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THE ROLLED UP MAT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS KNOWN TO THE PLAINTIFF AND WAS OPEN AND OBVIOUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the rolled up map which caused plaintiff’s slip and fall was open and obvious and therefore nonactionable:

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'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the rolled-up mat, which was known to the plaintiff prior to the accident, was open and obvious, and was not inherently dangerous … . Williams v E & R Jamaica Food Corp., 2022 NY Slip Op 01065, Second Dept 2-16-22

 

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PETITIONER’S NOTICE OF CLAIM DEMONSTRATED HE HAD SUFFICIENT INFORMATION TO FORMULATE A COMPLAINT IN THIS SLIP AND FALL CASE; HIS REQUEST FOR PRE-JOINDER DISCOVERY AND PRESERVATION OF THE ACCIDENT SCENE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined pre-joinder discovery and preservation of the accident site was not necessary in this slip and fall case:

The petitioner alleges … he slipped and fell due to an accumulation of water leaking from the ceiling onto the landing at the top of an escalator in a subway station. The petitioner commenced this proceeding against the New York City Transit Authority (hereinafter the Transit Authority) seeking to direct the Transit Authority to preserve and produce any surveillance videos or records prepared in the regular course of business concerning the accident, or to provide an affidavit explaining the absence of any such videos or records. The petitioner also moved pursuant to CPLR 3102(c), in effect, to compel the Transit Authority to permit an inspection of the location of the accident upon certain conditions and to refrain from performing alterations or modifications to the location pending that inspection. …

CPLR 3102(c) provides, as relevant, that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Here, the petitioner’s notice of claim demonstrates that the petitioner possessed sufficient information to enable him to formulate his complaint and commence an action … . Therefore, under the circumstances, the only purpose of the pre-action discovery sought by the petitioner would be to “explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102(c)” … . Moreover, considering, inter alia, the evidence already in the petitioner’s possession, the order directing the Transit Authority to preserve the condition of the site of the accident until completion of an inspection was unduly burdensome …”. Matter of Neham v New York City Tr. Auth., 2022 NY Slip Op 01026, Second Dept 2-16-22

 

QUESTIONS OF FACT WHETHER THE DEFENDANT BUS DRIVER SAW WHAT SHOULD HAVE BEEN SEEN AND WHETHER THE EMERGENCY DOCTRINE APPLIED TO THIS REAR-END COLLISION CASE; THE BUS WAS BEHIND PLAINTIFF’S SCOOTER AND BOTH THE BUS AND THE SCOOTER APPARENTLY CHANGED LANES AT THE SAME TIME (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant bus driver (Payne) failed to see what should have been seen and whether the emergence doctrine applied to this rear-end collision case. Plaintiff was on a motor scooter in front of the bus and both the bus and the scooter changed lanes at approximate the same time:

… [E]ven if Payne had the right of way, she testified at her deposition that she did not see the plaintiff on his motor scooter until “seconds” before the accident. Since the video recording taken from the bus seems to show that the bus was following the plaintiff’s motor scooter for approximately two blocks prior to the accident, Payne’s testimony raised a triable issue of fact as to whether Payne failed to see what was there to be seen through the proper use of her senses, and thus whether she exercised reasonable care to avoid the accident and whether her actions were a proximate cause of the accident … . …

… [T]he evidence failed to eliminate the existence of triable issues of fact as to whether Payne’s actions contributed to or caused the emergency, in light of, inter alia, her failure to observe the motor scooter earlier … . Fergile v Payne, 2022 NY Slip Op 01008, Second Dept 2-16-22

 

PLAINTIFF WAS INJURED WHEN THE ARM AND FOOT PEDAL OF AN ELLIPTICAL MACHINE AT DEFENDANT’S GYM BROKE OFF; DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEFECT OR THE APPLICABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant gym was not entitled to summary judgment in this personal injury action. Plaintiff alleged the arm and foot pedal of the elliptical machine she was using detached. Defendant did not demonstrate that it did not have constructive notice of the defect or that plaintiff assumed the risk of injury:

Although the defendants submitted a transcript of deposition testimony from their employee regarding the defendants’ general practice of testing exercise equipment each weekday, they failed to present any specific evidence as to when the subject elliptical machine was last inspected relative to the subject incident. Mere reference to general practices, with no evidence regarding any specific inspection of the equipment in question, is insufficient to establish lack of constructive notice … . …

… [P]articipants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport or recreational activity … . Here, the risk of the left arm and foot pedal of an elliptical machine detaching or hinging out is not inherent in the recreational activity of exercising on an elliptical machine in a gym. Rather, the alleged defective condition of the elliptical machine enhanced the risk of injuries … . Buffalino v XSport Fitness, 2022 NY Slip Op 00998, Second Dept 2-16-22

 

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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment:

… [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … . In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … . Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent … . Ojeda v Barabe, 2022 NY Slip Op 00870, Second Dept 2-9-22

 

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PLAINTIFF ALLEGEDLY TRIPPED OVER AN ELECTRICAL BOX AS SHE STEPPED OFF A TREADMILL; DEFENDANTS RAISED QUESTIONS OF FACT ABOUT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND ABOUT THE CREDIBILITY OF THE PLAINTIFF AND HER WITNESSES, INCLUDING HER EXPERT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this premises liability case should not have been granted. Plaintiff alleged she tripped over an electrical box when she stepped off a treadmill at defendant fitness center. Defendants raised questions of fact about whether the condition was open and obvious and about the credibility of plaintiff and her witnesses, including the expert:

… [T]he defendants cited to the evidence submitted in support of their motion for summary judgment dismissing the complaint, which included photographs allegedly depicting the subject electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous … . The defendants’ opposition also raised triable issues of fact relating to “[the] plaintiff’s credibility” … , and the credibility of her other witnesses, including her expert witness … . Sebagh v Capital Fitness, Inc., 2022 NY Slip Op 00892, Second Dept 2-9-22

 

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CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimants’ application to file a late notice of claim against the county in this traffic accident case should not have been granted. Claimants alleged ice and snow had been allowed to accumulate on the road causing the driver to lose control and strike a tree. Claimants’ eight-year-old son was injured. The Fourth Department, in a comprehensive discussion, went through each “late-notice-of-claim” factor and found only one (county not prejudiced by the delay) favored the claimants:

… [O]f all the relevant circumstances evaluated—infancy, reasonable excuse, actual knowledge, and substantial prejudice—only one, lack of substantial prejudice, favored granting claimants’ application. Despite the well-settled principle that “actual knowledge of the claim is the factor that is accorded ‘great weight’ in determining whether to grant leave to serve a late notice of claim” … and instead “weigh[ed] heavily” the lack of substantial prejudice, even though claimants’ showing in that regard, while adequate, was not particularly strong. Under these circumstances—which include the nearly 22-month period between the accident and claimants’ application for leave to serve a late notice of claim, the improper weighing of the substantial prejudice factor at the expense of the actual knowledge factor, and claimants’ failure to demonstrate a nexus between the son’s infancy and the delay or to otherwise proffer a reasonable excuse for the delay—we conclude that the court abused its discretion in granting that part of the application seeking leave to serve a late notice of claim on the County … . Matter of Antoinette C. v County of Erie, 2022 NY Slip Op 00776, Fourth Dept 2-4-22

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STEPS ON WHICH SHE SLIPPED AND FELL, ALTHOUGH ON A PUBLIC RIGHT-OF-WAY, WERE SUBJECT TO A SPECIAL USE BY THE ABUTTING PROPERTY OWNER (POTENTIALLY RENDERING THE ABUTTING PROPERTY OWNER LIABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this slip and fall case should have been allowed to present evidence of defendant synagogue’s special use of steps which were part of the public right-of-way but which lead to the synagogue entrance. Plaintiff slipped on ice on the “public right-of-way” portion of the steps and broke her ankle:

… [D]efendant proffered evidence in support of its motion for summary judgment that plaintiff’s fall occurred on public property, thereby shifting the burden to plaintiff to raise an issue of fact as to defendant’s liability as an abutter … . With respect to its special use theory of recovery, plaintiff points to the deposition testimony of defendant’s secretary and bookkeeper, who testified that she was unaware of who initially built the subject set of steps, or when, but that defendant rebuilt them prior to plaintiff’s fall. Photographs submitted by both parties make clear that the subject steps are not only directly in line with the synagogue’s main entrance, but match that entrance’s width with near exactitude, the entrance notably being wide enough to encompass two sets of double doors. There is proof that congregants attending Sabbath services and holiday services would access the synagogue via this entrance only. In addition, photographic evidence reveals that the portion of the raised sidewalk between the two sets of steps is constructed of more decorative pavers or cobblestones, laid by defendant, setting that area apart from the otherwise concrete sidewalk, arguably improving the overall appearance of the main entrance and visually linking the two sets of steps up to the synagogue.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every available inference, as we must, the foregoing was adequate to raise a triable issue of fact as to whether the subject steps were constructed or altered for defendant’s benefit. Podhurst v Village of Monticello, 2022 NY Slip Op 00707, Third Dept 2-3-22

 

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ALTHOUGH THE DOCTOR WAS AT WORK AT THE HOSPITAL WHEN HE WAS SHOT DURING A MASS SHOOTING, HIS INJURY WAS NOT WORK-RELATED WITHIN THE MEANING OF THE WORKERS’ COMPENSATION LAW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the shooting of a doctor, Justin Timperio, although it occurred while Timperio was working at the hospital, was not a work-related injury within the meaning of the Workers’ Compensation Law. Timperio had brought a negligence lawsuit against the hospital in federal court and, in the context of the hospital’s motion for summary judgment, the federal court ruled the injuries did not arise from Timperio’s employment. The federal ruling did not colaterally estop the Workers’ Compensation Board from considering the claim in the first place (because it was not a final ruling), but the Board’s ultimate conclusion the injury was work-related was reversed by the Third Department:

The undisputed facts in the record demonstrate that the attack was perpetrated by an individual who was not employed by the hospital at the time of the attack (and had not worked there for over two years), was not and never was Timperio’s coworker, did not know Timperio and provided no reason for the attack prior to taking his own life. Nor did Timperio know the attacker, and there is no evidence that the attack was based upon an employment-related animus between the two individuals or that the attack had any nexus to Timperio’s employment or “performance of h[is] job duties” … . Such proof was sufficient to rebut the presumption articulated in Workers’ Compensation Law § 21 (1) and to establish that the assault on Timperio resulted exclusively from arbitrary, broad-sweeping and gravely maligned personal animosity and not from work-related differences with Timperio … . Matter of Timperio v Bronx-Lebanon Hosp., 2022 NY Slip Op 00711, Third Dept 2-3-22

 

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THE WRONGFUL DEATH CAUSE OF ACTION AGAINST DEFENDANT NURSING HOME SHOULD NOT HAVE BEEN DISMISSED; CONFLICTING EXPERT OPINIONS RAISED A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the wrongful death cause of action against defendant nursing home should not have been dismissed. Conflicting expert opinions raised a question of fact:

Defendant made a prima facie showing that it was not liable for the decedent’s injuries and death under Public Health Law § 2801-d(1) through the affirmation of its nursing expert, who opined that defendant did not violate the various federal and state regulations set forth in plaintiff’s bill of particulars. In opposition, plaintiff failed to raise an issue of fact, because her expert did not address any rules or regulations that were violated … .

As for the wrongful death cause of action, the parties’ nursing experts had similar credentials in gerontology and nursing, and both were qualified to opine on the applicable standard of care for residential nursing facilities … . Thus, the experts’ conflicting opinions present an issue of fact as to whether defendant was liable for the decedent’s injuries.  Jackson v Northern Manhattan Nursing Home, Inc., 2022 NY Slip Op 00723, First Dept 2-3-22

 

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