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In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required Reversal of the Verdict (Plaintiff Had Won) and a New Trial on Liability

The First Department, over a dissent, reversed the verdict in plaintiff’s favor in a slip and fall case because of a flawed jury instruction and ordered a new trial on liability.  Plaintiff alleged she slipped and fell on ice on a subway platform.  The First Department determined that the jury instruction on constructive notice was so flawed that a new trial was necessary:

Over objection and despite defendant’s request for the correct instruction, the trial court instructed the jury that it had to find that “defendant either knew about the dangerous conditions or circumstances and that would be actual notice or a reasonable person would conclude that such a condition existed, and that would be called constructive notice.” This instruction does not make it clear that in order to find constructive notice, the jury must conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action (see PJI 2:90; 2:11 A…).  Harrison v New York City Tr Auth, 2014 NY Slip Op 00277, 1st Dept 1-16-14

 

Judge’s Refusal to Grant a One-Day Adjournment to Allow Defendant to Present a Witness (After the Judge Granted the People’s Request for a Missing-Witness Jury Instruction) Was Reversible Error

The First Department reversed defendant’s conviction because the judge refused to grant defendant a one-day adjournment to bring in a witness after granting the People’s request for a missing-witness jury instruction:

Having granted the People’s request for the [missing witness] instruction, the court should have granted defendant a short adjournment. A missing witness issue “must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy”… . Here, the moving party raised the issue after defendant’s testimony, when the issue became apparent. The court should have then accorded the nonmoving party the opportunity to avoid the missing witness charge by calling the witness. Although defendant was willing to call the witness, the court effectively rendered the witness unavailable, thus negating the availability requirement for a missing witness charge.

The court apparently denied the adjournment on the ground that defendant should have anticipated the missing witness issue. However, an adjournment to the next day would have been reasonable under the circumstances. People v Manzi, 2014 NY Slip Op 00280, 1st Dept 1-16-14

 

No Constructive Notice of Icy Condition/Allegation Defendant Created the Condition Based on Speculation

The First Department, over a dissent, affirmed the grant of summary judgment to the defendant in a slip and fall case. Plaintiff alleged she slipped and fell on a thin sheet of ice in a plaza in front of defendant’s building.  Defendant demonstrated that the area had been inspected an hour before the accident and no ice was visible.  Plaintiff acknowledged she could not see the ice.  Plaintiff’s allegation that defendant created the dangerous condition by running a fountain which was the source of a wind-borne spray of water on the plaza was deemed too speculative:

The evidence submitted by defendant, including security logs, establishes that defendant’s employees routinely inspected the area where plaintiff fell, had conducted an inspection one hour prior to her accident, and did not observe any ice. In opposition and in support of her cross motion, plaintiff failed to provide evidence showing that the ice was discernable.

On appeal, plaintiff does not dispute defendant’s lack of actual notice of ice on the plaza, having conceded, at her examination before trial, that it was not visible. She testified that although conditions at about 9:30 a.m. were bright and clear, it “looked like a thin layer of ice that wasn’t noticeable enough for me to see it before I fell.” Thus, the record establishes that the hazardous condition was not “visible and apparent” so as to enable defendant’s employees to discover it and take remedial measures… . Tompa v 767 Fifth Partners LLC, 2014 NY Slip Op 00276, 1st Dept 1-16-14

 

Failure to Accurately Identify Where Slip and Fall Occurred in Notice of Claim Warranted Dismissal of Complaint

The First Department, over a dissent, determined a slip and fall complaint should have been dismissed because the notice of claim did not accurately identify the place where the fall occurred:

Under these circumstances, Supreme Court should have granted defendant summary judgment dismissing the complaint. In addition to giving a vague description in his notice of claim that did not describe the location of the alleged defect with sufficient particularity …, plaintiff gave contradictory versions of the accident location, which further rendered the notice of claim defective, since it served to obscure the correct location. Plaintiff did not advise defendant of the revised location until more than three years after the alleged accident, which prejudiced defendant’s ability to conduct a meaningful and timely investigation of the claim… . Robles v New York City Hous Auth, 2014 NY Slip Op 00181, 1st Dept 1-14-14

 

Trial Judge’s Failure to Conduct an Inquiry Concerning a Juror’s Conduct During the Trial Required Reversal

The First Department reversed a conviction because the trial judge did not conduct an inquiry (in which defense counsel could participate) concerning the disqualification of a juror relating to conduct occurring during the trial.  The juror had informed a court officer that the juror had been invited to a breakfast with the District Attorney:

In People v Buford (69 NY2d 290 [1987]), the Court of Appeals set forth the basic framework to be followed when the trial court is considering disqualifying a juror because of conduct that occurs during the trial. As the Court noted, the court should conduct an inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. Although the Court of Appeals acknowledged that “[a]n in camera inquiry may not be necessary in the unusual case involving an obviously trivial matter where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror,” here defense counsel wanted the juror questioned (id. at 299 n 4). We conclude that there should have been an inquiry, in which defense counsel could participate, because the disclosure indicated a possible issue related to that juror’s continued ability to serve in an impartial manner… .  People v Ventura, 2014 NY Slip Op 001182, 1st Dept 1-14-14

 

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Police Did Not Have Reasonable Suspicion of Criminal Activity, Defendant Had Right to Ignore Police Command to Stop

In a full-fledged opinion by Justice Richter, the First Department reversed the denial of defendant’s motion to suppress.  After a police officer stopped a vehicle (a Lexus), the officer saw the defendant approach the vehicle on foot, receive a bag from the driver, and walk away.  The defendant was then ordered to stop:

After pulling the driver of the Lexus over for a traffic infraction, Detective Mongelli observed his nervous demeanor, and learned that his license had been revoked. The detective then saw defendant arrive at the Lexus, receive a black bag from the driver, and walk away. These observations provided, at most, a founded suspicion of criminal activity. … In response to this founded suspicion that criminal activity was afoot, Detective Mongelli was permitted to conduct a common-law inquiry. But the police actions here went beyond a level two intrusion and constituted a level three stop and detention.  * * * Furthermore, the detective’s command to “turn the bag over” constituted at least a level three intrusion, requiring reasonable suspicion. * * *

It is well established that a citizen has a right not to respond to law enforcement inquiries and to walk away from the police …[.] [T]he Court of Appeals reaffirmed this principle and described an individual’s “right to be let alone” as the distinguishing factor between the level of intrusion permissible under the common-law right to inquire and the right to make a forcible stop. The Court reasoned that “[i]f merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion . . . the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified” … . The Court concluded that to elevate a level two inquiry to a level three stop, the police must obtain additional information or make additional observations of suspicious behavior sufficient to establish reasonable suspicion … . Because no such additional information or observations existed here, the police lacked reasonable suspicion to justify the seizure that occurred. People v Major, 2014 NY Slip Op 00197, 1st Dept 1-14-14

 

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Conveyance from Mother to Son Not Made in “Good Faith” and Therefore Was Constructively Fraudulent

In a full-fledged opinion by Justice Tom, the First Department determined that a conveyance of an apartment from mother to son, after an arbitration award against the mother, was not done in “good faith” and therefore constituted a constructively fraudulent conveyance under Debtor and Creditor Law sections 273-a and 278:

The Debtor and Creditor Law identifies two indicia of “fair consideration” for conveyed property: the adequacy of what is given in exchange for it and “good faith.” With regard to value, § 272(a), governing a conveyance made in exchange for the property, provides for the receipt of something that is “a fair equivalent therefor,” and § 272(b), governing an antecedent debt or present advance, applicable herein, provides for an “amount not disproportionately small as compared with the value of the property.” * * *

“Fair consideration” under Debtor and Creditor Law § 272 is not only a matter of whether the amount given for the transferred property was a “fair equivalent” or “not disproportionately small,” which the parties vigorously dispute, but whether the transaction is made “in good faith,” an obligation that is imposed on both the transferor and the transferee … . The determination of whether such obligation has been met is one that rests on the circumstances of the individual matter … . Sardis v Frankel, 2014 NY Slip Op 00080, 1st Dept 1-7-14

 

Relatives of Persons Buried in Defendant Cemetery Could Not Sue As Beneficiaries of the Charitable Trust Set Up to Ensure Perpetual Care of the Cemetery Plots

In a full-fledged opinion by Justice Saxe, the First Department determined that the relatives of persons buried in defendant cemetery did not have standing to sue as beneficiaries of a charitable trust which was supposed to ensure perpetual care of the cemetery plots.  [However, one of the plaintiffs, who himself was a donor to the charitable trust, did have standing to sue:

EPTL article 1, which governs charitable trusts, specifically includes trusts for the perpetual care of graves: “Dispositions of property in trust for the purpose of the perpetual care … of cemeteries or private burial lots in cemeteries … shall be deemed to be for charitable and benevolent purposes” (EPTL 8-1.5). The statute directs the State Attorney General to protect and enforce the interests and rights of the beneficiaries: “The attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts” (EPTL § 8-1.1[f] [emphasis added]). “The obvious purpose of this provision was to provide a mechanism for enforcement of trusts whose beneficiaries were unascertainable” … . * * *

… [A]llowing relatives to bring lawsuits as to each lot, plot or grave could create endless litigation, substantially depleting the trust assets. Enforcement of the subject charitable trusts is therefore best left to the Attorney General, so as not to expose the trust funds to money-draining multiple lawsuits, and to avoid setting a precedent of allowing a broad, vague beneficiary base to commence multiple actions against a charitable trust. Lucker v Bayside Cemetary, 2013 NY Slip Op 08835, 1st Dept 12-31-13

 

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities … . Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

Untimely Summary Judgment Motion Denied—No Showing of Good Cause for the Delay/Motion Was Mislabeled as a Cross Motion

In a full-fledged opinion by Justice Feinman, over a dissent, the First Department determined an untimely motion for summary judgment was properly denied because there was no explanation for the delay.  The court noted the motion was mislabeled as a cross-motion because it did not address the issues raised in the original motion, but rather addressed the allegations in the complaint:

Brill v City of New York (2 NY3d 648 [2004]) addressed the “recurring scenario” of litigants filing late summary judgment motions, in effect “ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice” (2 NY3d at 650). Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed … .  * * * Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. * * *

We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Rather, we enforce the law as written by the legislature, and as explained in Brill. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is “good cause shown” for the delay. * * *

To the extent [the] motion was directed at the complaint, as opposed to any cross claims …, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party… . Kershaw v Hospital for Special Surgery, 2013 NY Slip Op 08548, 1st Dept 12-24-13

 

 

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