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PLAINTIFF REAL ESTATE DEVELOPER’S PRIVATE NUISANCE, PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION BASED UPON THE ALLEGED NOXIOUS ODORS FROM DEFENDANT’S LANDFILL SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff real estate developer causes of action against defendant landfill operation for private nuisance, public nuisance and negligence, based upon noxious odors from the landfill, should have been dismissed: Plaintiff alleged the odors made it difficult to sell homes and reduced the value of properties in the vicinity of the landfill:

… [A] private nuisance is one that “threatens one person or . . . relatively few” … . … [P]laintiff’s allegations indicate that the noxious odors affected a large number of community residents and, therefore, we conclude that plaintiff’s cause of action for private nuisance must be dismissed … . …

… [A] public nuisance consists of “a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … .

Here, plaintiff alleged that it suffered a special injury because it “suffered lost profit[s] and other substantial economic loss,” including “irreparable damage to its reputation in the community as a residential home builder.” … [P]laintiff did not allege facts sufficient to support a public nuisance cause of action. It failed to allege that it sustained any harm or damages that were “different in kind, not merely in degree,” from the community at large … .

* * * [P]laintiff “ha[s] not alleged any tangible property damage or physical injury resulting from exposure to the odors” and, “likewise, the economic loss resulting from the diminution of plaintiff[‘s] property values is not, standing alone, sufficient to sustain a negligence claim under New York law” … . William Metrose Ltd. Builder/Developer v Waste Mgt. of N.Y., LLC, 2024 NY Slip Op 01458, Fourth Dept 3-15-24

Practice Point: Here noxious odors from a landfill did not support causes of action for private nuisance, public nuisance or negligence, criteria explained.

 

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THE FACT THAT PLAINTIFF WAS SPECIFICALLY TARGETED FOR A HOME INVASION DID NOT PRECLUDE A FINDING THAT INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owners should not have been awarded summary judgment in this home invasion case. The fact that plaintiff was specifically targeted did not preclude a finding that building security was inadequate:

Plaintiff was the victim of a home invasion of his apartment in a building owned and operated by defendants. The incident began when someone knocked on plaintiff’s apartment door and asked by name for his niece, who also lived in the apartment. When plaintiff looked through the peephole, he thought he saw a young woman, but the peephole was blurry, as it had been since plaintiff had moved in three or four years earlier. Plaintiff also testified that the chain guard on the door did not function properly. When plaintiff opened the door slightly, the young woman and a man he had not seen through the peephole pushed their way into the apartment and pistol whipped him. After demanding $5,000 that had purportedly been sent to plaintiff’s niece, the two assailants assaulted plaintiff for an extended period and looted the apartment before leaving.

Defendants failed to establish their entitlement to summary judgment dismissing the complaint, as evidence that an attack was targeted toward a particular person does not sever the proximate cause link as a matter of law in cases alleging negligent security … . In light of the record evidence that the building’s locks were malfunctioning, and that plaintiff’s apartment peephole and chain lock were defective, proximate cause is for the factfinder to decide … . Cabrera-Perez v Promesa Hous. Dev. Fund Corp., 2024 NY Slip Op 01338, First Dept 3-14-24

Practice Point: The fact that plaintiff was deliberately and specifically targeted for a home invasion did not preclude a finding that malfunctioning locks and a defective peephole constituted a proximate cause of the invasion and consequent injury.

 

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PLAINTIFF, AN EXPERIENCED GOLFER WHO WAS PARTICIPATING IN A TOURNAMENT, ASSUMED THE RISK OF BEING STRUCK IN THE EYE BY A GOLF BALL WHILE RIDING IN A GOLF CART (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff golfer assumed the risk of being struck by a golf ball during a golf tournament. Supreme Court and the dissenters concluded there was a question of fact whether the design of the defendant golf course unreasonably increased the risk:

Plaintiff was riding in a golf cart on the seventh hole fairway when he was hit by a ball struck by defendant Justin Hubbard, who had just teed off from the third hole. Both the third and seventh holes are over 400 yards in length. The fairways on each hole run parallel, in part, in the area in front of the third tee, and that part of the seventh fairway approaching the green, which from a vantage point on the fairway, is adjacent to and to the right of the third tee.  * * *

… [I]t is well established that “being hit without warning by a shanked shot” is “a commonly appreciated risk” of participating in the sport … . ” ‘[G]olfers are deemed to assume the risks of open topographical features of a golf course’ “… , and “evidence establishing that the proximity of [a tee] to [a different] green and hole was open and obvious” will preclude liability against a golf course for injuries sustained as a result of such proximity … . Katleski v Cazenovia Golf Club, Inc., 2024 NY Slip Op 01366, Third Dept 3-14-24

Practice Point: The majority concluded plaintiff golfer assumed the risk of being struck by a golf ball. Supreme Court and the two dissenters argued the design of defendant golf course unreasonably increased the risk.

 

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THE DISCOVERY DEMANDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST DEFENDANT SCHOOL DISTRICT ALLEGING SEXUAL ABUSE BY A TEACHER WERE OVERLY BROAD AND UNDULY BURDENSOME AND SHOULD HAVE BEEN STRUCK IN THEIR ENTIRETY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discovery demands in this negligent supervision action against a school district, alleging the sexual abuse of plaintiff-student by a teacher, were overly broad and unduly burdensome. Therefore the demands should have been struck in their entirety with no attempt to prune them:

… [A] “‘ …party is not entitled to unlimited, uncontrolled, unfettered disclosure'” … . “Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper” … . A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information (see CPLR 3120[2] …). “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” … .

Here, many of the plaintiff’s discovery demands were palpably improper in that they were overbroad and burdensome … . The plaintiff’s discovery demands broadly sought, among other things, documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present. Thus, the Supreme Court should have denied the plaintiff’s motion pursuant to CPLR 3124 to compel the District to comply with the plaintiff’s first and second demands for discovery and granted the District’s application pursuant to CPLR 3103(a) for a protective order striking those demands in their entirety instead of pruning them … . Ferrara v Longwood Cent. Sch. Dist., 2024 NY Slip Op 01293, Second Dept 3-13-24

Practice Point: In this negligent supervision action against a school district alleging sexual abuse by a teacher plaintiff’s discovery demands included “documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present”. The demand was overly broad and unduly burdensome and was struck in its entirety.

 

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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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