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WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT).

The Second Department determined the successful motion to dismiss a civil suit did not mandate the award of attorney’s fees under the CPLR:

… “[U]nder the American Rule as applied to statutory entitlement to attorneys’ fees, the [United States] Supreme Court has held that we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority”… . * * *

The relevant phrase of CPLR 3220 stating that the claimant “shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer” demonstrates the Legislature’s intent that, where the claimant has not accepted the offer, the commencement of a trial is a condition precedent to imposing liability upon the claimant for the opposing party’s expenses. This phrase also defines the recoverable expenses as those “necessarily” expended “for trying the issue of damages.” CPLR 3220 further provides that those expenses should be determined by the judge “before whom the case is tried.” Accordingly, the plain language of CPLR 3220 does not explicitly authorize an award of attorney’s fees and costs to a party … who merely prevailed in seeking dismissal of a cause of action alleging breach of contract. Even if CPLR 3220 could arguably support an implied right to the attorney’s fees and costs … , the public policy of the American Rule militates against adoption of that interpretation … . Saul v Cahan, 2017 NY Slip Op 06391, Second Dept 8-30-17

CIVIL PROCEDURE (WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))/ATTORNEYS (FEES, CIVIL PROCEDURE, WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))

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CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city had acquired title by adverse possession to a parcel purchased by plaintiff’s predecessors in 1948. The fact that plaintiff had continuously paid taxes on the property did not negate the proof of adverse possession:

In 1948, the plaintiff’s predecessors in interest purchased real property in Brooklyn. For at least 30 years, the subject property, which is in the middle of other lots owned by the defendant, City of New York, has been used by the New York City Department of Sanitation (hereinafter the DSNY) as a truck parking lot. During this time, the DSNY has paved the property, fenced it in, and installed lighting. * * *

Under the law before the 2008 amendments, in order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period … .

The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the “unequivocal acts of the usurper”… . A rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another … . “Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity” … .

… We conclude that the mere payment of taxes on the subject property is insufficient to rebut the presumption. Even assuming that knowledge of the true ownership of the property can be imputed to another municipal department in the City, such knowledge is not sufficient to defeat a claim of adverse possession … . Estate of Vertley Clanton v City of New York, 2017 NY Slip Op 06254, Second Dept 8-23-17

 

REAL PROPERTY (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/ADVERSE POSSESSION (CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/MUNICIPAL LAW (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))

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AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS (SECOND DEPT).

The Second Department determined that residents of a condominium across the street from the proposed construction of beach-front comfort stations did not have standing to contest the construction under the State Environmental Quality Review Act (SEQRA). The court further found that the petitioners’ air, light and access easements could not be asserted against the state, which owns the public road where the construction will be located:

“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . The alleged harm cannot be “too speculative and conjectural to demonstrate an actual and specific injury-in-fact” … . Close proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice … . Moreover, “[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature” … . Here, the petitioners’ alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … .

“When lands adjoin private property an easement of light, air and access over such property does not exist, under ordinary circumstances, merely because of the proximity of the lands to the private property” … .. However, an owner of land abutting a highway or street possesses, as incident to his or her ownership, easements of light, air, and access, irrespective of whether the owner owns the fee of the highway or the street itself … . Nevertheless, “[w]hen the fee of the highway has been transferred to the State, the State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes . . . [and] [t]he mere disturbance of the rights of light, air and access of abutting owners on such a highway by the imposition of a new use, consistent with its use as an open public street, must be tolerated by them and no right of action arises therefrom, although such use interferes with the enjoyment of the premises”… . For example, the maintenance of trees on a street for the purposes of ornament and shade has been determined to be a proper street use … .

Here, the proposed construction will not completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. Rather, the length of the dead-end street will be shortened and several public parking spaces will be removed. The turnaround will still be intact, although moved 23 feet to the north, and access to the petitioners’ driveway and building’s entrance will not be impeded … . In addition, the disputed comfort station will be open to, and for the purpose of, serving the public … . Matter of Shapiro v Torres, 2017 NY Slip Op 06281, Second Dept 8-23-17

 

REAL PROPERTY (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/EASEMENTS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/AIR LIGHT AND ACCESS  (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/ENVIRONMENTAL LAW (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STANDING (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/HIGHWAYS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY (SECOND DEPT).

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COMPANY WHICH PURCHASED MANUFACTURER OF ALLEGEDLY DEFECTIVE LADDER NOT LIABLE, COMPANY DID NOT CONTINUE MANUFACTURER’S BUSINESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Bauer defendants’ motion for summary judgment in this products liability action should have granted. The Bauer defendants were successors in interest to the company (Babcock) which manufactured the allegedly defective ladder. However. the Bauer defendants demonstrated they did not continue the manufacturer’s business:

… [A]s a general rule, a corporation which acquires the assets of another corporation is not liable for the predecessor’s tortious conduct, including a defective and dangerous product manufactured by the predecessor … . There are four exceptions to this general rule against successor liability. A corporation may be held liable for the torts of its predecessors if (1) the successor corporation expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction was entered into fraudulently to escape such obligations … .

Here, the Bauer defendants established their prima facie entitlement to summary judgment with evidence that they did not make or sell the subject ladder, that they were not liable pursuant to the general rule against successor liability, and that none of the exceptions to the general rule applied here. In opposition, the plaintiffs failed to raise a triable issue of fact with respect to any of the exceptions to the general rule, including the two they contested: that Babcock Co., the purchasing corporation, was allegedly a mere continuation of Old Babcock, and that the Bauer defendants impliedly assumed Old Babcock’s tort liability.

With respect to the mere continuation exception, the underlying theory is that, if a corporation goes through “a mere change in form without a significant change in substance, it should not be allowed to escape liability” … . Thus, this exception applies where “it is not simply the business of the original corporation which continues, but the corporate entity itself”… . A continuation envisions something akin to a corporate reorganization, rather than a mere sale, with “a common identity of directors, stockholders and the existence of only one corporation at the completion of the transfer”… .

* * * The mere fact that some … former employees worked for [defendant]. was insufficient to raise a triable issue of fact … . Wass v County of Nassau, 2017 NY Slip Op 06317, Second Dept 8-23-17

 

PRODUCTS LIABILITY (COMPANY WHICH PURCHASED MANUFACTURER OF ALLEGEDLY DEFECTIVE LADDER NOT LIABLE, COMPANY DID NOT CONTINUE MANUFACTURER’S BUSINESS (SECOND DEPT))/CORPORATION LAW (PRODUCTS LIABILITY, COMPANY WHICH PURCHASED MANUFACTURER OF ALLEGEDLY DEFECTIVE LADDER NOT LIABLE, COMPANY DID NOT CONTINUE MANUFACTURER’S BUSINESS (SECOND DEPT))

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FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined defendant doctor’s (Aronoff’s) motion to set aside the verdict in this medical malpractice action was properly denied. Aronoff’s failure to provide plaintiff (Raymond) with written instructions and warning after the colonoscopy, and his failure to notify plaintiff after a colon perforation was discovered constituted sufficient evidence of proximate cause:

Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury … . “Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause” … . ” A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

Here, there was legally sufficient evidence to support the jury’s findings that Aronoff departed from accepted standards of medical practice in failing to provide Raymond with written post-colonoscopy instructions and failing to warn him as to the signs or symptoms of which he should be aware. Aronoff also failed to contact Raymond and instruct him to go to the hospital after Aro

noff had reviewed CT scan results that revealed a colon perforation. The evidence was legally sufficient to support the jury’s findings that these deviations proximately caused Raymond’s injuries … . Gaspard v Aronoff, 2017 NY Slip Op 06258, Second Dept 8-23-17

 

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NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the landlord’s (NYC Housing Authority’s, NYCHA’s) motion for summary judgment was properly granted. Plaintiff was shot by an unknown assailant in the hallway of his apartment building. Plaintiff alleged the assailant gained access to the building by virtue of a broken lock:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person”… . Recovery against a landlord for an assault committed by a third party requires a showing that the landlord’s negligent failure to provide adequate security was a proximate cause of the injury … . “In premises security cases particularly, the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder” … .

Here, NYCHA met its prima facie burden by submitting evidence that the rear door lock was operable and not broken on the day of the incident, and, in any event, by demonstrating that the assailant’s identity remains unknown and that it could not be established that the assailant was an intruder … . In opposition thereto, the plaintiff failed to raise a triable issue of fact. “Mere conjecture, suspicion, or speculation is insufficient to defeat a motion for summary judgment” … . Martinez v City of New York, 2017 NY Slip Op 06263, Second Dept 8-23-17

 

NEGLIGENCE (ASSAULT, NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))/LANDLORD-TENANT (ASSAULT, NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))/ASSAULT (NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))

AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, found that the objection to a designating petition on the ground that 135 of the signers could not vote in the relevant district was not untimely. Because the designating petition did not have enough signers, it was invalid:

The Supreme Court denied the petition, inter alia, to invalidate the designating petition and dismissed the proceeding on the ground that the specifications of objections of the aggrieved candidate were served six days beyond the statutory deadline. The petitioners appeal.

The Supreme Court may entertain specific objections to signatures on a designating petition that were not asserted before a board of elections to the extent the respondent was given adequate notice of which signatures on his or her designating petition are being challenged and the grounds thereof … . Here, the court erred in concluding that the specifications of objections of the aggrieved candidate were untimely due to their being served six days beyond the statutory deadline. An aggrieved candidate is not bound by the strict time constraints governing the filing of objections set forth in Election Law § 6-154(2) … . The petition to invalidate the designating petition incorporated the objections and specifications of objections filed with the Board, and the respondent was served with the aggrieved candidate’s specifications of objections on the distinct ground she raised as to the signatures at issue several days before the matter was briefed and heard. As such, the respondent had adequate notice of the grounds for objecting to the signatures at issue to enable him to prepare his defense …. . Matter of Lancaster v Nicolas, 2017 NY Slip Op 06275, Second Dept 8-23-17

 

ELECTION LAW (AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT))/DESIGNATING PETITIONS  (AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT))/OBJECTIONS (ELECTION LAW, DESIGNATING PETITIONS, AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT))

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SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dentist who provided an affidavit for plaintiff was an expert, the expert raised a question of fact whether defendant departed from the accepted standard of care, and a question of fact was raised about whether plaintiff gave informed consent to the procedure. The court noted that plaintiff’s expert’s qualifications were not questioned in defendant’s reply papers. Therefore, the court should not have raised the issue on its own and used the issue to support granting  summary judgment to the defendant. With regard to informed consent, the court wrote:

“A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation”… .. To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury … .

Here, the defendant failed to submit proof sufficient to establish, prima facie, that he had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed … . Dyckes v Stabile, 2017 NY Slip Op 06252, Second Dept 8-23-17

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NEGLIGENCE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/DENTAL MALPRACTICE (SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EXPERT OPINION  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/CIVIL PROCEDURE (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/SUMMARY JUDGMENT  (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EVIDENCE  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))

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STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT).

The Second Department determined the state’s motion for summary judgment in this personal injury action was properly granted. Claimant alleged he suffered a head injury when diving into waves at a state park beach. Apparently claimant’s head hit the ocean floor:

Governmental entities owe a duty to ” act as a reasonable [person] in maintaining [their] property in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is also a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … .

Here, in support of its cross motion for summary judgment dismissing the claim, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . Furthermore, the defendant had no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … . Courtney v State of New York, 2017 NY Slip Op 06250, Second Dept 8-23-17

 

NEGLIGENCE (SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/COURT OF CLAIMS (STATE BEACHES, SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/SWIMMERS (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/STATE PARKS  (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))

INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT).

The Second Department. reversing Supreme Court, determined defendant homeowners’ motion for summary judgment should not have been granted. Plaintiff, who was hired to clean defendants’ attic, was injured when she stepped on sheetrock and fell through:

Landowners have a duty to maintain their premises in a reasonably safe condition … ‘ However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous … . “While the issue of whether a hazard is . . . open and obvious is generally fact-specific and thus a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” … .

Here, the homeowners failed to establish their prima facie entitlement to judgment a matter of law, as they failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open and obvious and not inherently dangerous as a matter of law … . Gallardo v Gilbert, 2017 NY Slip Op 06256, Second Dept 8-23-17

 

NEGLIGENCE (INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT))

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