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In the Absence of a Defect, Inherently Smooth Floors Do Not Give Rise to Liability

In a slip and fall case, the First Department noted that inherently smooth floors do not give rise to liability in the absence of a defect.  The plaintiff slipped and fell on a cotton bath mat on a smooth bathroom floor:

In cases involving inherently smooth, and thus potentially slippery tiled or stone floors, absent competent evidence of a defect in the surface or some deviation from an applicable industry standard, no liability is imposed … . The same standard applies to allegedly defective bath mats … .

The motion court properly found that defendants made a prima facie showing that the accident was not attributable to a defect in the floor or the bath mat, and that they were therefore entitled to summary judgment. Kalish v HEI Hospitality LLC, 2014 NY Slip Op 00729, 1st Dept 2-6-14

 

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Accident Occurred Within 15-Day Grace Period Allowed for Repair of Road Defects/City Could Not Be Held Liable

The First Department reversed Supreme Court and held that the 15-day grace period allowed for the repair of an identified roadway defect precluded plaintiff’s lawsuit:

Eight days before plaintiff’s accident, a City highway inspector employed by the Department of Transportation prepared a Highway Inspection and Quality Assurance Report identifying a two-inch-deep defect in the street at the location of the accident, and issued a Corrective Action Request for repairs. These documents constitute a “written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition,” i.e., one of the three alternative prerequisites to bringing an action against the City for personal injuries caused by a defect in the public street (see Administrative Code of City of NY § 7-201[c][2]…). However, the same provision of the Administrative Code also provides the City with a 15-day grace period within which to repair or otherwise render safe the defective condition (§ 7-201[c][2]). Since the “written acknowledgement” was received by the City only eight days before the accident, this action may not be maintained against the City. Berrios v City of New York, 2014 NY Slip Op 00733, 1st Dept 2-6-14

 

Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required

Over a dissent, the First Department determined that information which could endanger confidential witnesses in a homicide investigation should be redacted from documents released pursuant to a FOIL request:

We agree with the dissent’s observation that the public safety exemption of Public Officers Law § 87(2)(f) does not warrant a blanket exception for DD5s …that reveal the identity of individuals (see Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]…). However, the dissent’s rationale for release of this information, i.e., that “they may provide further information that would benefit [petitioner’s] case” is at odds with both the public safety and privacy exemptions of Public Officers Law § 87.

The Gould Court recognized that unlimited disclosure of identifying information on the DD5s is not warranted. It stated that “[d]isclosure of such documents could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of nonroutine police procedures. The statutory exemptions contained in the Public Officers Law, however, strike a balance between the public’s right to open government and the inherent risks carried by disclosure of police files” (Gould, 89 NY2d at 278, citing Public Officers Law § 87[2][b], [e], [f]). * * *

…[I]n the context of a homicide investigation, “we do not find that there must be a specific showing by respondents that petitioner, who is presently incarcerated, has threatened or intimidated any of the witnesses in his criminal case . . . in order to warrant redaction of certain identifying information” …. . … “The agency in question need only demonstrate a possibility of endanger[ment]’ in order to invoke this exemption” … . In fact, “[e]ven in the absence of such a threat, certain information found in DD-5s could, by its inherent nature, give rise to the implication that its release, in unredacted form, could endanger the life and safety of witnesses or have a chilling effect on future witness cooperation” … . Matter of Exoneration Initiative v New York City Police Dept, 2014 NY Slip Op 00728, 1st Dept 2-6-14

 

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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

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Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal

The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:

A criminal defendant’s right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. “[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so” … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied “simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant’s interests are probably better served through a lawyer’s representation” … .

Defendant’s requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14

 

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Malpractice Cause of Action Stated Against an Attorney Who Died Just Before the Statute of Limitations on Plaintiffs’ Action Ran Out

In a full-fledged opinion by Justice Tom, the First Department determined that plaintiffs had stated a valid malpractice claim against an attorney who died just before the statute of limitations expired:

That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings … , as we must on a pre-answer motion to dismiss … it appears that the inaction of counsel rendered the lapse of plaintiff’s cause of action not merely possible—or even probable—but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded …, and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the … defendants. Cabrera v Collazo, 2014 NY Slip Op 00622, 1st Dept 2-4-14

 

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Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation Act Discussed

Plaintiff was injured when he fell on a “float stage” which was used to transport workers and materials on navigable waters.  The First Department discussed the interplay between the Labor Law (elevation-related fall) and the Longshore Workers’ Compensation Act:

Since the accident in which plaintiff Joseph Pipia (hereinafter plaintiff) was injured occurred in navigable waters, and plaintiff, an employee who was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 901 et seq.), has been receiving benefits thereunder, federal maritime law is applicable to this case … . Plaintiff may not sue his employer, JES, since the LHWCA “precludes recovery of damages against [the injured worker’s] employer” …. . …

Plaintiff is also barred from asserting any claims other than Labor Law § 200 and common-law negligence claims against Trevcon, the vessel owner (see 33 USC § 933…). Contrary to plaintiff’s contention, the float stage involved in his accident constituted a “vessel” for purposes of the LHWCA … . While it consisted of wooden planks bolted together, had limited weight capacity and could only be moved short distances from the pier, it was regularly used to carry workers and materials around the water. Although it generally was tied to land structures with a line, it sometimes was untied to allow a worker to move to a different location to pick up materials from the pier. … “[A] reasonable observer, looking to the [float stage]’s physical characteristics and activities, would . . . consider it to be designed to [a] practical degree for carrying people or things on water”… . Pipia v Turner Constr Co, 2014 NY Slip Op 00612, 1st Dept 2-4-14

 

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Documentary Evidence Can Be Considered In CPLR 3211(a)(7) Motion to Dismiss/Disclaimer Not Specific Enough to Preclude Fraud Cause of Action

In a full-fledged opinion by Justice Renwick, with a concurring opinion by Justice DeGrasse, the First Department determined that arbitration could not be compelled in the absence of a specific, written agreement and a fraud cause of action against Goldman Sachs based upon the sale of mortgage-backed securities to the plaintiff hedge fund could go forward. The court concluded that documentary evidence submitted by the defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) was properly considered by Supreme Court, and the disclaimer relied upon by the defendant was not specific enough to warrant dismissal of the fraud cause of action:

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim … When documentary evidence is submitted by a defendant “the standard morphs from whether the plaintiff has stated a cause of action to whether it has one”… . * * *

The law is abundantly clear in this state that a buyer’s disclaimer of reliance cannot preclude a claim of justifiable reliance on the seller’s misrepresentations or omissions unless (1) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the seller’s knowledge … . Accordingly, only where a written contract contains a specific disclaimer of responsibility for extraneous representations, that is, a provision that the parties are not bound by or relying upon representations or omissions as to the specific matter, is a plaintiff precluded from later claiming fraud on the ground of a prior misrepresentation as to the specific matter… . Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc, 2014 NY Sliip Op 00587, 1st Dept 1-30-14

 

Supreme Court’s Reliance On a Punctuation Error to Support Its Contract Interpretation Rejected

In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court’s interpretation of a contract clause, finding the interpretation was based upon a typographical error:

…”[I]t is a cardinal principle of contract interpretation that mistakes in grammar, spelling or punctuation should not be permitted to alter, contravene or vitiate manifest intention of the parties as gathered from the language employed” …. . … “[I]t is untenable that the parties would have intentionally left the meaning of their agreement to such vagaries as placement and punctuation” … . Penguin Group (USA) v Time/Warner Retail Sales & Mktg Servs Inc, 2014 NY Slip Op 00469, 1st Dept 1-28-14

 

Notice of Voluntary Discontinuance Filed After Opponents’ Motions to Dismiss Is Untimely

The First Department determined plaintiff’s (BDO’s) notice of voluntary discontinuance was untimely because it was filed after the defendants filed motions to dismiss:

BDO unilaterally filed a notice of voluntary discontinuance. This notice was untimely because BDO served it after defendants filed their motions to dismiss (see CPLR 3217[a][1]; … David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:8 [“[t]he defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint”]). Indeed, if a motion to dismiss is not a “responsive pleading” within the meaning of CPLR 3217(a)(1), a plaintiff would be able to freely discontinue its action without prejudice solely to avoid a potentially adverse decision on a pending dismissal motion. This Court has made clear that such conduct is improper … . Thus, BDO’s notice was ineffective and a nullity… . BDO USA, LLP v Phoenix Four Inc, 2014 NY slip Op 00410, 1st Dept 1-23-14

 

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