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Proof of Regular Cleaning Negated Constructive Notice Allegation​

In determining the defendant’s motion for summary judgment in a slip and fall case should have been granted, the Second Department explained defendant had met its burden on the issue of (the absence of) constructive notice by proof of regular weekly cleaning:

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition… . ” To 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'”… .  A defendant’s submission of evidence of its general cleaning practices is generally insufficient to meet its burden on the issue of lack of constructive notice … . Here, however, the defendant submitted an affidavit from its superintendent indicating that each and every Monday, he would mop the entire building, including the stairwell where the plaintiff allegedly fell, and that this mopping would always occur between the hours of 3:00 p.m. and 4:00 p.m. This affidavit was specific enough to satisfy the defendant’s initial burden. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Armijos v Vrettos Realty Corp, 2013 NY Slip Op 03443, 2nd Dept,. 5-15-13

 

 

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Governmental Immunity Applied to Preclude Recovery by Bicyclist​

In finding the City was not liable for injury to a bicyclist because of governmental immunity, the First Department wrote:

In this action for personal injuries allegedly sustained by plaintiff when his bicycle hit a depression in a grassy area, after he was diverted from the bicycle path in a City park due to cleaning activities by defendants’ employees on a retaining wall, defendants moved to dismiss at the close of plaintiff’s… * * *  …[D]ismissal of the complaint is warranted on the … ground … that defendants’ employees were engaged in a governmental function giving rise to the governmental immunity defense. Diverting traffic to protect the public from the harsh chemicals used in the cleaning process was a discretionary act performed by public employees in the exercise of reasoned judgment … . Stashkevetch v City of New York, 2013, NY Slip Op 03418, 1st Dept, 5-14-13

 

 

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

Assumption of Risk Extends to Condition of Outside Basketball Court

The First Department affirmed the grant of summary judgment to the defendant finding that the plaintiff basketball player assumed the risks associated with playing basketball on defendant’s outdoor court:

Plaintiff, an experienced basketball player who had played on the subject court on numerous occasions, was injured when, while heading toward the rim to take a shot, his ankle twisted and he heard his knee “pop,” causing him to fall to the ground. Plaintiff observed that the court was cracked, repaired and uneven, which he believed to be the cause of his fall. Under the circumstances, dismissal of the complaint was proper since plaintiff assumed the risks associated with playing basketball or warming up to play basketball on this outdoor basketball court… . Felton v City of New York, 2013 NY Slip Op 03423, 1st Dept, 5-14-13

 

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Wrong Incident-Address in Notice of Claim (Not Intended to Mislead and Not Resulting in Prejudice to Defendant) Can Be Corrected​

In this slip and fall case, the First Department determined the wrong address in the notice of claim, under the facts, was not intended to mislead and did not prejudice the defendant:

In this trip and fall action, plaintiff’s notice of claim listed the wrong street address… in describing the location of her fall on a sidewalk, adjacent to Central Park, and across the street from that address. However, plaintiff also annexed a photograph to the notice of claim which depicted the intersection …, which is nearly four blocks south of the incorrect address provided in the notice of claim, and the written description of the location in the notice was consistent with the area depicted in the photograph. Moreover, at the statutory hearing held six weeks after the notice was served, and three and a half months after the accident, plaintiff explicitly … identified the location in the photograph as also shown. We also note that less than five months after the hearing, plaintiff served the summons and complaint, providing the proper street address. Under these circumstances, we find that the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City, and hence, it should have been disregarded or plaintiff should have been allowed to correct the notice pursuant to GML § 50-e(6)… . Green v City of New York, 2013 NY Slip Op 03382, 1st Dept, 5-9-13

SLIP AND FALL

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Notice Element of Lead-Paint Injury Cause of Action Explained

In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained the “notice” elements as follows:

With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time  that, in the exercise of reasonable  care, it should  have been corrected” …. In this context, constructive notice may  be demonstrated by a showing “that the landlord (1) retained a right of entry to the premises and  assumed  a duty to make  repairs, (2) knew  that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Derr v Fleming, 515399, 3rd Dept, 5-9-13

 

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Conflicting Expert Opinions, One of Which Was “Conclusory” with Respect to Proximate Cause, Raised Question of Fact

The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause:

Although, generally, a hospital cannot be held vicariously liable for the negligence of a private attending physician, concurrent liability will be imposed where, inter alia, a hospital’s employees commit independent acts of negligence …. Here, Winthrop [the hospital] satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that Noble, its employee, did not commit any independent acts that deviated from the standard of care while attending to the decedent in the post-operative recovery area …. However, Winthrop failed to satisfy its prima facie burden with respect to the issue of proximate cause, as the opinion rendered by its expert on that issue was conclusory … Therefore, the burden shifted to the plaintiff to raise a triable issue of fact only as to whether there was a deviation from the standard of care …. The plaintiff did so through the affidavit of her expert, who opined that Noble deviated from the standard of care by, inter alia, failing to recognize the signs of a complication and timely report those signs to Wong [the decedent’s private attending physician]. In light of the conflicting opinions of the parties’ experts, summary judgment dismissing the medical malpractice and wrongful death causes of action insofar as asserted against Winthrop should have been denied …. Rosenstack v Wong, 2013 NY Slip Op 03316, 2nd Dept, 5-8-13

 

Question of Fact About Property Owner’s Liability for Condition of Sidewalk Raised

The Second Department determined a question of fact had been raised about whether a property owner was liable to a pedestrian who allegedly fell because of the condition of the sidewalk.  Because the sidewalk was essentially part of the defendant landowner’s driveway, the sidewalk was subject to “special use” by the landowner which may impose liability for the condition of the sidewalk:

A landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner’s premises unless the landowner either created the defective condition or caused it to occur because of some special use, or unless a statute or ordinance places the obligation to maintain the sidewalk upon the landowner and expressly makes the landowner liable for injuries occasioned by the failure to perform that duty …. It is undisputed that the ordinance at issue in this case does not expressly make the landowner liable for injuries occasioned by a failure to perform the duty of maintaining sidewalks in good repair. Accordingly, the question to be determined is whether the plaintiff raised a triable issue of fact as to whether the individual defendants created the alleged defective condition or caused it to occur because of some special use.  A driveway can constitute a special use of a sidewalk …. Rodriguez v City of Yonkers, 2013 NY Slip Op 03315, 2nd Dept, 5-8-13

SLIP AND FALL

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Property Owner’s Obligation to Remove Snow and Ice from Sidewalk​

The Second Department explained the obligation of the owner of an owner-occupied, two-family, residential house with respect to the removal of ice and snow from the abutting sidewalk:

Since the defendants’ property, a two-family house, was owner-occupied and used exclusively for residential purposes, the defendants were exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for negligent failure to remove snow and ice from the sidewalk …. Thus, the defendants may be held liable for a hazardous snow and ice condition on the sidewalk only if they undertook snow and ice removal efforts that made the naturally occurring condition more hazardous or caused the defect to occur because of a special use …. Unless one of these factors is present, an abutting owner of a two-family residence may not be held liable for the removal of snow and ice in an incomplete manner …. Rodrigo Texis Cuapio v Skrodzki, 2013 NY Slip Op 03293, 2nd Dept, 5-8-13

SLIP AND FALL

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College Had No Duty to Supervise Fraternity “Pledging” Activities

The Second Department affirmed the dismissal of an action brought by a student against his college alleging a failure to supervise a fraternity’s “pledging” activities (resulting in personal injuries).  The Court wrote:

“Absent a duty of care, there is no breach, and without breach there can be no liability” …. The existence of a legal duty presents a question of law for the court … . “New York has affirmatively rejected the doctrine of in loco parentis at the college level and colleges in general have no legal duty to shield their students from the dangerous activity of other students'” …. A duty, however, may be imposed upon a college where it has encouraged its students to participate in an activity and taken affirmative steps to supervise and control the activity ….  * * * [T]he plaintiff did not sufficiently allege that the University defendants’ involvement in the Fraternity’s initiation process was of a degree that gave rise to a duty… . Pasquaretto v Long Is Univ, 2013 NY Slip Op 03308, 2nd Dept, 5-8-13

 

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