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Criteria for Determining a Motion to Amend the Pleadings Explained

In reversing Supreme Court’s denial of a motion for leave to serve a second amended complaint, the Second Department explained the criteria for determining the motion:

“Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” … .

“No evidentiary showing of merit is required under CPLR 3025(b)” … . “The court need only determine whether the proposed amendment is palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” (id.). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” … . Favia v Harley-Davidson Motor Co Inc, 2014 NY Slip Op 05408, 2nd Dept 7=23=14

 

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Failure to Specifically Demonstrate When Area Where Fall Occurred Was Last Inspected or Cleaned Required Denial of Summary Judgment

The Second Department determined the defendant did not meet its burden of demonstrating a lack of constructive notice of the condition of the stairway where plaintiff fell (allegedly the presence of dirty paper and urine):

Although the defendant submitted an affidavit from the supervisor of the caretaker assigned to clean the subject building on the day immediately preceding the plaintiff’s nighttime accident, that affidavit was insufficient to establish when the stairway was last inspected and cleaned relative to the plaintiff’s fall. The affidavit was conclusory and only referred, in a general manner, to the janitorial schedule followed on normal weekdays. Moreover, another caretaker testified at his deposition, and the defendant concedes, that the normal weekday janitorial schedule was not in effect on the day preceding the plaintiff’s accident, which was the Thanksgiving holiday. Since the defendant did not provide evidence regarding any specific cleaning or inspection of the area in question on that day, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law… . Williams v New York City Hous Auth, 2014 NY Slip Op 05425, 2nd Dept 7-23-14

 

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Building Owner Entitled to Summary Judgment in Slip and Fall Case Based Upon Tracked In Water (Inclement Weather)–Tenant Ordinarily Does Not Have a Duty of Care Re: Common Areas

The Second Department determined the building owner was entitled to summary judgment in a slip and fall case based upon water tracked in during inclement weather.  The court noted that a tenant does not have a duty of care with respect to the condition of common areas of the building:

“In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . Moreover, a property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather …, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation … . A tenant ordinarily owes no duty of care with respect to a dangerous condition in a common area of a building … .

The owner and the tenant, on their respective motions, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. In support of their motions, the owner and the tenant each presented evidence that it had not created the alleged defective condition. The owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, i.e., the alleged presence of water on the vestibule floor of the subject building. Paduano v 686 Forest Ave LLC, 2014 NY Slip Op 05415, 2nd Dept 7-23-14

 

A Slip and Fall Defendant Who Moves for Summary Judgment Must Demonstrate When the Area Where the Fall Occurred Was Last Inspected or Cleaned

The Second Department determined summary judgment should not have been granted to the defendant in a slip and fall case.  The defendant, who moved for summary judgment, failed to demonstrate when the wet area where plaintiff fell was last cleaned or inspected and thereby failed to make a prima facie showing of a lack of constructive notice of the condition:

In a slip-and-fall case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence … . While the defendant met her initial burden of making a prima facie showing that she did not create the condition and lacked actual notice of the wet spot, “[t]o 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 defendant introduced no evidence as to when she had last cleaned or inspected the staircase relative to the time the plaintiff fell. She did not know when she last inspected the property before the subject accident …  Thus, the defendant did not establish, prima facie, that she lacked constructive notice of the alleged wet condition in the stairway … . Lamour v Decimus, 2014 NY Slip Op 04466, 2nd Dept 6-18-14

 

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No Special Duty Owed by School to School Employee Injured by Students Who Collided with Her

The Second Department determined that a school’s duty to supervise students does not extend to an adult school employee injured when two students collided with her:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a “special duty” to the students themselves … . Accordingly, a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established … . The special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises … .

Here, the defendants established, prima facie, that they did not owe the plaintiff a special duty… . Ferguson v City of New York, 2014 NY Slip Op 04464, 2nd Dept 6-18-14

 

Defendant Demonstrated It Did Not Have Constructive Notice of Condition Which Caused the Fall—Law of Constructive Notice Explained Re: Recurring Conditions/Latent Defects

The Second Department determined defendant was entitled to summary judgment in a slip and fall case because it demonstrated it did not have constructive notice of the condition which caused the fall.  Plaintiff was walking on a pallet in the stock room while unloading things.  After walking on the pallet three times, one of the boards apparently broke causing injury.  There was testimony that there was no sign the board was going to break prior to the accident.  The court explained the relevant law, including the law concerning recurring conditions and latent defects:

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 landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he or she can be charged with constructive notice of each specific reoccurrence of that condition … . A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition causing the fall … . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed … .

The Supreme Court properly concluded that the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating, through the submission of, inter alia, a transcript of the injured plaintiff’s deposition testimony, that it did not create the condition or have actual or constructive notice thereof. Schubert-Fanning v Stop & Shop Supermarket Co LLP, 2014 NY Slip Op 04474, 2nd Dept 6-18-14

 

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Application to File Late Notice of Claim (30 Days Late) Should Have Been Granted—Respondents Had Notice of the Incident and Short Delay Did Not Affect Ability to Investigate

In concluding the application to file a late notice of claim should have been granted, the First Department explained the relevant analysis.  The court noted the city had timely notice of the incident and the 30 delay in filing the notice did not prejudice the city’s ability to investigate:

General Municipal Law § 50—e(5) confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005]). The statute provides, in pertinent part, that in determining whether to grant an extension of time to serve a notice of claim, a court shall consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90—day period specified in § 50—e(1) “or within a reasonable time thereafter” (§ 50—e[5]). Further, under the statute, the court must take into account all other relevant facts and circumstances, including, among other things, whether the petitioner offered a reasonable excuse for the late notice and whether the delay substantially prejudiced the respondent’s defense on the merits … . The presence or absence of any one factor, however, is not determinative … . Moreover, while the court has discretion in determining motions to file late notices of claim, the statute is remedial in nature, and therefore should be liberally construed … .

…[R]espondents had actual knowledge of the pertinent facts constituting the claim — … .

In addition, petitioner attempted to serve the notice of claim only 30 days after expiration of the statutory 90-day period for filing a notice of claim against a municipality. This short delay does not prejudice respondents’ ability to investigate and defend the claim, as such a short passage of time is unlikely to have affected witnesses’ memories of the relevant events. Matter of Thomas v City of New York, 2014 NY Slip Op 04423, 1st Dept 6-17-14

 

Plaintiff’s Decedent Fell to His Death in a Gorge on Property Owned by Cornell University—Questions of Fact Re: Whether Plaintiff’s Decedent Was “Hiking” within the Meaning of the General Obligations Law (which Would Relieve the University of Liability) and Whether the Dangerous Condition Was Open and Obvious

The Third Department determined questions of fact had been raised about whether plaintiff’s decedent was “hiking” within the meaning of the General Obligations Law when he fell into a gorge to his death on property owned by defendant Cornell University in Ithaca.  The court also determined there was a question of fact whether the dangerous condition was open and obvious:

Defendant maintains that it is shielded from liability by General Obligations Law § 9-103 (1) (a), which, as pertinent here, “grants a special immunity to owners . . . from the usual duty to keep places safe” when individuals use their property for specified recreational activities, including hiking … . The enumerated activities covered under the statute “are essentially self-explanatory” …. “Hiking” has been described as “traveling through the woods on foot” … and as “traversing land ‘by foot or snowshoe for the purpose of pleasure or exercise'” … . Comparatively, this Court recently determined that a person walking her dogs on a paved walkway was not engaged in “hiking” under the statute …. With one exception not applicable here, a person engaged in one of the enumerated activities is “presumed to be doing so for recreational purposes” without regard to his or her subjective intent ….

The critical determination is whether decedent’s activity constituted “hiking” under the statute. As described, he ran down the gorge trail and, in that literal sense, was “traveling through the woods on foot,” or “hiking,” as defined in Sega v State of New York … . The statute, however, speaks to specified recreational categories reflecting the intent of the Legislature “to allow or encourage more people to use more accessible land for recreational enjoyment” … . Viewing the facts in the light most favorable to plaintiffs, the nonmoving party, we agree with Supreme Court that, under the distinctive fact pattern presented, defendant did not establish, as a matter of law, that decedent was “hiking” within the embrace of General Obligations Law § 9-103 (1) (a) at the time of his death … .  * * *

…[A] question of fact remains as to whether the cliff’s edge was visible and obvious or presented a latent, dangerous condition necessitating an appropriate warning… . King v Cornell Univ, 2014 NY Slip Op 05393, 3rd Dept 7-17-14

 

Questions of Fact Whether Handrail Which Did Not Extend to the Top of the Stairs Constituted a Dangerous Condition Which Proximately Caused Plaintiff’s Fall

The Third Department determined the fact that a handrail did not extend to the top of the stairs raised a question of fact about a dangerous condition of which the defendant had constructive notice:

The fact that the handrail only starts at the third step down the staircase presents a question for a factfinder to resolve as to whether this placement created a dangerous condition … .

Further, defendant did not meet its prima facie burden of demonstrating that the lack of a handrail extending to the top of the stairs did not cause or contribute to claimant’s fall … . “Even if [claimant’s] fall was precipitated by a misstep, given her testimony that she reached out to try to stop her fall, there is an issue of fact as to whether the absence of a handrail [at the top of the stairs] was a proximate cause of her injury” … . Likewise, the fact that claimant had used the stairs in the past and may have been aware of the defective condition did not defeat her claim but, rather, this “may be considered by a jury in assessing comparative negligence”… . Carter v State of New York, 2014 NY Slip Op 05394, 3rd Dept 7-17-14

 

Questions of Fact Whether Picnic Table Near the Edge of a Porch Was a Dangerous Condition and Whether the Condition Was Open and Obvious

The Third Department determined questions of fact had been raised about whether defendant created a dangerous condition in placing a picnic table near the edge of a porch that had no railing and whether the condition was open and obvious.  Plaintiff got up from the picnic table and fell off the edge of the porch, which was less than 29 inches from the ground (it was alleged no railing was required by the applicable codes):

…[The]evidence is sufficient to raise issues of fact as to whether defendant created a dangerous condition by negligently placing the picnic table close to the porch’s edge and failing to demarcate or guard this ledge … . Factual issues also exist as to whether defendant’s negligence, if any, was the proximate cause of Hannah’s injury, as this is not a case “‘where only one conclusion may be drawn from the established facts'” … .

Defendant also claims that it had no duty to warn of the alleged dangerous condition created by the unguarded drop-off at the porch’s edge, as any such hazard was open and obvious as a matter of law. “It is axiomatic that a landowner has no duty to warn of an open and obvious condition that is readily observable by the normal use of one’s senses, and this postulate applies to adults and minors alike” … . However, a landowner [*3]has a duty to warn against even known or obvious dangers where he or she “has reason to expect or anticipate that a person’s attention may be distracted, so that he or she will not discover what is obvious, or will forget what he or she has discovered, or fail to protect himself or herself against it” … . Here, upon considering all of the surrounding circumstances, including the nature and layout of the event being hosted by defendant …, we find that triable issues of fact exist as to whether the drop-off constituted an open and obvious hazard such that defendant was relieved of its duty to warn … . Jankite v Scoresby Hose Co, 2014 NY Slip Op 05390, 3rd Dept 7-17-14

 

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