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DEFENDANT PROPERTY OWNER NOT LIABLE FOR INJURY CAUSED BY THE SPONTANEOUS ACT OF A BAR PATRON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant bar owner could not be liable for the spontaneous act of a bar patron which injured plaintiff:

… [T]he plaintiff allegedly sustained personal injuries at the defendants’ bar in Nassau County. At the time of the alleged incident, a female patron purportedly jumped onto the lap of a male patron, who was sitting on a bar stool. This apparently caused the two patrons and the bar stool to fall on top of the plaintiff, who was standing nearby. The plaintiff was “knocked” down to the floor…. ….

A property owner, which must act in a reasonable manner to prevent harm to those on its premises, has a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so … . Here, the defendants established, prima facie, that the alleged incident was spontaneous, and could not have been reasonably anticipated and prevented … . York v Paddy’s Loft Corp., 2022 NY Slip Op 04931, Second Dept 8-10-22

Practice Point: Here defendant bar owner could not be held liable for the spontaneous act of a bar patron which injured plaintiff.

 

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PLAINTIFF’S EVIDENCE OF THE CAUSE OF THE SLIP AND FALL, A RAISED SIDEWALK FLAG IDENTIFIED IN A PHOTOGRAPH, WAS SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of the slip and fall. Defendant’s motion for summary judgment should not have been granted:

… [T]he defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation. In support of his motion, the defendant submitted, inter alia, a transcript of the plaintiff’s deposition testimony, who identified a “raised up” sidewalk flag in photographs depicting the sidewalk where he fell, and, referring to the photographs, testified that he “tripped there.” Contrary to the determination of the Supreme Court, this evidence raised a triable issue of fact as to whether the plaintiff tripped on the sidewalk defect referenced … . Santiago v Williams, 2022 NY Slip Op 04922, Second Dept 8-10-22

Practice Point: Plaintiff’s evidence of the cause of his slip and fall, a raised sidewalk flag identified in a photograph, was sufficient to defeat defendant’s motion for summary judgment.

 

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ALTHOUGH DEFENDANT WAS PROPERLY DETAINED, ONCE THE PAT-DOWN SEARCH REVEALED DEFENDANT DID NOT HAVE A WEAPON THE POLICE WERE NOT JUSTIFIED IN REMOVING THE (STOLEN) WALLET FROM DEFENDANT’S POCKET AND SEARCHING IT; THE ERROR WAS NOT HARMLESS UNDER THE STANDARD FOR CONSTITUTIONAL ERROR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the wallet seized in the search of his person should have been granted. The related robbery convictions were reversed and a new trial on those counts was ordered. Defendant fled from the scene of the mugging and was properly detained by the police. However, once the pat-down search revealed defendant did not have a weapon, the police should not have seized the (stolen) wallet from defendant’s pocket and searched it. The “constitutional” error was not harmless because, under the facts, the error could have influenced the factfinder:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . * * *

… [U]nder the constitutional standard, an error cannot be harmless if there is a reasonable possibility that it may have been a contributing factor that influenced the factfinder’s determination … . People v Lewis, 2022 NY Slip Op 04920, Second Dept 8-10-22

Practice Point: Although defendant was properly detained in a street stop, once the pat-down search revealed defendant did not have a weapon the police were not justified in seizing the stolen wallet from defendant’s pocket and then searching it.

Practice Point: There are two sets of harmless-error criteria, one for nonconstitutional error and one for constitutional error. Under the constitutional-error criteria, the error in this case was not harmless and a new trial was ordered.

 

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​ THE CONDITIONAL PRECLUSION ORDER BECAME ABSOLUTE WHEN PLAINTIFF DID NOT COMPLY BY PROVIDING DEFENDANTS WITH MEDICAL AUTHORIZATIONS BY THE SPECIFIED DATE; BECAUSE PLAINTIFF OFFERED NO REASONABLE EXCUSE, PLAINTIFF SHOULD HAVE BEEN PRECLUDED FROM PRESENTING ANY MEDICAL EVIDENCE AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiff should have precluded from presenting any medical evidence at trial because plaintiff failed to comply with the conditional order requiring plaintiff to provide defendants with medical authorizations by a specified date:

… [T]he plaintiff failed to comply with the conditional order by providing authorizations for the individuals and entities listed in the defendants’ supplemental demands for authorizations. …

… [T]he conditional order became absolute on February 14, 2020, and to be relieved from the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for failing to comply with the conditional order and a potentially meritorious cause of action … . The plaintiff failed to proffer a reasonable excuse for failing to comply with the conditional order, and thus, we need not reach the issue of whether he demonstrated the existence of a potentially meritorious cause of action … . Since the plaintiff failed to make the requisite showing to be relieved from the adverse impact of the conditional order, the Supreme Court should not have imposed a limitation on the directive in the conditional order precluding the plaintiff from presenting at trial any medical evidence on the issue of damages … . Martin v Dormitory Auth. of the State of N.Y., 2022 NY Slip Op 04907, Second Dept 8-10-22

Practice Point: Here the preclusion order became absolute when plaintiff failed to provide medical authorizations to defendants by the specified date. Plaintiff had no excuse for the failure to comply. Therefore plaintiff should have been precluded from offering any medical evidence at trial.

 

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DEFENDANT IN THIS REAR-END COLLISION CASE RAISED A QUESTION OF FACT ABOUT A NONNEGLIGENT EXPLANATION FOR DEFENDANT’S STRIKING PLAINTIFF’S CAR (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact about whether plaintiff, the front-most driver in this rear-end collision action, was negligent:

Hersh [defendant] raised a triable issue of fact sufficient to defeat summary judgment … . Hersh submitted his own affidavit in which he asserted that, prior to the accident, traffic was moving well and there was no ongoing road construction. Hersh asserted that the plaintiff then “suddenly and unexpectedly jammed on his brakes in front of me,” that Hersh “braked hard” and was able to stop without hitting the plaintiff’s vehicle, but that the vehicle behind Hersh then struck Hersh’s vehicle “twice in the rear,” pushing Hersh’s vehicle into the plaintiff’s vehicle. Hersh stated in his affidavit that, after the accident, he “looked all around on the nearby grass and even under plaintiff’s SUV but did not see any cone” obstructing the lane as the plaintiff claimed. Hersh’s affidavit was sufficient to raise a triable issue of fact as to whether Hersh had a nonnegligent explanation for hitting the plaintiff’s vehicle … . Joseph-Felix v Hersh, 2022 NY Slip Op 04905, Second Dept 8-10-22

Practice Point: Here the defendant in this rear-end collision case raised a question of fact about whether there was a nonnegligent explanation for defendant’s striking plaintiff’s car.

Practice Point: Although plaintiff’s lack of comparative negligence need no longer be asserted in plaintiff’s motion for summary judgment in a rear-end collision case, the issue may be considered at the summary judgment stage if plaintiff moves to dismiss defendant’s comparative-negligence affirmative defense.

 

THE INDUSTRIAL CODE PROVISION WHICH WAS THE BASIS OF THE LABOR LAW 241(6) CAUSE OF ACTION DID NOT APPLY TO PLAINTIFF’S DEMOLITION-WORK-INJURY; THE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND WAS NOT, THEREFORE, LIABLE UNDER LABOR LAW 200 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provision which was the basis of the Labor Law 241(6) cause of action did not apply to plaintiff’s demolition-work-injury and defendant general contractor (Lad) did not exercise supervisory control over defendant’s work and was not therefore liable under Labor Law 200:

… [T]he cause of action alleging a violation of Labor Law § 241(6) is predicated on Industrial Code 12 NYCRR 23-3.3(c), which mandates continuing inspections during hand demolition operations to detect hazards “resulting from weakened or deteriorated floors or walls or from loosened material.” … [Defendant] established …the inapplicability of this provision by demonstrating that the hazard arose from the plaintiff’s actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition … . …

“Although property owners [and general contractors] often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” or for common-law negligence … . “A defendant has the authority to supervise or control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, Lad established, prima facie, that it did not possess the authority to supervise or control the means and methods of the plaintiff’s work … . Flores v Crescent Beach Club, LLC, 2022 NY Slip Op 04901, Second Dept 8-10-22

Practice Point: Here the cited Industrial Code provision did not apply to plaintiff’s Labor Law 241(6) demolition-work-injury cause of action and Labor Law 200 did not apply to defendant general contractor which did not exercise supervisory control over plaintiff’s work.

 

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TO AVOID DISMISSAL PURSUANT TO CPLR 3215 (C) THE PLAINTIFF NEED ONLY TAKE PROCEEDINGS FOR THE ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NEED NOT OBTAIN A DEFAULT JUDGMENT WITHIN A YEAR; ANY DELAYS AFTER THE ONE-YEAR PERIOD ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the complaint should not have been dismissed because plaintiff bank took steps to procure a default judgment within one year of the default. Any subsequent delays were irrelevant:

… [A]pproximately two months after the defendant’s default, the plaintiff moved for an order of reference. The fact that the Supreme Court later “marked off the calendar” the motion was irrelevant for the purposes of satisfying CPLR 3215(c) because the plaintiff was only required to “take proceedings for the entry of judgment” within the one-year time frame, and not actually obtain the judgment … . “[I]t is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference to establish that it initiated proceedings for entry of a judgment within one year of the default for the purposes of satisfying CPLR 3215(c)” … . … [T]he plaintiff was not required to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c) … . Deutsche Bank Natl. Trust Co. v Khalil, 2022 NY Slip Op 04898, Second Dept 8-10-22

Practice Point: To avoid dismissal pursuant to CPLR 3215 (c) a plaintiff need only take proceedings for the entry of a default judgment within one year of the default and need not obtain a default judgment within a year; any delays after the one-year period are irrelevant.

 

THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defaulting defendant whose answer had been struck was not entitled to further discovery for the inquest on damages:

The Supreme Court erred in granting the defendant’s motion to vacate the note of issue and certificate of readiness and to compel the plaintiff to provide additional discovery. “While a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages, such a defendant is not entitled to any further discovery since its answer was stricken” … . Here, since the court struck the defendant’s answer … the defendant “is not entitled to any further discovery” … . Brasil-Puello v Weisman, 2022 NY Slip Op 04893, Second Dept 8-10-22

Practice Point: A defaulting defendant whose answer has been struck is not entitled to discovery prior to the inquest on damages.

 

THE ELECTRICAL STUB UP OVER WHICH PLAINTIFF TRIPPED IN THIS LABOR LAW 241(6) ACTION WAS AN INTEGRAL PART OF THE CONSTRUCTION; THE INDUSTRIAL CODE PROVISIONS REQUIRING PASSAGEWAYS TO BE KEPT CLEAR OF DEBRIS GENERALLY DO NOT APPLY TO AN OBSTRUCTION WHICH IS AN INTEGRAL PART OF CONSTRUCTION; HERE THE FAILURE TO PROVIDE SAFETY MARKERS CALLING ATTENTION TO THE STUB UPS APPARENTLY BROUGHT THE FACTS WITHIN THE REACH OF THOSE “KEEP PASSAGEWAYS FREE OF DEBRIS” CODE PROVISIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provisions which require passageways to be kept clear of debris applied to electric “stub ups” which protrude from the floor, even though the stub ups are integral parts of the construction, to which those Code provisions do not apply. Apparently the absence of safety markers calling attention to the stub ups was deemed to be covered by those “free of debris” Code provisions:

Although neither subdivision (1) nor (2) of 12 NYCRR 23-1.7(e) applies where the object over which the plaintiff trips is an integral part of construction …, that exception does not apply here. While it is undisputed that the stub up was an integral part of the construction, none of the defendants have pointed to evidence that it was necessary that the stub ups be unmarked or that safety markings or other protective measures would have interfered with the work … . Murphy v 80 Pine, LLC, 2022 NY Slip Op 04811, Second Dept 8-3-22

Practice Point: The Industrial Code provisions requiring passageways to be kept clear of debris do not apply to tripping hazards that are integral parts of construction. Here the electrical stub up over which plaintiff tripped was an integral part of construction. Nevertheless, the Second Department deemed the Code provisions to apply because of the absence of safety markers to alert workers to the location of the stub ups (which protrude from the floor).

 

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EVEN THOUGH THE CITY WAS NOT ABLE TO SHOW IT WAS PREJUDICED BY THE NINE MONTH DELAY BEFORE THE PETITION SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM, AND DESPITE THE FACT THAT A SLIP AND FALL INCIDENT REPORT WAS CREATED BY THE POLICE ON THE DAY OF THE INCIDENT, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim in this slip and fall case should not have been granted. There was a nine-month delay. There was an incident report prepared on the day of the accident but the Second Department found the report did not notify the city of a potential lawsuit stemming from the accident. The attorney affirmation submitted by the city was speculative and therefore did not demonstrate the city was prejudiced by the failure to timely file the notice of claim. Petitioner did not have a reasonable excuse for failing to timely file. Despite the city’s failure to show prejudice, the petition should have been denied:

… [T]he appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter … . … [A] Yonkers Police Department incident report prepared on the day of the accident by a responding officer did not provide the appellants with actual knowledge of the essential facts constituting the claim. For reports to provide actual knowledge of the essential facts, “one must be able to readily infer from that report that a potentially actionable wrong had been committed” … . A police accident report prepared by a responding officer, establishing knowledge of the accident, generally does not, without more, provide actual knowledge to the municipal defendants of the essential facts underlying the claim against them … . Here, the Yonkers Police Department report indicated that the petitioner stated that she had slipped and fallen while exiting a ramp on the appellants’ property and turning the corner, but there is no identification of the cause of the fall from which negligence on the part of the appellants could be inferred.

The petitioner asserts that there is no prejudice to the appellants’ ability to conduct an investigation inasmuch as the transitory nature of the icy condition would be difficult to investigate whether 90 days later or months later … . In response, the appellants rely upon an attorney affirmation stating that their ability to conduct an investigation was substantially prejudiced by the delay because one of the responding officers retired and might not be available to testify, and the others could not be expected to recall the accident, given the passage of time. This affirmation, based solely on speculation and conjecture, is insufficient for the appellants to rebut the petitioner’s showing of lack of prejudice with particularized evidence in the record … .

Nevertheless, weighing the appropriate factors, the Supreme Court should have denied the petition in light of the lack of reasonable excuse, the time elapsed, and the lack of actual knowledge of the essential facts giving rise to the claim … . Matter of Ortiz v Westchester County, 2022 NY Slip Op 04807, Second Dept 8-3-22

Practice Point: Here an incident report prepared by the police on the day of the slip and fall was deemed not to have provided the city with timely notice of a potential lawsuit. And the fact that the city did not demonstrate it was prejudiced by the delay did not prevent the Second Department from finding the petition for leave to file a late notice of claim should not have been granted.

 

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