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QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined that there was a question of fact whether plaintiff was acting within the scope of his employment when he climbed a ladder to troubleshoot a cable installation problem:

Plaintiff commenced this action to recover for personal injuries he allegedly sustained when he fell from a utility pole while attempting to troubleshoot a cable installation activation that did not work. However, his supervisor submitted an affidavit asserting, inter alia, that plaintiff’s sole job functions were as a manager, providing administrative services and training, assessing materials and equipment needed for a job, and occasionally following up with an activation from ground level only, but that in no event were his duties to entail climbing any poles.

Supreme Court correctly determined that issues of fact exist as to whether the aerial work plaintiff contends he was performing when he fell was outside the scope of his employment and thus outside the protection of Labor Law § 240(1) … . McCue v Cablevision Sys. Corp., 2018 NY Slip Op 02902, First Dept 4-26-18

​LABOR LAW-CONSTRUCTION LAW (SCOPE OF EMPLOYMENT, QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT))/EMPLOYMENT LAW (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT))

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DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the evidence was not sufficient to support the “drug factory” jury instruction:

The court’s jury instruction on the drug factory presumption of Penal Law § 220.25(2) was improper. The statutory presumption “does not require that mixing or compounding paraphernalia be found on the premises” … . However, where, as here, the quantity of drugs found does not show “circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale” … , giving the drug factory charge is unwarranted. Here, the officers recovered approximately one gram of crack cocaine divided between 26 “twists.” The fact that a larger bag contained individual twists was not a sufficient basis for the trial court to employ the drug factory presumption … . The presence of an unspecified, untested, white residue on a kitchen counter does not justify the charge, where such is equally consistent with the residue left by household cooking and cleaning products. People v Johnson, 2018 NY Slip Op 02879, First Dept 4-26-18

​CRIMINAL LAW (DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/DRUG FACTORY (CRIMINAL LAW, JURY INSTRUCTIONS, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT).

The First Department determined defense counsel took a position adverse to her client’s on the client’s pro se written motion to withdraw his plea. Therefore the matter was remitted for further proceedings on the motion with new counsel:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting that his plea was involuntary because he “was not fully aware of the circumstances involved,” and that he had a meritorious defense. In a companion motion, he cited specific inconsistencies in the victim’s statements. Defendant did not claim there were any deficiencies in defense counsel’s performance. However, when asked by the court whether she had anything to say “on behalf of the motion,” counsel replied, “I don’t think that there . . . is a basis for it,” and that defendant had not wanted to proceed to trial.

This constituted taking a position adverse to defendant’s, and thus warranted assignment of new counsel… . To the extent that, after the court denied the motion, counsel made additional comments that appeared to bear on her advice to defendant about taking the plea, these were unnecessary because, in his plea withdrawal motion, defendant never complained about his attorney’s conduct. Thus, counsel’s comments were adverse to her client’s position, and “went beyond a mere explanation of h[er] performance” … . People v Colson, 2018 NY Slip Op 02885, First Dept 4-26-18

​CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/PLEA, MOTION TO WITHDRAW  (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/PRO SE (CRIMINAL LAW, ATTORNEYS, PRO SE MOTION TO WITHDRAW PLEA, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))

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ALTHOUGH THE DEFENDANT DIRECTORS ON THE BOARD OF GEROVA DID NOT RESIDE OR DO BUSINESS IN NEW YORK, OTHER GEROVA DEFENDANTS PARTICIPATED IN THE FRAUDULENT SCHEME IN NEW YORK, THEREBY PROVIDING A SUFFICIENT BASIS FOR LONG-ARM JURISDICTION (FIRST DEPT).

The First Department, in a memorandum decision that does not lay out the facts, determined that, although the defendant directors on the board of Gerova did not reside or do business in New York, other Gerova defendants participated in the fraudulent scheme in New York thereby providing a sufficient basis for long-arm jurisdiction (the decision doesn’t indicate what “Gerova” is):

The Supreme Court properly concluded that defendants are subject to jurisdiction under New York’s long-arm statute because they were part of a conspiracy that involved the commission of tortious acts in New York (CPLR 302[a][2]…). Defendants were directors on Gerova’s board during most of the time when Gerova was involved in a fraudulent scheme. The amended complaint details the conspiracy to commit fraud using Gerova, the agreements … to loot Wimbledon (plaintiff), and Wimbledon’s resulting insolvency … . Although defendants did not reside or do business in New York, other Gerova defendants were in New York or interacted regularly with New York, including one of the masterminds of the fraudulent scheme … . Regarding their overt acts in furtherance of the conspiracy, defendants’ approval of a Gerova proxy statement on which they are listed and which seeks approval of the sham acquisition of a reinsurance company, their receipt of “hush money” to ignore certain red flags at Gerova, and their failure to correct misrepresentations or disclose material information to the public sufficed at this stage. Although defendants did not mastermind the conspiracy, their receipt of “hush money” allows the reasonable inference that they exerted “control” to the extent that the fraud could not have been accomplished without their acquiescence to the proxy and other misconduct … . Wimbledon Fin. Master Fund, Ltd. v Weston Capital Mgt. LLC, 2018 NY Slip Op 02903, First Dept 4-26-18

​CIVIL PROCEDURE (ALTHOUGH THE DEFENDANT DIRECTORS ON THE BOARD OF GEROVA DID NOT RESIDE OR DO BUSINESS IN NEW YORK, OTHER GEROVA DEFENDANTS PARTICIPATED IN THE FRAUDULENT SCHEME IN NEW YORK, THEREBY PROVIDING A SUFFICIENT BASIS FOR LONG-ARM JURISDICTION (FIRST DEPT))/LONG-ARM JURISDICTION  (ALTHOUGH THE DEFENDANT DIRECTORS ON THE BOARD OF GEROVA DID NOT RESIDE OR DO BUSINESS IN NEW YORK, OTHER GEROVA DEFENDANTS PARTICIPATED IN THE FRAUDULENT SCHEME IN NEW YORK, THEREBY PROVIDING A SUFFICIENT BASIS FOR LONG-ARM JURISDICTION (FIRST DEPT))/FRAUD (CIVIL PROCEDURE, JURISDICTION, CONSPIRACY ALTHOUGH THE DEFENDANT DIRECTORS ON THE BOARD OF GEROVA DID NOT RESIDE OR DO BUSINESS IN NEW YORK, OTHER GEROVA DEFENDANTS PARTICIPATED IN THE FRAUDULENT SCHEME IN NEW YORK, THEREBY PROVIDING A SUFFICIENT BASIS FOR LONG-ARM JURISDICTION (FIRST DEPT))/CONSPIRACY (CIVIL PROCEDURE, LONG-ARM JURISDICTION, FRAUDULENT SCHEME, ALTHOUGH THE DEFENDANT DIRECTORS ON THE BOARD OF GEROVA DID NOT RESIDE OR DO BUSINESS IN NEW YORK, OTHER GEROVA DEFENDANTS PARTICIPATED IN THE FRAUDULENT SCHEME IN NEW YORK, THEREBY PROVIDING A SUFFICIENT BASIS FOR LONG-ARM JURISDICTION (FIRST DEPT))

PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court, noted that the parties, through stipulations, had consented to procedures which deviated from the CPLR. Therefore the summary judgment motions, although untimely under the CPLR, should have been deemed timely:

Prior court orders and stipulations between the parties show that the parties, with the court’s consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants’ filing of this round of summary judgment motions more than 120 days after the filing of the note of issue … . Thus, the motions were timely, and we remand the matter to the motion court for a full consideration of their merits … . Reeps v BMW of N. Am., LLC, 2018 NY Slip Op 02907, First Dept 4-26-18

​CIVIL PROCEDURE (PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT))/STIPULATIONS (CIVIL PROCEDURE, PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT))

QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT).

The First Department determined there was a question of fact whether the owner of a building could be liable for injury to a sidewalk pedestrian caused by an object that fell from the building (which was under construction):

Plaintiff Joseph Kosakowski was a pedestrian on the sidewalk adjacent to a building owned and occupied by the Broadway defendants, which was undergoing construction, when he was struck by a piece of sheet metal that fell from above. Under the circumstances presented, issues of fact exist as to whether the Broadway defendants can be held liable for plaintiff’s injuries based upon the nondelegable duty not to cause harm to those traveling on the nearby public sidewalk … . Kosakowski v 1372 Broadway Assoc., LLC, 2018 NY Slip Op 02753, First Dept 4-24-18

​NEGLIGENCE (FALLING OBJECTS, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))/FALLING OBJECTS (NEGLIGENCE, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))/PEDESTRIANS (FALLING OBJECTS, NEGLIGENCE, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))

PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who fell from an unsecured ladder, was entitled to summary judgment on his Labor Law 240(1) claim. The court further found there was an issue of fact on plaintiff’s Labor law 241(6) claim because of evidence the ladder slipped on a wet floor:

Plaintiff established prima facie a violation of Labor Law § 240(1) through his testimony that he was caused to fall when the unsecured ladder on which he was standing suddenly slipped out from under him … .

In opposition, defendant failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. There is no evidence in the record that there were other readily available safety devices that would have been adequate for plaintiff’s work … . In addition, defendant’s expert’s opinion that the accident was caused by plaintiff’s misuse of the ladder was entirely speculative, since it was based on his visit to the accident site almost two years after the accident occurred … .

Defendant also failed to show that plaintiff disregarded specific instructions not to use the ladder or do the work he was performing at the time of the accident … . Plaintiff’s coworker’s deposition testimony establishes that plaintiff was not given any such instructions before he ascended the ladder. The coworker’s subsequent affidavit, which conflicts with his deposition testimony on this issue, creates only a feigned issue of fact … .

Summary dismissal of the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.21(b)(4)(ii) is precluded by an issue of fact as to whether the accident was caused by a wet condition of the floor at the time that the ladder slipped out from underneath plaintiff … . Tuzzolino v Consolidated Edison Co. of N.Y., 2018 NY Slip Op 02755, First Dept 4-24-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT))

CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT).

The First Department determined the complaint by plaintiff, the ex-husband of the writer, Katha Pollitt, stated causes of action for defamation and the movie defendants’ motion to dismiss was properly granted. The short story, written by Katha Pollitt, on which defendants’ movie was based, referred to Pollitt’s lover as a philanderer and womanizer, but described Pollitt’s ex-husband (plaintiff) as someone with whom Pollitt got on very well and an excellent father. Plaintiff alleged the references in the movie to the main character’s ex-husband as an adulterer and philanderer were defamatory because the main character was identifiable as Katha Pollitt and plaintiff was Pollitt’s only ex-husband:

Plaintiff sufficiently pleads that defamatory statements made about Wendy’s ex-husband, in the trailer, are “of and concerning” him … . The trailer, which proclaims itself to be “Based on a True Story,” is based upon, and shares a title with the article, linking the main character, Wendy, to Ms. Pollitt, and by extension, Wendy’s ex-husband Ted to plaintiff. Wendy and Pollitt are middle-aged, female writers learning to drive in Manhattan, who formerly relied on an ex-husband to drive them and have a daughter. As relates to the story, plaintiff’s salient characteristic is that he is the only ex-husband of the article’s author, which distinctive trait links him indelibly to Ted, the only former spouse depicted in the trailer … .

At this early stage of the litigation, defendants failed to establish that plaintiff was a public figure or that this was a matter of public concern, to which the “actual malice” standard applies… , or that the subject matter of the trailer is within the sphere of legitimate public concern … . Cohen v Broad Green Pictures LLC, 2018 NY Slip Op 02757, First Dept 4-24-18

​DEFAMATION (CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT))/MOVIES (DEFAMATION, CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT))

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EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment, based upon the emergency doctrine, should not have been granted in this “sudden stop” bus-passenger injury case. The defendants alleged that the bus driver reacted to an emergency when a car in front of the bus stopped suddenly. However, the emergency doctrine does not usually apply in this situation:

Defendants contend that the driver of the bus on which plaintiff was a passenger was not negligent in braking to a sudden, hard stop that allegedly caused plaintiff to be injured, but reacted reasonably to the sudden stop of a car in front of the bus. However, the emergency doctrine is typically not available to the rear driver in a rear-end collision, who is responsible for maintaining a safe distance … . The bus driver’s affidavit demonstrates that he was confronted with a “common traffic occurrence” when the vehicle in front of the bus stopped short … . A factfinder could reasonably conclude that the bus driver was negligent in failing to maintain a safe distance between the bus and the car in front of it (see Vehicle and Traffic Law § 1129[a]) and that his own conduct caused or contributed to the emergency situation … . Contrary to defendants’ contention, a violation of Vehicle and Traffic Law § 1129(a) may be found even where there was no collision … . Vanderhall v MTA Bus Co., 2018 NY Slip Op 02720, First Dept 4-19-18

​NEGLIGENCE (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/BUSES (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (BUS, SUDDEN STOP, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, BUSES, SUDDEN STOP, BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)}/REAR-END COLLISIONS BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this “water on floor” slip and fall case was properly denied. The defendant did not demonstrate it did not create or have notice of the condition. The fact that plaintiff may have had prior awareness of the condition was a comparative negligence issue that does not preclude summary judgment:

Defendant failed to sustain its prima facie burden of showing that it did not create or have notice of the puddle of water in front of a nurses’ station in the emergency room. Although its operations manager testified to general cleaning and inspection procedures, he did not state that they were followed on the day of the accident, did not know if he worked that day, and did not know when the area was last inspected … .

Defendant’s argument that plaintiff’s negligence was the sole proximate cause of the accident in that she admitted that she saw the puddle several times before she fell, is unavailing. Plaintiff testified that she did not see the water immediately prior to the fall as she was looking straight ahead. Plaintiff did not deliberately undertake a course of action severing the nexus between defendant’s alleged negligence and her injury … . Plaintiff’s prior awareness of the water condition does not require dismissal of the complaint because it is relevant only to the issue of her comparative negligence … . Socorro v New York Presbyt. Weill Cornell Med. Ctr., 2018 NY Slip Op 02723, First Dept 4-19-18

​NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/NOTICE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, SUMMARY JDUGMENT, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/SUMMARY JUDGMENT (COMPARATIVE NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))

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