You are here: / Negligence

EVEN IF PLAINTIFF’S STAIRWAY FALL RESULTED FROM A MISSTEP, EVIDENCE THAT PLAINTIFF WAS “LOOKING FOR A HANDRAIL” RAISED A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF THE FALL (SECOND DEPT).

The Second Department, reversing Supreme Court in this stairway slip and fall case, determined that plaintiff’s testimony that he was “looking for a handrail” at the time he fell was sufficient to raise a question of fact whether the absence of a handrail was a proximate cause of the fall. Even if a fall is the result of a misstep, the absence of a handrail could be a proximate cause of the fall:

… [E]ven if a plaintiff’s fall is precipitated by a misstep, where the plaintiff testifies that he or she reached out to try to stop his or her fall, the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury” … . In contrast, the absence of a handrail will not create an issue of fact where the plaintiff does not offer testimony demonstrating “that she [or he] reached out for a handrail either before or during her [or his] fall” or otherwise showing that “the lack of handrails contributed to [the] accident” … .

… Although he was not sure what caused him to lose his balance, the injured plaintiff testified that he was “looking for a handrail” before descending the final set of steps but observed that no handrails were available. “Even if the [injured] plaintiff’s fall was precipitated by a misstep,” his testimony indicating that he would have been using a handrail at the time of his accident had one been available was sufficient to create “an issue of fact as to whether the absence of [an accessible] handrail was a proximate cause of h[is] injur[ies]” … . Curto v Kahn Prop. Owner, LLC, 2024 NY Slip Op 01290, Second Dept 3-13-24

Practice Point: In a stairway-fall case, if the plaintiff indicates they reached for a handrail at the time of the fall, that raises a question of fact whether the absence of a handrail was a proximate cause of the fall, even if the fall was due to a misstep.

 

PLAINTIFF FELL WHEN HER FOOT BECAME ENTANGLED IN CORDS OR TUBES CONNECTED TO MEDICAL EQUIPMENT IN A HOSPITAL ROOM; DEFENDANT DID NOT DEMONSTRATE THE CORDS OR TUBES WERE OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; DEFENDANT SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tubes or cords attached to medical equipment in a neurologic intensive care unit which caused plaintiff’s slip and fall were not demonstrated to be “open and obvious and not inherently dangerous:”

“While a possessor of real property has a duty to maintain that property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” … . “A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . Moreover, “[a] condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The question of whether a condition is open and obvious is usually a question of fact properly resolved by a jury … .

Here, the defendant failed to establish, prima facie, that the alleged condition of the tubes or cords was open and obvious and not inherently dangerous under the circumstances surrounding the accident … . Butler v NYU Winthrop Hosp., 2024 NY Slip Op 01289, Second Dept 3-13-24\

Practice Point: Whether a condition is open and obvious and not inherently dangerous is usually a question for the jury. Here, in this slip and fall case, there was a question of fact whether cords or tubes connected to medical equipment constituted an open and obvious condition which was not inherently dangerous.

 

,

IN THIS SLIP AND FALL CASE, STEPS WHICH DO NOT HAVE UNIFORM RISER HEIGHTS COULD CONSTITUTE A DANGEROUS CONDITION UNDER COMMON LAW NEGLIGENCE PRINCIPLES, WITHOUT REFERENCE TO WHETHER A BUILDING CODE WAS VIOLATED; BOTH THE PROPERTY OWNER AND THE SUBLESSEE COULD BE LIABLE (FIRST DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined the steps which did not have uniform riser heights could constitute a dangerous condition for which the property owner and the sublessee could be liable:

Here, the record demonstrates that the riser heights of the steps were not uniform and that the top riser was approximately three inches taller than the bottom riser. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party … , we find that both the defendant owner and the defendant car service [the sublessee] failed to demonstrate, prima facie, that a dangerous condition did not exist on the steps or that the disparity in riser heights was not a proximate cause of the accident … . Amparo v Christopher One Corp., 2024 NY Slip Op 01286, 3-13-24

Practice Point: Steps which do not have uniform riser heights can constitute a dangerous condition which is  the proximate cause of a slip and fall under common law negligence principles, irrespective of whether the non-uniform riser heights violated a building code.

 

, , ,

PORTIONS OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED AS UNTIMELY; THE PORTION OF THE UNTIMELY MOTION WHICH HAD BEEN TIMELY RAISED BY ANOTHER DEFENDANT WAS PROPERLY CONSIDERED; THE LABOR LAW 241(6) CAUSE OF ACTION PROPERLY RELIED ON INDUSTRIAL CODE PROVISIONS REQUIRING THAT ELECTRICAL POWER BE SHUT DOWN TO PROTECT ELECTRICAL WORKERS (SECOND DEPT).

The Second Department, reversing Supreme Court in this Labor Law 241(6, 200 and common law negligence action, determined; (1) portions of a defendant’s summary judgment motion brought more than a month after the ordered deadline where properly dismissed as untimely; (2) the aspect of the untimely summary judgment motion which had been timely raised in another defendant’s summary judgment motion was properly considered; (3) the industrial code requires shutting down the electricity when worker’s are doing electrical work, therefore plaintiff’s Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was in an aerial bucket working on electrical lines when injured in an explosion:

Absent a “satisfactory explanation for the untimeliness,” constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits … . However, “[a]n untimely motion or cross motion for summary judgment may be considered by the court where a timely motion was made on nearly identical grounds” … . * * *

… [T]he defendants … failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6), which was predicated on 12 NYCRR 23-1.13(b)(3) and (4). 12 NYCRR 23-1.13(b)(3) provides, among other things, that where the performance of the work may bring any person into physical or electrical contact with an electric power circuit, the employer “shall advise his [or her] employees of the locations of such lines, the hazards involved and the protective measures to be taken.” 12 NYCRR 23-1.13(b)(4) requires, in pertinent part, that employees who may come into contact with an electric power circuit be protected against electric shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means” … . These regulations, which refer to the duty of employers, also impose a duty upon owners … . Wittenberg v Long Is. Power Auth., 2024 NY Slip Op 01329

Practice Point: A summary judgment motion brought a month after the ordered deadline may be dismissed as untimely.

Practice Point: A portion of an untimely summary judgment motion which was timely raised by another defendant may be considered.

Practice Point: The industrial code provisions requiring that electrical power be shut down to protect electrical workers supported plaintiff’s Labor Law 241(6) cause of action.

 

,

NOT ALL REAR-END COLLISIONS ARE SOLELY THE FAULT OF THE REAR DRIVER; HERE PLAINTIFF, THE REAR DRIVER, RAISED CREDIBILITY ISSUES BY CONTRADICTING A STATEMENT ATTRIBUTED TO PLAINTIFF IN THE POLICE REPORT AND AVERRING DEFENDANT STOPPED SUDDENLY WITHOUT USING A TURN SIGNAL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff, the driver of the car which rear-ended defendant’s car, raised a question of fact about the whether the defendant stopped suddenly without using a turn signal:

“There can be more than one proximate cause of an accident” … , and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident … . “Not every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision” … .

… [T]he plaintiff raised questions of credibility, which are for the jury to determine … . The plaintiff disputed the content of his statement, as reflected in the police accident report, as well as the veracity of the defendant’s deposition testimony as to how the accident occurred. Specifically, the plaintiff disputed that the defendant utilized his left turn signal and averred that the defendant came to a sudden stop at the intersection. Kerper v Betancourt, 2024 NY Slip Op 01296, Second Dept 3-13-24

Practice Point: In this rear-end collision case, the plaintiff, the rear driver, raised credibility issues which can only be resolved by a jury. Plaintiff contradicted a statement attributed to him in the police report and averred that defendant stopped suddenly without using a turn signal. The rear driver in a rear-end collision is not always solely at fault.

 

, , ,

PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER TO ENCROACH ON PLAINTIFF’S PROPERTY; THE NEGLIGENCE ACTION WAS TIME-BARRED BECAUSE THE CONSTRUCTION WORK WAS DONE MORE THAN THREE YEARS BEFORE THE ACTION WAS FILED; THE RELATED NUISANCE AND TRESPASS ACTIONS WERE NOT TIME-BARRED BECAUSE THEY MAY CONSTITUTE “CONTINUING WRONGS” (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action was time-barred but the related nuisance and trespass actions constituted “continuing wrongs” and therefore were not time-barred. Plaintiff alleged defendant did construction work on defendant’s property which caused water to encroach on plaintiff’s property. Because the construction work was done more than three years before the action was filed, the negligence action was not timely:

The defendant demonstrated, prima facie, that the negligence cause of action was barred under the applicable three-year statute of limitations (see CPLR 214[4]) by submitting evidence that the allegedly negligent construction work performed on its property occurred in or around June 2012, more than four years prior to the commencement of this action … .

… Here, the acts of continuous nuisance and trespass alleged in the amended complaint may give rise to successive causes of action pursuant to the continuous wrong doctrine … . Jefferson v New Life Tabernacle, Inc., 2024 NY Slip Op 01295, Second Dept 3-13-24

Practice Point: Here construction work on defendant’s land was alleged to have caused water to encroach on plaintiff’s property. The negligence action accrued when the construction work was done and was time-barred. But the related nuisance and trespass actions may constitute “continuing wrongs” which were not time-barred.

 

THERE IS A QUESTION OF FACT WHETHER DEFENDANTS LAUNCHED AN INSTRUMENT OF HARM BY ERECTING AN OPAQUE FENCE AROUND A CONSTRUCTION SITE WHICH BLOCKED DRIVERS’ AND PEDESTRIANS’ LINES OF SIGHT IN AN INTERSECTION; PLAINTIFF PEDESTRIAN WAS STRUCK BY A CAR WHEN HE STEPPED BEYOND THE FENCE INTO A LANE OF TRAFFIC (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendant general contractor and defendant engineer launched an instrument of harm by erecting an opaque fence around a construction site which extended into a road parallel to the crosswalk. Plaintiff, a pedestrian, assumed the fence had blocked off the road to traffic, but there was one lane open. Plaintiff was struck by a car when he walked past the end of the fence into the lane:

The fabric-covered fencing obstructed the line-of-sight of pedestrians and motorists who were in the vicinity of the crosswalk at 29th Street and 9th Avenue in Manhattan, as the fence enclosure extended halfway into 29th Street, paralleling the crosswalk. Plaintiff, believing 29th Street to be fenced-off to traffic, crossed more than halfway through the crosswalk, against a “Don’t Walk” signal, at which time he was hit by a vehicle that passed through a narrow lane on the other side of the fence enclosure from where plaintiff had approached. There was no construction activity taking place on that Saturday, and crossing guards and traffic agents who were ordinarily deployed during actual construction hours were not provided on the weekend. Triable issues exist whether the fence enclosure created a foreseeable, unreasonable risk to others, or exacerbated risks inherent at the subject intersection … .Hyland v MFM Contr. Corp., 2024 NY Slip Op 01252, First Dept 3-7-24

Practice Point: Here an opaque fence parallel to a crosswalk made it appear the road had been blocked off. Plaintiff pedestrian, who assumed the street was blocked off and was using the crosswalk parallel to the fence, was struck by a car when he stepped beyond the end of the fence into a lane of traffic. There was question of fact whether the erection of the fence by defendants launched an instrument of harm.

 

,

THE PROOF THAT PLAINTIFF SLIPPED AND FELL AT A BUS STOP, WHERE THE CITY IS RESPONSIBLE FOR KEEPING THE AREA SAFE, AS OPPOSED TO THE SIDEWALK ABUTTING DEFENDANT’S PROPERTY, WHERE DEFENDANT IS RESPONSIBLE, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the NYC Administrative Code makes abutting property owner’s like the defendant responsible for keeping the sidewalks safe, the Code also indicates the City is responsible for keeping bus stops safe. The defendant argued plaintiff slipped and fell at a bus stop, but the Second Department did not find the evidence for that claim sufficient to warrant summary judgment:

Under Administrative Code § 7-210, an abutting property owner has a duty to maintain the public sidewalk, but the City continues to be responsible for maintaining any part of the sidewalk that is within a designated bus stop location … .

Here, the defendant failed to demonstrate, prima facie, that the area of the sidewalk where the accident occurred was within a designated bus stop location maintained by the City … . Moonilal v Roman Catholic Church of St. Mary Gate of Heaven, 2024 NY Slip Op 01172, Second Dept 3-6-24

Practice Point: Pursuant to the NYC Administrative Code, abutting property owners are responsible for keeping the sidewalk safe, but the City is responsible for keeping bus stops safe.

 

, , ,

THE PLAINTIFF IN THIS WRONGFUL DEATH ACTION AGAINST DEFENDANT NURSING HOME IS THE DECEDENT’S DAUGHTER AND HAD SIGNED THE ADMISSION AGREEMENT AS THE “RESPONSIBLE PARTY;” THE LANGUAGE OF THE AGREEMENT DID NOT CREATE AN AGENCY RELATIONSHIP BETWEEN PLAINTIFF AND HER MOTHER; THE ARBITRATION CLAUSE IN THE ADMISSION AGREEMENT COULD NOT, THEREFORE, BE ENFORCED BY THE NURSING HOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant nursing home’s (the Facility’s) motion to compel arbitration of the wrongful death action should not have been granted. The admission agreement had been signed by plaintiff, not the decedent (the resident of the nursing home). The admission agreement referred to plaintiff as the “responsible party” who was “primarily responsible to assist the [decedent] to meet … her obligations under [the agreement].” But there was no indication the decedent agreed to have plaintiff act on her behalf:

“Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by [her or] his own acts imbue [herself or] himself with apparent authority. Rather, the existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent. Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable” … .

… [T]he Facility failed to demonstrate that it reasonably relied upon any word or action of the decedent to conclude that the plaintiff had the apparent authority to enter into the agreement or to bind the decedent to arbitration on the decedent’s behalf … . To the extent that the Facility contends that it reasonably relied upon the plaintiff’s own acts, this contention is also without merit, as an agent cannot “by [her] own acts imbue [her]self with apparent authority” … . … [T]he plaintiff’s status as the decedent’s daughter did not give rise to an agency relationship … . Lisi v New York Ctr. for Rehabilitation & Nursing, 2024 NY Slip Op 01171, Second Dept 3-6-24

Practice Point: Here decedent’s daughter signed the nursing-home admission agreement as the “responsible party.” Because there was no indication decedent agreed to have her daughter act on her behalf, the nursing home could not claim the daughter had the “apparent authority” to bind decedent to the agreement. Therefore the nursing home could not enforce the arbitration clause in the wrongful death action.

 

, ,

IN A MEDICAL MALPRACTICE CASE, CONFLICTING EXPERT OPINIONS WHICH ARE EVIDENCE-BASED (I.E., NOT MERELY “CONCLUSORY”) REQUIRE DENIAL OF SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice case, determined plaintiff’s expert raised questions of fact about whether defendant surgeon failed to diagnose and treat a post-operative infection of plaintiff’s knee. Therefore, defendant’s motion for summary judgment should not have been granted. The decision is fact-specific and cannot be fairly summarized here. But the simple issue is: if experts on both sides of a med mal case come to conflicting conclusions which are evidence-based, summary judgment is inappropriate:

Based on the conflicting expert proof, plaintiff raised triable issues of fact … . Accordingly, defendants were not entitled to summary judgment. Kelly v Herzog, 2024 NY Slip Op 01137, Third Dept 2-29-24

Practice Point: In a med mal case, conflicting expert affidavits which are not “conclusory,” but rather are supported by evidence, preclude summary judgment.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy