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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.

 

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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.

 

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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.

 

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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.

 

INDEMNIFICATION IS ONLY AVAILABLE IF THE PARTY SEEKING IT IS NOT NEGLIGENT (VICARIOUS LIABILITY); A PARTY WHO IS PARTIALLY NEGLIGENT MAY ONLY SEEK CONTRIBUTION, NOT INDEMNIFICATION, FROM OTHER TORT-FEASORS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the third-party complaint against defendant seeking indemnification should have been dismissed because the third-party plaintiff could not be vicariously liable for the negligence of the defendant. Where a party is partially liable based on its own negligence, only contribution from other tort-feasors, not indemnification, is available:

“The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, that is, the defendant’s role in causing the plaintiff’s injury is solely passive, and thus its liability is purely vicarious” … . However, “where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy” … . De Heras v Avant Gardner, LLC, 2024 NY Slip Op 00999, Second Dept 2-28-24

Practice Point: Indemnification is only available to a party who is vicariously liable for the negligence of another. A party who is partially negligence can only seek contribution, not indemnification, from other tort-feasors.

 

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IN THIS CHILD VICTIM’S ACT (CVA) ACTION, THE COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR NEGLIGENT SUPERVISION, NEGLIGENT RECRUITMENT AND NEGLIGENT FAILURE TO WARN AGAINST BIG BROTHERS BIG SISTERS OF AMERICA (BBBS) AND FAMILY SERVICES OF WESTCHESTER (FSW) BASED ON THE ALLEGED SEXUAL CONDUCT BY A VOLUNTEER MENTOR (SECOND DEPT). ​

The Second Department determined defendant Big Brothers Big Sisters of America (BBBS)’s and defendant Family Services of Westchester (FSW)’s motions to dismiss the negligent supervision, negligent recruitment and negligent failure to warn causes of action were properly denied in this Child Victims Act (CVA) lawsuit. Plaintiff alleged he was sexually abused by a mentor associated with defendants:

… [T]he amended complaint adequately alleged that the defendants owed a duty of care to the plaintiff and that the sexual abuse by the mentor was foreseeable. Specifically, the amended complaint alleged that the mentor groomed and sexually abused the plaintiff “in connection with [the mentor’s] position as a volunteer with BBBS and FSW” and “in connection with BBBS and FSW sponsored activities.” During all relevant times, BBBS and FSW had allegedly assumed custody and control over the plaintiff “as a minor child in their care.” The amended complaint alleged that the defendants had a duty to “take reasonable measures to guard against child sexual abuse by volunteers” and that the defendants failed to ensure that there were reasonable screening or recruitment measures in place to prevent such abuse. The amended complaint further alleged that BBBS published two reports demonstrating that, while the plaintiff’s abuse was ongoing, BBBS was aware that the services it offered “attract[ed] child sexual abusers,” that the clients of BBBS were at “high risk” for potential abuse, and that the selection process used to match mentors with mentees did not appropriately incorporate child sexual abuse prevention training (internal quotation marks omitted). Moreover, the amended complaint alleged that the mentor had “dangerous propensities,” that the defendants “should have known” that the mentor had a propensity to sexually abuse children, and that oversight and monitoring of the mentor’s interactions with his prior mentees “would have revealed [the mentor’s] pattern of predatory behavior.” At the pleading stage of the litigation, where the plaintiff’s allegations are accepted as true and are accorded the benefit of every possible favorable inference, the plaintiff adequately alleged that the defendants owed the plaintiff a duty of care and that the sexual abuse by the mentor was foreseeable … . Brophy v Big Bros. Big Sisters of Am., Inc., 2024 NY Slip Op 00993, Second Dept 2-28-24

Practice Point: Here in this Child Victims Act (CVA) case, the complaint adequately alleged negligent supervision, negligent recruitment and negligent failure to warn.

 

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THE CONTRACTOR WHICH UNDERTOOK THE DUTY TO INSTALL FLOORING WAS REQUIRED TO PERFORM THAT DUTY WITH REASONABLE CARE; THE OWNER OF THE PROPERTY HAD A SEPARATE NONDELEGABLE DUTY TO KEEP THE PROPERTY SAFE WHICH MAY ALLOW THE CONTRACTOR’S NEGLIGENCE TO BE IMPUTED TO THE OWNER; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) defendant contractor (AW&S) undertook the duty to install flooring and was therefore required to perform that duty with reasonable care, and (2) the owner of the property (UJA) had a separate, nondelegable duty to keep the premises safe. There was evidence AW&S failed to secure portions of the flooring it installed and that failure was the proximate cause of plaintiff’s trip and fall. Defendants did not present any evidence of when the floor was last inspected prior to the fall and therefore did not demonstrate the absence of constructive notice of the defect:

Defendants failed to establish prima facie that they were not negligent in the installation and maintenance of the Masonite flooring on which plaintiff tripped and fell … . Although defendants claim that they neither created nor had actual or constructive notice of the condition that caused plaintiff’s injuries, the record establishes that defendant owner … (UJA) requested that defendant … (AW&S) protect the floors during a renovation project in its building for which AW&S served as general contractor. … AW&S specifically undertook responsibility for the installation, maintenance, and inspection of the protective Masonite flooring while it was on site, and the project superintendent noted that there were sections of Masonite that lacked duct tape securing it to the floor in the area where plaintiff tripped and fell. Based on this testimony, there are questions of fact as to whether AW&S’s failure to secure the Masonite, or to note that it was not secured upon inspection, was the proximate cause of plaintiff’s injuries … . … [W]here a defendant has undertaken a specific duty, it is obligated to perform that duty with reasonable care or be liable for any hazards it creates … . UJA, as owner, has a separate, nondelegable duty to maintain its premises, and AW&S’s negligent maintenance of the Masonite, if established, could be imputed to UJA …

Defendants also failed to make a prima facie showing that they lacked constructive notice of the condition. Neither defendant offered evidence of maintenance and inspection records despite testimony that the duct tape on the Masonite required routine replacement when it became curled or wet … .  …[P]laintiff was not required to establish how long the condition existed … . Bolson v UJA-FED Props. Inc., Ltd., 2024 NY Slip Op 00966, First Dept 2-27-24

Practice Point: A contractor which assumes the duty to do work, here floor-installation, is required to do so with reasonable care.

Practice Point: The property owner which hires a contractor to do work has a separate nondelegable duty to keep the premises safe such that a contractor’s negligence may be imputed to the owner.

 

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THE ALLEGATIONS OF DEFENDANTS’ CONDUCT DURING PHOTO SHOOTS OF PLAINTIFF-MODEL WHEN SHE WAS 16 AND 17 YEARS OLD MET THE “SEXUAL CONDUCT” CRITERIA FOR THE EXTENDED STATUTE OF LIMITATIONS UNDER THE CHILD VICTIMS ACT (CVA), THE COMPLAINT STATED CAUSES OF ACTION FOR INVASION OF PRIVACY PURSUANT TO CIVIL RIGHTS LAW SECTION 50 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, modifying Supreme Court in this Child Victims Act (CVA) action, determined: (1) the conduct alleged to have been committed by defendant modeling agency (Wilhelmina) and defendant-seller of sun tan products (Cal Tan) during photo shoots of plaintiff-model when she was 16 and 17 years old met the criteria for “sexual conduct” within the meaning of the extended statute of limitations under the CVA (CPLR  214-g); (2) New York has jurisdiction over the case against Cal Tan, even though the Cal Tan photo shoot took place in Mexico (plaintiff was a New York resident); (3) the negligent supervision and breach of fiduciary causes of action against Cal Tan were properly dismissed because no allegations supported a duty to supervise; (4) the negligent supervision and breach of fiduciary duty causes of action against Wilhelmina should not have been dismissed because no arguments in opposition were interposed; and (5) the invasion of privacy causes of action (Civil Rights Law section 50) against both defendants survived the motions to dismiss. The following allegations were deemed sufficient to meet the “sexual conduct” criteria for the applicability of the CVA’s extended statute of limitations:

Plaintiff’s allegations as to Cal Tan include that she was “instructed . . . to arch her back and look at the camera ‘sexy,’ ‘like a lover,’ and think about doing ‘naughty things with your boyfriend,'” and that the photographs generated from the photoshoot “included ones in which Doe was depicted topless with her back arched in a sexually suggestive pose; looking out to the sea in a sultry manner; in which she was completely topless and ‘naked in the water’; where she is posed suggesting a willingness to engage in sexual activity; and where Doe is standing on a roof, semi- or totally naked.”

As to Wilhelmina, plaintiff alleged that at one photoshoot, “[s]he was photographed in [see-through lingerie] with another girl, also wearing see-through lingerie, together in bed. Doe and the other underage model wore coy expressions, as if together they had been doing something naughty, or sexual;” at another photoshoot, where plaintiff was unclothed, she was “instructed . . . to look ‘innocent, but sexy’ for some photos, and like a ‘bad girl’ for others”; and that at a third photoshoot she “was made to sit nude on a bed with a white sheet covering part, but not all, of her breast and buttocks.” Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 00969, First Dept 2-27-24\

Practice Point: This comprehensive opinion lays out the criteria for “sexual conduct” within the meaning of the extended statute of limitations under the Child Victims Act (CVA). Here allegations of defendants’ conduct during  photo shoots of plaintiff-model when she was 16 and 17 years old met the CVA sexual-conduct criteria.

 

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THE ROLLING LADDER LEFT IN THE AISLE OF DEFENDANT’S STORE WAS READILY OBVERSABLE, WHICH SPEAKS ONLY TO DEFENDANT’S DUTY TO WARN, NOT TO THE DUTY TO KEEP THE PREMISES SAFE; THE PROTRUDING BAR ON THE LADDER CREATED A POTENTIAL TRIPPING HAZARD; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant store’s motion for summary judgment in this trip and fall case should not have been granted. A rolling ladder had been left in an aisle of the store. The was a stabilizer bar which protruded out several inches on each side of the ladder. Plaintiff picked up something from the shelf, took one step back and tripped over the stabilizer bar as she turned. Supreme Court held the bar was readily observable and not inherently dangerous. The Third Department noted that the “readily observable” aspect of a condition goes to the duty to warn, but the duty to keep the area safe remains:

That the ladder was readily observable obviates defendants’ duty to warn of the ladder’s presence but not defendants’ continuing obligation to maintain the property in a reasonably safe condition … . For her part, plaintiff acknowledged seeing the ladder, but was unaware of the protruding stabilizer bar prior to her fall. Given the circumstances surrounding the incident, we cannot agree with Supreme Court’s assessment that the ladder was not inherently dangerous … . The record includes a photograph of the ladder which shows that the stabilizer bar protruded out several inches on each side. This feature, coupled with the placement of the ladder into the center of the aisle, presented a potential tripping hazard. Viewing the evidence in the light most favorable to plaintiff as the nonmoving party … , a question of fact remains as to whether defendants’ premises were maintained in a reasonably safe condition. Wolfe v Staples, Inc., 2024 NY Slip Op 00957, Third Dept 2-22-24

Practice Point: The fact that an object over which plaintiff tripped was readily observable goes to defendant’s duty to warn, but not to the duty to keep the premises safer. Here a protruding bar on a readily observable rolling ladder created a potential tripping hazard and raised a question of fact about defendant’s duty to keep the premises safe.

 

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ALTHOUGH THE SANITARY CODE DID NOT REQUIRE DEFENDANT SUMMER CAMP TO HAVE A LIFEGUARD, THE CODE DID REQUIRE THE CAMP TO OFFER SOME SUPERVISION OF PERSONS USING THE SWIMMING POOL; THEREFORE THE SUMMER CAMP OWED PLAINTIFF’S DECEDENT, WHO SUFFERED A MEDICAL EMERGENCY IN THE POOL, A DUTY OF CARE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant summer-camp-owners’ motion to dismiss the complaint in this swimming-pool-incident case should not have been granted. Plaintiff’s decedent suffered some sort of “medical emergency” in defendants’ swimming pool. Supreme Court dismissed the complaint, finding that the Sanitary Code did not require the camp to have a lifeguard and therefore defendants owed no duty to the plaintiff’s decedent. The Third Department held that, although the Sanitary Code did not require a lifeguard, it did require some level of supervision of persons using the pool:

While the CPR [lifeguard] requirement is specifically exempted for temporary residences [like defendants’ summer camp], the aquatic supervisor for a supervision level III [defendants had chosen to offer supervision level III] at a temporary residence must still possess the other enumerated qualifications (see 10 NYCRR 6-1.31 [c]). To find otherwise would render meaningless 10 NYCRR 6-1.23 (a) (3), which provides that if supervision level III is chosen then the temporary residence must adhere to the supervision level III requirements … . While it is true that 10 NYCRR 6-1.23 (a) (1) (i) exempts CPR certified staff [lifeguards] from a temporary residence that selects supervision level III, it plainly does not exempt these facilities from providing any supervision. As such, we find that Supreme Court erred in determining that defendants did not owe any duty to decedent and granting defendants summary judgment on this basis. Matter of Tamrazyan v Solway Props. LLC, 2024 NY Slip Op 00960, Third Dept 2-22-24

Practice Point: Here the duty owed by defendant summer camp to persons using the swimmer pool was spelled out in the Sanitary Code. Although the defendant summer camp, pursuant to the Code, was not required to provide a lifeguard, it was required to offer some supervision of persons using the swimming pool. Therefore the complaint should not have been dismissed on the ground that defendant did not owe a duty to plaintiff’s decedent, who suffered a medical emergency in the pool.

 

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