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PLAINTIFF WAS SHOT INSIDE DEFENDANT’S BUILDING, DEFENDANT LANDLORD DEMONSTRATED IT DID NOT HAVE NOTICE OF AN ALLEGED BROKEN LOCK, THE EVIDENCE DID NOT DEMONSTRATE THE ASSAILANT WAS AN INTRUDER AS OPPOSED TO AN INVITED GUEST, AND THERE WAS EVIDENCE PLAINTIFF WAS THE VICTIM OF A TARGETED ATTACK, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Housing Authority’s (NYCHA’s) motion for summary judgment should have been granted in this third-party assault case. Plaintiff was shot inside the building. Defendant demonstrated it did not have notice of an alleged broken lock which would have allowed an intruder to enter the building. And the evidence did not demonstrate the assailant was an intruder as opposed to an invited guest. In addition, plaintiff admitted he was the victim of a targeted attack, which severed any causal relationship with defendant’s alleged negligence:

… [P]laintiff alleges that he was injured when, while visiting his wife in NYCHA’s building, he was shot by defendant Lawrence, who was able to enter the building because of a broken lock on the building’s front door. The record establishes that NYCHA lacked notice of a broken lock inasmuch as NYCHA submitted evidence showing that although the front door lock had been repaired a number of times in the months leading up to the incident, NYCHA’s supervisor of caretakers testified that the lock was working on the morning of the incident, and for almost a full week beforehand … .

The evidence also fails to show that the alleged assailant was an unauthorized intruder, rather than an invited guest … . The alleged assailant testified that he lived across from the subject building, that he had numerous family members and friends who lived in the building, and that he was a frequent visitor of the building. Furthermore, plaintiff admitted that he was the victim of a targeted attack by the alleged assailant, which severed the causal nexus between NYCHA’s alleged negligence and plaintiff’s injuries … . Roldan v New York City Hous. Auth., 2019 NY Slip Op 02462, First Dept 4-2-19

 

MISSING CHAIR IN FRONT OF A SLOT MACHINE IS OPEN AND OBVIOUS AND NONACTIONABLE, PLAINTIFF WAS INJURED WHEN SHE ATTEMPTED TO SIT IN FRONT OF A MACHINE WHERE THERE WAS NO CHAIR (FIRST DEPT).

The First Department determined the absence of a chair in front of a slot machine was open and obvious and nonactionable:

… [P]laintiff was injured when she fell while attempting to sit down at a slot machine that did not have a chair. Defendants showed that the missing chair was an open and obvious condition that was not inherently dangerous by submitting videotape footage showing the subject slot machine without a chair. Plaintiff also testified that she had previously noticed chairs missing from slot machines at the casino, and that she had been seated next to the subject machine that was without a chair for 20 to 25 minutes before her fall … .

Plaintiff’s opposition failed to raise a triable issue of fact. Her argument that slot machines are distracting to the point of being all-encompassing, is unavailing, as she did not provide any probative evidence as to how distracted a person becomes when she or he uses slot machines. Plaintiff’s testimony that she was distracted by the slot machines does not lead to a conclusion that they are so distracting that their mere existence makes an open and obvious condition such as a missing chair any less open and obvious … . Furthermore, that a similar accident apparently occurred at defendant casino does not lead to the conclusion that a missing chair is a latent or inherently dangerous condition. Vasquez v Yonkers Racing Corp., 2019 NY Slip Op 02461, First Dept 4-2-19

 

UNLOADING STEEL PLATES USED TO COVER EXCAVATED AREAS AT A CONSTRUCTION SITE WAS A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured unloading a two-ton steel plate used to cover excavated areas at a construction site. The defendant’s argument that the plate was not unloaded for construction work. but rather for storage, was rejected:

Plaintiff made a prima facie showing that the work he was performing as an employee of Clean at the time of his accident was covered under section 240(1). There is no dispute that plaintiff was injured in the course of unloading an approximately two-ton steel plate at a construction site owned by defendant Con Ed, after transporting the plate to the site by truck. Witnesses consistently indicated that Clean routinely unloaded steel plates at the site for the purpose of covering areas excavated for electrical work. Clean performed this work pursuant to a contract that required it to provide steel plates at excavation sites owned by defendant including the subject site, and also required Clean to perform work ancillary to other tasks enumerated under Labor Law § 240(1) such as removing construction-related debris and installing barricades for excavation work … . Moreover, plaintiff performed this work on an active construction site while another worker on the site was building a removable roof for a transformer vault.

Clean failed to raise triable issues of fact as to whether plaintiff’s work was covered by Labor Law § 240(1). It does not avail Clean to assert that plaintiff unloaded the plate merely for the purpose of storage. The Court of Appeals has rejected an interpretation of Labor Law § 240(1) that “would compartmentalize a plaintiff’s activity and exclude from the statute’s coverage preparatory work essential to the enumerated act” … . Saquicaray v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 02460, First Dept 4-2-19

 

THERE WAS CONFLICTING EVIDENCE WHETHER PLAINTIFF, WHO HAD NO MEMORY OF THE ACCIDENT, FELL FROM AN A-FRAME LADDER OR A SCAFFOLD, BOTH WERE DEEMED INADEQUATE SAFETY DEVICES AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the conflicting evidence, indicating plaintiff either fell from an A-frame ladder or from a scaffold, did not preclude summary judgment in plaintiff’s favor on his Labor Law 240 (1) cause of action. Plaintiff had no memory of the accident. The court reasoned that both the step ladder and the scaffold constituted an inadequate safety device under the circumstances:

As to the “ladder version,” although plaintiff has no specific recollection of the ladder moving, he also testified that, immediately before the fall, he was standing on the second to the last rung up, with his hands over his head toward the duct, which he could barely reach. Such testimony establishes prima facie that the ladder did not provide proper protection for plaintiff … . Because the record is clear that the ladder did not prevent him from falling, his inability to identify the precise manner in which he fell is immaterial … . As to the “scaffold version,” it is undisputed fact that the scaffold from which plaintiff purportedly fell had no guardrails. This fact establishes prima facie that it was an inadequate safety device  … . Under either version, defendants have not raised a triable issue of fact as to whether plaintiff’s negligence was the sole proximate cause of his accident … . Ajche v Park Ave. Plaza Owner, LLC, 2019 NY Slip Op 02456, First Dept 4-2-19

 

DEFENDANT’S SLOW MOVING TRUCK FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE CAUSE OF THE COLLISION, DIFFICULTY SEEING BECAUSE OF SUNLIGHT DID NOT CONSTITUTE A NON-NEGLIGENT EXCUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant’s motion for summary judgment should have been granted in this traffic-accident case:

In this rear-end collision case, the fact that the truck owned and operated by defendants had entered onto the parkway one exit earlier than authorized by a permit issued by the Department of Transportation, standing alone, does not establish that the early entry onto the parkway was a proximate cause of the accident … . The record reflects that the accident occurred on a dry and sunny day with light traffic, that defendant Paolino was driving the truck slowly, and that Paolino had turned on the truck’s hazard lights. The truck’s presence on the parkway merely furnished the condition or occasion for the occurrence of the accident, but not its cause … .

Plaintiffs’ proffered excuse for the accident, that the bright sunlight may have made it difficult for the decedent to see defendants’ truck driving through the tunnel, does not constitute a nonnegligent explanation for the rear-end collusion … . The affidavit by plaintiffs’ accident reconstruction expert is not based on any evidence and therefore fails to raise an issue of fact … . Battocchio v Paolino, 2019 NY Slip Op 02477, First Dept 4-2-19

 

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MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM IN THIS BREACH OF CONTRACT ACTION, BASED UPON DOCUMENTARY EVIDENCE, SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined the motion to dismiss based on documentary evidence should not have been granted in this breach of contract action. Plaintiff and defendant had entered a Share Purchase Agreement (SPA) in which plaintiff agreed to purchase defendant, Symbio, for between $100 and $110 million. The opinion is fact specific and cannot be fairly summarized here:

Plaintiff’s claims are not definitively contradicted by the documentary evidence. The record (to the extent there is one on this motion pursuant to CPLR 3211) demonstrates the existence of issues of fact concerning when plaintiff determined that there was a matter that might give rise to a right of indemnification so that it was required to give notice pursuant to section 8.03(a) of the parties’ contract. …

Further, defendants’ defense of a condition precedent is not conclusively established. Even if section 8.03(a) might be construed as a condition precedent (which is highly doubtful), there has been no showing regarding the materiality of the provision as would be necessary given that nonoccurrence of the condition would lead to a draconian forfeiture.  XI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 2019 NY Slip Op 02437, First Dept 3-28-19

 

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ACTION BASED UPON FAILURE TO SUPERVISE PLAINTIFF’S USE OF A HOSPITAL REST ROOM SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, THE ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action, which alleged inadequate supervision when plaintiff used a hospital rest room, sounded in medical malpractice, not negligence. Therefore the action was time-barred:

Plaintiff alleges that defendants failed to properly assess her condition and the degree of her supervisory needs in the restroom, a claim sounding in medical malpractice, and her action, brought three years after her injuries, is therefore untimely … . Because the loss of consortium claim is derivative of the injured plaintiff’s claim, that cause of action must also be dismissed as untimely … . Kim v New York Presbyt., 2019 NY Slip Op 02425, First Dept 3-28-19

 

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RELEVANT REGULATION, RATHER THAN THE POLICY LANGUAGE, CONTROLLED THE CALCULATION OF INTEREST ON INSURANCE POLICY PROCEEDS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the relevant regulation, as opposed to the less generous insurance policy provision, controlled the payment of interest on policy proceeds:

Defendant[‘s] … insurer’s bare offer to pay the policy limit was not a “tender” of the policy for the purposes of stopping the accrual of prejudgment interest under 11 NYCRR 60-1.1(b). While the policy provides that the insurer will pay interest on a judgment until “we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance,” 11 NYCRR 60-1.1(b) requires the insurer to pay postjudgment interest until it has “paid or tendered or deposited in court” the part of the judgment that does not exceed the policy limit. As the policy language is less generous to the insured than the regulation, it is deemed superseded by the regulation … . Within that framework, a bare offer to pay does not constitute a tender. Thus, interest must be calculated from the date of entry of the order that granted summary judgment to plaintiff until the date of payment … . Gyabaah v Rivlab Transp. Corp., 2019 NY Slip Op 02417, First Dept 3-28-19

 

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NO PROOF NOTE WAS IN POSSESSION OF PLAINTIFF WHEN THE ACTION WAS COMMENCED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, over a two justice dissent, reversing Supreme Court, determined the evidence of standing was insufficient and plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. The majority held there was no proof the plaintiff was in possession of the note when the action was brought:

On or about September 17, 2014, plaintiff executed a power of attorney appointing Ocwen Loan Servicing, LLC (Ocwen) as its attorney-in-fact with power to enforce its rights with regard to loans included in the PSA [pooling and service agreement].

Two years after that, on October 19, 2016, plaintiff moved for summary judgment. Plaintiff submitted an affidavit by Kyle Lucas, an employee of a company whose indirect subsidiary is Ocwen. Lucas alleged that plaintiff had had physical possession of the note since June 6, 2007, but he failed to identify any document which provided the basis for his knowledge. A copy of defendant’s note, endorsed in blank … , was attached to plaintiff’s summary judgment motion. However, there is nothing in the record that proves when the note was physically delivered to plaintiff. Deutsche Bank Natl. Trust Co. v Guevara, 2019 NY Slip Op 02412, First Dept 3-28-19

 

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LAY WITNESSES PROPERLY ALLOWED TO IDENTIFY THE PERSON DEPICTED IN A VIDEO AS THE DEFENDANT (FIRST DEPT).

The First Department determined two lay witnesses were properly allowed to give their opinion that the person depicted in a video was the defendant:

The court providently exercised its discretion in permitting two witnesses to give lay opinion testimony that defendant was the person depicted in photos from surveillance videotapes from areas in and around the building where the robbery occurred and at the shelter where defendant resided both several months prior to the robbery and at the time of the robbery. This testimony “served to aid the jury in making an independent assessment regarding whether the man in the [videos] was indeed the defendant” … , because there was “some basis for concluding that the witness[es] [were] more likely to correctly identify the defendant from the [videos] than [was] the jury” … .

The People established that defendant’s appearance had changed since the crime in several significant respects. Furthermore, the witnesses, who were sufficiently familiar with defendant, were able to recognize defendant’s mannerisms and peculiar way of walking. In addition, the record establishes the poor quality of the photographic evidence. People v Rivera, 2019 NY Slip Op 02262 [170 AD3d 566], First Dept 3-26-19

 

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