You are here: / First Department

Tag Archive for: First Department

,

DEFENDANTS FAILED TO DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO SLIP AND FALL; PLAINTIFF ADEQUATELY IDENTIFIED THE CAUSE OF HER FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted because they failed to establish they lacked actual or constructive notice of the alleged hump in a runner over which plaintiff tripped. The First Department noted that plaintiff had adequately identified the cause of her fall:

Defendants’ failure to establish prima facie entitlement to judgment as a matter of law requires the denial of the motion regardless of the strength of plaintiff’s opposition … . They failed to offer evidence of their inspection routines, including evidence regarding the last time the accident site was inspected … .

In any event, plaintiff raises factual issues. Although plaintiff did not actually observe what caused her to trip and fall over an inclement weather runner in the lobby of defendants’ building, her evidence, together with reasonable inferences drawn therefrom, including that she felt the toebox of her right foot slide under what felt to be a hump in the runner, causing her foot to get caught, and her to lose her balance and fall, sufficiently identified the cause of her fall … . Mandel v 340 Owners Corp., 2020 NY Slip Op 07316, First Dept 12-8-20

 

QUESTION OF FACT WHETHER THE TWO BY FOUR PLAINTIFF TRIPPED OVER WAS DEBRIS, WHICH WOULD CONSTITUTE A VIABLE LABOR LAW 241(6) CAUSE OF ACTION, OR PART OF A SAFETY BARRICADE, WHICH WOULD NOT (FIRST DEPT).

The First Department determined there was a question of fact whether the two by four plaintiff tripped over was debris, which would constitute a viable Labor Law 241(6) cause of action, or part of a safety barricade, which would not:

Plaintiff’s motion for partial summary judgment on the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23-1.7(e)(2) should be denied. This Industrial Code provision requires work areas to be kept free of debris and scattered tools and materials “insofar as may be consistent with the work being performed,” and thus is not violated when the condition that caused the plaintiff to trip or slip was integral to the work being performed, such as the presence of materials placed in the work area intentionally …. The staircase that plaintiff was approaching was installed by the ironworkers, and there is testimony that it was not opened for use until days after plaintiff’s accident. Plaintiff acknowledged that the staircase had not been completed at the time of his accident, that a barricade remained in place around three sides of the opening in the floor, and that an ironworker was working on the fourth side at the top of the stairs where the barricade had been removed. Under the circumstances, issues of fact exist as to whether the two-by-four over which plaintiff tripped was part of the barricade blocking the staircase opening in the floor and therefore integral to the work at the time of his accident, even if the barricade had been pulled back or removed from the front of the stairs where an iron worker was working … . Rudnitsky v Macy’s Real Estate, LLC, 2020 NY Slip Op 07325, First Dept 12-8-20

 

,

THE BUILDING OWNER HAD, BY CONTRACT, RELINQUISHED ALL RESPONSIBILITY FOR ELEVATOR MAINTENANCE TO DEFENDANT AMERICAN ELEVATOR AND WAS THEREFORE NOT LIABLE FOR THE ALLEGED ELEVATOR MALFUNCTION; THE PLAINTIFF ALLEGED THE INNER GATE CLOSED ON HER SHOULDER, PINNING HER, AND THE ELEVATOR THEN DESCENDED; A QUESTION OF FACT PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE WAS RAISED (FIRST DEPT). ​

The First Department determined that the building owner, 1067 Fifth Avenue Corp. had, by contract, relinquished the responsibility to maintain the elevator to defendant American Elevator. Plaintiff alleged the elevator inner gate closed on her shoulder and then the elevator descended. Plaintiff alleged she injured her shoulder, neck and back pulling her arm free. Although the defendants demonstrated they did not have actual or constructive notice of the defect, a question of fact was raised pursuant to the res ipsa loquitur doctrine. Based on its maintenance contract with American, the action against the building owner should have been dismissed:

… [U]nder the terms of its contract with 1067 Fifth, American was responsible for providing “full comprehensive maintenance and repair services” for the elevators, which included maintaining “[t]he entire vertical transportation system,” including “all engineering, material, labor, testing, and inspections needed to achieve work specified by the contract.” Further, under the terms of the contract, maintenance “include[s], but is not limited to, preventive services, emergency callback services, inspection and testing services, repair and/or direct replacement component renewal procedures.” The contract also provided for American to “schedule [ ] systematic examinations, adjustments, cleaning and lubrication of all machinery, machinery spaces, hoistways and pits,” and to do all “repairs, renewals, and replacements . . . as soon as scheduled or other examinations reveal the necessity of the same.” Further, American agreed to provide emergency call-back service 24 hours a day, 7 days a week. Given such broad contractual responsibilities, American’s contract can be said to have “entirely displaced” the responsibility of 1067 Fifth and Elliman to maintain the safety of the building’s elevators, which gave rise to a duty owed directly to plaintiff by America … . Sanchez v 1067 Fifth Ave. Corp., 2020 NY Slip Op 07326, First Dept 12-8-20

 

,

IT WAS ERROR TO ALLOW IN EVIDENCE PHOTOGRAPHS OF A BAYONET WHICH WAS NOT THE WEAPON USED IN THE STABBING; THE MAJORITY FOUND THE ERROR HARMLESS, THE DISSENT DISAGREED (FIRST DEPT).

The First Department, over an extensive dissent, determined admitting in evidence photographs of a bayonet which was not used in the stabbing was harmless error. The dissent argued the error was not harmless in this first degree manslaughter case:

The court should not have permitted the People to introduce photographs taken by the police of an M9 bayonet that was found in a collection of knives in defendant’s bedroom, but was concededly not the weapon used in the crime. The photographs were irrelevant as demonstrative evidence … , because nothing in the record provided a basis for the court to conclude that the bayonet in the photographs resembled the weapon that defendant used to stab the victim … . Even assuming that defendant’s statement supported the inference that the unrecovered weapon used in the crime was also a bayonet, and that it came from defendant’s collection, there was no evidence that all of defendant’s bayonets, which could have come from different eras and armed forces, looked like M9s.

FROM THE DISSENT:

… [T]he People told the jury in its summation that a bayonet knife is designed to kill people; that killing people is the only use for a bayonet knife; that a bayonet knife is not used to open things; and that the army and military gives out weapons, like bayonet knives, to kill people. None of these statements were elicited during the testimony of any witness or made in response to defense counsel’s summation, nor could they have been reasonably inferred from the evidence. People v Guevara, 2020 NY Slip Op 07297, First Dept 12-3-20

 

,

CLAIMANT FELL OFF AN I-BEAM AND HIS LANYARD DID NOT PREVENT HIM FROM STRIKING THE DECK EIGHT TO TEN FEET BELOW; CLAIMANT’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing the Court of Claims, determined claimant’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. Claimant alleged he fell off an I-beam and his lanyard didn’t stop him from striking the deck eight to ten feet below:

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” … . Specifically, the record shows that the safety cable was set up too low, resulting in claimant’s striking the deck before the lanyard could deploy … . Stigall v State of New York, 2020 NY Slip Op 07306, First Dept 12-3-20

 

, ,

THE “DUAL JURY” PROCEDURE USED TO TRY DEFENDANT, WHO WAS CONVICTED, AND THE CO-DEFENDANT, WHO WAS ACQUITTED, ALLOWED THE CO-DEFENDANT’S ATTORNEY TO ACT AS A SECOND PROSECUTOR; CONVICTIONS REVERSED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s (Feliciano’s) murder and robbery convictions, determined the “dual jury” procedure used to try Feliciano and his co-defendant, Roberts, deprived Feliciano of a fair trial. Feliciano’s defense was he was with Roberts when Roberts committed the crimes but did not participate. Roberts’ defense was he did not participate in the crimes at all. Feliciano was convicted and Roberts was acquitted:

In reviewing Feliciano’s claim on appeal that he was entitled to a severance, we are required to consider the entire record, including, retrospectively, the full trial record … . Feliciano must demonstrate that he was unduly prejudiced by the severance and that a joint trial “substantially impair[ed defendant’s] defense” … . “[T]he level of prejudice required to override the strong public policy favoring joinder” exists “where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” … . A trial before dual juries, which constitutes a modified form of severance, is to be used sparingly and is evaluated under standards for reviewing severance motions generally, as set forth above … . * * *

[Damaging] … testimony and evidence was unsolicited by the People and would never have been presented to Feliciano’s jury, but for Roberts’ cross examination. Roberts’ counsel’s pursuit of his client’s defense, contemporaneously undermined Feliciano’s. Accordingly, he effectively became a “second prosecutor” and was able to impeach … witnesses to Feliciano’s detriment in a manner that the People were unable to. Under these circumstances, a dual jury trial was improper as it did not prevent Feliciano from being prejudiced by Roberts’ antagonistic defense … . People v Feliciano, 2020 NY Slip Op 07145, First Dept 12-1-20

 

,

THE DRY BUT ALLEGEDLY SLIPPERY FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged slipped on a dry but slippery floor:

Plaintiff testified that he slipped while working in the kitchen of a hotel, due to slippery flooring material that had just been installed. He stated that the floor was dry, but the flooring did not “grip,” and the layers were not properly installed. …

Absent competent evidence of a defect in the surface or some deviation from an applicable industry standard, liability is not imposed for a slippery floor … . Here, all of the experts stated that the flooring was at least in the “acceptable” range for slip resistance using industry standards. Moreover, plaintiff failed to present any evidence raising an issue of fact concerning improper installation or defective materials. Evidence of subsequent repairs or remediation is not admissible, unless there is an issue of control or an alleged defect in manufacture, not present here, and does not create an issue of fact as to prior negligence … . Arias v Stonhard, Inc., 2020 NY Slip Op 06944, First Dept 11-24-20

 

, ,

PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact:

… [P]laintiff alleges that due to defendants’ negligence in diagnosing a skull fracture during an emergency room visit …, he sustained permanent and disabling neurological damage. …

Defendants’ expert opined that defendants did not depart from good and accepted practice by not ordering a CT head scan based on plaintiff’s initial clinical presentation in the emergency room. Defendants’ expert opined that plaintiff did not meet any of the criteria of the Canadian CT Head Rule (CCHR) used in the emergency room setting to determine which head injuries warrant CT imaging.  [P]laintiff did not exhibit any neurological deficits, such as loss of consciousness, vomiting, headaches, or dizziness, and he was alert and mobile.

In opposition, plaintiff submitted a conclusory affirmation that failed to specifically address the criteria relied upon by defendants’ expert in opining that plaintiff’s presentation did not warrant further investigation of a possible skull fracture.

Rather, without support from the medical record, plaintiff’s expert opined that the injury occurred in the pterion region of the skull, and, moreover, defendants negligently failed to elicit the “mechanism” of injury, i.e., that plaintiff was stabbed, which, when taken together with the location of the wound, would have indicated a likelihood that plaintiff had sustained a skull fracture. Plaintiff’s expert further opined, without elaboration, that plaintiff must have had evidence of injury during his initial ER visit since he was diagnosed with a days-old skull fracture less than a week later, and therefore defendants’ examination of him was cursory and deficient. These opinions, which rely on hindsight and are both speculative and conclusory, are insufficient to raise a triable issue of fact … . Cruz v New York City Health & Hosps. Corp., 2020 NY Slip Op 06946, First Dept 11-24-20

 

,

PLAINTIFF FELL FROM A SCAFFOLD AFTER TOUCHING A LIVE ELECTRIC WIRE; FAILURE TO TURN OFF THE ELECTRICITY MAY BE COMPARATIVE NEGLIGENCE WHICH DOES NOT DEFEAT A LABOR LAW 240 (1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1 cause of action should have been granted. Plaintiff was standing on a scaffold installing an exit sign when he touched a live wire and fell. Failure to turn off the electricity was at most comparative negligence which does not defeat the action:

The undisputed evidence in the record shows that plaintiff was attempting to install an exit sign in a building under construction while standing about 12 feet above the floor on a scaffold platform, without using any safety harness or safety lines, when he touched a live wire to a component of the sign, causing him to receive an electrical shock and then fall off the scaffold and onto the floor. Plaintiff made a prima facie showing that his accident was proximately caused by the inadequacy of the safety devices he was using or the absence of other safety devices necessary to protect him from the risks posed by working at a significant elevation above the floor … .

Defendants did not raise issues of fact by pointing to evidence that plaintiff checked the scaffold before using it and did not find it to be defective, and that the scaffold had safety railings on all four sides, or by asserting that no other devices such as a safety harness or safety line would have prevented his fall … .

Defendants failed to raise an issue of fact as to whether “plaintiff knew that he was supposed to use a harness” or safety line, “or that he disregarded specific instructions to do so” … . …

Plaintiff’s failure to turn off the power supply before working with a live wire was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Goundan v Pav-Lak Contr. Inc., 2020 NY Slip Op 06950, First Dept 11-24-20

 

,

PLAINTIFF’S DECEDENT FELL FROM AN UNGUARDED TOP BUNK AT A TEMPORARY SHELTER AND WAS RENDERED A QUADRIPLEGIC; THE SHELTER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; THERE WAS EVIDENCE THE SHELTER HAD INSTALLED GUARDRAILS ON OTHER TOP BUNKS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the negligence cause of action against defendant temporary housing shelter (CAFLF) should not have been dismissed. Plaintiff’s decedent (Philips) was rendered a quadriplegic and later died after falling from an unguarded top bunk. The shelter’s maintenance director testified it was dangerous for anyone to sleep in an unguarded top bunk and that the shelter had installed guardrails on other top bunks:

Summary judgment should be denied to CAFLF. An unguarded top bunk is not an inherently dangerous instrumentality, and a property owner or manager has no duty to install guardrails absent notice that an unguarded top bunk presents a dangerous condition. However, Ida Morris, Philip’s late wife, testified that she and Philip had complained to a CAFLF social worker about the lack of guardrails before Philip’s accident. CAFLF’s maintenance director testified that he and his staff knew it was dangerous for anyone to sleep in an unguarded top bunk and that they installed guardrails on top bunks that were going to be slept in. While the breach of an internal policy that transcends the duty of reasonable care cannot be considered evidence of negligence … , this testimony raises an issue of fact as to whether CAFLF knew or should have known that the unguarded top bunk from which Philip fell was dangerous and, if so, whether CAFLF breached its duty to exercise reasonable care by failing to install a guardrail on the top bunk before Philip’s accident. Slaughter v City of New York, 2020 NY Slip Op 06972, First Dept 11-24-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy