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UNDER PENNSYLVANIA LAW PLAINTIFF ASSUMED THE RISK OF INJURY ON A TRAMPOLINE WITH MULTIPLE JUMPERS (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this Pennsylvania trampoline injury case was properly granted. Under Pennsylvania law, plaintiff assumed the risk of injury on the trampoline:

The record demonstrates conclusively that defendant cannot be held liable under Pennsylvania law for the injuries that plaintiff alleges she sustained while a guest at his Pennsylvania home when another guest jumping on a trampoline lost control and fell on her. A property owner may be held liable to “social guests,” as opposed to “business visitors” … , only if he “knows or has reason to know of the [dangerous] condition and should realize that it involves an unreasonable risk of harm” and “fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved,” and the guests “do not know or have reason to know of the condition and the risk involved” … . Plaintiff’s deposition testimony and affidavit demonstrate that she understood the risks involved in using the trampoline, including the risks of using it with multiple jumpers. Ramos v Hamelburg, 2018 NY Slip Op 03913, First Dept 5-31-18

​NEGLIGENCE (ASSUMPTION OF THE RISK, UNDER PENNSYLVANIA LAW PLAINTIFF ASSUMED THE RISK OF INJURY ON A TRAMPOLINE WITH MULTIPLE JUMPERS (FIRST DEPT))/ASSUMPTION OF THE RISK (TRAMPOLINES, UNDER PENNSYLVANIA LAW PLAINTIFF ASSUMED THE RISK OF INJURY ON A TRAMPOLINE WITH MULTIPLE JUMPERS (FIRST DEPT))/TRAMPOLINES (ASSUMPTION OF THE RISK, UNDER PENNSYLVANIA LAW PLAINTIFF ASSUMED THE RISK OF INJURY ON A TRAMPOLINE WITH MULTIPLE JUMPERS (FIRST DEPT))

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was standing on a scaffold when a masonry stone fell on the scaffold and the planks collapsed. The court noted that defendants’ untimely cross motion for summary judgment was properly considered only to the extent the issues were identical to the issues raised in plaintiff’s motion for summary judgment:

This Court may consider the merits of defendants’ untimely cross motion for summary judgment dismissing the complaint to the extent it sought dismissal of the Labor Law § 240(1) claim, because it is based on the same issues raised in plaintiff’s motion … However, the remainder of the motion, seeking dismissal of Labor Law § 241(6), Labor Law § 200 and common law negligence claims cannot be considered because it does not address issues nearly identical to those raised in the timely motion and defendants did not demonstrate good cause for the delay … .

Plaintiff is entitled to summary judgment as to liability on his Labor Law § 240(1) claim. He established, prima facie, that he was engaged in an activity falling within the statute, and that defendants failed to provide him proper safety equipment, either in the form of a scaffold that could withstand the force of a falling masonry stone … , or any other appropriate safety device. Plaintiff further demonstrated that defendants’ failure to provide an appropriate safety device was the proximate cause of the accident, and defendants have failed to raise an issue of fact. Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 2018 NY Slip Op 03897, First Dept 5-31-18

​LABOR LAW -CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))/SUMMARY JUDGMENT ( UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF FELL THROUGH AN OPENING COVERED BY A PIECE OF PARTICLE BOARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff fell through an opening covered by a piece of particle board:

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There is no issue of fact as to whether it was foreseeable that the particle board covering an escape hatch on top of the elevator car where plaintiff was required to work would collapse when traversed by him … . It is not dispositive that the escape hatch covering was not intended to serve as a safety device protecting workers from elevation-related risks. Rather, since plaintiff’s work exposed him to such risks, he was required to be provided with adequate safety devices in compliance with Labor Law § 240(1) … . Giancola v Yale Club of N.Y. City, 2018 NY Slip Op 03901, First Dept 5-31-18

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LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF FELL THROUGH AN OPENING COVERED BY A PIECE OF PARTICLE BOARD (FIRST DEPT))

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PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had made a sufficient showing that New York may have jurisdiction over the defendants to warrant jurisdictional disclosure:

… [P]laintiff made a “sufficient start” in establishing that New York courts have jurisdiction over defendants to warrant jurisdictional disclosure and a hearing… . On his motion to renew, plaintiff submitted sufficient evidence to warrant a finding of jurisdiction on the papers alone (… CPLR 2221[e], [f]). The evidence shows that plaintiff was hired by defendants, a corporation and two individuals, all residents of Louisiana, after an in-person meeting in New York and that defendants engaged in extensive communications with him by telephone, email, in-person meetings, and document exchanges for two years while he was in New York representing them in various matters. Mischel v Safe Haven Enters., LLC, 2018 NY Slip Op 03902, First Dept 5-31-18

​CIVIL PROCEDURE (JURISDICTION, PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))/JURISDICTION (CIVIL PROCEDURE, PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))/LONG ARM JURISDICTION (PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))/SUFFICIENT START (LONG ARM JURISDICTION, PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))

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CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT).

The First Department determined the city could not be held liable for a slip and fall in a crosswalk while a storm was in progress:

The certified expert report [plaintiff] submitted does not address how the City created or exacerbated the icy condition of the crosswalk and only states that it was created during the heavy snow falling when the accident happened … . Plaintiff’s claim that the City may be held liable for failing to adhere to its snow removal protocols is unpersuasive, because liability “cannot be based on the violation of an internal rule imposing a higher standard of care than the law, at least where there is no showing of detrimental reliance by the plaintiff” … . Nor can the City be held liable for failing to salt the roadway before the storm, because such alleged inaction does not constitute an affirmative act of negligence that caused, created or exacerbated the icy condition … . Mimikos v City of New York, 2018 NY Slip Op 03813, First Dept 5-29-18

​NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT))/SLIP AND FALL (MUNICIPAL LAW, CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT))/INTERNAL RULES (STANDARD OF CARE, SLIP AND FALL, CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT))

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PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city could not be held liable for a “trespass activity” motorcycle accident in the parking lot at Yankee Stadium. Trespassers have used the parking for motorcycles, dirt bikes and all-terrain vehicles for recreation for years. Plaintiff’s decedent was killed in a collision in the parking lot. Under the General Obligations Law the city could not be liable unless its conduct was willful or malicious:

The decedent, who trespassed onto a Yankee Stadium parking lot in the off season together with other trespassers who similarly rode motorcycles, dirt bikes and all-terrain vehicles, suffered fatal injuries in a collision with an all-terrain vehicle operated by defendant Pena. The record shows that the nature of the trespass activity involved was commonplace for the parking lot in question, for at least two years, and that drag racing would sometimes be involved. Plaintiff alleged that the City (as lot owner) and Kinney (as lessee) were negligent for not repairing and/or securing the lot’s perimeter fence, and in not employing proper security or supervision to keep trespassers off the premises.

Here, the subject property was physically conducive to the motorcycle activity taking place thereon, and was appropriate for public use in pursuing the activity as recreation (see General Obligations Law § 9-103). As such, the City is immune from liability for any ordinary negligence on its part that may have given rise to the cause of the decedent’s accident, and plaintiff has not otherwise demonstrated that the City’s challenged conduct was willful or malicious as might preclude the City’s reliance on the defense afforded under General Obligations Law § 9-103 … .

Furthermore, although Kinney has not relied upon General Obligation Law § 9-103 as a potential defense to the action against it, the statute’s defense is available to lessees as well as property owners … . Inasmuch as the issue appears on the face of the record, involves no new facts and could not have been avoided if it were timely raised … . Rodriguez v City of New York, 2018 NY Slip Op 03821, First Dept 5-29-18

​NEGLIGENCE (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/TRESPASS ACTIVITY (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/GENERAL OBLIGATIONS LAW (MUNICIPAL LAW, IMMUNITY, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))

OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFECT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT).

The First Department determined repair of the type of defect at issue was not the responsibility of the out-of-possession landlord:

Plaintiff seeks damages for injuries he sustained when one of the cellar doors he had opened to take garbage up to the sidewalk from the restaurant where he was employed snapped back and struck him on the back of the head. …

Although defendant Foreign Development Service, Ltd. was an out-of-possession landlord with the right to reenter the leased premises to inspect or repair, the alleged defect in the cellar doors, i.e., rusty hinges and no device, such as a bar, to hold the doors open, was not a structural defect contrary to a specific statutory safety provision … . Cuthbert v Foreign Dev. Serv., Ltd., 2018 NY Slip Op 03812, First Dept 5-29-18

​LANDLORD-TENANT (OUT OF POSSESSION LANDLORD, DUTY TO REPAIR, OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFENDANT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT))/PREMISES LIABILITY (OUT OF POSSESSION LANDLORD, DUTY TO REPAIR, OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFENDANT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT))

QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT).

The First Department, over a dissent, affirmed the denial of summary judgment to plaintiff on his Labor Law 240 (1) and 241 (6) causes of action. The court discussed the concept of a “statutory agent” of an owner or general contractor:

​Labor Law §§ 240(1) and 241(6) impose absolute liability on “contractors and owners and their agents” for worker injuries on construction sites… . CRSG, as site safety consultant, was neither an owner nor general contractor on the project. Thus, whether CRSG is subject to the Labor Law is dependent on whether it was an “agent” of the owners or [construction manager] at the site.

To hold a defendant liable under the Labor Law as a “statutory agent” of either the owner or the general contractor, it must be shown that the defendant had the ” authority to supervise and control'” the injury-producing work … . The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right … . Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent … .

The authority of DeSimone, as an employee of CRSG, to stop work in the event of unsafe practices raises an issue of fact as to whether CRSG is a “statutory agent” for purposes of the Labor Law … . Santos v Condo 124 LLC, 2018 NY Slip Op 03799, First Dept 5-29-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT))

ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240 (1) cause of action should have been dismissed. Plaintiff, while carrying a heavy pipe on a ramp, lost his balance and was struck by the pipe:

Plaintiff’s testimony established that he was not exposed to the type of elevation-related hazard contemplated by the statute. The height differential of 6 to 10 inches mediated by the ramp did not constitute a physically significant elevation differential covered by the statute … . Also, as the ramp was serving as a passageway, as opposed to the “functional equivalent” of a safety device enumerated under the statute, it did not fall within the purview of the statute … . Further, the impetus for the pipe’s descent was plaintiff’s loss of balance, rather than the direct consequence of the force of gravity … . Jackson v Hunter Roberts Constr. Group, LLC, 2018 NY Slip Op 03805, First Dept 5-29-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF LOST HIS BALANCE CARRYING A PIPE ON A RAMP, INCIDENT NOT COVERED BY LABOR LAW 240 (1) (FIRST DEPT))

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COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a hearing on her motion for attorney’s fees in this divorce action (mother sought $174,000). Family Court had dismissed mother’s motion. The First Department held that Family Court should have looked at the future earning capacity of the parties rather than their earning capacity at the time of the decision:

The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition … . In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties … . Here, although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and has significantly more expected earning capacity than the mother. Indeed, the financial and tax documents in the record support such a conclusion. The father, however, is entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested can be examined … . Matter of Brookelyn M. v Christopher M., 2018 NY Slip Op 03801, First Dept 5-29-18

​FAMILY LAW (ATTORNEY’S FEES, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))/ATTORNEY’S FEE (FAMILY LAW, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))

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