The First Department, reversing Supreme Court, determined defendants, after twice acknowledging ownership of the area of plaintiff’s slip and fall, should not have been allowed to amend their answer to deny ownership after the statute of limitations had run
[Defendants] may not amend their answer in this manner after the statute of limitations has expired; the amendment would be too prejudicial to plaintiff … . Jackson v 170 W. End Ave. Owners Corp., 2021 NY Slip Op 00625, First Dept 2-4-21
The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was evidence the defect in the sidewalk, although small, may not have been visible because scaffolding covered the sidewalk. In addition, defendants’ expert did not inspect the sidewalk until 3 1/2 years after the accident (after repairs had been made):
Defendants and the motion court relied extensively on the height differential between the sidewalk flags, applying a mechanistic disposition of a case based exclusively on the dimension of a sidewalk defect, which defendants’ expert measured to be seven-sixteenths of an inch … .
Plaintiff presented evidence that the height differential was not the only factor that caused her to trip. First, plaintiff established that the sidewalk was covered by a scaffolding that darkened the sidewalk and made it harder to see a sidewalk defect … . Second, plaintiff established through her expert that the expansion joint between the sidewalk flags was recessed an inch below the surface, when it should have been filled in and flush with the surface (see New York City Department of Transportation Highway Rule § 2-09[f][4][v]). The recessed expansion joint, which was repaired by the time defendants’ expert examined the sidewalk, added to the hazard …
Moreover, defendants’ expert did not inspect the area where plaintiff fell until more than 3 ½ years after plaintiff’s accident. Marks v 79th St. Tenants Corp., 2021 NY Slip Op 00629, First Detp 2-4-21
The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) without showing the ladder from which he fell was inherently defective:
Plaintiff testified that he was injured when he fell while using a wet and slippery wooden ladder provided by defendants for him to move between the tenth and eleventh floors of the construction site to perform his work. This testimony established prima facie that plaintiff’s work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection, as required by Labor Law § 240(1) … . It is clear that the ladder was not adequate to prevent plaintiff from falling and there is no dispute that other than the ladder, no additional safety devices were provided … . Plaintiff was not required to show that the ladder was inherently defective … . Millligan v Tutor Perini Corp., 2021 NY Slip Op 00630, First Dept 2-4-21
The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendants asserted the storm in progress defense, but the meteorological data was not in admissible form:
In this action where plaintiff alleges that he was injured after he fell on a snowy or icy condition on defendants’ driveway, defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law. The meteorologists’ reports relied upon by defendants were not in admissible form … . The reports contain no jurat, stamp of a notary public, or any other indication that the experts were actually sworn … .
In any event, contrary to defendants’ contention, the testimony of the parties alone did not establish that the snowstorm was still in progress at the time of the accident, and was therefore insufficient to avail them of the storm in progress defense … . Morales v Gross, 2021 NY Slip Op 00632, First Dept 2-4-21
The First Department, reversing Supreme Court, determined the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 were not complied with and the bank’s motion for summary judgment in this foreclosure action should not have been granted. There was no proof the notice was mailed to the right place:
Plaintiff failed to demonstrate its strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action … . Although the statute requires that the notice be sent to “the property address and any other address of record,” the affidavits submitted by plaintiff show that the notices were mailed neither to the mortgaged premises nor to defendant’s residence. One of the addresses to which the notices were sent not only was never occupied by defendant but also specified a unit that did not exist at that street address. The other was sent to the correct high-rise apartment building of more than 400 units but was missing the unit number. Thus, plaintiff did not send defendant proper notice under RPAPL 1304 … . U.S. Bank N.A. v Moran, 2021 NY Slip Op 00645, First Dept 2-4-21
The First Department, reversing Supreme Court, determined plaintiff had sufficiently alleged the existence of a special relationship with the city and dismissal based on the doctrine of governmental function immunity was not appropriate. Plaintiff called 911 and was told the ambulance was on its way. Plaintiff had other options for assistance but relied on the 911 operator’s statement. Apparently the ambulance response was delayed. Absent a special relationship a municipality may not be held liable for breach of a duty owed to the general public. Governmental immunity generally protects discretionary actions. Here the delayed response may not have been due to the deliberate exercise of discretion and therefore may not be protected by the immunity doctrine:
Plaintiff’s allegations are sufficient to establish a special relationship between the City and the decedent that brings her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public — such as the duty to provide ambulance service … . The allegation that the 911 operator told plaintiff that “we are on our way” is sufficient to establish defendants’ assumption of an affirmative duty to act on the decedent’s behalf … . Plaintiff sufficiently alleged justifiable reliance on the call operator’s statement through an affidavit submitted in opposition to defendants’ motion in which she listed several additional actions she would have taken to secure help but for the operator’s assurance … .
Dismissal is also not appropriate at this stage pursuant to the doctrine of governmental function immunity, which shields public entities from liability for “discretionary” actions taken during the performance of “governmental functions” … . It is undisputed that the provision of emergency care by FDNY EMTs constitutes a governmental function … . It is also clear that determinations of whether and when to dispatch an ambulance, the type of ambulance to dispatch and from where, and the route the ambulance should take are discretionary in nature … . However, it is not clear that the delay at issue here was due to an affirmative exercise of this discretion, rather than an unintentional failure to timely dispatch an ambulance … . Xenias v City of New York, 2021 NY Slip Op 00647, First Dept 2-4-21
The First Department, reversing Supreme Court, determined the NYC Housing Authority (NYCHA) should not have penalized petitioner for striking a NYCHA employee by evicting her:
The termination of the tenancy of petitioner, a now 64-year-old woman who has been a NYCHA tenant without incident for more than 40 years and will be evicted from her home along with her adult daughter because she suffered a momentary loss of control when she struck respondent’s employee, whom she believed to be in a relationship with her former partner, is “so disproportionate to [her] offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” … .
Given the facts presented as well as the lack of any evidence presented by NYCHA that petitioner’s continued occupancy presents a concern to the safety of NYCHA employees or a risk to the other NYCHA tenants, this Court finds that a lesser penalty is warranted … . Matter of Bryant v Garcia, 2021 NY Slip Op 00521, First Dept 2-2-21
The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1)cause of action. Plaintiff apparently fell from a scaffold which did not have guardrails. Defendants unsuccessfully argued plaintiff did not lock the wheels of the scaffold and therefore was the sole proximate cause of the accident:
… [D]efendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Given the scaffold’s inadequacy to protect him from falling, plaintiff’s alleged failure to lock the wheels of the scaffold could not be the sole proximate cause of his accident … . It would be at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Defendants’ argument, raised for the first time on appeal, that plaintiff was the sole proximate cause because he was not wearing a safety harness is also unavailing … , as is their suggestion that plaintiff may have fainted and/or stepped backwards off the scaffold … . Ordonez v One City Block, LLC, 2021 NY Slip Op 00529, First Dept 2-2-21
The First Department determined plaintiff’s Labor Law 240(1) cause of action was properly dismissed. Plaintiff fell from a ladder, but there was a video of the fall which showed the ladder did not move and was secured to the scaffolding:
Defendant was properly granted summary judgment dismissing the § 240(1) claim. Surveillance footage of plaintiff falling from the ladder demonstrates that it did not move or shake, refuting plaintiff’s testimony to the contrary … . In addition, photographs taken soon after his fall show that the top of the ladder was connected to the sidewalk bridge and scaffolding above, and tied to the scaffolding structure about one-third of the way up. Cordova v 653 Eleventh Ave. LLC., 2021 NY Slip Op 00490, First Dept 1-28-21
The First Department determined there are questions of fact about whether plaintiff probationary employee was entitled to accommodation under the Human Rights Law (HRL). She was terminated for marijuana use. However, the marijuana use was a treatment for an illness, irritable bowel disease (IBD):
… [T]here are issues of fact, for purposes of plaintiff’s claim for failure to accommodate under the State Human Rights Law (HRL), as to whether defendant adequately engaged in a cooperative dialogue with plaintiff …. to determine whether it could reasonably accommodate her status as a medical marijuana patient (see PHL 3369[2]). Notably, questions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient … . …
The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not. Although the City HRL must be construed liberally to ensure maximum protection … , certification as a medical marijuana patient is (other than as specified for purposes of claims under the State HRL) a legal classification. It is not a “physical, medical, mental, or psychological impairment,” which is how disabilities are defined under the City HRL (Administrative Code § 8-102).
Nevertheless, plaintiff’s IBD, is a physical impairment and thus a disability under the City HRL. Accordingly, issues of fact exist as to whether defendant should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation. Gordon v Consolidated Edison Inc.,2021 NY Slip Op 00492, First Dept 1-28-21
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