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THE CITY ISSUED TREE PIT PERMITS FOR THE SIDEWALK ABOVE A SUBWAY STATION; PLAINTIFF WAS INJURED IN THE SUBWAY STATION BELOW THE SIDEWALK WHEN A PIECE OF CONCRETE FELL; THE CITY DID NOT CLAIM IT DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK DEFECT; THERE WAS A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION (TREE PIT PERMITS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined there was a question of fact whether the city created the dangerous condition on a sidewalk which resulted in a piece of concrete falling on plaintiff in the subway station below. Although the city can escape liability if it did not have written notice of the sidewalk defect, the city did not claim a lack of notice. Because the city issued permits for tree pits above the subway, there was a question of fact whether the city created the dangerous condition (as opposed to having written notice of it):

Generally, assuming that the alleged dangerous condition falls within the scope of Administrative Code § 7-201(c)(2), under the framework set forth in Smith v City of New York [210 AD3d 53] , the City would have the initial burden to show that it lacked prior written notice. Here, however, the City does not argue on appeal that it lacked prior written notice of the alleged defect. Therefore, we do not address this issue. Because the burden did not shift to the plaintiff to demonstrate the applicability of an exception to the prior written notice defense … , we consider instead whether the City made a prima facie showing that, contrary to the allegations in the complaint, it did not cause or create the alleged dangerous condition.

Here, the City failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against it … . As the Supreme Court noted, the City annexed to its motion papers street opening permits for “tree pits” along Metropolitan Avenue between Union Avenue and Lorimer Street … . Neither in its initial moving papers nor in its reply papers … did the City submit evidence that the construction company’s preparation of tree pits above the subway station did not cause or create the defective condition which allegedly caused the injured plaintiff’s accident. Morejon v New York City Tr. Auth., 2023 NY Slip Op 03007, Second Dept 6-7-23

Practice Permit. Here the city did not claim it didn’t have written notice of a sidewalk defect which allegedly caused a piece of concrete to fall on plaintiff in the subway station below. Because the city issued tree pit permits for the sidewalk, there was a question of fact whether the city created the dangerous condition.

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; BUT DEFENDANTS’ COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on liability in this intersection traffic accident case, but defendant’s comparative-negligence affirmative defense should not have been dismissed:

… [T]he plaintiff established prima facie entitlement to judgment as a matter of law by demonstrating that [defendant] Giunta entered the intersection without yielding the right-of-way to the plaintiff’s vehicle, and that such negligence was a proximate cause of the accident (see Vehicle and Traffic Law § 1142[a] …). … [P]laintiff testified … that his vehicle had been traveling for about six blocks before approaching the subject intersection; that he was operating his vehicle at or below the speed limit of 25 miles per hour as he approached the intersection; that he saw the defendants’ vehicle “speeding” while moving from left to right; and that he had only one second to react before the impact … .

In opposition, the defendants failed to raise a triable issue of fact … .

… Giunta averred that he stopped at the stop sign and proceeded at 10 miles per hour through the intersection. Giunta further averred that after the front of his vehicle had passed through the intersection, the plaintiff’s vehicle struck the right rear quarter panel of his vehicle with such “tremendous force” that it caused his vehicle to spin around and roll over on its roof and then back onto its wheels. Under these circumstances, the defendants raised triable issues of fact, including whether the plaintiff exercised reasonable care in approaching the intersection and whether the plaintiff could have avoided the collision … . Ki Hong Park v Giunta, 2023 NY Slip Op 03004, Second Dept 6-7-23

Practice Point: Plaintiff’s comparative negligence is not a bar to summary judgment in a traffic accident case. But defendant can still raise a comparative-negligence affirmative defense which can survive plaintiff’s successful summary judgment motion.

 

THERE WERE TWO STEPS LEADING TO A LANDING AT DEFENDANT’S FRONT DOOR; PLAINTIFF ALLEGED THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff raised a question of fact whether the absence of a handrail where two steps led to an elevated landing at defendant’s front door was a proximate cause of her fall. Plaintiff alleged there was nothing to grab onto as she fell. Supreme Court had dismissed the complaint on the ground plaintiff did not know the cause of her fall:

The defendant failed to establish her prima facie entitlement to judgment as a matter of law dismissing the complaint … . The defendant’s submissions in support of her motion included, inter alia, a transcript of the plaintiff’s deposition testimony, which revealed the existence of a triable issue of fact. In particular, the plaintiff testified, among other things, that she “was looking for something to grab onto” as she fell but found nothing. “Even if the plaintiff’s fall was precipitated by a misstep,” her testimony that she looked for something to grab onto to stop her fall presented “an issue of fact as to whether the absence of a handrail was a proximate cause of her injury” … . Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the opposing papers … . Jean-Charles v Carey, 2023 NY Slip Op 03003, Second Dept 6-7-23

Practice Point: Here plaintiff alleged there was nothing to grab onto as she fell from a landing at defendant’s front door, which raised a question of fact whether the absence of a handrail was a proximate cause of her fall. There were only two steps leading to the landing.

 

​DEFENDANT DAWSON FELL ON PLAINTIFF DURING A DANCE HOSTED BY DEFENDANT NON-PROFIT, LENOX HILL; PLAINTIFF SUED LENOX HILL ALLEGING NEGLIGENT SUPERVISION OF THE DANCE; LENOX HILL DID NOT OWE A DUTY OF CARE TO PLAINTIFF AND DID NOT PROXIMATELY CAUSE PLAINTIFF’S INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was unable to show defendant non-profit (Lenox Hill), which hosted a dance for its members, owed her a duty of care to her or proximately caused her injury. Both plaintiff and defendant, Dawson, were members of defendant Lenox Hill. Lenox Hill hosted a dance. During the dance Dawson fell on plaintiff, breaking her ankle. Plaintiff sued Lenox Hill alleging negligent supervision:

In general, a party does not have “a duty to control the conduct of third persons to prevent them from causing injury to others … . A duty can only be found where there exists a special relationship between the defendant and the plaintiff requiring the defendant to protect the plaintiff from the third party, or a special relationship “between defendant and [the] third [party] person whose actions expose[d] plaintiff to harm,” which “would require the defendant to attempt to control the third person’s conduct” … .

… [P]laintiff failed to plead that she had a special relationship to defendant requiring it to protect her … . * * *

Plaintiff also failed to establish proximate cause. To establish proximate cause, “a plaintiff must show that the defendant’s negligence was a substantial cause of the events which produced the injury” … . In the context of the intervention of a third-party between defendant’s conduct and plaintiff’s injury, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” … .

Here, Lenox Hill established that Dawson’s fall was not foreseeable. The record supports that Lenox Hill was not on notice of any similar incidents. Bindler v Lenox Hill Neighborhood House, Inc., 2023 NY Slip Op 02966, First Dept 6-6-23

Practice Point: Generally a party does not have a duty to control the conduct of third persons. Therefore the defendant nonprofit which hosted the dance where plaintiff was injured when another dancer fell on her did not owe plaintiff a duty of care and did not proximately cause her injury.

 

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PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to an in camera review her assailant’s (Downing’s) medical records to discovery of any non-privileged references to his aggressive behavior. Plaintiff was a nurse assigned to work in defendant’s hospital when she was assaulted by defendant patient:

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged (…see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

Here, the plaintiff seeks information as to any prior aggressive or violent acts by Downing. Information of a nonmedical nature regarding prior aggressive or violent acts is not privileged … . Accordingly, we remit the matter to the Supreme Court, Queens County, for an in camera review of the subject hospital records, to determine which records contain nonprivileged information that is subject to disclosure, and thereafter disclosure of such records … . Gooden v New York City Health & Hosps. Corp., 2023 NY Slip Op 02867, Second Dept 5-31-23

Practice Point: Here a nurse injured by a hospital patient was entitled to any non-privileged information about the patient’s aggressive behavior in the patient’s medical records. An in camera review of the records was ordered.

 

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IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated when the alleged sexual assault occurred in this Child Victims Act action:

“Court of Claims Act § 11(b) requires a claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . A failure to comply with the requirements set forth in section 11(b) is a jurisdictional defect that requires dismissal of the claim … . “[A] sufficiently detailed description of the particulars of the claim” is necessary because “[t]he purpose of the section 11(b) pleading requirements is . . . to enable the State to investigate and promptly ascertain the existence and extent of its liability” … . “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” … . However, “‘[a]bsolute exactness is not required,'” so long as the particulars of the claim are detailed in a manner sufficient to permit investigation … . * * * The Court of Claims erred in directing dismissal of so much of the claim as relates to the alleged sexual assault perpetrated by Hector. The claimant alleged, inter alia, that she was admitted to RPC in 1969 when she was 10 years old, and that Hector assaulted her in the auditorium in the first year of her admission. Contrary to the State’s argument, the claimant was not required to allege the exact dates on which the sexual abuse occurred …”. Wimbush-Burkett v State of New York, 2023 NY Slip Op 02804, Second Dept 5-24-23

Practice Point: Here in this Child Victims Act action, the claim sufficiently alleged the time of the sexual assault. The criteria for a sufficient claim under Court of Claims Act section 11(b) are laid out.

 

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IN THESE TWO CASES, INTRUDERS ENTERED AN APARTMENT BUILDING THROUGH EXTERIOR DOORS WHICH, ALLEGEDLY, WERE UNLOCKED AND MURDERED VICTIMS WHO WERE SPECIFICALLY TARGETED; THE FACT THAT THE VICTIMS WERE TARGETED WAS NOT AN “INTERVENING ACT” WHICH RELIEVED THE LANDLORD OF LIABILITY AS A MATTER OF LAW (CT APP).

The Court of Appeals, affirming the Second Department and reversing the First Department, in a full-fledged opinion by Judge Wilson, determined the fact that the murder victims were targeted did not relieve the landlord, here the NYC Housing Authority (NYCHA), of liability for the alleged failure to provide exterior doors with functioning locks:

… [W]hen the issue of proximate cause involves an intervening act, “liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” … . It is “[o]nly where ‘the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,’ [that it] may possibly ‘break[ ] the causal nexus’ ” … . But “[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent” … .

Here, the risk created by the nonfunctioning door locks—that intruders would gain access to the building and harm residents—is exactly the “risk that came to fruition” … . It was not the trial court’s role, on summary judgment, to assess the fact-bound question of whether the intruders … would have persevered in their attacks had the doors been securely locked. This is not to say that the sophistication and planning of an attack is irrelevant to the factfinder’s determination of proximate cause, or even that it could never rise to such a degree that it would sever the proximate causal link as a matter of law … . But neither [scenario here] approaches that level. Scurry v New York City Hous. Auth., 2023 NY Slip Op 02752, CtApp 5-23-23

Practice Point: The fact that the victims were specifically targeted by intruders who entered the apartment buildings through doors alleged to have been unlocked did not relieve the landlord of liability under an “intervening act” theory. The requirement that exterior doors be locked addresses the risk at issue in these cases.

 

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AN ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that an answer verified by an attorney (as opposed to the defendant) and a complaint verified by an attorney (as opposed to the plaintiff) do not prove the contents:

… [A]n answer verified by an attorney is insufficient to demonstrate that the defendant has a potentially meritorious defense … . …

… [A]lthough a verified complaint “may be used as the affidavit of the facts constituting the claim,” the complaint “must contain evidentiary facts from one with personal knowledge since a pleading verified by an attorney pursuant to CPLR 3020(d)(3) is insufficient to establish its merits” … . Since the complaint in this case was verified only by the plaintiff’s attorney, and not by the plaintiff, the plaintiff could not rely on its contents to supply proof of the facts constituting the claim. Pemberton v Montoya, 2023 NY Slip Op 02674, Second Dept 5-17-23

Practice Point: Answers and complaints verified by the attorney and not by the party do not prove the contents.

 

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ALTHOUGH THE NYC ADMININSTRATIVE CODE MAKES TENANTS RESPONSIBLE FOR REMOVING ICE AND SNOW FROM SIDEWALKS, IT DOES NOT IMPOSE TORT LIABILITY FOR FAILURE TO DO SO; THE ADMINISTRATIVE CODE ALSO MAKES PROPERTY OWNERS RESPONSIBLE FOR SNOW AND ICE REMOVAL; THE LEASE SPECIFICALLY STATED DEFENDANT WAS NOT RESPONSIBLE FOR CLEARING SNOW AND ICE FROM THE SIDEWALK; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant, 185th Operating, was not liable for a sidewalk ice and snow slip and fall. Although the NYC Administrative Code makes tenants responsible for removing ice and snow from sidewalks, it does not impose tort liability for a failure to do so. Here the lease explicitly stated the tenant is not responsible for clearing ice and snow:

Although the applicable statute requires tenants to clear snow and ice from the sidewalks around their premises, the statute does not impose tort liability for noncompliance (Administrative Code of the City of New York § 16-123[a] …). Furthermore, Administrative Code § 7-210(a), which requires property owners to maintain the sidewalk abutting their property, does not impose liability on 185 Operating, as 185 Operating is a tenant of the premises, not the owner. Not only did 185th Operating’s lease with defendant owner … specifically state that 185th Operating was not responsible for maintaining the sidewalks adjacent to the premises, but [the owner’s] lease with defendant Staples …, a tenant occupying the same building as 185th Operating, expressly made Staples responsible for clearing snow and ice from the sidewalk where the icy condition had occurred.

The record does not present any evidence that 185th Operating’s earlier voluntary snow removal created or exacerbated a hazardous condition that then caused plaintiff’s injury … . Cruz v Heights Broadway, LLC, 2023 NY Slip Op 02612, First Dept 5-16-23

Practice Point: Here the lease specifically stated the defendant tenant was not responsible for removing ice and snow from the sidewalk. The NYC Administrative Code requires tenants to remove ice and snow but does not impose tort liability for the failure to do so. The code also requires owners to remove ice and snow. The tenant’s motion for summary judgment should have been granted.

 

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED PRIOR TO FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DEFECTIVE CONDITION (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined defendant building owner, 797 Broadway, did not demonstrate it did not have constructive notice of the alleged loose elevator threshold plate over which plaintiff slipped and fell:

… 797 Broadway submitted the sworn affidavit of David Fallati, who … acted as the property manager for the building. Fallati stated that he visited the building twice a week, “including the time period of the alleged incident.” According to Fallati, he did not observe, or receive complaints about, any tripping hazards near the elevator threshold area where the accident occurred. We find that this proof was insufficient to establish that 797 Broadway lacked constructive notice of the condition of the threshold plate. Unlike trip-and-fall cases where the specific area in question was inspected on the date of the accident … . Fallati’s vague affidavit, in which he only stated generally that his inspections occurred twice per week, did not indicate when he had last inspected the elevator threshold area prior to plaintiff’s fall. Thus, the Fallati affidavit failed to eliminate all factual questions “as to whether the alleged dangerous condition . . . existed for a sufficient period of time prior to plaintiff’s fall to permit [797 Broadway] to discover it and take remedial action” … . Lloyd v 797 Broadway Group, LLC, 2023 NY Slip Op 02573, Third Dept 5-11-23

Practice Point: Without sufficient proof when the area of the slip and fall was last inspected the defendant cannot demonstrate a lack of constructive notice of the condition.

 

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