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EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE.

The Second Department ordered a new trial (in the interest of justice) in this elevator accident case because the trial judge excluded a witness representing the elevator company from the courtroom and prohibited any communication between the witness and defense counsel:

… [A] new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial … . Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense … . Perry v Kone, Inc., 2017 NY Slip Op 01395, 2nd Dept 2-22-17

CIVIL PROCEDURE (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/NEGLIGENCE (TRIALS, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/TRIALS (CIVIL, NEGLIGENCE, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/ELEVATORS (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE

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PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE.

The Second Department, reversing Supreme Court, determined defendants’ motion to strike the note of issue and certificate of readiness should have been granted on the ground discovery was incomplete:

The Supreme Court should have granted the defendants’ motion to strike the note of issue and certificate of readiness and to compel the plaintiff to appear for an independent medical examination … . “While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court” … . Under the circumstances of this case, including the defendants’ prompt motion to strike the note of issue and certificate of readiness on the ground that discovery was incomplete, and the plaintiff’s failure to demonstrate any prejudice in opposition, the note of issue and certificate of readiness should be stricken, and the plaintiff compelled to appear for an independent medical examination so that discovery may be completed. Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01349, 2nd Dept 2-22-17

CIVIL PROCEDURE (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/NOTE OF ISSUE (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/CERTIFICATE OF READINESS (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/STRIKE, MOTION TO (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/DISCOVERY (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)

TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT.

The Second Department determined the tree root over which plaintiff tripped and fell was open obvious and not actionable:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the tree root was an open and obvious condition and inherent or incidental to the nature of the property, and was known to the plaintiff … . Dottavio v Aspen Knolls Estates Home Owners Assn., 2017 NY Slip Op 01182, 2nd Dept 2-15-17

NEGLIGENCE (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/SLIP AND FALL (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/OPEN AND OBVIOUS (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/TREE ROOT (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)

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CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the city’s motion for summary judgment in this bicycle accident case was properly denied. Although the city demonstrated it did not receive written notice of the alleged defective condition (a depression in the road), the city did not demonstrate it did not create the defective condition when street work was done:

Where, as here, the plaintiff has alleged that the affirmative negligence exception applies, the City was required to show, prima facie, that the exception does not apply … . Although the City established that it did not receive prior written notice of the alleged defect, it failed to establish, prima facie, that it did not create the alleged defect when its Sewer Maintenance Department opened up the street in the area of the plaintiff’s fall prior to the accident … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Lewak v Town of Hempstead, 2017 NY Slip Op 01189, 2nd Dept 2-15-17

NEGLIGENCE (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/BICYCLE ACCIDENT (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants’ summary judgment motion in this ice/snow sidewalk slip and fall action was properly denied. Although the defendants demonstrated they were entitled to NYC’s exemption from liability for owners of one, two and three family residences, they did not demonstrate they did not create the dangerous condition by their snow removal efforts:

Here, the defendants established, prima facie, that as owners of a two-family residential property which was owner occupied, they were exempt from liability pursuant to section 7-210(b) of the Administrative Code … . The defendants failed, however, to establish, prima facie, that they did not engage in snow and ice removal work prior to the accident or that their snow and ice removal work did not create or exacerbate the hazardous condition which allegedly caused the plaintiff to fall … . Ming Hsia v Valle, 2017 NY Slip Op 01193, 2nd Dept 2-15-17

NEGLIGENCE (ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NYC) (SIDEWALKS, SNOW-ICE, ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (SIDEWALKS, NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SNOW-ICE (SIDEWALKS, NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)

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BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK.

The Second Department, reversing Supreme Court, determine a basement business office did not deprive defendants of the residential exemption (for one, two and three family residences) from liability for a defective sidewalk:

In 2003, the New York City Council enacted section 7-210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability shifting provision does not, however, apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” … . “The purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

Here, the defendants established, prima facie, that they were exempt from liability pursuant to the subject code exception. Contrary to the plaintiff’s contention, the defendants’ partial use of the basement as an office space was merely incidental to their residential use of the property … . [Defendant] Alexander Dembitzer was the director of a summer camp located in upstate New York, and during the off-season, he used the basement to conduct the camp’s business. The defendants did not claim the home office as a tax deduction, their home address was only used to receive the camp’s mail during the off-season, and they did not use the office space with any regularity. Koronkevich v Dembitzer, 2017 NY Slip Op 01187, 2nd Dept 2-15-17

 

NEGLIGENCE (BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/NEGLIGENCE (BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/MUNICIPAL LAW (NYC) (SIDEWALKS, BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/SIDEWALKS (MUNICIPAL LAW (NYC), BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/SLIP AND FALL (SIDEWALKS, MUNICIPAL LAW (NYC), BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)

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QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR.

The Second Department determined questions of fact precluded summary judgment in favor of the landlord (New York City Housing Authority, NYCHA) in this assault liability case. Plaintiff-tenant alleged she was assaulted by an intruder who entered the apartment building through a broken door:

“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, in support of its motion for summary judgment dismissing the complaint, NYCHA failed to demonstrate its prima facie entitlement to judgment as a matter of law. The deposition testimony of the plaintiff submitted in support of the motion raised issues of fact regarding whether the door was operating properly prior to, and on the day of, the incident, and whether [the assailant] was an intruder who gained access to the premises through a negligently maintained entrance … . Ramos v New York City Hous. Auth., 2017 NY Slip Op 01244, 2nd Dept 2-15-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)/LANDLORD-TENANT (LIABILITY FOR ASSAULT, QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)/ASSAULT (LANDLORD-TENANT, NEGLIGENCE, QUESTION OF FACT WHETHER ASSAILANT WAS AN INTRUDER WHO ENTERED BUILDING THROUGH A BROKEN DOOR)

NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY.

The Second Department determined defendant, who suffered a stroke while driving, could not be held liable for the accident:

“The operator of a vehicle who becomes involved in an accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was unforeseen” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating through deposition testimony, the defendant driver’s medical records, and expert medical evidence that the accident was caused by the defendant driver experiencing an acute stroke at the time of the accident, which was unforeseeable … . Van De Merlen v Karpf, 2017 NY Slip Op 01251, 2nd Dept 2-15-17

NEGLIGENCE (NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)/TRAFFIC ACCIDENTS (NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)/MEDICAL EMERGENCY (TRAFFIC ACCIDENTS, NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY)

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MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED.

The Second Department determined plaintiff’s motion to amend the notice of claim was properly granted. The slip and fall allegedly occurred around midnight on March 2/3. The notice of claim was one day late if the incident occurred on March 2 and was timely if it occurred on March 3. The amendment changed the date of the accident stated in the notice from March 2 to March 3:

Here, mere minutes constituted the difference between whether the plaintiff’s fall occurred on March 2, 2012, or March 3, 2012. Under these circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the notice of claim and the pleadings to reflect March 3, 2012, as the correct date of the accident. There is no indication that the date originally set forth in the notice of claim as the accident date, March 2, 2012, was set forth in bad faith, the Transit Authority did not demonstrate any actual prejudice as a result of the discrepancy, and the record discloses no basis to presume the existence of prejudice … . Bowers v City of New York, 2017 NY Slip Op 01174, 2nd Dept 2-15-17

MUNICIPAL LAW (MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED

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SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION.

The Second Department determined Supreme Court should not have dismissed a petition for civil management of a sex offender (Ezekial R) for failure to state a cause of action:

The Supreme Court, relying on Matter of State of New York v Donald DD. (24 NY3d 174), dismissed the State of New York’s petition for the civil management of Ezikiel R. on the ground that it failed to state a cause of action. This was error. It is true that a diagnosis of antisocial personality disorder does not, by itself, “distinguish the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case” … . Here, however, the petition alleges a mental abnormality based on a composite diagnosis of antisocial personality disorder and psychopathy, and is supported by expert evidence containing an additional diagnosis of conduct disorder, a provisional diagnosis of sexual sadism disorder, and a determination that Ezikiel R.’s actions were suggestive of his potential for deviant sexual behavior and/or sexual preoccupation. Under these circumstances, the petition was facially valid and not subject to dismissal prior to a probable cause hearing … . Although the court at a probable cause hearing or the factfinder at trial may or may not be convinced by the expert evidence, the evidence was not so deficient as to warrant dismissal of the petition at this early juncture … . Matter of State of New York v Ezikiel R., 2017 NY Slip Op 01213, 2nd Dept 2-15-17

MENTAL HYGIENE LAW (SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)/SEX OFFENDERS (MENTAL HYGIENE LAW, SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)

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