The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle. The doctrine of “qualified immunity” in connection with road defects is explained. Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13
TRAFFIC ACCIDENTS
Plaintiff had signed a release of liability in connection with a one-hour skydiving course. Before the course could be given, the plane crashed and plaintiff was injured. In moving to dismiss the complaint, the defendants argued that General Obligations Law 5-326, which renders releases issued by “places of recreation” void, did not apply. The motion court denied the motion to dismiss and the Fourth Department affirmed:
Defendants assert that section 5-326 does not apply here because [defendant] is an instructional facility, rather than a recreational facility. Where a facility is “used for purely instructional purposes,” section 5-326 is inapplicable even if the instruction that is provided relates to an activity that is recreational in nature … . “In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” …. On a motion to dismiss pursuant to CPLR 3211, a court “may . . . consider affidavits and other evidentiary material to ‘establish conclusively that plaintiff has no cause of action’ ” … We conclude that [defendant’s] facility is not used purely for instructional purposes based upon our review of [defendant’s] certificate of incorporation, including the statement of purpose contained therein; the services for which plaintiff paid a fee, i.e., whether she paid for a course of instruction or for use of the facilities; as well as the other evidence submitted by defendants. Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here … and have failed to establish conclusively that plaintiff has no cause of action. Tiede v Frontier Skydivers, Inc, CA 12-01861, 216, 4th Dept, 4-26-13
In reversing the motion court and granting summary judgment to defendant car dealership, the Fourth Department (over a dissent) determined that defendant dealership was not the owner of the vehicle involved in the accident, and therefore could not be held vicariously liable under Vehicle and Traffic Law 388. Defendant’s employee (the daughter of the owner) agreed to lend her personal car to one Leederman while Leederman’s vehicle was being fixed at the dealership. All of defendant’s “loaner cars” were in use and the dealership’s owner asked his daughter to lend her car to Leederman. Leederman, in turn, let defendant Trummer use the car. Trummer was driving when the accident occurred. The Fourth Department wrote:
Pursuant to Vehicle and Traffic Law § 388, an owner of a motor vehicle is vicariously liable for the negligent use or operation of such vehicle by anyone operating the vehicle with the owner’s express or implied permission (see § 388 [1] …).The term “owner” is defined as “[a] person, other than a lien holder, having the property in or title to a vehicle . . . The term includes a person entitled to the use and possession of a vehicle . . . subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle . . . having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days” (§ 128; see § 388 [3]).
We agree with defendant that it established as a matter of law that it was not the owner of the vehicle involved in the motor vehicle accident at issue, and that plaintiffs failed to raise a triable issue of fact with respect to ownership of that vehicle. Monette v Trummer, et al, CA 12-01274, 79, 4th Dept, 4-26-13
TRAFFIC ACCIDENTS
Plaintiff was standing on a barrel performing work for his employer. In reaching for a tool he grabbed onto some bricks on a column. The bricks came loose and plaintiff lost his balance and fell. Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer). In affirming summary judgment to the defendants, the Fourth Department wrote:
Here, defendants established as a matter of law that they did not owe any duty to plaintiff, and plaintiff failed to raise a triable issue of fact. Although defendants had contractual obligations with respect to the construction of the project for plaintiff’s employer, as a general rule “a contractual obligation, standing alone, will . . . not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract …. There is an exception to that general rule, however, “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” …, thereby “creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk” …. Contrary to plaintiff’s contention, the instrument of harm doctrine does not apply to the facts of this case, and thus there was no duty of care running from defendants to plaintiff based on that doctrine …. Spaulding v Loomis Masonry, Inc. et al, CA 12-01395, 32, 4th Dept, 4-26-13
The Fourth Department affirmed the grant of summary judgment to plaintiff-company in its trespass action against People United for Sustainable Housing (PUSH). PUSH had staged “demonstrations concerning plaintiff’s use of funding it received to assist low-income customers with heating costs and increasing the energy efficiency of their homes.” The Court determined the allegations of trespass were subject to the heightened standard of proof under the Civil Rights Law and further determined the heightened standard had been met:
According to [PUSH], this action constituted an impermissible Strategic Lawsuit Against Public Participation (SLAPP action) in violation of Civil Rights Law § 76-a (1), because it hindered defendants’ efforts to challenge the use by plaintiff of the funding in question … . * * *
We … reject plaintiff’s contention that the allegations in the trespass claims against PUSH do not constitute allegations within the meaning of a SLAPP action, inasmuch as they are indeed materially related to PUSH’s challenge to plaintiff’s application to renew its CIP permit. Thus, plaintiff’s action against PUSH was subject to “a heightened standard of proof” to avoid dismissal … . * * *
“The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission . . . , or a refusal to leave after permission has been granted but thereafter withdrawn” … . It is well established that trespassing is not a protected First Amendment activity … . National Fuel Gas Distribution Corporation v PUSH Buffalo, et al, 318, CA—12-01219, 4th Dept. 3-22-13
In affirming the denial of summary judgment to the plaintiff in a Labor Law 240 (1) action based upon plaintiff’s fall from a scaffold, the Fourth Department noted that a scaffold, safety railing and cross braces are safety devices:
We agree with defendants … that the scaffold itself and the safety railing and cross braces on it constitute safety devices, and that the evidence submitted by plaintiff raises an issue of fact whether the safety devices provided by defendants afforded him proper protection, or whether additional devices were necessary … .
Justice Whalen dissented, arguing that, under the circumstances of plaintiff’s work on the scaffold, the safety railing and cross railings were not adequate safety devices. Kuntz v WNYG Housing Development Fund Company, Inc., et al, 1382, CA 12-00986, 4th Dept. 3-22-13
The Fourth Department determined a worker was entitled to summary judgment under Labor Law 241 (6) based on a slip and fall on ice and snow. The ice and snow had accumulated on the floor of a building where the worker was framing interior walls:
Plaintiff alleged that defendants were liable for his injury pursuant to Labor Law § 241 (6) based on their alleged violation of 12 NYCRR 23-1.7 (d), which concerns slipping hazards arising from, inter alia, ice and snow. It is undisputed that there were in fact accumulations of ice and snow and that [defendant construction company] was made aware of that fact. Defendants presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation (see § 241 [6]), and thus the court properly determined as a matter of law that defendants were negligent. Thompson v 1241 PVR, LLC, et al, 270, CA 12-01485, 4th Dept. 3-22-13
The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays:
Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff[’s decedent] was not injured thereby’ ” … . With respect to decedent’s fall from the X ray table, defendant failed to present competent proof that it did not deviate from the applicable standard of care when the technician left the room to develop the X rays that had just been taken, with decedent still on the table. Welsh, et al, v St Elizabeth Medical Center, 332, CA 12-01576, 4th Dept. 3-22-12
The Fourth Department determined that the petitioner had demonstrated its property, which was used to house actors and staff for seasonal theaters and generated no income, met the criteria for tax-exempt property under Real Property Tax Law 420-a:
According to [the] director, the housing of actors and staff together promotes countless hours of volunteer work in the form of “running lines together, discussing creative ideas, working on wardrobes, [and] creating sets,” all of which further the purposes and mission of petitioner. That director also averred that the properties are not open to the public and create no income for petitioner. …. [W]e note that housing used to further an exempt purpose has been found tax exempt in numerous other contexts… . Matter of Merry-Go-Round Playhouse, Inc. v Assessor of City of Auburn, et al, 268, CA 12-01797, 4th Dept. 3-22-13
The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding:
We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax foreclosure ‘may not be brought later than one month after entry of the judgment’ ” … . Here, the judgment of foreclosure was entered on March 31, 2010, and respondent did not move to vacate it until September 12, 2011, nearly 18 months after it was entered. Contrary to respondent’s contention, the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding … . Matter of Foreclosure of Tax Liens …, 353. 12-01666, 4th Dept. 3-22-13
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