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NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY. 

The First Department, in a full-fledged opinion by Justice Saxe, determined the owner of a taxicab did not owe a duty to plaintiff who was injured by the cab when an occupant of the cab rendered the driver unconscious during a robbery. The administrative rule requiring a partition between the passenger area and the driver was deemed designed to protect the driver of the cab, not the general public outside of the cab.  Similarly a broken CB radio in the cab did not breach a duty owed to the general public:

Plaintiffs focus on the foreseeability of the type of accident that occurred in the absence of safety devices that would have protected the driver from assault. They argue that since those safety devices would protect not only the driver, but other motorists and pedestrians who might be injured by the driver, the owner of the vehicle owed a duty to both the driver and to plaintiffs to install safety equipment that would protect them.

With regard to how foreseeability interconnects with duty, some confusion has arisen from the classic language of Chief Judge Cardozo’s decision in Palsgraf v Long Is. R.R. Co. (248 NY 339, 344 [1928]), that “[t]he risk reasonably to be perceived defines the duty to be obeyed.” These words have sometimes been misinterpreted to mean that the foreseeability of harm can “spawn[] a duty” to prevent that harm (see e.g. Pulka v Edelman, 40 NY2d 781, 787 [1976] [dissenting opinion]). However, the majority in Pulka v Edelman clarified the error of this reasoning, to explain that foreseeability may not be relied on to create a duty:

“Foreseeability should not be confused with duty. The principle expressed in Palsgraf v Long Is. R.R. Co. (248 NY 339, supra), quoted by the dissent, is applicable to determine the scope of duty — only after it has been determined that there is a duty. Since there is no duty here, that principle is inapplicable” (Pulka, 40 NY2d at 785). On v BKO Express LLC, 2017 NY Slip Op 00281, 1st Dept 1-17-17

 

NEGLIGENCE (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/DUTY (NEGLIGENCE, NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/FORESEEABILITY (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)

PLANK USED TO CROSS GAP IN ROOF COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. A plank plaintiff was using to cross a gap in the roof collapsed:

The alleged discrepancies between plaintiff’s account of the accident and the accounts of two of plaintiff’s coworkers are irrelevant to plaintiff’s central contention that he fell when the plank collapsed, and that he was not provided with proper protection … . Moreover, defendant raised no issues of fact as to whether plaintiff was the sole proximate cause of the accident. Even assuming the presence of additional safety devices at the work site, there was no evidence that plaintiff was aware of their availability or that he was expected to use them … . DeFreitas v Penta Painting & Decorating Corp., 2017 NY Slip Op 00277, 1st Dept 1-17-17

LABOR LAW-CONSTRUCTION LAW (PLANK USED TO CROSS GAP IN ROOF COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION)

PLAINTIFF INJURED BY A PORTION OF A ROOF WHICH FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER.

The First Department determined defendant’s motion for summary judgment on the Labor Law 240(1) cause of action was properly denied. Plaintiff was injured when a portion of a roof fell on him unexpectedly when another portion of the roof was being demolished. The court further determined the property manager could be held liable as the agent of the owner:

Since that part of the roof above plaintiff was not the intended target of demolition at the time of the collapse, Supreme Court properly denied defendants’ motion for summary judgment dismissing the Labor Law § 241(6) cause of action … .

Furthermore, defendant Gibraltar Management Co., Inc. was the manager of the property, which handled all activities related to its management and contracted with RA Lynch Excavating for the demolition of the building. Accordingly, it may be held liable as an agent of the owner pursuant to Labor Law § 240(1) and § 241(6) … . Ragubir v Gibraltar Mgt. Co., Inc., 2017 NY Slip Op 00265, 1st Dept 1-17-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF INJURED WHEN A PORTION OF A ROOF FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/DEMOLITION (LABOR LAW-CONSTRUCTION LAW,  (PLAINTIFF INJURED WHEN A PORTION OF A ROOF FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/AGENT (LABOR LAW-CONSTRUCTION LAW, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER)/PROPERTY MANAGER (LABOR LAW-CONSTRUCTION LAW, PROPERTY MANAGE COULD BE LIABLE AS AGENT OF OWNER)

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QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT.

The First Department, in a case reversed and remitted by the Court of Appeals, determined there was a question of fact whether contractual subrogation provisions applied to certain policies covering injury by lead paint (remitting the case to Supreme Court). The Court of Appeals had held the antisubrogation rule did not apply to preclude recovery:

Given the ambiguities in the relevant agreements, we cannot find as a matter of law that the insurers are entitled to contractually subrogate to ANP’s indemnification rights. On remand, the motion court is to consider the intent of these provisions in light of the extrinsic evidence. Millennium Holdings LLC v Glidden Co., 2017 NY Slip Op 00258, 1st Dept 1-17-17

INSURANCE LAW (LEAD PAINT, SUBROGATION, QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT)/SUBROGATION (INSURANCE LAW, LEAD PAINT, QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT)/LEAD PAINT (INSURANCE LAW, LEAD PAINT, QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT)

FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant condominium owner was properly ejected from the condominium for failure to pay the common charges:

… [T]he Condominium Act and the applicable bylaws for the subject condominium authorize a lien for unpaid common charges and permit a lien foreclosure action and an action for the appointment of a receiver where appropriate (see Real Property Law §§ 339-z, 339-aa). Further, the order appointing the receiver in this matter authorized the receiver to take certain actions, including ejectment of defendant from the property … . * * *

Ejectment of defendant from the unit was not unconstitutional, since he failed to comply with the court’s prior order directing him to pay the “reasonable fair market rent” of $6,500 per month for his use and occupancy of the unit. Contrary to defendant’s contentions, he was properly required to pay rent on the unit, regardless of the fact that he was the unit’s owner, since both Real Property Law § 339-aa and section 5.9 of the bylaws provide that in a lien foreclosure action, “the Unit Owner shall be required to pay a reasonable rental for the use of said Unit Owner’s Unit.” It is inconsequential and irrelevant to this action that defendant defeated plaintiff’s motion for summary judgment in the 2011 action. Nor does ejectment under these circumstances deprive defendant of his “real property ownership/occupancy rights without due process of law.” Heywood Condominium v Wozencraft, 2017 NY Slip Op 00257, 1st Dept 1-12-17

 

CONDOMINIUMS (FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM)/COMMON CHARGES (CONDOMINIUMS, FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM)/EJECTION (CONDOMINIUMS, FAILURE TO PAY CONDOMINIUM COMMON CHARGES WAS A PROPER BASIS FOR EJECTION FROM THE CONDOMINIUM)

OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE.

The First Department determined defendant’s motion for summary judgment was properly denied. Defendant (Schindler) failed to secure a seven-foot wooden panel which apparently fell and injured plaintiff. The court noted that the open and obvious nature of the panel eliminated the duty to warn but not the duty to make the premises safe:

Schindler’s arguments that the wooden panel that its workers leaned against the wall was open and obvious, that plaintiff failed to use her senses to observe it, and that any barricades or warnings would not have prevented the accident, are unpreserved as they were not presented to the motion court … . In any event, we would find such arguments unavailing because even if a hazard is open and obvious, that merely eliminates the duty to warn, but not the duty to maintain the premises in a reasonably safe condition … . Here, it is undisputed that Schindler’s employees failed to secure the seven-foot tall wooden panel that they leaned against the wall or create a perimeter around it to prevent others from entering the area. Polini v Schindler El. Corp., 2017 NY Slip Op 00254, 1st Dept 1-12-17

NEGLIGENCE (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/OPEN AND OBVIOUS (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/WARN, DUTY TO (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)

QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT.

The First Department, reversing Supreme Court, determined there were triable issues of fact whether a sidewalk defect narrowed the passable area and whether the defect was visible at night:

… [T]he owner and property manager of the premises that abutted a sidewalk where plaintiff Alison Stolzman tripped, established prima facie entitlement to summary judgement based on the testimony and photographic evidence indicating the alleged hazard was open and obvious and not inherently dangerous … .

However, there remain triable issues as to whether the alleged low-lying tripping condition dangerously narrowed the passable area of the sidewalk and was adequately visible at night … . Stolzman v City of New York, 2017 NY Slip Op 00247, 1st Dept 1-12-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/SIDEWALKS (SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/ABUTTING PROPERTY OWNERS (SIDEWALK SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/SLIP AND FALL (SIDEWALKS, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/OPEN AND OBVIOUS (SIDEWALK SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)

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QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200.

The First Department determined there was a question of fact whether defendant site safety consultant exercised sufficient supervisory control to support the Labor Law 200 cause of action:

The motion court properly found a material question of fact as to whether ELI, the site safety consultant employed by plaintiff[‘s] … employer, had supervisory control and authority over the work being done when plaintiff was injured, and can be held liable for plaintiff’s injuries under the Labor Law as an agent of the owner or general contractor. …  ELI’s principal testified that the responsibility of a site safety consultant was to consult with and make recommendations to the foreman, project manager or superintendent should he or she observe a potentially unsafe condition. However, the agreement under which ELI performed its services for plaintiff’s employer … provided that the site safety consultant, in addition to making inspections of the work place to ascertain a safe operating environment, was to “[t]ake necessary and timely corrective actions to eliminate all unsafe acts and/or conditions,” and “[p]erform all related tasks necessary to achieve the highest degree of safety.”  Oliveri v City of New York, 2017 NY Slip Op 00237, 1st Dept 1-12-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)/SAFETY CONSULTANT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)

LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when a wooden ladder which was part of the structure of the building (for access to the attic) shifted when he attempted to step onto it:

Plaintiff’s testimony that the ladder shifted as he descended, thus causing his fall, established a prima facie violation of Labor Law § 240(1) … . The affidavit submitted by defendant averring that plaintiff had told his employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff’s testimony that the ladder shifted and failed to create triable issues of fact that plaintiff’s actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

Further, we reject defendant’s contention that issues of fact exist as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff’s employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other unspecified safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points … . Defendant further fails to explain how a rope that was used to hoist materials to the attic area where plaintiff was working could be used as a safety device, and plaintiff’s decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it … . Garcia v Church of St. Joseph of the Holy Family of the City of N.Y., 2017 NY Slip Op 00239, 1st Dept 1-12-17

LABOR LAW-CONSTRUCTION LAW (LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)

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PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING.

The First Department, reversing Family Court, determined Family Court should have informed pro se petitioner of his right to counsel in this order of protection proceeding:

Family Court committed reversible error when, during a brief hearing in this article 8 proceeding, it failed to advise the pro se petitioner that he had a right to the assistance of counsel of his own choosing, a right to an adjournment to confer with counsel, and a right to have counsel assigned if he was financially unable to obtain representation (Family Ct Act § 262[a][ii]…). Moreover, Family Court did not possess sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) … . Further evidence is needed regarding the frequency of petitioner and respondent’s interactions … . Matter of Gustavo D. v Michael D., 2017 NY Slip Op 00246, 1st Dept 1-12-17

FAMILY LAW (PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ATTORNEYS (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ORDER OF PROTECTION (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)

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