Sheriff’s (Lack of) Liability Under Respondeat Superior, Elements of Malicious Prosection, Abuse of Process, False Imprisonment and Libel Per Se Explained

In a lengthy and detailed decision the Fourth Department explained the negligence actions against the sheriff based on respondeat superior were properly dismissed, the action for malicious prosecution was properly dismissed (because the underlying criminal action was not dismissed on the merits and could be renewed), but the actions for abuse of process, false imprisonment, and libel per se should not have been dismissed.  The decision is too lengthy to summarize here, but it includes detailed explanations of the sheriff’s immunity from suit under respondeat superior and the elements of malicious prosecution, abuse of process, false imprisonment, and libel per se. The action stemmed from the allegation plaintiff was falsely accused of stealing a computer.  D’Amico v Correctional Med Care Inc, 2014 NY Slip Op -5737, 4th Dept 8-8-14

 

Driver with Right of Way Who Strikes a Vehicle Which Suddenly Enters the Right of Way Is Free from Negligence (No Need to Apply the Emergency Doctrine)/Emergency Doctrine Does Not Automatically Absolve a Driver of Liability

The Fourth Department noted that a driver with the right of way who strikes a vehicle which suddenly enters his or her path is free of negligence absent speeding or some other negligent conduct (no need to apply the emergency doctrine).  The court further noted that the emergency doctrine does not automatically absolve a person of liability.  Here there was a question whether the brakes on the vehicle confronted with the emergency were maintained properly and whether swerving was reasonable:

The existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact” … . We conclude that there are issues of fact whether the Marriotts’ maintenance of their pickup truck was adequate and thus whether the brake failure was truly unexpected and without any fault on their part. Moreover, it cannot be concluded as a matter of law that swerving to the right in order to avoid rear-ending the garbage truck was a reasonable reaction to the emergency created by the loss of brakes on the pickup truck. Colangelo v Marriott, 2014 NY Slip Op 05746, 4th Dept 8-8-14

 

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Where the Manufacturer Was Not At Fault in a Products Liability Action, the Retailer Is Not Entitled to Indemnification for the Costs of Defending the Action from the Manufacturer

The Fourth Department determined a downstream retailer (GE) was not entitled to indemnification from and upstream manufacturer (Carrier) when both have been absolved of fault in a products liability action.  The basis of the action was a fire which was alleged to have been caused by an air conditioner manufactured by Carrier and marketed and sold by GE.  It was ultimately determined the fire was not caused by the air conditioner.  GE sought indemnification from Carrier for the costs associated with the lawsuit:

The issue in this case is whether GE, a downstream retailer, is entitled to recoup its costs in defending a products liability action from Carrier, an upstream manufacturer, when they both are ultimately absolved of liability. We conclude that GE is not entitled to recoupment, and we therefore affirm.

Indemnification is grounded in the equitable principle that the party who has committed a wrong should pay for the consequences of that wrong … . Thus, New York courts have consistently held that “common-law indemnification lies only against those who are actually at fault” …, i.e., the “actual wrongdoer” … . In the products liability context, a manufacturer is held accountable as a “wrongdoer” when it releases a defective product into the stream of commerce …, and “innocent” sellers who merely distribute the defective product are entitled to indemnification from the at-fault manufacturer … . That common-law right of indemnification “encompasses the right to recover attorneys’ fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party” … . * * *

Where, as here, it is ultimately determined that the subject product is free from defect, there is no “fault” or “wrongdoing” on the part of the manufacturer… . Bigelow v General Elec Co, 2014 NY Slip Op 05727, 2nd Dept 8-8-14

 

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Allegation in Notice of Claim that Defendant Failed to Maintain a Stairway Was Sufficient to Encompass the Allegation the Handrail Was Obstructed and Could Not Be Used

In a slip and fall case, the First Department, over a two-justice dissent, reversing Supreme Court, determined that a notice of claim which generally alleged a failure to maintain a stairway in the vicinity of the second floor landing was sufficient to encompass allegations in the bill of particulars that the handrail was obstructed and could not be used:

Plaintiff’s claim that defendant failed to maintain the handrail along the stairway at or near the second floor may be fairly inferred from the notice of claim, which alleged that defendant was negligent in maintaining the second floor landing area … . The notice of claim alleged generally that defendant failed to maintain stairway “A” in the vicinity of the second floor landing, causing plaintiff’s injury. The bill of particulars merely amplified the allegations of negligence concerning the landing area by further specifying that defendant had failed to maintain the handrail at the landing area… . Thomas v New York City Hous Auth, 2014 NY Slip Op 05696, 1st Dept 8-7-14

 

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