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THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town and police–officer defendants were entitled to summary judgment in this motorcycle-accident case. The plaintiff motorcyclist (Ronnie) was speeding when the defendant officers attempted to follow him with their emergency lights on. Both officers pulled back because of the plaintiff’s speed, losing sight of plaintiff. The officers came upon plaintiff in the woods after he had crashed. Supreme Court ruled that the defendants had demonstrated entitlement to summary judgment but found that the summary judgment motion was premature and should await further discovery. The Second Department held the motion was not premature because there was no indication additional evidence would be uncovered:

… [T]he defendants’ motion was not premature. The plaintiff “failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the [defendants]” … . Here, the officers directly involved in the attempt to stop Ronnie provided sworn affidavits, which were unequivocal and consistent with the other evidence in the case. There is no basis to conclude that depositions or other discovery would render a different account of the accident. The plaintiff’s mere hope or speculation that discovery would render evidence sufficient to defeat the defendants’ motion was not a sufficient basis to deny the motion … . Rojas v Town of Tuxedo, 2023 NY Slip Op 05751, Second Dept 11-15-23

Practice Point: Where the evidence supports summary judgment and there is no indication further discovery will uncover additional evidence, the summary judgment motion should not be denied as “premature.”

 

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PLAINTIFF TRIPPED OVER A PIECE OF PLYWOOD COVERING A SMALL HOLE; DEFENDANT DID NOT DEMONSTRATE THAT IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff alleged he tripped and fell when his foot stuck a piece of plywood covering a hole. Defendant did not demonstrate a lack of constructive notice of the condition:

… [T]he defendant failed to show, prima facie, that it lacked constructive knowledge of the alleged dangerous condition … since it did not submit any evidence that the plywood was a latent defect that could not have been discovered upon a reasonable inspection … . Therefore, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200. Freyberg v Adelphi Univ., 2023 NY Slip Op 05589, Second Dept 11-8-23

Practice Point: Labor Law 200 causes of action are analyzed under standard negligence principles. Even though the Labor Law 241(6) cause of action was properly dismissed because the Industrial Code provision did not apply to the plywood covering a small hole, the Labor Law 200 cause of action should not have been dismissed because the defendant simply did not address it. To warrant dismissal the defendant was required to demonstrate it did not have constructive knowledge of the alleged tripping hazard.

 

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DEFENDANT WAS MISNAMED IN THE COMPLAINT BUT WAS TIMELY SERVED; THE AMENDED COMPLAINT WITH THE CORRECT NAME, ALTHOUGH SERVED AFTER THE STATUTE OF LIMITATIONS HAD RUN, SHOULD NOT HAVE BEEN DISMISSED; THE AMENDED COMPLAINT SHOULD HAVE BEEN DEEMED TIMELY SERVED AND FILED NUNC PRO TUNC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should not have been dismissed. The original complaint misnamed defendant Mark Gennaro as Michael Gennaro. The amended complaint with the correct name was served after the statute of limitations had run. Pursuant to CPLR 305(c) the amended complaint should have been deemed timely served and filed nunc pro tunc:

“CPLR 305(c) authorizes the court, in its discretion, to ‘allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced'” … . “‘Where the motion is to cure a misnomer in the description of a party defendant, it should be granted even after the statute of limitations has run where (1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought'” … . “While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served” … . “The amendment may be made nunc pro tunc” … .

Here, the evidence established that the defendant, misnamed as Michael Gennaro in the original summons and complaint, was properly served with process within 120 days after the action was timely commenced and, thus, the Supreme Court obtained jurisdiction over the defendant (see CPLR 306-b …). Moreover, there was no evidence that the defendant would be prejudiced by allowing the caption to be amended to correct the misnomer … . The defendant’s contention that the plaintiff was improperly attempting to name a new defendant after the expiration of the statute of limitations, instead of merely correcting a misnomer, is without merit … .  Brewster v North Shore/LIJ Huntington Hosp., 2023 NY Slip Op 05584, Second Dept 11-8-23

Practice Point: Here the defendant was misnamed in the original complaint and the corrected complaint was not served until after the statute of limitations had run. The amended complaint should have been deemed timely served and filed nunc pro tunc pursuant to CPLR 305(c).

 

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS STAIRWAY FALL BUT HE TESTIFIED HE REACHED FOR A HANDRAIL AND THERE WAS NONE; DEFENDANTS DID NOT PRESENT ANY EVIDENCE ON THE PRESENCE OR NEED FOR A HANDRAIL; THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF A FALL; DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this stairway slip and fall case. Although plaintiff could not identify the initial cause of his fall, plaintiff, in his deposition, testified he reached for a handrail, but there was none. Defendants did not present evidence there was a handrail or a handrail was not required. In the usual case, the inability to identify the cause of a fall is fatal to the action. But here there is a question of fact whether there was an additional proximate cause of the fall, i.e., the absence of a handrail:

… [T]he defendants established, prima facie, that a jury would be required to speculate that cement dust caused the plaintiff to fall. In support of their cross-motion, they submitted the plaintiff’s deposition testimony that, after his fall, he noticed concrete dust on his face, hair, and uniform. The plaintiff admitted, however, that he did not notice the cement dust before his fall or see it on the landing of the stairs after his fall, and he failed to point to any additional evidence that might create a reasonable inference that the cement dust, rather than a misstep or loss of balance, was a proximate cause of his fall.

However, “[t]here can be more than one proximate cause of an accident, and [g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendants failed to establish that a handrail was present or was not required, or that its alleged absence was not a proximate cause of the plaintiff’s injuries … . Adzei v Edward Bldrs., Inc., 2023 NY Slip Op 05580, Second Dept 11-8-23

Practice Point: Here plaintiff’s inability to identify the cause of his fall was not fatal to the action. There can be more than one proximate cause of a fall. Plaintiff testified he reached for a handrail but there was none and defendants presented no evidence of the presence or the need for a handrail.

 

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DEFENDANT DEMONSTRATED IT WAS AN OUT-OF-POSSESSION LANDLORD WHICH HAD RELINQUISHED CONTROL OVER THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON A FLOOR ALLEGED TO HAVE BEEN SLIPPERY BECAUSE IT HAD BEEN WAXED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant Trinity demonstrated it was an out-of-possession landlord and the area where plaintiff slipped and fell was under the control of the lessee (LSSNY), plaintiff’s employer. Plaintiff alleged the floor was slippery because it had been waxed:

Defendant established prima facie that it was an out-of-possession landlord with no contractual obligation to maintain the demised premises. Defendant also established prima facie, that the accident was not caused by a structural or design defect that violated a specific statutory safety provision … . * * *

… [P]laintiff failed to raise a triable issue of fact as to whether defendant possessed and controlled the leased premises for purposes of liability. Plaintiff’s averment that she saw defendant’s personnel freely using the location during the three years she worked at the premises was insufficient to demonstrate that there exists a triable issue of fact as to whether defendant relinquished complete control over the area before she fell … . Rodriguez v Trinity Evangelical Lutheran Church, 2023 NY Slip Op 05453, First Dept 10-26-23

Practice Point: Here the out-of-possession landlord was not liable for plaintiff’s fall on a slippery floor. The alleged defect was not structural and did not violate a statutory duty.

 

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PLAINTIFF, WHO FELL FROM A HORSE, COULD SUE UNDER STANDARD PRINCIPLES OF NEGLIGENCE, AS OPPOSED TO THE STRICT LIABILITY THEORY IN THE AGRICULTURE AND MARKETS LAW; PLAINTIFF’S SUIT WAS PRECLUDED BY THE ASSUMPTION OF THE RISK DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined standard negligence principles, not strict liability, applied to this falling-off-a-horse case. Plaintiff, who fell from the horse when the horse stopped suddenly, assumed the risk of such an injury:

Defendant argues that, because the injury at issue was caused by a horse — a domestic animal — plaintiff may only sue in strict liability (see Agriculture and Markets Law § 108 [7]; … ). However, where a plaintiff suffers injuries stemming from horseback riding, such as here, the plaintiff may bring suit against the owner of the horse under traditional negligence standards … . Regardless, the primary assumption of risk doctrine functions as a “principle of no duty,” serving to “den[y] the existence of any underlying cause of action” … . Stanhope v Burke, 2023 NY Slip Op 05427, Third Dept 10-26-23

Practice Point: Plaintiff could maintain a standard negligence action against to owner of a horse stemming from plaintiff’s fall from the horse, as opposed to a strict liability action pursuant to the Agriculture and Markets Law.

Practice Point: Whether plaintiff sued in negligence or strict liability, the assumption of risk doctrine would apply to preclude the action.

 

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IN THIS SLIP AND FALL CASE, THERE WAS NO EXPRESS INDEMNIFICATION AGREEMENT BETWEEN DEFENDANT GROCERY STORE AND THE FLO0R-CLEANING DEFENDANTS AND THERE WAS NO EVIDENCE THE FLOOR-CLEANING DEFENDANTS WERE NEGLIGENT OR CAUSED THE INJURY; THEREFORE THE GROCERY STORE’S INDEMNIFICATION AND CONTRIBUTION ACTIONS SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the indemnification and contribution causes of action brought by the defendant grocery store (ShopRite) against the floor-cleaning defendants (Advance and Corporate) in this slip and fall case should have been dismissed. There was no express indemnification agreement. There was no showing Advance and Corporate were negligent. Safier v Wakefern Food Corp., 2023 NY Slip Op 05413, Second Dept 10-25-23

 

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DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO WARRANT SUMMARY JUDGMENT IN THIS DRAM SHOP ACT CASE; POINTING TO GAPS IN PLAINTIFF’S PROOF WILL NOT MEET THE BURDEN OF PROOF AT THE SUMMARY JUDGMENT STAGE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant in this Dram Shop Act did not present enough evidence to warrant summary judgment, noting that pointing to gaps in plaintiffs’ proof never sufficient:

Defendant failed to establish its prima facie entitlement to summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act (General Obligations Law § 11—101; Alcoholic Beverage Control Law § 65[2]). “[A] defendant when moving for summary judgment cannot merely point to gaps in the plaintiffs’ evidence, but must affirmatively demonstrate entitlement to summary judgment” … .

Although defendant’s manager testified about employee training and practices generally, his testimony regarding the incident at issue—including, inter alia, that he did not know whether any patrons were intoxicated on the date of the alleged incident, that he was not aware of anyone being asked to leave the establishment due to intoxication during the month of the incident, and that defendant did not keep records of intoxicated individuals—failed to carry defendant’s initial burden. Defendant’s further “reli[ance] on plaintiffs’ inability to prove that the assailants were served alcohol or were intoxicated” was similarly insufficient to carry its prima facie burden … . Bauseman v Pamdh Enters. Inc., 2023 NY Slip Op 05355, First Dept 10-24-23

Practice Point: Defendant’s pointing to gaps in plaintiffs’ proof is not be enough to support summary judgment.

 

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PLAINTIFF PASSENGER SUED THE DRIVER WHO STRUCK A CAR FROM BEHIND; PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS NO EVIDENCE THE DRIVER FAILED TO MAINTAIN A SAFE DISTANCE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff passenger was not entitled to summary judgment in this traffic accident case. The defendant, Rodriguez, was driving the car in which plaintiff was a passenger when it stuck another car driven by Espada. Plaintiff did not demonstrate that Rodriguez did not maintain a safe distance from the Espada car. Therefore plaintiff did not make out a prima facie case that Rodriguez was liable for a rear-end collision:

Plaintiff failed to make a prima facie showing that the accident was a rear-end collision resulting from Rodriguez’s failure to maintain a safe distance behind Espada’s vehicle, in violation of Vehicle and Traffic Law § 1129(a) … . Rather, plaintiff testified that Rodriguez’s vehicle came in contact with Espada’s vehicle as Rodriguez was turning into an intersection, and plaintiff did not see the Espada vehicle prior to the accident and did not know if it was moving or stopped at the moment of impact. Absent a showing that Rodriguez negligently struck Espada’s vehicle due to a failure to maintain a safe distance, plaintiff, even as an innocent passenger, was not entitled to summary judgment … . McDowell v Rodriguez, 2023 NY Slip Op 05368, First Dept 10-24-23

Practice Point: To be entitled to summary judgment in a rear-end collision case, the plaintiff must demonstrate the driver did not maintain a safe distance from the car in front.

 

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ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT ON LIABILITY, IT IS A VALID AFFIRMATIVE DEFENSE WHICH IS RELEVANT TO DAMAGES; THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s comparative-negligence affirmative defense should not have been dismissed. Although plaintiff’s comparative negligence is no longer a bar to summary judgment on liability, it is relevant to damages:

Plaintiff was injured when he was struck by the wheelchair ramp of a bus. That bus was owned by defendants and operated by an employee of defendants. The bus operator testified that he deployed the ramp and saw it hit plaintiff. He testified that he gave warnings in a loud voice before lowering the ramp, which made a “very loud” beeping noise that was “excruciating.”

Plaintiff met his prima facie burden by submitting evidence, including his deposition testimony, that the operator was negligent in lowering the ramp onto the sidewalk when it was not reasonably safe to do so … . In opposition, defendants did not offer any nonnegligent explanation for the accident … . This accident was not within plaintiff’s exclusive knowledge, because it occurred in the presence of a potential witness, namely the operator … . Defendants’ remaining arguments effectively assert comparative negligence by plaintiff, which he was not required to disprove to be entitled to partial summary judgment … .

Supreme Court should not, however, have dismissed the affirmative defense of comparative negligence. At summary judgment, issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party … . Prendergast v New York City Tr. Auth., 2023 NY Slip Op 05378, First Dept 10-24-23

Practice Point: Even where a plaintiff is entitled to summary judgment on liability, a defendant’s comparative-negligence affirmative defense remains relevant to damages.

 

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