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PLAINTIFF ALLEGED A VALID NEGLIGENCE CAUSE OF ACTION AGAINST DEFENDANT INSURANCE BROKER FOR FAILURE TO NOTIFY THE EXCESS CARRIER OF A CLAIM AGAINST PLAINTIFF; IT WAS ALLEGED THAT PLAINTIFF ROUTINELY NOTIFIED DEFENDANT BROKER OF ANY CLAIMS AND DEFENDANT BROKER ROUTINELY NOTIFIED THE AFFECTED CARRIERS, GIVING RISE TO A DUTY TO DO SO (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint against the insurance broker, T & H, stated a cause of action in negligence based on T & H’s failure to notify the excess carrier of its potential exposure to a claim:

Under ordinary circumstances, it is understood that “insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . Nevertheless, if an insured asks the broker to take on additional responsibilities above and beyond procuring specifically requested coverage, and the broker agrees to do so, a duty is created that the broker must execute with reasonable care … . Thus, we have held that a duty was imposed on a broker to notify the appropriate primary and excess carriers of a potential claim where there was “evidence that as a matter of routine [the insured] referred all questions regarding its insurance claims to [the broker] and [the broker] handled all [the insured]’s insurance needs, including referring its claims to insurers” … . Here, plaintiff alleged that it and T&H had established a course of conduct whereby plaintiff would notify the latter of claims against it and T&H would inform the carriers, and that T&H acknowledged that plaintiff relied on it to carry out this function. Indeed, plaintiff alleges, in this case T&H affirmatively represented that it had placed both the primary and the excess carrier on notice. Accordingly, plaintiff has stated a cause of action for negligence predicated on T&H’s alleged failure to advise the excess carrier of its potential exposure. Martin Assoc., Inc. v Illinois Natl. Ins. Co., 2020 NY Slip Op 06860, First Dept 11-19-20

 

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A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the jury in this Mental Hygiene Law sex-offender civil-commitment trial should have been instructed that the anti-social personality disorder (ASPD) diagnosis cannot, standing alone, support a finding defendant has a mental abnormality as defined in the Mental Hygiene Law. The fact that the Pattern Jury Instructions do not include an instruction on this issue is not a justification for failing to give the instruction:

Mental Hygiene Law 10.03 defines “Mental abnormality” as a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.” In Matter of State of New York v Donald DD (24 NY3d 174 [2014]), the Court of Appeals expressly held: “evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law § 10.03(i), when it is not accompanied by any other diagnosis of mental abnormality” … . …

Where [as here] the jury is asked to parse through multiple psychological diagnoses, which include ASPD, the jury should be instructed that ASPD cannot be the sole basis for its finding that someone suffers from a mental abnormality. This is to ensure that the jury’s finding conforms to the applicable law. Absent such an instruction, the jury may mistakenly find mental abnormality based solely on ASPD without the requisite finding of an additional diagnosis of a condition or disorder that, combined with ASPD, may predispose one to commit a sex offense. Matter of State of New York v David S., 2020 NY Slip Op 06876, First Dept 11-19-20

 

EVIDENCE THE LADDER SLIPPED OUT FROM UNDER PLAINTIFF WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION; PLAINTIFF WAS NOT REQUIRED TO SHOW THE LADDER WAS DEFECTIVE (FIRST DEPT)

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff was injured when his ladder slipped out from under him. Plaintiff did not have to show the ladder was defective:

Plaintiff’s testimony that the unsecured ladder slipped out from under him established prima facie his entitlement to summary judgment on the Labor Law § 240(1) claim …, and defendants failed to raise an issue of fact in opposition. Their contention that an issue of fact exists as to whether the ladder was appropriate to perform the work is unavailing. Plaintiff was not required to show that the ladder was defective … . Cabrera v 65 Park W. Realty, LLC, 2020 NY Slip Op 06702, First Dept 11-17-20

 

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DEFENDANT TRIPPED OVER A PIECE OF PIPE STICKING OUT OF THE FLOOR AND FELL INTO THE UNGUARDED ELEVATOR MECHANISM; THE DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant’s (19 Realty’s) motion for summary judgment should not have been granted on the ground that the piece of pipe sticking out of the floor, over which plaintiff tripped, was a trivial defect. The pipe stub was near unguarded elevator mechanisms in the elevator room of an apartment building. Plaintiff fell into the mechanism and the injuries to his hand required amputation. The court noted that the size of a defect is not the proper criteria for determining whether a defect is trivial, and further noted the defendant had notice of the defect because it had been there since 2007:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Moreover, “there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable,” and therefore “granting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable” … . The cases recognize that “a holding of triviality [must] be based on all the specific facts and circumstances of the case, not size alone” … .

Here, 19 Realty failed to meet its prima facie burden of establishing that the pipe stub defect was trivial and nonactionable, given that the surrounding circumstances included the unguarded and exposed hoist and moving cables of the elevator cars, which magnified the risk the pipe stub posed and rendered the raised pipe stub more dangerous than it might otherwise have been. Moreover, both 19 Realty and the court below improperly relied almost exclusively on the size of the pipe stub, which the Court of Appeals has held is not the proper analysis (see Hutchinson, 26 NY3d at 77) … . Arpa v 245 E. 19 Realty LLC, 2020 NY Slip Op 06444, First Dept 11-12-20

 

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THE EMERGENCY DOCTRINE PROTECTED THE TRANSIT AUTHORITY FROM LIABILITY IN THIS BUS-PASSENGER INJURY CASE; THE DRIVER TESTIFIED HE BRAKED SLIGHTLY WHEN A CAR WAS IN FRONT OF THE BUS MAKING A RIGHT TURN (FIRST DEPT). ​

The First Department, affirming Supreme Court. but on different grounds, determined the New York City Transit Authority’s (NYCTA’s) motion for summary judgment in this bus-passenger injury case. Plaintiff alleged he fell when the bus stopped in an unusual and violent manner. The First Department applied the emergency doctrine to affirm summary judgment in favor of the NYCTA. The bus driver testified he slightly touched the brake when a car was in front of the bus making a right turn:

The emergency doctrine recognizes that when an actor is faced with a sudden, unexpected circumstance leaving little or no time for deliberation, “the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . Under the doctrine, a person faced with an emergency “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” … . Further, “[w]hile it is often a jury question whether a person’s reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate issue of fact on the issue” … . …

… [P]laintiff failed to submit any evidence tending to show that Williams [the bus driver] created the emergency or could have avoided plaintiff’s fall by other means than slightly stepping on the brake … . Castillo v New York City Tr. Auth., 2020 NY Slip Op 06447, First Dept 11-12-20

 

PLAINTIFF STEPPED INTO A TRENCH WHICH HAD BEEN FILLED WITH SOFT SOIL AND SANK DOWN TO ABOVE HIS KNEE; SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff stepped into a trench that had been filled with soft soil and sank into the soil past his knee:

It is undisputed that no safety devices were provided to plaintiff to protect him against the gravity-related risk of descending a significant distance into the trench. Thus, plaintiff established prima facie his entitlement to partial summary judgment on the Labor Law § 240(1) claim … . The elevation differential between the ground level and the lower level to which plaintiff’s foot and leg sank is analogous to the risk that a worker standing on a platform on a body of water would fall into the water, which we have found to be covered by Labor Law § 240 … . Defendants failed to submit evidence that no safety devices could have prevented the accident … . Sunun v Klein, 2020 NY Slip Op 06471, First Dept 11-12-20

 

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THE DEFENDANT SURGEON’S TESTIMONY DID NOT MEET THE CRITERIA FOR HABIT EVIDENCE; THEREFORE THE DEFENSE EXPERT, WHO RELIED ON THE INSUFFICIENT HABIT EVIDENCE, DID NOT MAKE OUT A PRIMA FACIE CASE; EVEN IF SUFFICIENT, HABIT EVIDENCE ONLY RAISES AN INFERENCE FOR THE JURY TO CONSIDER, IT DOES NOT ESTABLISH WHAT PROCEDURE WAS FOLLOWED AS A MATTER OF LAW; NEW EVIDENCE RAISED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court, in full-fledged opinion by Justice Gische, determined: (1) the defendant surgeon’s (Dr. Fielding’s) testimony did not meet the criteria for habit or custom evidence; (2) habit evidence, even when sufficient, gives the jury the basis for an inference, but does not demonstrate what was done as a matter of law; and (3) a new theory raised in the reply papers should not have been considered. Dr. Fielding had no independent recollection of the operation on plaintiff. Defendant’s motion for summary judgment should not have been granted:

In order to lay a foundation for [the] admission [of habit evidence], Dr. Fielding needed to establish that the practice of palpitating the bowel for perforations was routinely done by him in his open bariatric surgeries, and that it did not vary from patient to patient. He did not do so. He failed to offer testimony or provide any other proof regarding the number of times he had followed such a procedure during the hundreds of bariatric surgeries he had performed … . Nor did Dr. Fielding describe the LAP-Band procedure as being routine, without variation from patient to patient. Since Dr. Fielding did not lay a proper evidentiary foundation for his testimony based on custom and practice, and the expert’s opinion was made in reliance on that testimony, defendants did not satisfy their burden of proving a prima facie case entitling them to summary judgment … . …

… [E]ven if an appropriate foundation was laid for the habit testimony that defendants’ expert relied on, the motion for summary judgment still should have been denied. Where habit evidence is admitted, it only establishes that the claimed behavior or conduct was persistent and repeated in similar circumstances … . Evidence of habit only provides a basis for the jury to draw an inference, but it cannot be the basis for judgment as a matter of law … . Guido v Fielding, 2020 NY Slip Op 06391, First Dept 11-10-20

 

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IN A COMPREHENSIVE DECISION ANALYZING THE ELEMENTS OF PROOF IN A SLIP AND FALL CASE, INCLUDING EXPERT OPINION EVIDENCE, THE 1ST DEPARTMENT DETERMINED THE DEFENDANT STORE DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL KNOWLEDGE OF A PUDDLE OF WATER IN FRONT OF AN ICE MACHINE (FIRST DEPT).

The First Department, in an unusually detailed and comprehensive decision, went through all the factors relevant to slip and fall cases, including expert opinion evidence, and determined defendant store was entitled to summary judgment. Plaintiff allegedly slipped and fell on water in front of an ice machine. The defendant demonstrated the area had been inspected an hour and a half before the fall and no one had complained about water on the floor. Therefore defendant did not have constructive or actual notice of the condition:

Defendants … established that the water was not on the floor for a sufficient period of time to charge them with having constructive notice that it was there. The porter averred that she inspected the area at about 8:23 a.m., or about an hour and a half before the accident and did not record any hazards. The deposition testimony of both plaintiff and his wife establish that the water puddle that caused plaintiff’s fall was clear and without any footprints or marks … . …

Defendants sustained their burden of making a prima facie showing that they had no actual notice of the water on the floor before the accident. Defendant store manager Luisi testified that he was unaware of any complaints about the area which were made before the accident.

Plaintiff’s expert affidavits failed to raise a triable issue of fact as to whether defendants were negligent. First, the standards cited are couched in advisory terms and there is no evidence that they are an adopted and implemented industry standard or a generally accepted safety practice … . Although evidence of industry practice and standards is admissible to establish a duty of care, the expert affidavit fails to raise a triable issue of fact because it contains nothing more than conclusory opinions with respect to a deviation from an alleged industrywide practice of placing cones and absorbent rubber mats or carpets in front of ice freezers … . Velocci v Stop & Shop, 2020 NY Slip Op 06372, First Dept 11-5-20

 

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FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing Family Court and remanding the case, determined the evidence did not support a finding that there had been a change in circumstance sufficient to warrant awarding sole custody to father. The court noted that Family Court should not have relied solely on the in camera interview with the eight-year-old child:

The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. The transcript of the in camera interview shows that the child made inconsistent statements about where he spent the majority of his time. However, even if he had made a definitive declaration, the Court of Appeals has admonished that courts should “not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,” because “there are grave risks involved in these private interviews. A child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also, its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given the child’s choice. Without a full background on the family and the child, these interviews can lead the most conscientious Judge astray” … .

In fact, this admonition is well taken in this case, where the record provides a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Matter of Edwin E.R. v Monique A.-O., 2020 NY Slip Op 06347, First Dept 11-5-20

 

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QUESTIONS OF FACT WHETHER THE BUILDING MANAGEMENT COMPANY WAS LIABLE, PURSUANT TO ESPINAL FACTORS, FOR INFANT PLAINTIFF’S FALL INTO THE ELEVATOR SHAFT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether the building manager, Synoptic, was liable in this elevator accident case. The elevator was subject to a code violation because a “drop key” was available to tenants which allowed the elevator door to be opened when the elevator cab was not at that floor. Infant plaintiff fell into the open shaft after her nanny opened the door. The contract between Synoptic and the building owner raised questions of fact whether Espinal factors imposed liability on Synoptic:

A contracting party may not be liable in tort to a noncontracting third-party for its negligent performance unless it launches a force or instrument of harm by creating or exacerbating an unreasonable risk of harm, the noncontracting third party detrimentally relies on its performances, or it completely displaces the other party’s duty to maintain premises safely … . …

Whether Synoptic made the repairs itself or was qualified to do so is irrelevant as to whether it owed plaintiff a duty. Rather its duty arises from its contractual obligation under the comprehensive management agreement obligating it to, inter alia, maintain the property and cause needed repairs to the elevator … .

Here, issues of fact exist as to whether plaintiffs detrimentally relied on Synoptic to perform its contractual duties to maintain, cause repairs to be made to, and correct violations regarding the elevator … , and whether Synoptic launched a force of harm by providing residents access to the drop key to use the freight elevator … . According to … deposition, [testimony]  Synoptic had notice that residents were using the drop key to access the freight elevator. Further, at the very least, issues of fact exist as to whether it had notice that the repairs to address the violation were never completed. XX v Dunwell El. Elec. Indus., Inc., 2020 NY Slip Op 06376, First Dept 11-5-20

 

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