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ALTHOUGH CLAIMANT WAS INJURED WHEN METAL POLES BEING HOISTED BY A CRANE SLIPPED OUT OF A CHOKER AND STRUCK HIM, CLAIMANT DID NOT SUBMIT EXPERT OPINION EVIDENCE RE: THE CAUSE AND DID NOT ELIMINATE QUESTIONS OF FACT RE: WHETHER HIS CONDUCT IN SECURING THE POLES WAS THE SOLE PROXIMATE CAUSE, CLAIMANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined claimant was not entitled to summary judgment on his Labor Law 240 (1) cause of action. Claimant had secured metal posts with a choker. When the posts were lifted by a crane, they slipped out of the choker and struck claimant, cause traumatic brain injury. Claimant did not submit any expert opinion evidence. Defendant alleged claimant’s conduct was the sole proximate cause of the accident:

To prevail on a motion for summary judgment in a Labor Law § 240(1) “falling object” case, the claimant must demonstrate that, at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking …. Labor Law § 240(1) “does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute'” … .

Here, the claimants failed to establish their prima facie entitlement to judgment as a matter of law. The evidence submitted by the claimants was insufficient to establish that the posts fell due to the absence or inadequacy of an enumerated safety device, and the claimants further failed to eliminate all triable issues of fact as to whether the claimant’s conduct was the sole proximate cause of the accident … . Houston v State of New York, 2019 NY Slip Op 03032, Second Dept 4-24-19

 

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COUNTY NOT LIABLE IN THIS INMATE-ON-INMATE THIRD PARTY ASSAULT CASE (SECOND DEPT).

The Second Department determined the county’s motion for summary judgment in this inmate-on-inmate third party assault case was properly granted.  Plaintiff, an inmate in county jail, was assaulted with a pool cue by another inmate (named Batts). The complaint against the county alleged negligent supervision:

… [T]he County defendants demonstrated that prior to the incident, the plaintiff and Batts had a friendly relationship and joked around with each other. They had no prior physical altercations with one another, and Batts had not been involved in any prior violent incidents with other inmates. The County defendants also demonstrated that prior to August 11, 2013, there had been no incident at the facility where an inmate had used a pool cue as a weapon to attack another inmate.

The County defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligent supervision by demonstrating that the assault by Batts upon the plaintiff was not reasonably foreseeable … . As for the cause of action sounding in negligent entrustment, the County defendants established, prima facie, that they did not possess special knowledge concerning a characteristic or condition peculiar to Batts that rendered his access to the pool cue unreasonably dangerous … . Dickson v Putnam, 2019 NY Slip Op 03025, Second Dept 4-24-19

 

PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT REPAIR, WHEN HE FELL FROM AN ELEVATED FORKLIFT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff injured engaging in routine maintenance of an HVAC unit, not repair. Therefore defendant’s motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff fell from a forklift which was used to lift him up to HVAC unit in the ceiling:

“In determining whether a particular activity constitutes repairing,’ courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)” … . “Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear'” … . …

At his deposition, the plaintiff testified that before the accident occurred, he determined that a belt was missing from the heating unit. Then, according to the plaintiff, while he was in the process of lowering a panel to see whether the pilot light to the heating unit was on or off, he slipped and fell. The plaintiff testified that, based on his experience, there was nothing extraordinary or unusual about a belt needing to be replaced or a pilot light going out on a heating unit. … [The] evidence showed that the plaintiff’s work “involved replacing components that require replacement in the course of normal wear and tear” and did not constitute “repairing” or any other enumerated activity … . Dahlia v S&K Distrib., LLC, 2019 NY Slip Op 03023, Second Dept 4-24-19

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; EVIDENCE OFFERED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED IF THE OPPOSING PARTY HAS THE OPPORTUNITY TO RESPOND (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not demonstrate it had complied with the notice requirements of RPAPL 1304. The court noted that evidence submitted in reply was properly considered because the opposing party had an opportunity to respond:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. RPAPL 1304(1) provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in RPAPL 1304, such lender, assignee, or mortgage loan servicer must give notice to the borrower. RPAPL 1304(1) sets forth the requirements for the content of such notice and RPAPL 1304(2) further provides that such notice must be sent “by registered or certified mail and also by first-class mail” to the last known address of the borrower. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … .

Here, even considering the affidavit of Victoria Bressner submitted by the plaintiff for the first time in opposition to the defendant’s cross motion, the plaintiff failed to establish strict compliance with RPAPL 1304. Bressner did not have personal knowledge of the purported mailing and did not make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Moreover, the record indicates that the notices were not mailed by the plaintiff. LNV Corp. v Sofer, 2019 NY Slip Op 02860, Second Dept 4-17-19

 

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SNOWBOARDER ASSUMED THE RISK OF INJURY CAUSED BY A CREVICE THAT HAD FORMED IN THE AREA WHERE SNOWBOARDERS USED A MOUND OF SNOW TO “CATCH AIR,” THE DEFENDANT DEMONSTRATED THE CREVICE FORMED NATURALLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant ski area was entitled to summary judgment in this snowboarding injury case. A mound of snow was used by snowboarders to “catch air.” Plaintiff was injured when he used the mound to “catch air” and landed in a five and a half foot crevice:

“[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (… see General Obligations Law §§ 18-101, 18-106) . … A skier or snowboarder generally “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the . . . terrain” … . …

The defendant demonstrated, through the deposition testimony of its employees and the affidavit of its expert, that the crevice was likely caused by a combination of changing temperatures, natural wet springs in the area, and water draining from the snow whale. Underground springs and surface run-off are common on mountains and can undermine the integrity of the snowpack, resulting in voids, holes, crevices, and sinkholes. The defendant demonstrated that it did not create the crevice and that the crevice was the natural consequence of variations in surface and subsurface snow conditions (see General Obligations Law § 18-101). We conclude that the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the infant plaintiff assumed the risk of injury that could be caused by the crevice, and that the defendant did not do anything that unreasonably increased the risk … . Festa v Apex Capital, LLC, 2019 NY Slip Op 02853, Second Dept 4-17-19

 

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FRESHLY PAINTED AND SEALED FLOOR WILL NOT SUPPORT A SLIP AND FALL CASE IN THE ABSENCE OF PROOF THE DEFENDANTS HAD ACTUAL, CONSTRUCTIVE OR IMPUTED KNOWLEDGE THE PAINT AND SEALANT COULD RENDER THE FLOOR DANGEROUSLY SLIPPERY (SECOND DEPT).

The Second Department determined that the allegation that a freshly painted floor was slippery was not enough to support a slip and fall case. The defendants’ motion for summary judgment was properly granted:

The plaintiff Stephanie Faiella (hereinafter the injured plaintiff) slipped and fell on a recently painted walkway at her place of employment. The walkway was painted several days prior to her accident. … The walkway was first painted with an epoxy-based paint and then covered with a clear sealant. …

A defendant may not be held liable for the application of “wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge” that the product could render the floor dangerously slippery … . Faiella v Oradell Constr. Co., Inc., 2019 NY Slip Op 02851, Second Dept 4-17-19

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE COMPLAINT IN THE ABSENCE OF THE PRECONDITIONS REQUIRED BY CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the court was without power to dismiss for neglect to prosecute because the preconditions in CPLR 3216 were not met. Supreme Court dismissed the complaint in this foreclosure action, finding that plaintiff bank had not complied with an oral directive issued at a status conference:

Following settlement conferences held pursuant to CPLR 3408, the action was released from the foreclosure settlement conference part without any resolution. In an order … (hereinafter the dismissal order), the Supreme Court directed dismissal of the action on the ground that the plaintiff failed to comply with an oral directive issued at a status conference … , to resume prosecution of the action. …[T]he plaintiff moved to vacate the dismissal order and to restore the action to the calendar. [T]he Supreme Court … denied the plaintiff’s motion. …

“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . Specifically, issue must have been joined, at least one year must have elapsed since joinder of issue, the defendant or the court must have served on the plaintiff a written demand to serve and file a note of issue within 90 days, and the plaintiff must have failed to serve and file a note of issue within the 90-day period (see CPLR 3216[b] …). Here, the Supreme Court was without power to direct dismissal of the action on the ground of failure to prosecute because the plaintiff was not served with a written demand to serve and file a note of issue within 90 days … . Citimortgage, Inc. v Ferrari, 2019 NY Slip Op 02847, Second Dept 4-17-19

 

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THE PROOF REQUIRED FOR SUMMARY JUDGMENT, FOR BOTH PLAINTIFFS AND DEFENDANTS, IN FORECLOSURE ACTIONS, ON WHETHER THERE HAS BEEN COMPLIANCE WITH THE RPAPL 1304 NOTICE PROVISIONS, EXPLAINED; PRIOR DECISIONS HOLDING THAT A DEFENDANT’S DENIAL OF RECEIPT OF NOTICE WAS SUFFICIENT SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, reversing Supreme Court, fleshed out the proof required for summary judgment, for both plaintiffs and defendants, with respect to compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL). The court noted that prior decisions holding that a defendant’s denial of receipt of notice was enough should no longer be followed:

Here, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Crampton [assistant vice president of Specialized Loan Servicing, LLC] stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. There is no copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute. Further, while Crampton attested that she was in receipt of the prior loan servicer’s records, that she had personal knowledge of the business practices for mailing of notices by Wilmington, and that the 90-day notice was sent in compliance with RPAPL 1304, she did not attest to knowledge of the mailing practices of Bank of America, the entity that allegedly sent the notices to the defendant. * * *

Even in the face of a plaintiff’s failure to establish, prima facie, that a notice was properly mailed on a motion for summary judgment on the complaint, this Court has held that a defendant still has to meet its burden, on a cross motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled … . Here, the defendant provided no particulars supporting her claim that Bank of America never mailed the RPAPL 1304 notice to her last known address. The defendant only stated that she never received the notice. The defendant did not confirm that she still lived at the address shown on the notice on the date it was purportedly mailed, that she had been receiving other mail at that address, and that she was never contacted by the United States Post Office about mail for which she was required to sign. We hold that a simple denial of receipt, without more, is insufficient to establish prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304. To the extent that our prior decisions are to the contrary, they should no longer be followed. Citibank, N.A. v Conti-Scheurer, 2019 NY Slip Op 02846, Second Dept 4-17-19

 

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TENANT DID NOT DEMONSTRATE IT DID NOT EXACERBATE THE CONDITION OF THE SIDEWALK BY ITS EFFORTS TO REMOVE SNOW AND THE PROPERTY OWNER AND MANAGER DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tenant, the landowner and the property manager did not submit sufficient evidence to warrant summary judgment in their favor in this sidewalk slip and fall case. The tenant (PCM) did not demonstrate that it did not exacerbate the danger by its snow removal and the property owner (2248) and the property manager (Solil) did not demonstrate they did not have constructive notice of the condition. [Defendants moving for summary judgment must address every theory of liability in their papers or the motion will be denied without the need to consider the opposing papers]:

PCM failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts on the date of the accident to clear the area of the sidewalk where Pilar allegedly slipped and fell, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition that allegedly caused Pilar to fall … . …

2248, as owner of the premises abutting the sidewalk where Pilar allegedly slipped and fell, and Solil, its managing agent, failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. Section 7-210 of the Administrative Code imposes a nondelegable duty on 2248 to maintain the sidewalk abutting the premises, where Pilar allegedly fell … . In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … . Here, neither 2248 nor Solil established when the subject portion of the sidewalk was last inspected relative to when Pilar slipped and fell … . Accordingly, 2248 and Solil failed to establish, prima facie, that they did not have constructive notice of the condition that allegedly caused the plaintiff decedent’s fall … . Branciforte v 2248 Thirty First St., LLC, 2019 NY Slip Op 02845, Second Dept 4-17-19

 

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UNSIGNED DEPOSITIONS WERE ADMISSIBLE AND EVIDENCE SUBMITTED IN REPLY SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, although affirming the denial of defendants’ motion for summary judgment in this slip and fall case on other grounds, noted that the depositions were admissible and evidence submitted in reply should have been considered:

Although the plaintiff’s deposition transcript, which the defendants submitted in support of their motion, was unsigned, it was nonetheless admissible as the plaintiff raised no objection to its submission or accuracy and, in fact, requested that the Supreme Court “incorporate” his transcript into his opposition … . Regarding the deposition transcript of the decedent’s niece, which the defendants also submitted in support of their motion, the defendants demonstrated that they had submitted the unsigned transcript to the decedent’s niece for review, but that she failed to sign and return it within 60 days. Thus, the niece’s deposition transcript could have been used by the defendants as fully as though signed (see CPLR 3116[a] …). Furthermore, even though the evidence demonstrating the defendants’ compliance with CPLR 3116(a) was submitted by the defendants in reply, the court should have considered it, because it was in direct response to allegations raised for the first time in the plaintiff’s opposition papers … . The unsigned deposition transcript of the defendants’ property manager was admissible under CPLR 3116(a) since it was submitted by the defendants themselves and thus adopted as accurate … . Baptiste v Ditmas Park, LLC, 2019 NY Slip Op 02844, Second Dept 4-17-19

 

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