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ALTHOUGH THE FIRST DEPT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT.

The First Department, in a substantial opinion by Justice Acosta, reluctantly affirmed Supreme Court’s dismissal of the dog-injury complaint. Defendant tied his 35 pound dog to an unsecured bicycle rack which weighed five pounds. The dog ran off, dragging the rack. Plaintiff’s leg became tangled in the rack, causing him to fall. The First Department followed the Court of Appeals precedent, which allows a dog-injury suit only on vicious propensity/strict liability grounds. The opinion strongly argued the law should be changed to allow dog-injury suits based upon negligence:

Were we not … constrained … we would … permit plaintiffs to pursue their negligence cause of action. To avoid the harshness of the [Court of Appeals] rule, the recognition of the following exception would be appropriate: A dog owner who attaches his or her dog to an unsecured, dangerous object, allowing the dog to drag the object through the streets and cause injury to others, may be held liable in negligence. In these circumstances, negligence liability would be in keeping with the principles of fundamental fairness, responsibility for one’s actions, and societal expectations … — assuming a jury would deem unreasonable defendant’s failure to ensure that the rack was secured before he tied his dog to it. It is not unreasonable to expect dog owners to restrain their dogs in public unless unleashing them is safe or specifically permitted at certain times and locations, as evidenced by local leash laws (see e.g. 24 RCNY 161.05). However, the Court of Appeals has decided that local leash laws have no bearing on whether liability in negligence ought to attach … , undermining the declared public policy of those localities that have enacted such laws … And although the [Court of Appeals] reasoned that New Yorkers may expect to find unrestrained dogs in public parks … , New Yorkers certainly do not expect to find those dogs running on public roads towing large metal objects behind them. A dog owner who, without observing a reasonable standard of care, attaches his or her dog to an object that could foreseeably become weaponized if the dog is able to drag the object through public areas should not be immune from liability when that conduct causes injury. Scavetta v Wechsler, 2017 NY Slip Op 01985, 1st Dept 3-16-17

ANIMAL LAW (ALTHOUGH THE FIRST DEPARTMENT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT)/DOGS (ALTHOUGH THE FIRST DEPARTMENT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT)/NEGLIGENCE (DOGS, ALTHOUGH THE FIRST DEPARTMENT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT)

QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL.

The First Department determined there was a question of fact whether plaintiff’s slip and fall was caused by excessive wax on the floor:

Defendants established entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she slipped on a floor that was negligently waxed. Defendants submitted evidence showing that the floor was last waxed approximately three months before plaintiff’s fall … . In opposition, plaintiff raised triable issues as to whether “a dangerous residue of wax was present” … . She stated that after she fell, there was wax on her hands and, when she stepped on the waxy area, she saw a “scuff mark” running through a circular area, creating a “sunken stripe through the wax.” Plaintiff slid her foot back and forth on the circular patch, and felt the “accumulated, raised, substance on the floor” move with the pressure of her foot, and these actions were captured on the building’s security footage. Sanchez v Mitsui Fudosan Am., Inc., 2017 NY Slip Op 01821, 1st Dept 3-15-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL)/SLIP AND FALL (QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL)/WAX (SLIP AND FALL, QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL)

IN THIS PROSECUTION ALLEGING DEFENDANT CELL PHONE COMPANY’S UNDERPAYMENT OF SALES TAX, DEFENDANT WAS ENTITLED TO THE SALES TAX RETURNS OF OTHER CELL PHONE SERVICE PROVIDERS.

The First Department determined defendant Sprint Communications was entitled to the state’s sales tax returns and records of other providers of mobile telecommunications voice services, but with the names of the providers redacted.  The action was brought by the state and alleged the underpayment of sales tax:

The People claim that they will use only material obtained from third-party discovery and that they have disclosed those materials to defendants. However, the fact that the People have chosen to restrict the materials they will use to prosecute defendants does not mean that defendants must restrict the materials they will use to defend themselves. Moreover, defendants cannot obtain … [the] documents from third parties.

If a document that shows another cell phone company’s or DTF’s position about debundling, etc., happens to mention the other cell phone company’s name, the People may not withhold the entire document. … Instead, the People should replace the taxpayers’ names with “Cell Phone Company No. 1” and “Cell Phone Company No. 2,” or the like. People v Sprint Communications Inc., 2017 NY Slip Op 01801, 1st Dept 3-15-17

 

TAX LAW (IN THIS PROSECUTION ALLEGING DEFENDANT CELL PHONE COMPANY’S UNDERPAYMENT OF SALES TAX, DEFENDANT WAS ENTITLED TO THE SALES TAX RETURNS OF OTHER CELL PHONE SERVICE PROVIDERS)/SALES TAX (CELL PHONE SERVICE PROVIDERS, IN THIS PROSECUTION ALLEGING DEFENDANT CELL PHONE COMPANY’S UNDERPAYMENT OF SALES TAX, DEFENDANT WAS ENTITLED TO THE SALES TAX RETURNS OF OTHER CELL PHONE SERVICE PROVIDERS)/CELL PHONE SERVICE PROVIDERS (SALES TAX, IN THIS PROSECUTION ALLEGING DEFENDANT CELL PHONE COMPANY’S UNDERPAYMENT OF SALES TAX, DEFENDANT WAS ENTITLED TO THE SALES TAX RETURNS OF OTHER CELL PHONE SERVICE PROVIDERS)

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PRODUCTS LIABILITY ACTION AGAINST ELEVATOR MANUFACTURER SHOULD HAVE SURVIVED SUMMARY JUDGMENT, LABOR LAW 240(1) INAPPLICABLE TO ELEVATOR ACCIDENT.

The First Department, reversing Supreme Court, determined there was a question fact whether a defective elevator part caused the elevator to fall when plaintiff, who was repairing the elevator, was in the elevator car. The court further determined plaintiff’s Labor Law 240(1) was properly dismissed because securing the elevator to prevent a fall would have made repairing the elevator impossible:

… [P]aintiff raised issues of fact whether the shim was defective and a cause of the accident and whether there was a failure to warn. Plaintiff’s expert opined that the cracked shoe caused the elevator car to get wedged in the hoistway in the manner that plaintiff described, and … [an] engineer involved in the design of the elevator acknowledged that the car could come out of the rails and get hung up if a guide shoe cracked while the elevator was descending. The engineer also testified that, after a previous instance in which a similar guide shoe by the same manufacturer had cracked because bolts had been over-tightened, [the manufacturer] had redesigned the shim in 2003 to prevent the guide shoe from cracking because of over-tightening of the bolts, but had made no effort to notify customers whose elevators had the older shims.

The elevator was not a safety device within the meaning of Labor Law § 240(1) … . Plaintiff’s reliance on McCrea v Arnlie Realty Co. LLC (140 AD3d 427 [1st Dept 2016]) is unavailing. In that case, the elevator on which the plaintiff was engaged in repair work fell onto the plaintiff because it had not been secured. In this case, plaintiff was inside the elevator, riding up and down to test it. To the extent plaintiff may have been engaged in “repair” within the meaning of Labor Law § 240(1), the statute does not apply, because any securing device would have defeated the purpose of his work by precluding him from riding the elevator … . Versace v 1540 Broadway L.P., 2017 NY Slip Op 01813, 1st Dept 3-15-17

 

PRODUCTS LIABILITY (PRODUCTS LIABILITY ACTION AGAINST ELEVATOR MANUFACTURER SHOULD HAVE SURVIVED SUMMARY JUDGMENT, LABOR LAW 240(1) INAPPLICABLE TO ELEVATOR ACCIDENT)/ELEVATORS (PRODUCTS LIABILITY ACTION AGAINST ELEVATOR MANUFACTURER SHOULD HAVE SURVIVED SUMMARY JUDGMENT, LABOR LAW 240(1) INAPPLICABLE TO ELEVATOR ACCIDENT)/LABOR LAW-CONSTRUCTION LAW (PRODUCTS LIABILITY ACTION AGAINST ELEVATOR MANUFACTURER SHOULD HAVE SURVIVED SUMMARY JUDGMENT, LABOR LAW 240(1) INAPPLICABLE TO ELEVATOR ACCIDENT)

QUESTION OF FACT WHETHER FAILURE TO SAND OR SALT STEPS CREATED OR EXACERBATED A DANGEROUS CONDITION.

The First Department, finding that summary judgment was properly denied in this slip and fall case, noted that there was a question of fact whether the failure to sand or salt the steps created or exacerbated a dangerous condition:

Plaintiff alleges that she was injured when she slipped on icy steps in front of defendants’ residence. The record shows that defendant Kenneth Clarke testified that sheets of icy rain had been falling all morning on the day of the accident, and that the steps had been cleared earlier that morning by a man he had hired to clear snow and ice. However, plaintiff and a neighbor who lived across the street testified that there was no precipitation on the morning of the accident, but that it had snowed two and three days earlier. Plaintiff also stated that she had not seen the man defendant had hired to clear the steps, either after the previous snowfall or that morning, although she was home and would have been aware of his presence. Moreover, there are conflicting opinions of expert meteorologists regarding the weather conditions on the morning of plaintiff’s fall. Under these circumstances, summary judgment was properly denied, since triable issues of fact exist as to whether there was a storm in progress on the morning of plaintiff’s accident, which would have suspended defendants’ obligation to clear the steps of snow and ice … .

Furthermore, assuming that there was no storm in progress, the record also presents issues of fact as to whether anyone acting on defendants’ behalf ever inspected and cleared the steps, either on the morning of the accident or after the prior snowfall, and, if so, whether such person’s “failure to place sand or salt on the stairs created or exacerbated a dangerous condition” after the prior storm … . Arroyo v Clarke, 2017 NY Slip Op 01809, 1st Dept 3-15-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER FAILURE TO SAND OR SALT STEPS CREATED OR EXACERBATED A DANGEROUS CONDITION)/SLIP AND FALL (QUESTION OF FACT WHETHER FAILURE TO SAND OR SALT STEPS CREATED OR EXACERBATED A DANGEROUS CONDITION)

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LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY.

The First Department determined plaintiff’s motion for leave to file a late notice of claim against the NYC Housing Authority should have been granted, despite the lack of a reasonable excuse and defendant’s lack of knowledge of the injury. The infant plaintiff was nine months old when he was burned by an exposed water pipe.  The infancy and the lack of prejudice to the defendant warranted allowing the claim to be filed after a 10-month delay:

The infant plaintiff was approximately nine months old at the time that he allegedly sustained injuries as a result of an exposed hot water pipe in his family’s apartment, in a building owned and operated by defendant. This infancy weighs in favor of granting leave to serve a late notice of claim, regardless of the lack of a nexus between the delay and infancy … . In addition, defendant failed to address plaintiff’s showing that defendant would not be substantially prejudiced by the 10-month delay in seeking leave since the condition of the exposed pipes remained unchanged from the time of the accident … . Given these factors, which the motion court failed to address, and given the remedial nature of the statute, the motion court improvidently exercised its discretion in dismissing the infant plaintiff’s claim … . Eboni B. v New York City Hous. Auth., 2017 NY Slip Op 01816, 1st De[t 3-15-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)/NOTICE OF CLAIM (LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION, FALL FROM A-FRAME LADDER.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when the A-frame ladder moved when he was standing on it:

Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim through his testimony that he was injured when the A-frame ladder on which he was standing moved underneath him as he applied pressure to it while trying to remove part of the drop ceiling he was demolishing … . Plaintiff was not required to show that the ladder was defective or that he actually fell off the ladder to satisfy his prima facie burden … .

Defendants failed to raise a triable issue of fact whether plaintiff was the sole proximate cause of the accident. There is no testimony in the record as to whether there were other readily available, adequate safety devices at the accident site that plaintiff declined to use … . Moreover, the evidence establishes that the ladder twisted underneath plaintiff because it was unsecured, not because he misused it, and that defendants provided no other safety devices for his use. At most, plaintiff’s application of pressure to the ladder while engaged in the work he was directed to do, which caused it to twist, was comparative negligence, no defense to a section 240(1) claim … . “Regardless of the method employed by plaintiff to remove [the drop ceiling], the ladder provided to him was not an adequate safety device for the task he was performing” … . Messina v City of New York, 2017 NY Slip Op 01823, 1st Dept 3-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION, FALL FROM A-FRAME LADDER)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION, FALL FROM A-FRAME LADDER)

TILTING A SKID FROM A VERTICAL POSITION ONTO A DOLLY IS COVERED UNDER LABOR LAW 240(1), QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED.

The First Department determined Labor Law 240(1) applied to the task of tilting a skid from a vertical position to a dolly.  However, there was a question of fact whether the skid was heavy enough to require a safety device:

Plaintiff was injured when he and a coworker attempted to move a wooden skid from a vertical position onto an A-frame dolly by tilting it at a 45-degree angle on one corner and toppling it onto the dolly. While plaintiff hoisted his side of the skid overhead with his arms, his coworker apparently lost his grip, and the skid fell on plaintiff, causing tears in his arm and shoulder.

That plaintiff and the skid were on the same level does not bar application of Labor Law § 240(1) … .

However, contrary to plaintiff’s argument, a triable issue of fact exists as to the weight of the skid and, therefore, whether a safety device was required under the statute. Natoli v City of New York, 2017 NY Slip Op 01818, 1st Dept 3-15-17

LABOR LAW-CONSTRUCTION LAW (TILTING A SKID FROM A VERTICAL POSITION ONTO A DOLLY IS COVERED UNDER LABOR LAW 240(1), QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED)

QUESTION OF FACT WHETHER BOUNCER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREW PLAINTIFF TO THE GROUND.

The First Department determined defendant bar’s motion for summary judgment dismissing plaintiff’s respondeat superior claim was properly denied. Plaintiff was thrown to the ground by the bar’s bouncer. There was a question of fact whether the bouncer was acting within the scope of his employment:

Plaintiff was assaulted by a security guard/bouncer in the employ of defendant after plaintiff, who had been denied admittance to defendant’s bar because of perceived intoxication, grabbed the baseball cap from the bouncer’s head. Less than 30 seconds elapsed between plaintiff taking the cap and the bouncer throwing plaintiff to the ground, which occurred approximately 10 feet from the entrance to defendant’s bar. On this record, it cannot be concluded, as a matter of law, that the bouncer was acting outside the scope of his employment at the time of the assault … . Salem v MacDougal Rest. Inc., 2017 NY Slip Op 01832, 1st Dept 3-15-17

EMPLOYMENT LAW (NEGLIGENCE, QUESTION OF FACT WHETHER BOUNCER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREW PLAINTIFF TO THE GROUND)/RESPONDEAT SUPERIOR (NEGLIGENCE, QUESTION OF FACT WHETHER BOUNCER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREW PLAINTIFF TO THE GROUND)

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WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY.

The First Department determined a witness’s disavowed identification of another as the perpetrator could not be used as evidence of third-party culpability:

The court providently exercised its discretion in ruling that defendant could not, in the absence of additional evidence, argue that the person initially identified by the witness was the actual perpetrator … , and this ruling did not deprive defendant of a fair trial or the right to present a defense. The court did not preclude defendant from introducing evidence of third-party culpability; on the contrary, it expressly invited defendant to introduce certain evidence of that nature. Rather than precluding a third-party culpability defense, the court providently ruled that such a defense could not, without more, be supported by the disavowed identification, which the witness explained as a deliberate falsehood. Defendant received a full opportunity to explore the misidentification and all surrounding circumstances, and to use these matters to attack the witness’s credibility. While defendant cites additional evidence that would have supported the claim that the misidentified man was the actual perpetrator, he was free to introduce this evidence at trial but failed to do so. Even if the court had permitted defendant to specifically argue third-party culpability in summation, defendant would not have been entitled to argue about matters not in evidence. People v Francis, 2017 NY Slip Op 01817, 1st Dept 3-15-17

CRIMINAL LAW (WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY)/EVIDENCE (CRIMINAL LAW, WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY)/THIRD PARTY CULPABILITY (CRMINAL LAW, (WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY)

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