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Questions of Fact About Defendant’s Actual or Constructive Notice of Liquid on Floor—Question of Fact Whether Contract Food Service Launched and Instrument of Harm Such that the Food Service Contract Gave Rise to Tort Liability to Plaintiff

The First Department determined summary judgment should not have been granted to the defendants in a slip and fall case. The complaint alleged that there was liquid on the floor of a women’s homeless shelter operated by defendant Camba.  The complaint further alleged that plaintiff frequently observed liquid on the floor after defendant food service, Whitson’s, delivered prepared food. Plaintiff also alleged she had complained about the condition to Camba’s maintenance staff. The First Department found the affidavit of Camba’s employee did not demonstrate the absence of actual or constructive notice (no evidence of the cleaning schedule was presented).  The First Department also found there was a question of fact whether Whitson’s launched an instrument of harm, which would support tort liability for plaintiff’s fall arising from Whitson’s food service contract with Camba:

Camba failed to make a prima facie showing that it lacked constructive notice of the liquid on the floor. Although Camba’s employee testified that she completed her inspection of the building about an hour before the accident, and that it was her usual custom and practice to pass by the area where plaintiff claims she fell, she could not recall whether she inspected the accident location itself that afternoon when she made her rounds … . Her affidavit stating that she did not observe a slippery substance or liquid on the hallway floor during her daily rounds did not satisfy Camba’s burden of showing it had no actual or constructive notice of the dangerous condition alleged and that it did not exist for a sufficient length of time prior to the accident to permit Camba employees to discover and remedy it … . Camba also failed to present evidence regarding the shelter’s cleaning schedule, and Camba’s employee lacked personal knowledge regarding the shelter’s maintenance … .

Even if Camba had met its initial burden, the record shows that there exists a question of fact as to whether it had notice of a recurring condition. Plaintiff’s testimony that she frequently would see liquid leaking from Whitson’s Food’s delivery crates at the accident location, and that she complained to Camba’s maintenance staff about the liquid, is sufficient to raise a triable issue of fact as to a recurring condition … .

Whitson’s Food, which had a contract with Camba to provide cooked meals for the shelter, failed to make a prima facie showing that it did not launch a force or instrument of harm by dropping liquid on the floor when it delivered food to the shelter on the day of the accident … . The deposition testimony from an employee of Whitson’s Food was insufficient to show that Whitson’s Food did not cause or create the liquid condition, since he lacked personal knowledge as to whether the floor was clean after Whitson’s Food delivered the food … . Jackson v Whitson’s Food Corp., 2015 NY Slip Op 05889, 1st Dept 7-7-15

 

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Under the Public Trust Doctrine, Only the Uses of the Dedicated Parkland Which Were Contemplated by the Relevant Provisions of the NYC Administrative Code Are Allowed—The Code Provisions Authorized Construction of Facilities Directly Related to Shea Stadium (Now Demolished)—Under Standard Rules of Statutory Construction, the Meaning of the Code Provisions Cannot Be Stretched to Allow the Construction of a Shopping Mall

The First Department, in a full-fledged opinion by Justice Mazzarelli, determined that provisions of the NYC Administrative Code could not be interpreted to allow the construction of a shopping mall in the area where Shea Stadium once stood. Rather the code provisions allowed only construction which was relevant to the stadium. Under the public trust doctrine only the uses of the dedicated parkland contemplated by the code provisions were authorized

This dispute turns on whether the plain language of Administrative Code § 18-118 compels a narrow use of the parkland in question such that any additional construction on it must be directly related to a stadium, or whether any such construction on the parkland must only be related to one of the purposes delineated in § 18-118(b). The proper interpretation of the statute is critical in this case, because, under the public trust doctrine, dedicated park areas in New York are impressed with a public trust for the benefit of the people of the State, and their “use for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State Legislature, plainly conferred” … . Stated differently, parkland may be alienated or leased for non-park purposes as long as authorized by the legislature …, and the “legislative authority required to enable a municipality to sell its public parks must be plain” … . * * *

… [T]he public trust doctrine is clear that any alienation of parkland must be explicitly authorized by the legislature. No reasonable reading of Administrative Code section 18-118 allows for the conclusion that the legislature in 1961 contemplated, much less gave permission for, a shopping mall, unrelated to the anticipated stadium, to be constructed in the Park. Further, it is simply not in our power to set the doctrine aside, no matter how worthy a proposed use of parkland may be. Here, while there is a legislative mandate for the use of the Park, that mandate does not encompass the use proposed by respondents. Matter of Avella v City of New York, 2015 NY Slip Op 05790, 1st Dept 7-2-15

 

Subcontractor Who Is Not Vicariously Liable for the Acts or Omissions of Its Subcontractors Under Labor Law 200 May Be Vicariously Liable for those Acts or Omissions Under Labor Law 241 (6)

The First Department explained that, under Labor Law 200 (a codification of common law negligence), a subcontractor, as the statutory agent of the owner and general contractor, stands in the shoes of the owner and general contractor. Neither the owner, general contractor nor their statutory agent may be held liable under Labor Law 200 in the absence of evidence the owner, general contractor or their statutory agent actually created the dangerous condition or had actual or constructive notice of the dangerous condition. Here there was no evidence the defendant subcontractor created or was aware of a dangerous condition allegedly created by its subcontractors. A subcontractor who did not create and/or has no notice of the dangerous condition, however, can be vicariously liable for the acts and omissions of its subcontractors, as a statutory agent, under Labor Law 241 (6):

 As a subcontractor and, therefore, the statutory agent of the owner and general contractor, [defendant] stands in the shoes of the owner and general contractor, neither of which may be held liable under common-law negligence or Labor Law § 200 (a codification of common-law negligence) for injuries arising from a dangerous condition in the absence of evidence that such party actually created the dangerous condition or had actual or constructive notice of it … . Uncontroverted evidence establishes, as a matter of law, that [defendant]  sub-subcontracted all of its work … and furnished no workers in its own employ to perform work. Rather, [defendant’s] presence at the site was limited to one-hour visits by its president once a week or every other week. Since there is no evidence that [defendant] itself created the condition in question or had actual or constructive of it, it cannot be held liable for injuries arising from that condition under common-law negligence or Labor Law § 200, neither of which makes an owner, a general contractor or their statutory agent vicariously liable for the negligence of a downstream subcontractor … .

However, given that [defendant’s] subcontract with [the owner] delegated to it the authority to supervise all drywall work, and given plaintiff’s allegation that the presence of the pipe segment on the floor was caused by employees of [defendant’s] spackling sub-subcontractor … , [defendant] is subject to liability under Labor Law § 241(6) as a statutory agent … . DeMaria v RBNB 20 Owner, LLC, 2015 NY Slip Op 05599, 1st Dept 6-30-15

 

The Fact that Plaintiff’s Testimony Was the Only Evidence of the Defect Which Caused Her to Fall (a Hole in a Worn Rubber Mat) Did Not Render the Evidence Insufficient to Support the Plaintiff’s Verdict

The First Department, over a dissent, determined the trial evidence was sufficient to support the jury’s conclusion the defendant hospital had constructive notice of a worn rubber mat. The jury could reason that the wearing of the mat, resulting in a hole, occurred over a period of time and should have been noticed by the defendant. The fact that plaintiff’s testimony was the only evidence of the claimed defect did not render the evidence insufficient. The motion to set aside the verdict was properly denied and the verdict was not against the weight of the evidence:

Plaintiff testified that as she entered the playground with her five-year-old grandson, her foot became caught in a hole in the rubber mat, and she fell forward, her right elbow striking the ground. Plaintiff described the hole as being caused by “worn out” rubber. * * *

To set aside a jury verdict as unsupported by sufficient evidence, the movant must demonstrate that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” … . The standard for setting aside a verdict as against the weight of the evidence is “whether the evidence so preponderate[d] in favor of the [movant] that [the verdict] could not have been reached on any fair interpretation of the evidence” … .

The liability verdict was based on legally sufficient evidence of defendant’s constructive notice of a dangerous condition on its premises and was not against the weight of the evidence … .

Plaintiff’s testimony that she was caused to fall when her foot became ensnared in a “worn out” section of the rubber mat was sufficient to support a finding of liability … . The fact that plaintiff’s testimony provided the lone evidence of the claimed defect is not a basis to conclude that there was insufficient evidence of a hazardous defect to impose liability on the premises owner … .

The dissent’s contention that there was insufficient evidence to support the inference that the worn out area was visible or apparent by reasonable inspection cannot withstand scrutiny. A “worn out” section by definition occurs over the passage of time. As the trial court noted “the very description of a worn out area pre-supposes a slow process, and can support a jury inference [*3]that the defect should have been discovered.” The jury having reasonably credited plaintiff’s direct observations and testimony over that of the defense witnesses, it is not for us to second-guess the verdict. Cruz v Bronx Lebanon Hosp. Ctr., 2015 NY Slip Op 05601, 1st Dept 6-30-15

 

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Stipulation of Forfeiture of a Sum of Money Was Part of the Judgment of Conviction and Therefore Was Reviewable on Appeal from the Judgment of Conviction

The First Department, over a dissent, determined a stipulation of forfeiture of a sum of money entered by the defendant was part of the judgment of conviction, and was therefore reviewable on appeal. The dissent argued that appeal should have been dismissed because the forfeiture was not part of the judgment of conviction and was therefore not reviewable.  The forfeiture was ultimately affirmed on the merits:

At the outset, we reject the People’s contention, adopted by the dissent, that this appeal is not properly before us because the forfeiture was not part of the judgment of conviction. Pursuant to Penal Law § 60.30, a court has the authority to order a forfeiture of property, and any order exercising that authority “may be included as part of the judgment of conviction.” In People v Detres-Perez (127 AD3d 535 [1st Dept 2015]), relying on Penal Law § 60.30, this Court recently found that a forfeiture agreement was part of the judgment of conviction and thus reviewable on the appeal from the judgment. Likewise here, the court’s so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction and reviewable on this appeal as of right (see CPL 450.10). Contrary to the dissent’s position, we do not conclude that Penal Law § 60.30 authorizes the inclusion of forfeiture as part of a defendant’s sentence. Rather, that provision allows a court to order forfeiture as a separate component of the judgment of conviction… . … Finally, the omission of the forfeiture order from the sentence and commitment sheet does not render the order unreviewable since a forfeiture, although not a component of a criminal sentence, can nevertheless be part of the judgment of conviction … . People v Burgos, 2015 NY Slip Op 05600, 1st Dept 6-30-15

 

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Failure to Make Clear in the Jury Instructions that the Acquittal on the Top Count Based Upon the Justification Defense Required Acquittal on the Lesser Counts As Well Rendered the Verdict “Ambiguous”—New Trial Ordered in the Interest of Justice

The First Department, in a full-fledged opinion by Justice Tom, exercising the court’s “interest of justice” jurisdiction, determined defendant was entitled to a new trial because the jury instructions did not make clear that, if the jury found the defendant’s actions justified (self-defense), acquittal on all counts was mandatory. The defendant was charged with attempted murder, attempted assault in the first degree, and assault second degree stemming from a stabbing. There was evidence defendant may have acted in self-defense.  Therefore the jury was given the justification-defense instruction. The jury found the defendant not guilty of attempted murder, but guilty of the lesser two counts. If the not guilty verdict was based on the justification defense, then the defendant should have been acquitted of all charges. The jury instructions did not make the effect of finding the defendant’s acts justified clear. Because it could not be discerned whether the jury acquitted the defendant of attempted murder based on the justification defense, the verdict was ambiguous and a new trial was required, notwithstanding that the error in the jury instructions was not preserved:

On this record, review of the issue in the interest of justice is warranted because it is impossible to discern whether acquittal of the top count of attempted murder in the second degree was based on the jurors’ finding of justification so as to mandate acquittal on the two lesser counts. While lack of justification was included as an element of each crime, the verdict sheet and the court’s accompanying explanation created confusion, because they indicated among other things that the jurors “must consider” count three irrespective of their disposition of higher counts and they failed to explicitly convey that a finding of justification on the top count precluded further deliberation. While the trial court did follow the CJI justification instruction in its charge, it also included as an element of each offense “[t]hat the defendant was not justified,” which may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the top count of attempted murder in the second degree based on justification. People v Velez, 2015 NY Slip Op 05619, 1st Dept 6-30-15

 

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Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion to Renew Based Upon Information Known at the Time of the Original Motion Properly Heard in Exercise of Discretion

The First Department determined the savings provision of General Municipal Law 50-e applied and a notice of claim which was timely served by an unauthorized method was valid.  The court noted that a motion court can exercise its discretion to hear a motion to renew which relies on information known but not raised at the time the original motion was made:

Although the motion was based on information that was available to plaintiff earlier, “courts have discretion to consider such evidence in the interest of justice” … .

Defendant moved for summary judgment on the ground that plaintiff’s notice of claim was not served within the 90-day period set forth in General Municipal Law § 50-e, and plaintiff had not timely moved for an extension of time to serve. Plaintiff contended that she qualified under either or both prongs of the “savings provision” under General Municipal Law § 50-e(3)(c), which provides that “[i]f the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant. . .be examined in regard to it, or if the notice is actually received by a proper person within the time specified by this section, and the public corporation fails to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received.”

Moreover, “[t]he purpose of a notice of claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence. The applicable statute should be applies flexibly so as to balance two countervailing interests: on the hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” … .

Here, the record shows that plaintiff served a notice of claim on defendant on December 8, 2011 via regular mail, which did not comply with the requirement that service be completed in person or via registered or certified mail. However, defendant subsequently demanded that plaintiff appear for examinations pursuant to General Municipal Law § 50-h with regard to her claim. Under such circumstances, plaintiff’s service of the notice of claim is valid under the first prong of General Municipal Law § 50-e(3)(c). Person v New York City Hous. Auth., 2015 NY Slip Op 05417, 1st Dept 6-23-15

 

 

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Criteria for Liability for Acts of Independent Contractor and for Negligent Hiring of an Independent Contractor Explained (Criteria Not Met Here)

Plaintiff, who was working for the roofing contractor on a building damaged by fire, was asked by a salvager to help move a refrigerator. Plaintiff agreed and was injured while moving the refrigerator down some stairs.  The salvager was allowed to go through the building and pick out the items the salvager wanted (which included the refrigerator). Plaintiff sued the building owner (E & M). In finding the plaintiff did not have a cause of action against E & M, the First Department explained the relevant law with respect to liability for the acts of an independent contractor (the salvager) and negligent hiring of an independent contractor:

E & M established that even if it hired the salvager as an independent contractor, there is no basis to impose liability on it. “As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work” … . Although “liability will attach where the employer is negligent in selecting, instructing or supervising the contractor, where the contractor is employed to do work that is inherently dangerous or where the employer bears a specific nondelegable duty'” …, these exceptions are inapplicable… . * * *

Plaintiff’s contention that issues of fact exist as to whether E & M or its principal were negligent in selecting the salvager, i.e. whether they failed to exercise reasonable care in ascertaining whether he was qualified to move a refrigerator down a flight of stairs, is also unavailing. “[A]n employer has the right to rely on the supposed qualifications and good character of the contractor, and is not bound to anticipate misconduct on the contractor’s part….” … . Thus, an employer “is not liable on the ground of his having employed an incompetent or otherwise unsuitable contractor unless it also appears that the employer either knew, or in the exercise of reasonable care might have ascertained, that the contractor was not properly qualified to undertake the work” … . “Cases finding employers liable for negligent hiring have done so only in very specific circumstances” … not present here. There is no competent proof that E & M knew or should have known of any propensity on the part of the salvager or his helper to engage in the conduct that allegedly caused the accident … . Furthermore, plaintiff has not shown that E & M had any reason to question the qualifications of the salvager, who E & M knew had been used by its plumber on a prior occasion, to move a refrigerator … . Moreover, there was no reason for E & M to suspect that the salvager would enlist an employee of the roofing contractor to assist him. Nelson v E&M 2710 Clarendon LLC, 2015 NY Slip Op 05391, 1st Dept 6-23-15

 

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Question of Fact Whether Landlord Entitled to Pass On Increased Real Estate Taxes (Pursuant to a Tax Escalation Clause)—Increase Cannot Be Tied to Improvements Which Solely Benefit the Landlord

The First Department determined the landlord should not have been granted summary judgment.  Plaintiff-tenant sought a declaration that it was not responsible for increased real estate taxes related to improvements to the building which benefitted only the landlord and not the tenant. The matter was sent back for a determination whether and to what extent the improvements benefitted only the landlord:

The Court of Appeals has made clear that “[i]t is not the aim of . . . a [tax escalation] clause . . . to impose upon the tenant responsibility for increases in real estate taxes resulting from improvements on the property redounding solely to the benefit of the landlord” … .

The motion court incorrectly found that this principle was limited to circumstances where the improvement involved a vertical or horizontal enlargement of the building. … The improvement at issue is a renovation solely of the residential aspects of the building. Plaintiff is a commercial tenant. Our declaration here simply states the well settled principle regarding tax escalation clauses.  Enchantments Inc. v 424 E. 9th LLC2015 NY Slip Op 05409, 1st Dept 6-23-15

 

Frivolous Lawsuit Warranted Sanctions and the Award of Attorney’s Fees

The First Department determined sanctions and the award of attorney’s fees were appropriate for a frivolous lawsuit brought by an attorney who had represented himself in a related divorce proceeding.  The lawsuit sought $27,000 allegedly loaned to the defendant-wife by plaintiff. However, the $27,000 claim was made in the divorce proceedings and, although the lower court did not directly rule on the loan, the claim was effectively rejected by the court in a “catch-all” provision denying all relief not specifically addressed:

A court may, in its discretion, award to any party costs in the form of reimbursement for expenses reasonably incurred and reasonable attorneys’ fees resulting from “frivolous conduct,” which includes: (1) conduct completely without merit in law, which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) conduct undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; and (3) the assertion of material factual statements that are false (22 NYCRR 130-1.1[a], [c][3]). The court may also award financial sanctions on the same grounds (22 NYCRR 130-1.1[b]).

In determining whether conduct is frivolous, the court shall consider “the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel” (22 NYCRR 130-1.1[c]).

Here, the husband made a claim in the divorce action for repayment of the $27,000 “loan,” and Supreme Court rejected it. He then failed to challenge that finding on direct appeal. Any argument that Supreme Court did not actually decide the issue of the “loan” because it did not specifically address it is rejected, since the court included the “catch-all” language that any claims not discussed were denied. In any event, the husband could have sought clarification from the court if he felt that the claim related to the “loan” had escaped the court’s attention. Indeed, it would have behooved him to do so, as it is well settled that “res judicata bars a subsequent plenary action concerning an issue of marital property which could have been, but was not, raised in the prior matrimonial action” … . Again, we are required to consider “the circumstances under which the conduct took place” when reviewing a sanctions motion (22 NYCRR 130-1.1[c]). Here, the circumstances are that the husband, an experienced divorce lawyer, ignored a long-standing principle of matrimonial jurisprudence. Thus, his decision to commence an action that he knew, or should have known, was futile from its inception, weighs heavily in favor of a finding that his conduct was intended solely to harass the wife.  Borstein v Henneberry, 2015 NY Slip Op 05390, 1st Dept 6-23-15

 

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