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EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the employer’s motion for summary judgment in this third-party assault case was properly granted. After an employee (Hartfield) had been asked to leave for the day by the employer, the employee assaulted plaintiff in the parking lot. The doctrine of respondeat superior did not apply because the employee was not acting within the scope of her employment at the time of the assault:

… [D]efendant established as a matter of law that the doctrine of respondeat superior is inapplicable because Hartfield was not acting within the scope of her employment at the time of the assault. The doctrine of respondeat superior renders an employer “vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment”… .. Although the issue whether an employee is acting within the scope of his or her employment is generally a question of fact, summary judgment is appropriate “in a case such as this, in which the relevant facts are undisputed” … . Here, we conclude that defendant met its initial burden of establishing that Hartfield’s assault of plaintiff was not committed in furtherance of defendant’s business and was not within the scope of employment … . Stribing v Bill Gray’s Inc., 2018 NY Slip Op 07566, Fourth Dept 11-9-18

NEGLIGENCE (EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/EMPLOYMENT LAW (RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/BATTERY (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/RESPONDEAT SUPERIOR (NEGLIGENCE, BATTERY, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/THIRD PARTY ASSAULT (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))

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DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement:

Although defendant’s contention survives his valid waiver of the right to appeal … , he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … . This case nonetheless falls within the rare exception to the preservation requirement … . Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10 (1), thereby “giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it” … . We conclude that the court’s inquiry here was insufficient to meet that obligation … . People v Rosario, 2018 NY Slip Op 07564, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/APPEALS (PLEA ALLOCUTION, DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/PLEA ALLOCUTION (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/GUILTY PLEA (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))

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MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

he Fourth Department, reversing (modifying Supreme Court), determined a motion seeking summary judgment on the Labor Law 241 (6) cause of action should not have been granted on a ground not raised in the motion. Defendants alleged the Labor Law 241 (6) cause of action should be dismissed because plaintiff was the sole proximate cause of his injuries. The judge, sua sponte, searched the record and granted summary judgment on a different ground:

… [T]he court erred in searching the record and granting summary judgment to plaintiff on his Labor Law § 241 (6) cause of action, and we therefore modify the order accordingly. Contrary to plaintiff’s assertion, although defendants did not advance their contention before the trial court, we conclude that the contention is properly before us because defendants lacked an opportunity to raise it at any time before this appeal … . Further, ” [a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense’ ” … . Here, the only issue raised with respect to the Labor Law § 241 (6) cause of action was on defendants’ motion, wherein they asserted that dismissal was warranted on the ground that plaintiff was the sole proximate cause of his injuries. The court therefore erred in granting summary judgment to plaintiff based on alleged violations of 12 NYCRR 23-1.7 (b) (1) (c) and 23-3.3 (c). Lord v Whelan & Curry Constr. Servs., Inc., 2018 NY Slip Op 07563, Fourth Dept 11-9-18

CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/LABOR LAW-CONSTRUCTION LAW (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES   (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUA SPONTE LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department reversed defendant's conviction because the trial judge did not fully advise counsel of the contents of a jury note:

We agree with defendant that the court violated the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note, and thereby committed reversible error … . The record establishes that, during its deliberations, the jury sent several notes, the first two of which are germane here. The first note requested that the jury be provided with a written copy of the court's legal instructions, and the second note requested, inter alia, a rereading of all of the court's legal instructions. The record reflects that the court informed the parties that the jury had sent several notes and indicated that the jury requested a rereading of the instructions, but the court did not mention the contents of the first note. Although the record establishes that ” defense counsel was made aware of the existence of the [first] note, there is no indication that the entire contents of the note were shared with counsel' ” … . We therefore “reject the People's argument that defense counsel's awareness of the existence and the gist' of the note satisfied the court's meaningful notice obligation, or that preservation was required. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required' . . . Moreover, . . . [i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal' ” … . People v Ott, 2018 NY Slip Op 06646, Fourth Dept 10-5-18

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY NOTES, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))

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FAILURE TO RULE ON A PORTION OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that a failure to rule on a portion of a motion cannot be deemed a denial. Therefore the decision on appeal was reserved and the matter sent back for a ruling:

Defendant appeals from an order insofar as it failed to grant that part of his pro se motion seeking DNA testing of a rape kit and the victim's shirt and pants. The order addressed defendant's motion to the extent it sought to vacate the judgment of conviction pursuant to CPL 440.10, but did not address the motion to the extent it sought DNA testing pursuant to CPL 440.30 (1-a). Inasmuch as County Court's failure to rule on that part of defendant's motion “cannot be deemed a denial thereof” … , we hold the case, reserve decision, and remit the matter to County Court for a determination whether ” there was a reasonable probability that, had th[e rape kit, shirt and pants] been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant' ” … . People v Lewis, 2018 NY Slip Op 06645, Fourth Dept 10-5-18

CRIMINAL LAW (APPEALS, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))

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APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT).

The Fourth Department reserved decision and sent the matter back for a reconstruction hearing concerning whether the trial judge apprised defense counsel of the entire contents of a jury note. The court reporter submitted an affidavit indicating the transcript is incomplete and the judge's remarks about the jury note were inadvertently omitted:

… [T]he People stipulated to the record without seeking to amend the transcript (see CPLR 5525 [c] [1]; see also 22 NYCRR former 1000.4 [a] [1] [ii]), rely upon an affidavit that does not constitute a part of the underlying prosecution … , and have not submitted a supplemental transcript certified by the court reporter that would fall within the parties' stipulation to submit the trial transcripts to this Court … . It is well established, however, that “[p]arties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer”… . Thus, under the circumstances of this case, we take judicial notice of our own records, i.e., the court reporter's affidavit submitted in opposition to defendant's motion for a writ of error coram nobis … .

In her affidavit, the court reporter averred that, although the transcript indicates that the court stated that the jury requested readbacks of the testimony of only four witnesses, the transcript inadvertently omits from the court's recitation of the note the jury's request for a readback of the testimony of a fifth witness—the medical examiner. The court reporter's affidavit thus indicates that a stenographic error may have resulted in a transcript that does not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury. We conclude that the alleged error in the transcript of the court's on-the-record reading of the note should be subject to a reconstruction hearing because “[t]he trial judge is the final arbiter of the record' certified to the appellate courts” … . People v Timmons, 2018 NY Slip Op 06644, Fourth Dept 10-5-18

CRIMINAL LAW (APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/RECONSTRUCTION HEARING (CRIMINAL LAW, JURY NOTES, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/APPEALS, CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))

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UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed Family Court's neglect finding in the interest of justice, in part because the finding relied on the uncorroborated hearsay testimony of the child:

… [T]he court determined that the mother neglected the children by forgetting to feed them, but the only evidence of such a danger is the uncorroborated out-of-court statement of one of the children. The mother failed to preserve for our review her contention that the court erred in relying on that child's uncorroborated statement … . Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice. Although “[i]t is well settled that there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child . . . where . . . the statements are corroborated” … , “repetition of an accusation by a child does not corroborate the child's prior account of [neglect]” … . Here, there was no corroboration of the one child's out-of-court statement, and thus the court erred in relying upon it to conclude that neglect occurred.

The court's further determination that the mother stopped taking her medication, and “that without . . . psychotropic medication [the] mother's mental health could rapidly deteriorate and she would endanger the safety and well-being of the children,” is belied by the testimony of the mother's counselor, the only witness who testified on that issue. The mother's counselor testified that the mother had been properly weaned off of those medications because they were impeding her functionality, and that the mother's ability to parent the children had increased after she successfully stopped taking those medications. Matter of Chance C. (Jennifer S.), 2018 NY Slip Op 06642, Fourth Dept 10-5-18

FAMILY LAW (UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, HEARSAY, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/HEARSAY (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER’S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT).

The Fourth Department, in affirming the denial of mother's petition to relocate, determined the portion of the order which provided that father would automatically be granted custody upon mother's relocation:

… [The] court erred in including a provision in the order that transferred primary physical custody of the child from the mother to the father in the event that the mother relocates outside of Monroe County, and we therefore modify the order accordingly. Such a provision, “while possibly never taking effect, impermissibly purports to alter the parties' custodial arrangement automatically upon the happening of a specified future event without taking into account the child['s] best interests at that time” … . Matter of Eason v Bowick, 2018 NY Slip Op 06641, Fourth Dept 10-5-18

FAMILY LAW (COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT))/RELOCATE, PETITION FOR (FAMILY LAW, COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT))

FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined primary physical custody of the children should not have been awarded to the maternal grandmother because the proceedings were flawed:

“[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … . “The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, the prior order granting custody of the child to [the] nonparent[] was made upon consent of the parties' ” … .

Here, the court erred in granting the grandmother's petition prior to the completion of the hearing. The mother's testimony was not complete, the grandmother had not yet rested, and the mother had not been afforded the opportunity to call witnesses or present other evidence on her own behalf. In addition, there were controverted issues inasmuch as there is no evidence in the record of the mother's mental health other than her erratic in-court conduct, which she attributed to the trauma of being separated from her children, and there is no evidence whatsoever that the mother was abusing drugs or alcohol. Indeed, she denied abusing alcohol. We conclude that the court should have completed the hearing. Matter of Driscoll v Mack, 2018 NY Slip Op 06640, Fourth Dept 10-5-18

FAMILY LAW (FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))

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OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER’S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that Pioneer Middle School was not an additional insured under the policy which insured of the employer (Kleanerz) of Ayers, who slipped and fell on ice and snow in the Pioneer Middle School parking law:

We conclude that Pioneer is not an additional insured under the policy inasmuch as Ayers's injuries were not proximately caused by Kleanerz. The policy's additional insured endorsement provides that the injury must have been “caused, in whole or in part, by” Kleanerz's conduct, and thus it requires that the insured must have been a proximate cause of the injury, not merely a “but for” cause … . Here, it is undisputed that Kleanerz was not responsible for clearing ice and snow from the parking lot and that Ayers's fall resulted from her slipping on the ice or snow. Although Pioneer contends that Kleanerz caused the accident by instructing Ayers to exit Pioneer Middle School through a door located near the area where Ayers subsequently slipped, Kleanerz's instructions to Ayers “merely furnished the occasion for the injury” by “fortuitously plac[ing Ayers] in a location or position in which . . . [an alleged] separate instance of negligence acted independently upon [her] to produce harm” … , and were not a cause of the accident triggering the additional insured clause of the policy. Pioneer Cent. Sch. Dist. v Preferred Mut. Ins. Co., 2018 NY Slip Op 06682, Fourth Dept 10-5-18

INSURANCE LAW (OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))/CONTRACT LAW (INSURANCE LAW, OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))/ADDITIONAL INSURED (INSURANCE LAW, OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))

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