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EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change venue in this traffic accident case should not have been granted. Even though the accident didn’t occur in New York County and defendant corporation did not have an office in New York County, the certificate of incorporation designated New York County as the location of its principal office and the certificate controls:

Plaintiff properly placed venue in New York County based upon the corporate defendant’s initial certificate of incorporation designating New York County as the location of its principal office although the company has no office there (see CPLR 503 [c] …).

While defendants annexed to their moving papers the police report for the subject motor vehicle accident indicating that defendants’ vehicle was registered to a Nassau County address on the day of the accident and an affidavit from the corporate defendant’s Vice President averring that its office was in Nassau County when the action was commenced, the corporate residence designated in the initial certificate of incorporation controls for venue purposes … . There was no evidence of an amended certificate of incorporation that changed the principal place of business to Nassau County.

The general rule is that a transitory action, such as the subject motor vehicle accident, when other things are equal, should be tried in the county where the cause of action arose … . This rule, however, is predicated on the convenience of material nonparty witnesses who are to be present at trial … . While the situs of the accident provides a basis to change venue to Nassau County, defendants failed to sustain their burden, as the party moving for a discretionary change of venue pursuant to CPLR 510 (3), that there are material witnesses who would be inconvenienced by a trial in New York County … . Marte v Lampert, 2023 NY Slip Op 00375, First Dept 1-26-23

Practice Point: Here the traffic accident happened in Nassau County where defendant corporation had an office. But defendant’s certificate of incorporation indicated defendant’s principal office was in New York County. The certificate controls, even though the defendant corporation did not actually have an office in New York County.

 

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A HEAVY DOOR FELL ON PLAINTIFF’S HAND AS HE AND A CO-WORKER ATTEMPTED TO LIFT THE DOOR ONTO A TRUCK; NO LIFTING DEVICES WERE AVAILABLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s injury to his hand when a heavy door fell as plaintiff attempted to lift the door onto a truck warranted summary judgment on the Labor Law 240(1) cause of action. There was evidence no hoists or other lifting devices were available:

Plaintiff testified that there were no hoists, forklifts, or other lifting devices on the work site, and that the door fell because it was too heavy for him and his coworkers to hold up without such a device. Plaintiff further testified that he knew that the door weighed about 300 pounds because he could lift 100 pounds by himself, but that he and his coworker were unable to lift it together.

The affidavit of his employer’s foreman, who admittedly did not witness the accident, did not dispute most of the facts relevant to plaintiff’s claim. The foreman’s affidavit failed to raise a question of fact as to the door’s weight, since he did not provide any basis for his bare claim that the door weighed about 100-120 pounds and could easily be lifted by two workers without the use of a hoist or forklift. Furthermore, the precise weight of the door, whether it fell from a height of 7 feet or 3 ½ feet, or whether a dolly was being used when it fell are not material in this case. It is undisputed that no lifting devices contemplated by Labor Law § 240(1) were available at the job site and that plaintiff’s injuries flow “directly from the application of the force of gravity to the object” … . Taopanta v 1211 6th Ave. Prop. Owner, LLC., 2023 NY Slip Op 00385, First Dept 1-26-23

Practice Point: Although the weight of the door which fell onto plaintiff’s hand as he tried to lift the door onto a truck was disputed (300 versus 100-120), it was undisputed that no lifting devices were available. Plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action.

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PLAINTIFF STRUCK HIS HEAD AS HE FELL AND WAS INJURED BY THE ABRUPT STOP OF HIS FALL BY THE SAFETY HARNESS AND LANYARD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff had a safety harness and a retractable lanyard which were tied off when he fell. Although the harness and lanyard prevented him from hitting the floor, he hit his head as he fell and was injured by the abrupt stop of his fall (by the harness and lanyard):

The record establishes that the safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity” … . The fact that plaintiff sustained injuries to his right shoulder and back when his body was caused to be pulled back up abruptly by his safety harness and lanyard demonstrates lack of adequate protection … . Arias v 139 E. 56th St. Landlord, LLC, 2023 NY Slip Op 00261, First Dept 1-24-23

Practice Point: Although plaintiff was provided with a safety harness and a lanyard which were tied off, he struck his head when fell and was injured by the abrupt stop of his fall by the harness and lanyard. Plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action.

 

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DEFENDANT SUPERMARKET DID NOT OFFER PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED OR CLEANED PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE GRAPES ON THE FLOOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant supermarket’s motion for summary judgment in this slip and fall case should not have been granted; Defendant did not demonstrate it lacked constructive notice of the grapes on the floor because it presented no specific evidence of when the area had last been inspected or cleaned prior to the fall:

While defendant showed that it did not create or have actual notice of loose grapes in the produce aisle at the time of plaintiff’s accident, defendant failed to submit sufficient evidence to show, as a matter of law, that it lacked constructive notice of the condition. Specifically, defendant failed to show that its cleaning routine was followed on the day of the accident … . Its store manager testified generally that an employee was assigned to inspect and clean the produce aisle throughout the day and that he personally walked the aisles during the day, but he did not testify regarding any specific cleaning or inspection of the area in question on the day of plaintiff’s fall. A vice president testified that the cleaning protocols were verbal and were based on “common sense,” but did not offer any information as to what steps were taken during the last cleaning cycle prior to plaintiff’s accident, which also was not sufficient to establish lack of constructive notice on behalf of defendant. Accordingly, the burden did not shift to plaintiff to raise an issue of fact in opposition. Polanco v 756 Jomo Food Corp., 2023 NY Slip Op 00284, First Dept 1-24-23

Practice Point: To prevail on a motion for summary judgment in a slip and fall case the defendant must demonstrate a lack of constructive notice by proof the area was inspected or cleaned close in time to the fall.

 

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ALTHOUGH THE LIMITED LIABILITY COMPANY (LLC) VOTING AGREEMENT CONCERNED THE SALE OF REAL PROPERTY, IT WAS NOT SUBJECT TO THE STATUTE-OF-FRAUDS PROHIBITION OF ORAL AGREEMENTS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the counterclaim adequately alleged breach of contract. The contract was an LLC voting agreement which was not subject to the statute of frauds even though the agreement authorized the sale of real property:

Supreme Court should not have dismissed defendants’ counterclaims for breach of contract and specific performance, which it properly construed as a single claim for breach of contract seeking specific performance and monetary relief. The alleged agreement at issue was not an unenforceable oral contract for the sale of real property, as it did not provide for the sale or transfer of real property or any party’s interest in real property (see General Obligations Law § 5-703[2]). Instead, giving defendants’ allegations every favorable inference, defendants sufficiently pled that the oral agreement was effectively an LLC voting agreement under which plaintiff agreed to vote her membership interest in favor of defendants’ sale of their membership interests or a sale of the property. Tsai v Lo, 2023 NY Slip Op 00291, First Dept 1-24-23

Practice Point: Although the voting agreement concerned the sale of real property by the limited liability company, it was not subject to the statute-of-frauds prohibition of oral agreements.

 

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ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). ​

The First Department set aside the verdict against the attending physician and found the $3 million damages award excessive in this medical malpractice action. The attending physician, Tigges, could not be held vicariously liable fir the negligence of the physician’s assistant, Caputo, based on Tigges being a shareholder in the professional service corporation which employed Caputo. The First Department held the plaintiff should stipulate to damages in the amount of $500,000:

Dr. Tigges was not involved in plaintiff’s treatment during her admission, notwithstanding that he was often listed as the attending physician on her chart … . He was also not liable for Caputo’s conduct pursuant to Department of Health Regulations (10 NYCRR) § 94.2 or Business Corporation Law § 1505 (a). There is no indication that Dr. Tigges, and not another of the doctors at [defendant] OADC, was the doctor supervising Caputo at the time in question … .

We find that the $3 million jury award deviates materially from what would be reasonable compensation and should be reduced as indicated (see generally CPLR 5501[c] … ). Although none of the cases relied on by the parties are squarely on point, the subject award is well outside the range of awards in all of these cases … . Appleyard v Tigges, 2023 NY Slip Op 00260, First Dept 1-24-23

Practice Point: The attending physician in this medical malpractice case could not be held vicariously liable for the negligence of the physician’s assistant on the ground that the attending physician was a shareholder in the professional service corporation which employed the physician’s assistant.

 

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PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant 219 Ave. A was an out-of-possession landlord which, by the terms of the lease, was not obligated to repair or maintain the premises where plaintiff’s fall occurred. Plaintiff was standing on a couch in defendant Planet Rose’s karaoke bar when she fell backwards through a storefront window:

… [T]he owner of Planet Rose acknowledged that when vandals smashed another window in the storefront years earlier, the glazier recommended tempered glass as the best option for a storefront, and she accepted that recommendation. She also testified that there were many times over the years that patrons stood on the couch, as shown in photographs posted on Planet Rose’s social media. Thus, the record presents issues of fact as to whether defendants were negligent in failing to use tempered glass in the window to prevent a foreseeable injury … .

… Given the evidence that patrons of the karaoke bar sometimes stood on the couch, plaintiff’s conduct was not extraordinary or unforeseeable, and it therefore cannot be said that the setup at the bar merely furnished the occasion for the harm … .

219 Ave. A demonstrated that it had relinquished sufficient control of the premises to be deemed an out-of-possession landlord, and as such, was not contractually obligated to make repairs or maintain the premises … . Accordingly, its liability is limited to claims “based on a significant structural or design defect that is contrary to a specific statutory safety provision,” which are not at issue here … . Kitziger v 219 Ave. A. NYC LLC, 2023 NY Slip Op 00239, First Dept 1-19-23

Practice Point: Because patrons of defendant karaoke bar stood on the couch to dance, plaintiff’s fall through the storefront window was foreseeable and the failure to install tempered glass may have been negligent. This was not a case where the condition (the glass storefront window) merely furnished the occasion for the accident, as opposed to a proximate cause. By the terms of the lease the out-of-possession landlord was responsible only for structural repairs which were not at issue.

 

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​ PLAINTIFF ALLEGEDLY FELL INTO A DITCH WHICH WAS COVERED BY A TARP; THE FACT THAT PLAINTIFF WAS THE ONLY WITNESS AND THE ALLEGATION PLAINTIFF COULD HAVE TAKEN A DIFFERENT ROUTE DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this Labor Law 240(1) action. Plaintiff alleged he fell into a ditch which was covered by a tarp. That there were no witnesses to the incident did not require denial of summary judgment. The allegation plaintiff could have taken a different route raised an issue of comparative negligence which is not a bar to summary judgment on a Labor Law 240(1) cause of action:

Defendants … failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Defendants contend that plaintiff chose to use a bathroom further away from his workstation and attempted to cross over the ditch without first inspecting the covering that had replaced the plank before stepping on it. However, these circumstances still demonstrate that plaintiff’s accident was the result of the absence of a safety device, and raise only an issue as to plaintiff’s comparative negligence, which is not a defense to a Labor Law § 240(1) claim … .

The fact that plaintiff was the only witness to his accident does not preclude summary judgment in his favor, as nothing in the record controverted his account of the accident or called into question his credibility … . Sotelo v TRM Contr., LP, 2023 NY Slip Op 00190, First Dept 1-17-23

Practice Point: Plaintiff fell into a ditch covered by a tarp. He was entitled to summary judgment on the Labor Law 240(1) cause of action despite the fact he was the only witness to the incident and despite the allegation he could have taken a different route (comparative negligence in not a bar to summary judgment on a Labor Law 240(1) cause of action).

 

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FATHER MADE A PRIMA FACIE SHOWING THE NYC ADMINISTRATION OF CHILDREN’S SERVICES (ACS) SHOULD BE HELD IN CONTEMPT FOR FAILING TO PROVIDE UNREDACTED REPORTS OF CHILD ABUSE OR NEGLECT WHICH WERE DEEMED UNFOUNDED; MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court and remitting the matter, determined father made a prima facie showing that the NYC Administration of Children’s Services (ACS) should be held in contempt for failing to provide unredacted reports of child abuse or neglect which were deemed unfounded. Father’s request for the unredacted documents should not have been denied absent a finding by Family Court the safety of the person(s) who made the report or cooperated with the investigation would be jeopardized by revealing the name(s):

As the subject of the unfounded reports, the father is a person entitled to receive access to the otherwise sealed reports (Social Services Law § 422 [5][a][iv]). * * *

… [F]ather made a prima facie showing of the elements necessary to hold ACS in contempt for its failure to fully comply with a lawful judicial subpoena …  The subpoena was a valid order expressing an unequivocal mandate, requiring ACS to produce “complete” investigation and unfounded reports of suspected child abuse concerning the children. ACS does not deny that it was aware of the order. Further, ACS did not comply with the subpoena, as it produced reports that redacted the names of sources, not complete reports. Finally, the father suffered prejudice, because his modification petition alleges that the mother was causing false abuse reports to be filed with the authorities, and the unredacted unfounded reports may be admissible in such a proceeding … .

Once the father met his prima facie burden, it was incumbent on ACS to refute the showing or to offer evidence of a defense … . ACS asserted that Social Services Law §422(7) permits the commissioner “to prohibit the release of data that would identify the person who made the report or who cooperated in a subsequent investigation . . . which he reasonably finds will be detrimental to the safety or interests of such person.” However, there was no indication that any such determination had actually been made. Matter of Michael Y. v Dawn S., 2023 NY Slip Op 00193, First Dept 1-17-23

Practice Point: Under the Social Services Law, the NYC Administration of Children’s Services (ACS), in response to a judicial subpoena, must provide unredacted reports of child abuse or neglect which were deemed unfounded, unless ACS can demonstrate revealing the names of the sources of the reports jeopardizes the safety of those sources.

 

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NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the verdict should not have been set aside on the ground of jury confusion. No objection was made to the verdict sheet until after the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances:

The trial court should not have set aside the verdict based on a determination that the verdict sheet was, on its face, unclear and confusing. None of the parties or the court perceived any lack of clarity until after the jury was discharged, and there was no evidence in the trial record of substantial juror confusion … . Although the court stated that it gave no consideration to the posttrial juror affidavits stating that they believed that they were supposed to deduct from the damage award the amount of plaintiff’s comparative fault, that was the only evidence of jury confusion provided by plaintiff. However, “[ j]uror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances,” not present here …   Moreover, plaintiff did not object to the verdict sheet or the charge until after the jury was discharged, and therefore, waived such objections … . Suarez v Ades, 2023 NY Slip Op 00175, First Dept 1-12-23

Practice Point: The verdict should not have been set aside on jury-confusion grounds. No one objected to the verdict sheet before the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances not present in this case.

 

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