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Under the Facts, a Stairwell Partially Covered by a Piece of Wood Was Not an Unreasonably Dangerous Condition

The Second Department determined that a stairwell leading to the basement of defendant’s restaurant, which was partially covered by a piece of wood, did not constitute an unreasonably dangerous condition.  Plaintiff fell down the stairwell after leaving a nearby bar by the back door and climbing over a fence:

A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries … . The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk … . “Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness’”… .

[Defendant] submitted evidence demonstrating that it was not aware of any other prior similar incidents or injuries on its premises and that there was no access between the rear of its premises and the rear portions of the stores situated to the west of it, which included the subject bar. Additionally, [defendant’s] submissions demonstrated that the restaurant was closed at the time of the incident, that the back door of the restaurant was locked, and that none of [defendant’s] employees was at the premises. Thus, [defendant] established, prima facie, that under the circumstances of this case, the basement stairwell partially covered by a piece of wood did not constitute an unreasonably dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact. Assefa v Bam, 2013 NY Slip Op 08220, 2nd Dept 12-11-13

 

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Uncovered Baseboard Radiator May Constitute an Unsafe Condition Created by Landlord

The First Department determined there were questions of fact about whether the landlord assumed a duty to cover a baseboard heating unit, whether the landlord created an unsafe condition by removing the baseboard heating unit’s cover, and whether the uncovered unit needed repairs or was defective.  The infant plaintiff, who suffers from mental retardation and cerebral palsy, was burned when her face and hand was in contact with an uncovered baseboard radiator for an unknown period of time.  Nina W v NDI King Ltd Partnership, 2013 NY Slip Op 08202, 1st Dept 12-10-13

 

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Workers’ Compensation Board’s Finding Re: Extent of Disability Should Not Be Given Collateral-Estoppel Effect in Related Negligence Action

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that collateral-estoppel effect should not be given to a finding by the Workers’ Compensation Board in a related negligence action.  Plaintiff, a delivery person, had been struck by a piece of plywood which fell from a building under construction in 2003.  The Workers’ Compensation Board found that plaintiff’s disability from the accident ceased as of January, 2006. In the related negligence action, the defendant sought to limit plaintiff’s proof of disability to the period prior to January, 2006.  The court held “that there is no identity of issue and that collateral estoppel therefore should not be applied:”

…[D]efendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action.  We have observed that the Workers’ Compensation Law “is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” … .  The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages … .  We have observed that the term “disability,” as used in the Workers’ Compensation Law, “generally refers to inability to work” … .  In addition, the Board uses the term “disability” in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee’s injury … .  The focus of the act, plainly, is on a claimant’s ability to perform the duties of his or her employment.

By contrast, a negligence action is much broader in scope.  It is intended to make an injured party whole for the enduring consequences of his or her injury — including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime.  Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical. Auqui v Seven Thirty One Limited Partnership, 212, CtApp 12-10-13

 

Question of Fact Whether Tavern Served Visibly Intoxicated Defendant

The Third Department determined the defendant tavern was unable to exclude the possibility defendant driver was served alcohol after defendant driver was visibly intoxicated in violation of General Obligations Law 11-101:

In order to establish its entitlement to summary judgment, the Tavern was required to present evidence excluding the possibility that it served [defendant driver] alcohol when she was visibly intoxicated (see Alcoholic Beverage Control Law § 65 [2]…).  Hurtado… v Williams, 516727, 3rd Dept 12-5-13

 

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Defendant’s Snow Removal Practices May Have Caused Icy Condition in Parking Lot

In a slip and fall case, the Third Department determined there was a question of fact about whether the snow removal practices of defendant’s contractor created the dangerous icy condition:

…[T]here are factual issues posed as to whether defendant’s snow removal procedures created the dangerous condition.  Defendant had hired an outside contractor to plow the snow into piles.  Plaintiff alleges that some of the piles were located on the parking lot’s perimeter, as well as between her parking spot and the sidewalk adjacent to the building.  There is a slight grade extending from these areas, encompassing the area of her fall.  Thus, there are factual issues as to whether the snow removal techniques caused the dangerous icy condition when the snow piles melted in the warm weekend weather and then refroze in the night before plaintiff’s accident… . Riozzi v 30 Kingston Realty Corporation, 516533, 3rd Dept 12-5-13

 

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Question of Fact About Whether the Three-Year Statute of Limitations for Professional Malpractice Was Tolled by the “Continuous Representation” Doctrine

The Second Department determined plaintiff had raised a question of fact about whether the “continuous representation” doctrine tolled the statute of limitations.  The complaint alleged that the defendant engineering and architectural firms failed to provide design and construction services which complied with the disability-accessibility design requirements.  The causes of action sounded in professional malpractice and breach of contract. Here the work was completed more than three years prior to the action (three-year statute of limitations applies even to the contract cause of action).  But the firms were later used to remedy the deficiencies uncovered by the Attorney General:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6]…). “A cause of action to recover damages for professional malpractice . . . for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship”… . However, a professional malpractice cause of action asserted against an architect or engineer may be tolled under the “continuous representation” doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided … .

The “continuous representation” doctrine, as applied to professionals including architects and engineers, “recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed of the manner in which the services are rendered” … . The doctrine applies when a plaintiff shows that he or she relied upon a continuous course of services related to the particular professional duty allegedly breached… . * * *

The law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems … . In this regard, a motion to dismiss pursuant to CPLR 3211(a)(5) will be denied unless the facts establish that a gap between the provision of professional services on the particular matter is so great that the representation cannot be deemed continuous as a matter of law … . Regency Club at Wallkill LLC v Appel Design Group PA, 2013 NY Slip Op 08067, 2nd Dept 12-4-13

 

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“Special Relationship” Required Before Municipality Can Be Liable for Failure to Enforce Statute or Regulation

The Second Department determined Supreme Court should have dismissed a complaint against the village alleging plaintiffs were exposed to “noise, smoke and odor” emanating from a Verizon facility and the exposure constituted a health hazard.  The complaint against the village alleged the negligent failure to enforce rules, regulations and building codes.  The Second Department explained that absent a “special relationship” creating a duty of care for the benefit of particular people, liability may not be imposed on a municipality for failure to enforce a statute or regulation.  The criteria for a special relationship are:

A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when the municipality voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known blatant and dangerous safety violation… .

“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action”… .

With respect to the creation of a special relationship by the municipality’s voluntary assumption of a duty and the plaintiffs’ justifiable reliance on the municipality’s undertaking, four criteria must be shown: “ (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’”… .

“[R]eliance must be examined in the specific context of the nature of the affirmative duty undertaken[,]” and “[i]t is the plaintiffs’ burden to show that the defendants’ conduct actually lulled them into a false sense of security, induced them to . . . forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty”… . Ferriera v Cellco Partnership…, 2013 NY Slip Op 07706, 2nd Dept 11-20-13

 

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Driver’s Statement In a Plea Proceeding that She Did Not Have Permission to Use Defendant-Owner’s Vehicle at the Time of the Accident Insufficient to Overcome Statutory Presumption Of Operation with Owner’s Consent

The Second Department determined defendant (Tumbiolo) had not overcome the presumption that the driver (Commisso) of Tumbiolo’s vehicle was operating the vehicle with Tumbiolo’s permission:

Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission” … . “Although the rule is not absolute or invariable, in most cases uncontradicted disavowals of permission by both the owner of the vehicle and the driver will constitute substantial evidence negating permissive use and entitle the owner to summary judgment”… . * *

…[T]o the extent that Tumbiolo seeks to utilize a transcript of a plea proceeding dated October 21, 2011, wherein Commisso answered “[n]o” when asked if she had “permission” to “take” the subject vehicle, Commisso’s prior statement is not admissible under the provisions of CPLR 4517. Further, Commisso’s prior statement would be admissible as an “admission by a party” only as against Commisso, not as against the plaintiff … . Additionally, Tumbiolo failed to show that Commisso’s prior statement would be admissible as a declaration against pecuniary, proprietary, or penal interest, which are exceptions to the rule against hearsay (… Jerome Prince, Richardson on Evidence § 8-403 [Farrell 11th ed 2008]). Diaz v Tumbiolo, 2013 NY Slip Op 07930, 2nd Dept 11-27-13

 

 

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Defendant Not Prejudiced by Disposal of Damaged Goods (Spoliation)/Lost Profits Recoverable Where Purchase Price Set at Time of Damage

The Second Department affirmed several rulings made by the trial court in the damages aspect of a trial in which plaintiff alleged defendant’s malfunctioning sprinkler system ruined over $1 million worth of clothing stored in the building. The fact that plaintiff disposed of some of the damaged clothes and sold the remainder for salvage (spoliation) did not prejudice the defendant. And, the fact that a purchase price for some of the goods had already been set at the time of the loss allowed recovery for lost profits because the loss was not speculative:

The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering at trial any evidence of damages based upon spoliation of evidence. The defendant failed to establish that it was severely prejudiced by the disposal and sale of the damaged goods, fatally compromising its ability to mount a defense and necessitating such relief as a matter of fundamental fairness… . * * *

“Generally, where property is damaged but not destroyed, the measure of damages is the difference between the market value before the damage and the market value afterwards” … . The market value of a merchant’s goods is the price at which they could be replaced in the market, not the retail price at which they could be sold … . This is because allowing recovery of the retail value of damaged goods “would in effect overcompensate the merchant by allowing recovery of unearned profits” (2-248 Warren’s Negligence in New York Courts § 248.01[3][b] [2013]).

Here, however, the plaintiff was not holding the goods in stock in anticipation of trying to sell them at retail for “uncertain and indefinite profits which the plaintiff might have made” from their sale … . Rather, the goods were already under contract for a specified price and awaiting delivery. “[W]here . . . a loss of profits is the natural and probable consequence of the [defendant’s negligence], and their amount is shown with reasonable or sufficient certainty, there may be a recovery” … .  Ever Win Inc v 1-10 Indus Assoc, 2013 NY Slip Op 07933, 2nd Dept 11-27-13

 

Defendant Presented No Evidence When Defective Bar Stool Was Last Inspected and No Evidence the Defect Was Latent—Summary Judgment Properly Denied

The Second Department determined the defendant was not entitled to summary judgment in a premises liability case.  Part of plaintiff’s finger was severed when he sat down on a bar stool.  There was a gap when the stool was lifted by the seat because the screws connecting the seat to the frame were either missing or loose:

In a premises liability case, the defendant property owner who moves for summary judgment has the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence … . To provide constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it… . “[C]onstructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection” … .

Here, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint since the defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create the alleged defective condition or have actual or constructive notice of it … . The defendant failed to specify when it last inspected the subject stool prior to the accident. Additionally, the defendant failed to show that the alleged defective condition of the stool was latent. McGough v Cryan Inc, 2013 NY Slip Op 07944, 2nd Dept 11-27-13

 

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