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PLAINTIFF’S DECEDENT WAS IN THE ELEVATOR SHAFT WHEN THE ELEVATOR, OPERATING NORMALLY, DESCENDED AND CRUSHED HIM; THE ELEVATOR WAS NOT A “FALLING OBJECT” WITHIN THE MEANING OF LABOR LAW 240(1); COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the elevator which descended and crushed plaintiff’s decedent, who had entered the shaft, was not a “falling object” within the meaning of Labor Law 240(1). Therefore the complaint against defendants must be dismissed:

Plaintiff’s decedent, an elevator mechanic, entered an elevator shaft on the lobby level, under an elevator that he had sent to one of the floors above. After the shaft doors closed, the call button was pressed, and the elevator descended to the lobby, crushing the decedent. The parties agree that the elevator was working normally, in the “automatic” setting, at the time of the accident.

The Labor Law § 240(1) claim must be dismissed because the elevator did not “fall” as a result of the force of gravity but descended in automatic mode, as it was designed to do … . Luna v Brodcom W. Dev. Co. LLC, 2022 NY Slip Op 02873, First Dept 4-28-22

​Practice Point: In order to be covered under Labor Law 240(1), this elevator accident must have been the result of the elevator “falling.” Because the elevator was descending normally when it struck and killed plaintiff, the complaint was dismissed.

 

PLAINTIFF’S FALLING INTO A HOLE ON THE PREMISES AFTER HIS TRUCK WAS LOADED WAS NOT THE RESULT OF “USE” OF THE TRUCK WITHIN THE MEANING OF THE INSURANCE POLICIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s falling into a hole after he was finished loading his truck did not result from his “use” of the truck within the meaning of the applicable insurance policies:

While “use” of an automobile includes loading and unloading , an accident does not arise from the “use” of an automobile merely because it occurs during the loading or unloading process, but rather “must be the result of some act or omission related to the use of the vehicle” … . Tishman Constr. Corp. v Zurich Am. Ins. Co., 2022 NY Slip Op 02886, First Dept 4-28-22

Practice Point: Here plaintiff’s falling into a hole on the premises after he had loaded his truck did not result from “use” of the truck within the meaning of the insurance policies.

 

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PLAINTIFF DANCER STATED CAUSES OF ACTION AGAINST DEFENDANT DANCER AND THEIR EMPLOYER, THE NEW YORK CITY BALLET (NYCB), IN CONNECTION WITH INTIMATE IMAGES ALLEGEDLY DISCLOSED BY THE DEFENDANT DANCER (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, determined plaintiff, Waterbury, stated causes of action for: (1) violation of the NYC Administrative Code provision which prohibits the disclosure of intimate images without consent; (2) intentional infliction of emotional distress; and (3) negligent hiring, supervision and retention. The plaintiff (Waterbury) was a dancer with the defendant New York City Ballet (NYCB). The defendant Finlay, who allegedly disclosed the images, was also a NYCB dancer. The negligent hiring cause of action is against NYCB as the defendant-dancer’s employer:

Waterbury’s allegations that images depict her engaged in sexual activity suffice (see Administrative Code § 10-180 [a] …). Construing the complaint liberally and according Waterbury “the benefit of every possible favorable inference” … , the allegations that Finlay shared images of her breasts are also sufficient (see Administrative Code § 10-180 [a] …). …

Waterbury also sufficiently alleges that Finlay intended to cause her economic, physical, or substantial emotional harm. “A result is intended if the act is done with the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue” … . …

Waterbury alleges that NYCB dancers and others affiliated with NYCB shared images and commentary regarding other women and that NYCB knew that Finlay and other dancers were degrading and exploiting young women. She asserts that NYCB implicitly encouraged this behavior. Waterbury states that NYCB knew of Finlay’s sexual conduct towards young women and took no steps to prevent such conduct. Waterbury v New York City Ballet, Inc., 2022 NY Slip Op 02890, First Dept 4-28-22

​Practice Point: The NYC Administrative Code prohibits the disclosure of intimate images without consent. Here the complaint stated a cause of action based on an alleged violation of that code provision.

 

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PLAINTIFF’S STATE AND CITY HUMAN RIGHTS LAW CAUSES OF ACTION PROPERLY DISMISSED PURSUANT TO THE DOCTRINE OF COLLATERAL ESTOPPEL; THE IDENTICAL CLAIMS UNDER FEDERAL LAW WERE DISMISSED IN FEDERAL COURT ON SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff was collaterally estopped from asserting her NYC Human Rights Law causes of act after the dismissal of identical claims made under federal law in federal court. The First Department acknowledged the NYC Human Rights Law causes of action must be analyzed separately and independently from the federal and state human rights law causes of action, but held that collateral estoppel was proper under the facts:

In light of the particular express facts that the federal courts found were conclusively demonstrated by the record on the summary judgment motions before the district court; the nature of the allegations underlying plaintiff’s State and City Human Rights Law claims in this action and the manner in which plaintiff has litigated those claims; and the relevant collateral estoppel case law … , we conclude that, even affording the City Human Rights Law claims the liberal analysis to which they are entitled, plaintiff’s claims under both the State and City Human Rights Laws were properly dismissed under the doctrine of collateral estoppel … . …

In concluding that plaintiff failed to allege discriminatory intent, the motion court correctly held that collateral estoppel applied to facts identical to those necessarily found by the district court to be undisputed when it granted summary judgment dismissing plaintiff’s federal employment discrimination claims ..  …

… [I]n dismissing the discrimination and hostile work environment claims against NYU, the motion court correctly relied on the district court’s finding that defendants Joseph Thometz and Eve Meltzer (the individual defendants) were not supervisors or managers, and thus that [defendant] NYU, as plaintiff’s employer, was not strictly liable for their conduct … . …

… [T]he federal courts found that NYU provided a legitimate, nonretaliatory reason for plaintiff’s termination: plaintiff breached a protective order issued by the district court by sending unsolicited emails to a potential witness in the federal action. Moreover, the federal courts found that plaintiff failed to present evidence that NYU’s reason was pretextual. … . Russell v New York Univ., 2022 NY Slip Op 02765, First Dept 4-26-22

​Practice Point: Although NYC Human Rights Law violations must be analyzed separately and independently from federal and state law violations, here the dismissal of the federal claims in federal court required the dismissal of the state and city claims pursuant to the doctrine of collateral estoppel.

 

A HEAVY PUMP, 3 TO 4 FEET IN HEIGHT, WHICH WAS LEANING AGAINST THE WALL, TIPPED OVER AND STRUCK THE PLAINTIFF; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. A heavy fire pump that was leaning against the wall, unsecured, tipped over and struck plaintiff:

Liability under Labor Law § 240(1) arises where a safety device of the kind enumerated in the statute either proved inadequate to shield against injury resulting directly from the application of the force of gravity to a person or object or where no safety device was provided to shield against such injury … . Here, plaintiff was injured when he and two coworkers were assigned to run conduits along the wall and ceiling of an approximately 8 by 10-foot fire pump room. As they were looking at the wall and ceiling and deciding how to proceed, plaintiff felt a sharp pain in his leg when a 3-to-4 foot tall, 300-500+ pound fire pump, which had been standing upright on the floor, on its narrower end and unsecured, fell on his leg. Where a load positioned on the same level as the injured worker falls a short distance, Labor Law § 240(1) applies if the load, due to its weight, is capable of generating significant force … . Here, the fire pump was required to be secured against tipping or falling and the failure to secure it was a violation of Labor Law § 240(1) … . Grigoryan v 108 Chambers St. Owner, LLC, 2022 NY Slip Op 02620, First Dept 4-21-22

Practice Point: Here a heavy fire pump, 3 t0 4 feet in height, was leaning against a wall on the same level as plaintiff when it tipped over and struck him. An unsecured object positioned on the same level as the injured party which generates significant force when it falls over is covered by Labor Law 240(1).

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that the motion for summary judgment was not premature, even though no depositions had been taken:

Plaintiff established prima facie that PPC is liable under Labor Law § 240(1) through plaintiff and his coworker’s affidavits that the unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall … . It was undisputed that PPC was the owner of the property. Plaintiff also established that his work of retrofitting light fixtures was covered under § 240(1) and did not constitute mere maintenance … .

We reject PPC’s argument that plaintiff’s motion was premature (CPLR 3212[f]). The fact that no depositions have been taken does not preclude summary judgment in plaintiff’s favor, as PPC failed to show that discovery might lead to facts that would support its opposition to the motion … . PPC also failed to show that facts essential to its opposition were within plaintiff’s exclusive knowledge … . Its argument that deposition testimony might further illuminate issues raised by the affidavits is unavailing. “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion” … . Laporta v PPC Commercial, LLC, 2022 NY Slip Op 02624, First Dept 4-21-22

Practice Point: In order for a pre-discovery summary judgment motion to be deemed premature, the opposing party must show discovery might lead to facts which would support opposition to the motion (not the case here).

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE EVIDENCE ESTABLISHED DEFENDANT FAILED TO STOP AT A STOP SIGN AND FAILED TO SEE WHAT SHOULD HAVE BEEN SEEN (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this intersection traffic-accident case should have been granted:

Plaintiffs established their prima facie entitlement to partial summary judgment by averring that, at the time of the accident, their vehicle was traveling westbound through an intersection at 91st Avenue in Queens, when defendants’ vehicle failed to stop at a designated stop sign and struck the middle of the driver’s side of plaintiffs’ vehicle … . A presumption of negligence arises from the failure of a driver at a stop sign to yield the right of way to the vehicle on the highway in violation of Vehicle and Traffic Law § 1142 … . …

Defendants’ claim that defendant Bennett stopped at the stop sign, and checked for oncoming traffic but did not see plaintiffs’ vehicle until it suddenly appeared in front of her as she proceeded into the intersection, fails to rebut the presumption of negligence arising from her failure to yield the right of way to plaintiffs’ vehicle, but instead indicates that she was negligent in failing to see what was there to be seen … . Samnath v Lifespire Servs., Inc., 2022 NY Slip Op 02643, First Dept 4-21-22​

Practice Point: Failure to stop at a stop sign raises a presumption of negligence in an intersection traffic-accident case. Proceeding into the intersection and striking a car which has the right-of-way constituted a negligent failure to see what should have been seen.

 

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CLASS CERTIFICATION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE CLASS WAS TOO SMALL; PLAINTIFF-TENANTS ALLEGED THE LANDLORD DEREGULATED APARTMENTS WHILE RECEIVING J-51 TAX BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs, tenants of a 49-unit apartment building, should have been certified as a class. The complaint alleged the landlord deregulated apartments while receiving J-51 tax benefits:

Supreme Court erred in denying class certification on the ground that plaintiffs failed to show that “the class is so numerous that joinder of all members . . . is impracticable” (CPLR 901[a][1]). Borden v 400 E. 55th St. Assoc., L.P. (24 NY3d 382, 383 [2014]) and subsequent cases, such as Maddicks v Big City Props., LLC (34 NY3d 116 [2019]), make it clear that qualified plaintiffs may “utilize the class action mechanism to recover compensatory rent overcharges against landlords who decontrolled apartments in contravention of Rent Stabilization Law of 1969 (RSL) (Administrative Code of City of NY) § 26-516 (a) while accepting tax benefits under New York City’s J-51 tax abatement program.” The legislature contemplated classes involving as few as 18 members … . Here, as in Borden, plaintiffs allege defendant deregulated apartments while receiving J-51 tax benefits. Construing the class certification statute liberally … given that the asserted class consists of former and current tenants who lived in the 16 units improperly treated as deregulated after November 15, 2013, while defendant was receiving J-51 tax benefits, it is reasonable to infer that some units in this 49-unit apartment building would have had more than one tenant and several tenants would have moved away, making joinder of all members impracticable … . The identity of class members, i.e., which units were treated as deregulated and who leased them during the relevant time period, is within defendant’s knowledge. Hoffman v Fort 709 Assoc., L.P., 2022 NY Slip Op 02510, First Dept 4-19-22

​Practice Point: Here class certification should not have been denied on the ground the class was too small. The plaintiffs are tenants alleging the landlord improperly deregulated apartments while receiving tax benefits. Classes as small as 18 members were contemplated by the legislature.

 

QUESTIONS OF FACT WHETHER PEBBLE-SIZED DEBRIS WHICH FELL ON PLAINTIFF AND ALLEGEDLY SERIOUSLY INJURED HIS EYE GAVE RISE TO LIABILITY UNDER LABOR LAW 240(1) AND 241(6) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact about liability pursuant to Labor Law 240(1) and 241(6). Plaintiff was working in a shaft when pebble-sized debris fell on him, allegedly seriously injuring his eye. There were questions of fact whether the distance the debris fell was de minimus and whether the force with which the debris fell was de minimus. There was also a question of fact whether planking should have been installed above the shaft to protect against falling debris:

There are issues of fact as to whether the debris that fell on plaintiff — taking into account the elevation differential, the debris’ weight, and the amount of force it could generate …  — was “a load that required securing for the purposes of the undertaking at the time it fell” … , and whether his injury was a direct consequence of defendants’ “failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . The trier of fact could find that the elevation differential between plaintiff and the level from which the debris fell was de minimis, that the debris’ weight was inconsequential, or that the debris could not have generated any meaningful amount of force, and determine that plaintiff’s “injuries were the result of [a] usual and ordinary danger[] at a construction site” … .. However, the trier of fact could determine that the elevation differential of at least one story was not de minimis, that the weight of the debris and the force it was capable of generating were significant, and that the debris should have been secured for the purpose of the undertaking. Peters v Structure Tone, Inc., 2022 NY Slip Op 02518, First Dept 4-19-22

Practice Point: There were questions of fact whether injury from falling pebble-sized debris is covered under Labor Law 240(1) and 241(6). The force generated by the falling debris could be found to be de minimus.

 

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MOTHER’S MARIJUANA USE DURING PREGNANCY AND THE FACT THAT MOTHER AND CHILD TESTED POSITIVE FOR MARIJUANA AT THE TIME OF THE CHILD’S BIRTH WERE NOT SUFFICIENT TO DEMONSTRATE NEGLECT; NEW YORK HAS LEGALIZED MARIJUANA USE (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s marijuana use during pregnancy, and the fact that mother and the child tested positive for marijuana at the time of birth, were insufficient to demonstrate neglect:

… [T]he evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, is insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired … . Here, as acknowledged by the agency, there was no evidence that the mother’s marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother’s drug use … . Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with this State’s public policy legalizing marijuana, as reflected in the recent amendment to the Family Court Act (Family Court Act § 1046[a][iii] …). Matter of Saaphire A.W. (Lakesha B.), 2022 NY Slip Op 02382, First Dept 4-12-22

Practice Point: Because marijuana use has been legalized, proof mother smoked marijuana and mother and child tested positive for marijuana at the time of birth was not enough to demonstrate neglect. There must be proof, for example, that mother’s judgment was affected or the child was harmed in some way.

 

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