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PLAINTIFF PEDESTRIAN ALLEGED THE NEGLIGENCE OF A TRAFFIC OFFICER IN DIRECTING TRAFFIC CAUSED THE ACCIDENT; PLAINTIFF DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP BETWEEN THE CITY AND PLAINTIFF, A PREREQUISITE FOR MUNICIPAL LIABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-pedestrian’s complaint against the city in this traffic accident case should have been dismissed. Plaintiff alleged the traffic officer’s negligence in directing traffic caused the accident. The First Department found there was no demonstration of a “special relationship” between plaintiff and the city, a prerequisite for municipal liability:

Neither the notice of claim nor the complaint alleges the factual predicate for the special relationship theory between plaintiff and the City, as required to hold the City liable for plaintiff’s injuries based on a traffic officer’s alleged negligence in directing traffic and pedestrians at an intersection where plaintiff was crossing the street … . Plaintiff also did not sufficiently allege that the officer, in directing traffic, took control of “a known and dangerous safety condition” so as to set forth the existence of a special duty … . Plaintiff alleged only that the traffic officer negligently directed a vehicle at the intersection, causing the vehicle to hit her, thereby creating a dangerous condition; however, the dangerous condition must exist prior to the traffic officer’s assumption of any duty … . Plaintiff did not assert that the intersection was inherently dangerous or that the drivers of the cars at the intersection were violating any safety laws before the officer was directing pedestrians. Polito v Escorcia, 2022 NY Slip Op 06447, First Dept 11-15-22

Practice Point: In this pedestrian accident case, the plaintiff alleged the negligence of the traffic officer in directing traffic caused the accident. The plaintiff failed to demonstrate a special relationship between the city and plaintiff, a prerequisite for municipal liability.

 

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ALTHOUGH DEFENDANT WAS A VOLUNTEER AMBULANCE DRIVER AND WAS RESPONDING TO A CALL AT THE TIME OF THE TRAFFIC ACCIDENT, DEFENDANT WAS DRIVING HIS OWN PERSONAL PICKUP TRUCK, WHICH WAS NOT AN AUTHORIZED EMERGENCY VEHICLE; THEREFORE THE “RECKLESS DISREGARD” STANDARD OF CARE DID NOT APPLY TO DEFENDANT (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined that, although defendant driver was a volunteer ambulance driver responding to a call at the time of the accident, defendant was driving his own personal pickup truck which did not qualify as an emergency vehicle. Therefore the ordinary negligence, not the “reckless disregard,” standard applied to the defendant:

We agree with plaintiff, however, that he met his initial burden on his cross motion of establishing that defendant was not operating an “authorized emergency vehicle” at the time of the accident and thus that the reckless disregard standard of care does not apply. ” ‘[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) . . . applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)’ ” … . …

… [A]t the time of the accident, defendant was driving his personally-owned vehicle, which was not affiliated with Eden Emergency … . The vehicle also did not comply with Vehicle and Traffic Law § 1104 (c), which requires authorized emergency vehicles to be equipped with “at least one red light.” Moreover, at the time of the accident, defendant’s vehicle was not being “operated by” Eden Emergency because, while defendant was a volunteer with Eden Emergency, he was not on call at the time of the incident … . Further, defendant did not qualify as an ambulance service. Defendant was not an “individual . . . engaged in providing emergency medical care and the transportation of sick or injured persons” (Public Health Law § 3001 [2]). We also note that defendant was not an emergency medical technician … . Spence v Kitchens, 2022 NY Slip Op 06355, Fourth Dept 11-10-22

Practice Point: Here defendant was a volunteer ambulance driver who was responding to a call when the traffic accident occurred. Defendant was driving his own pickup truck, was not “on call” for the ambulance service, was not engaged in emergency care and was not a medical technician. Defendant’s truck was not an “authorized emergency vehicle.” Therefore the “reckless disregard” standard of care for emergency vehicles did not apply.

 

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THE DEFENDANT CONSTRUCTION COMPANY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE SIGN ON THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL AND DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE FOR THE PRESENCE OF THE SIGN ON THE SIDEWALK (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant construction company (Pinto) did not demonstrate that it did not have constructive notice of the condition alleged to have caused plaintiff’s slip and fall (a construction sign on the sidewalk) and that it did not create the condition:

Pinto failed to meet its initial burden on its cross motion with respect to constructive notice because its submissions “failed to establish as a matter of law that the [dangerous] condition [was] not visible and apparent or that [it] had not existed for a sufficient length of time before the accident to permit [Pinto] or [its] employees to discover and remedy [it]” … . Testimony from Pinto’s superintendent that Pinto had a general policy of taking down and storing its construction signs at the end of each workday was insufficient to establish that Pinto lacked constructive notice of the dangerous condition because Pinto failed to establish that it had complied with that general policy prior to the occurrence of the incident in question … .

Pinto also failed to establish as a matter of law that it did not create the allegedly dangerous condition because its own submissions raise triable issues of fact with respect to that issue … . There is no dispute that Pinto’s submissions established that the sign plaintiff tripped over belonged to Pinto. Although the deposition testimony from Pinto’s superintendent established that, at the time of the accident, Pinto had not been present at the work site for about a week, he did not know how the sign ended up on the ground or how long it had been there, and he only speculated that the sign may have been used by another contractor who failed to properly put it away.  Brioso v City of Buffalo, 2022 NY Slip Op 06380, Fourth Dept 11-10-22

Practice Point: Defendant construction company did not demonstrate it did not have constructive knowledge of and was not responsible for the presence of the construction sign on the sidewalk over which plaintiff allegedly tripped and fell.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, THE TOWN DID NOT HAVE WRITTEN NOTICE OF THE DEFECT AND THE TOWN DEMONSTRATED THE “CREATION OF THE DEFECT” EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT DID NOT APPLY; THE DEFECT WAS THE RESULT OF DETERIORATION OF THE REPAIRED AREA OVER A 10-YEAR PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town demonstrated it did not create the sidewalk condition which allegedly caused plaintiff’s slip and fall. Rather the sidewalk repair was done by the town 10 years ago and the current deteriorated condition had developed over time:

The Court of Appeals “has recognized only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality” Only the affirmative negligence exception is implicated in this case, and it “‘is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'” … . The defendant was not required to eliminate all triable issues of fact with respect to the affirmative negligence exception to the prior written notice rule in order to satisfy its prima facie burden … . Nevertheless, the defendant did eliminate all triable issues of fact with respect to that exception. In particular, the defendant submitted an affidavit of its employee, John Carroll, who averred that the asphalt patch would have been “rolled smooth and level to remove any existing tripping hazard between the two existing concrete slabs,” but now, “the tar was eroded from the patch” and “[p]ortions of the asphalt patch . . . appear to be missing.” Based on Carroll’s “observation of the asphalt repair as it exist[ed] in 2019,” he believed that the repair was “[more than] 10 years old” and that its separation from the concrete slabs “would be caused by natural erosion, wear and tear over time, and/or in this case tree roots causing the concrete slabs to uplift, not by the method of its installation.” Parthesius v Town of Huntington, 2022 NY Slip Op 06254, Second Dept 11-9-22

Practice Point: A municipality will be responsible for a sidewalk slip and fall only when the town was notified of the defect in writing. There are two exceptions. Plaintiff argued the negligent-repair exception applied here. But that exception only applies to defects immediately resulting from a repair. Here the town demonstrated the repair was not properly 10 years ago and the defect developed over time.

 

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PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner in this slip and fall case should not have been allowed file a late notice of claim. The fact that county personnel responded to the scene of her injuries did not demonstrate the county had timely knowledge of the potential lawsuit. The late notice was served 50 days after the expiration of the 90 time-limit and therefore did not provide notice within a reasonable time. The petitioner’s injuries did not constitute an adequate excuse. And the petitioner did not provide any evidence the county would not be prejudiced by the late notice:

… [T]he fact that members of the Nassau County Police Department and a County ambulance responded to the scene and tended to her injuries, without more, cannot be considered actual knowledge of the essential facts constituting the claim against the County … . The petitioner failed to present any evidence to demonstrate that the County had knowledge of the circumstances of the accident from which it could “readily infer” that a “potentially actionable wrong had been committed” by it … .  Moreover, the late notice of claim, served upon the County without leave of court 50 days after the 90-day statutory period had expired, was served too late to provide the County with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period expired … .

The petitioner also failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner’s conclusory assertion that her injuries prevented her from making timely service, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse … .

… [T]he petitioner failed to come forward with “some evidence or plausible argument” that the County will not be substantially prejudiced in maintaining a defense on the merits as a result of the delay in commencing this proceeding and the lack of timely, actual knowledge of the essential facts constituting the claim … . Matter of Lang v County of Nassau, 2022 NY Slip Op 06245, Second Dept 11-9-22

Practice Point: In this slip and fall case: (1) the fact that county personnel responded to the scene when petitioner slipped and fall did not demonstrate the county had timely knowledge of the potential lawsuit; (2) the late notice served 50 days after the 90-day time-limit did not provide notice within a reasonable time; (3) the petitioner’s injuries did not constitute an excuse; and (4) the petitioner did not present evidence the county would not be prejudiced by the delay.

 

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IN THIS SLIP AND FALL CASE, THE LESSEE OF THE PROPERTY ABUTTING THE ALLEGEDLY DEFECTIVE SIDEWALK WAS NOT LIABLE FOR PLAINTIFF’S SLIP AND FALL; THERE WAS NO EVIDENCE THE CONDITION WAS CREATED BY THE LESSEE AND NO EVIDENCE OF AN AGREEMENT CREATING A DUTY ON THE PART OF THE LESSEE TO MAINTAIN THE SIDEWALK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this slip and fall case, determined 7-Eleven. the lessee of the property abutting the sidewalk where plaintiff allegedly fell, could not be held liable for the allegedly dangerous condition of the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty upon “the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.” “[A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty” … . Additionally, “[a]s a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . Only “where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, [may] the tenant . . . be liable to a third party” … . Here, the plaintiff failed to establish, prima facie, that 7-Eleven had any duty to maintain the sidewalk abutting the property it leased. Brady v 2247 Utica Ave. Realty Corp., 2022 NY Slip Op 06100, Second Dept 11-2-22

Practice Point: Under the NYC Administrative Code, the lessee of property abutting a sidewalk is not liable for a slip and fall caused by the condition of the sidewalk if the lessee did not create the condition and did not agree to maintain the sidewalk.

 

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DRIVER PURCHASED A GOODYEAR TIRE FOR HIS FORD FROM US TIRES, A NEW YORK CORPORATION; THE TIRE ALLEGEDLY FAILED LEADING TO A SERIOUS ACCIDENT IN VIRGINIA; DRIVER SUED US TIRES; US TIRES SUED GOODYEAR AND FORD, BOTH OUT-OF-STATE CORPORATIONS, SEEKING INDEMNIFICATION; NEW YORK HAS LONG-ARM JURISDICTION OVER GOODYEAR AND FORD IN THE US TIRES SUIT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Genovesi, determined New York has long-arm jurisdiction over third-party defendants Ford and Goodyear in this suit by a New York corporation, US Tires. US Tires installed a Goodyear tire on a Ford. The tire allegedly failed in Virginia and three passengers died. The plaintiffs, including the driver, sued US Tires. US Tires sued Ford and Goodyear, both out-of-state corporation, seeking indemnification. The issue on appeal was whether Ford and Goodyear had sufficient contacts with New York to support long-arm jurisdiction:

Ford and Goodyear concede that they conducted sufficient activities to have transacted business in New York, thus satisfying the first prong of CPLR 302(a)(1). As to the second prong of CPLR 302(a)(1), US Tires demonstrated that Goodyear’s and Ford’s activities in New York have a sufficient connection with the claims herein. * * *

When all the requirements of CPLR 302 are met, the exercise of personal jurisdiction still must comport with constitutional due process requirements … . * * *

Based on the record before us, the exercise of specific jurisdiction over Ford and Goodyear comports with due process … . … Ford and Goodyear concede that they had sufficient “minimum contacts” with New York. … [T]he only remaining question is whether Ford and Goodyear have met their burden of presenting “a compelling case that the presence of some other considerations would render jurisdiction unreasonable” … . We conclude that Ford and Goodyear have failed to meet this burden. Aybar v US Tires & Wheels of Queens, LLC, 2022 NY Slip Op 06099, Second Dept 11-2-22

Practice Point: This decision includes a comprehensive discussion of general and specific jurisdiction which is worth consulting. In this suit by a New York corporation, US Tires, seeking indemnification from two out-of-state corporations, Ford and Goodyear, the court determined Ford and Goodyear had sufficient contacts with New York to support long-arm jurisdiction. US Tires installed a Goodyear tire on driver’s Ford. The tire allegedly failed in Virginia, causing a serious accident. The driver sued US Tires. US Tires sued Ford and Goodyear.

 

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THE PLAINTIFF-STUDENT FOOTBALL PLAYER DID NOT ASSUME THE RISK OF INJURY IN A FOOTBALL-RELATED WEIGHT-LIFTING SESSION; THE RISK OF A WEIGHT-LIFTING INJURY IS NOT INHERENT IN THE GAME OF FOOTBALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student, a high school sophomore varsity football player, did not assume the risk of injury during a weight-lifting training-session when he voluntarily agreed to play football. The decision includes a good explanation of the assumption-of-the-risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sport or recreational activity is deemed to consent to the risks inherent in that sport, thereby negating any duty on a defendant’s part to safeguard the plaintiff from those risks … . While the absolute defense of implied assumption of risk, which was abolished by the enactment of CPLR 1411 in 1975, barred recovery by a plaintiff who was aware of the risks of engaging in a specific act and engaged in that specific act nonetheless …, the separate and distinct doctrine of primary assumption of risk posits that the risk is assumed by virtue of the plaintiff’s voluntary participation in a sporting event, which indicates the plaintiff’s consent to the risks that are inherent in that sport. Although a plaintiff’s knowledge of the risk involved in the particular act that results in injury remains relevant, under CPLR 1411, in assessing his or her comparative fault, in the context of primary assumption of risk, “knowledge plays a role but inherency is the sine qua non” … . * * *

Unlike a plaintiff subject to the pre-1975 defense of implied assumption of risk, the infant plaintiff in this case did not assume a risk at the moment he attempted to lift the 295-pound bar. Rather, his assumption of risk occurred when he joined the football team …, and the risks he assumed were limited to those that are inherent in the sport of football. The risk of losing control of a 295-pound bar is not a risk inherent in the sport of football … . Annitto v Smithtown Cent. Sch. Dist., 2022 NY Slip Op 06098, Second Dept 11-2-22

Practice Point: This decision clarifies the boundaries of the assumption-of-the-risk as it applies to school sports. When the plaintiff-student joined the football team, he assumed the risks inherent in the game of football. Here, those risks were not deemed to extend to weight-training, even though the weight-training was football-related. The student’s negligent supervision action stemming from his weight-training injury was not precluded by the assumption-of-risk doctrine.

 

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SIX TO TWELVE INCHES OF SNOW FELL OVERNIGHT AND PLAINTIFF SLIPPED AND FELL AT AROUND 6:00 AM; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM-IN-PROGRESS DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this slip and fall case should have been granted on the ground that the storm-in-progress defense applied:

On March 15, 2017, at approximately 5:55 a.m., the plaintiff … allegedly was injured when he slipped and fell on snow and ice on premises owned by the defendants. …

“Under the storm-in-progress rule, a property owner, tenant in possession, or, where relevant, a snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow . . . an opportunity to ameliorate the hazards caused by the storm” … . However, once a landowner or a tenant in possession elects to engage in snow removal during a storm in progress, “it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … . “The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm” … .

Here, in support of their motion, the defendants submitted … [plaintiff’s] deposition testimony, which established … that snow began to fall the day before the incident and continued to fall into the overnight hours, producing 6 to 12 inches of snow, and that the defendants did not have a reasonably sufficient time to ameliorate the hazards caused by the storm … . Henenlotter v Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116, Second Dept 11-2-22

Practice Point: Here six to twelve inches of snow fell overnight and plaintiff slipped and fell around 6 in the morning. The appellate court determined the storm-in-progress defense applied and defendants’ motion for summary judgment should have been granted.

 

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IN THIS REAR-END COLLISION CASE, THE DEFENDANT’S ALLEGATION HE DID NOT SEE PLAINTIFF’S BRAKE LIGHTS DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that allegation defendant did not see plaintiff’s brake lights in this rear-end collision case did not raise a question of fact about whether brake lights were not functioning:

… [T]he defendant failed to raise a triable issue of fact. Contrary to the defendant’s contention, his claim that he did not see brake lights on the plaintiffs’ vehicle prior to the collision, standing alone, was insufficient to raise a triable issue of fact as to whether an alleged malfunction of the brake lights on the plaintiffs’ vehicle proximately caused the accident … . Quintanilla v Mark, 2022 NY Slip Op 06151, Second Dept 11-2-22

Practice Point: In this rear-end collision case, the defendant’s allegation he did not see plaintiff’s brake lights did not raise a question of fact about whether the brake lights were functioning properly.

 

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