Gravity Still Wins: Falling Beam Case Reinforces § 240(1) Liability

In Clarke v. UWS Property Owner, LLC, plaintiff, a welder employed by a subcontractor, was injured while working in the basement of a construction project when a section of I-beam he had cut free fell from a height of approximately six feet, ricocheted, and struck him in the thigh/groin.  The premises owner and general contractor had retained plaintiff’s employer to perform foundation and concrete work, and plaintiff was engaged in cutting temporary structural supports that were no longer needed after the foundation had been poured. Plaintiff moved for summary judgment on his Labor Law § 240(1) claim, arguing that the accident resulted from the failure to provide proper safety devices, specifically a chain fall or similar rigging to secure and control the descent of the beam. Defendants opposed and cross-moved for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims and common-law negligence, contending that no safety device was required, that plaintiff was the sole proximate cause of his injuries, and that they did not supervise or control the means and methods of plaintiff’s work.

The Court granted plaintiff summary judgment on Labor Law § 240(1), finding that the accident involved a gravity-related hazard and that plaintiff established, through unrebutted testimony, that no adequate safety device was provided to secure the beam or control its descent.  The Court rejected defendants’ arguments that safety devices were unnecessary or that plaintiff was solely at fault, emphasizing that comparative negligence is not a defense and that the beam’s fall was an expected consequence of the work absent proper protection. As to Labor Law § 200 and common-law negligence, the Court granted defendants’ motion, holding that the claims arose from the means and methods of the work and that defendants did not supervise, direct, or control plaintiff’s work, with general site oversight deemed insufficient as a matter of law. With respect to Labor Law § 241(6), the Court dismissed the claim except insofar as it was predicated on an alleged violation of Industrial Code § 23-1.25(d), finding that plaintiff had abandoned reliance on the other cited provisions and that a triable issue of fact remained as to whether a scaffold was required for the flame-cutting work and whether the absence of such a device contributed to the accident.

Iaconis Fusco, LLP Secures a “Grate” Decision from Brooklyn

Conna Cook v. The City of New York, Consolidated Edison Company of New York, Inc., JJ Operating, Inc., 635 Fulton Realty Associates, LLC, Bargain Plan, Inc., and HJ Fulton Trading, Inc.; Index No.: 501972/2016; (April 6, 2022)

Iaconis Fusco, LLP recently won summary judgment in favor of our client, a commercial tenant, in connection with a New York City sidewalk trip and fall lawsuit. All claims, including the third-party complaint, were dismissed against our client in this premises liability case.

The case arose out of a trip and fall on a metal grate in Brooklyn, New York. The plaintiff sued the City of New York, Con Ed, the building owner, and our client (the ground-floor commercial tenant). Notably, Plaintiff unequivocally testified during both her 50-h hearing and deposition that her accident occurred as a result of a trip-and-fall over a Con Ed grate that was mis-leveled with the surrounding sidewalk.

 We argued that while Section 7-210 of the Administrative Code of the City of New York generally imposes liability for injuries resulting from negligent sidewalk maintenance on the abutting property owners, 34 RCNY 2-07(b) provides that owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings, and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding street surface.

In its decision, the court held that our client made out its prima facie entitlement to summary judgment as a matter of law on the complaint and third-party complaint, and that the plaintiff and third-party plaintiff failed to meet their burden to refute our arguments.

Iaconis Fusco, LLP Wins Summary Judgment

If a Picture is Worth a Thousand Words, what is a Video Worth? Summary Judgment!

Carolina Tramuta v. Best Market of Commack, Inc.; Index No.: 601719/2018; (April 6, 2022)

This case arose out of a slip and fall at one of our client’s supermarkets. The incident was captured on surveillance video.

Along with our motion papers, we submitted the surveillance video of the incident to refute plaintiff's claim that she fell as a result of a hazardous condition - namely a piece of plastic on the floor.

 Notably, the Court disregarded Plaintiff’s argument that the failure to provide evidence of the last inspection of the area created an issue of fact as to constructive notice. We successfully argued that the video recording of the incident demonstrating the condition of the floor prior to the incident satisfied any such burden.

 In its decision, the court noted that “[p]laintiff’s contention that she slipped or tripped on a piece of plastic does not create a material question of fact, as such contention is utterly refuted by the surveillance video.”

Iaconis Fusco, LLP Secures Summary Judgment

Not All Accidents are Created Equal

Qahramon Navruzov. v. Mohamed Ali Merghoub, Raiser-NY, LLC, Uber Technologies, Inc., Uber USA, LLC, and Chi Kwan Ho; Index No.: 015149/2018;  (April 25. 2022)

This case arose out of two motor vehicle accidents. Our client was involved in the first accident, wherein the Plaintiff's vehicle slid out of control on a snowy evening in New York City. While our client and Plaintiff were waiting for police to arrive at the scene of the accident, co-defendant struck Plaintiff’s parked vehicle in the rear.

 
Iaconis Fusco, LLP successfully argued: (1) that our client merely furnished the occasion for the occurrence, but did not cause the second accident; and (2) the applicability of the emergency doctrine to the facts at-hand—namely that our client was faced with a sudden and unexpected circumstance, wherein his actions were reasonable and prudent in the context of the emergency.

 
After oral argument, the court found that our client was not causally liable for either of the accidents and dismissed all causes of action as against our client.

Court Takes Notice of Defendant's Lack of Records

The case of Argueta v. 3251 Third Ave. LLC, 2022 NY Slip Op 50102(U), Supreme Court, Bronx County, addressed the issue of a defendant’s lack of constructive notice in a ceiling collapse case. This case stresses the importance for owners to conduct regular property inspections and keep inspection and maintenance records.

In this case, the plaintiff sought damages for injuries she allegedly sustained when a ceiling tile fell and struck her in the ladies' room. The plaintiff alleged, among other things, that the defendants were negligent in causing a dangerous condition. The defendant moved for summary judgment, arguing that it did not have notice of a problem with the ceiling. 

In addressing the notice defense, the court stated: “[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must ‘offer some evidence as to when the area in question was last inspected relative to the [accident]’” (citing Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2d Dep’t 2008]).

The Argueta court found that the defendant could not meet its burden, as it did not have any maintenance records for two years before the accident. Moreover, the defendants failed to proffer evidence from someone with personal knowledge as to when the ceiling was last inspected. As such, the court held that defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition and the motion for summary judgment was denied.

Here, the failure to keep such inspection and maintenance records resulted in the loss of a notice defense for the defendant.

A Well-Played Excuse?

In Kovel v. Glenwood Mgmt. Corp., 200 A.D.3d 460 (1st Dep’t 2021), the Appellate Division, First Department recently addressed a slight twist to the “storm in progress” rule in deciding whether a homeowner was exempt from liability where a tripping hazard from a tree well was concealed by an ongoing snowstorm. Indeed, this case supports the position that the “storm in progress” rule can protect a landowner from liability where an accident occurs during a storm, even where snow from a storm creates or conceals a potentially dangerous condition.

In Kovel, the plaintiff tripped and fell on a stone tree well border abutting a building owned by defendants. Notably, plaintiff’s accident occurred during a period of snowfall. Plaintiff claimed that her accident occurred because the border surrounding the tree well was an inherently dangerous condition. Moreover, she claimed it was not open and obvious because the stone tree well was covered in snow.

The trial court denied defendants’ motion for summary judgment. However, the First Department reversed, holding that the claims against the defendants must be dismissed. The court found that defendants established that the stone tree well border was not an inherently dangerous condition. Further, the court found that plaintiff failed to rebut defendants’ meteorological proof establishing that there was a storm in progress at the time of her fall. Accordingly, the court held that there was no duty to remove the snow at the time of the accident because “there is no basis to limit the storm in progress doctrine to only icy conditions.”

Wait Joist a Minute! Appellate Division Reverses Decision

In his action alleging violations of Labor Laws and common-law negligence, the plaintiff (Joseph Capuzzi) claimed to have suffered personal injuries after falling approximately 14 feet while in the process of installing floor joists across the span of a concrete foundation in the defendant’s (Robert Fuller) new house.

“Before liability can be imposed,” according to Labor Law § 200, “it must be shown that [defendant] exercised supervisory control over the activity which brought about the injury"

And though “both Labor Law § 240 (1) and § 241 impose non-delegable duties upon contractors, owners and their agents” vis-à-vis workers’ safety in construction-related activities, “the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work." 

In his affidavit, the plaintiff averred that he and the defendant routinely discussed work orders, logistics, materials, architectural drawings and a myriad of quotidian tasks and duties.

However, such evidence does not indicate that the defendant directed or controlled the manner of Mr. Capuzzi’s work.

Moreover, in his affidavit, Robert Fuller declared that while he visited the construction site, observed the progression of the work and paid Joseph Capuzzi, the defendant never exerted supervisory control over Mr. Capuzzi. Nor did the defendant dictate installation instructions re the floor joists or urge him to climb onto them as part of the process.

Fuller further averred that he was not present at the construction site when the alleged accident occurred and did not arrange for the use of equipment at the site.

Given each affidavit, it is clear that the homeowner's exemption is applicable to the defendant.

As a result, the Appellate Division, Third Department ruled that the lower court’s order be modified, reversing the denial of the defendant’s motion for summary judgment seeking dismissal of the complaint.

Another Win for Iaconis Fusco, LLP

Iaconis Fusco, LLP’s Joseph P. Fusco, Rosemarie Iaconis, and Bernadette Dono recently won summary judgment in a motor vehicle accident case, Nia Kornegay v. Tiffany Levona Farrar, Richard Barry, J.B. Hunt Transportation, Muhammad Hasan and Lyft, Inc.; Bronx County Supreme Court (Index No.: 24166/2019E).

This action arose out of a three-vehicle accident that occurred on December 13, 2018, on the Bruckner Expressway. Plaintiff was a passenger in the Hasan Vehicle which was driven by defendant Hasan in the left lane. Defendant Farrar was traveling southbound on the Bruckner Expressway in the right lane (the Farrar Vehicle). The Farrar Vehicle collided with a truck owned by J. B. Hunt and operated by defendant Barry (the J.B. Hunt Vehicle). This impact caused the Farrar Vehicle to lose control, spin, and collide head-on with the Hasan Vehicle in the left lane.

Plaintiff testified that, at the time of the accident, the Hasan Vehicle that she was riding was in the left travel lane. Just prior to the accident, plaintiff observed the Farrar Vehicle travelling in the far right merge lane onto the Expressway, and saw the J.B. Hunt Vehicle in the right lane. Suddenly plaintiff looked up and saw the Farrar Vehicle spinning out of control across lanes towards her vehicle. The Farrar Vehicle impacted the Hasan Vehicle twice.

Defendant Hasan testified that, at the relevant time, he was traveling in the left lane of the Expressway. He initially observed the J.B. Hunt Vehicle in the middle lane. Defendant Barry testified that the J.B. Hunt Vehicle was dragging the Farrar Vehicle, which was perpendicular to the truck, for about ten seconds. Following the impact between the truck and the Farrar Vehicle, the Farrar Vehicle lost control and hit the Hasan motor vehicle twice. As the Farrar Vehicle spun out of control, defendant Hasan honked his horn and slowed his vehicle. Defendant Hasan speculated that defendant Barry was not paying attention or was drowsy, and defendant Farrar was confused by the exit. Defendant Hasan stated that defendant Farrar did not brake or attempt to steer her motor vehicle to avoid hitting his car.

Here, the court found that Hasan made a prima facie showing of his entitlement to summary judgment by his and plaintiff’s statements, including, inter alia, that he was lawfully proceeding straight in the left lane, when the other vehicle entered his lane and stuck him head on. He also testified to that he made evasive efforts to prevent the accident, honking his horn and stopping his vehicle when it was safe. The court noted that the uncontradicted submitted evidence demonstrated that Hasan had the right of way, and was unable to avoid the collision and that his actions were not negligent. Moreover, the court found that Hasan demonstrated that the other defendants were solely responsible for the accident and he had a nonnegligent explanation for striking the Farrar Vehicle.

A Trader in Our Midst

A motion for summary judgment is a many-faceted thing, as noted in Natoli v. Trader Joe's E. Inc.

Plaintiff Nicholas Natoli asserted that on October 5, 2018, he sustained physical injuries while entering a Trader Joe's supermarket at 675 6th Avenue (New York, New York). Natoli said a row of shopping carts pushed by defendant Jovani---an employee of Trader Joe’s---struck him, causing the plaintiff to fall. Prior to the completion of discovery, Natoli moved for summary judgment seeking dismissal of defendant’s affirmative defenses as to comparative negligence. Natoli also sought summary judgment on liability.

In support of his motion, Natoli submitted a witness statement that Jovani’s movements had triggered the tumble. Here, the Appellate Division, First Department found that although the defendants had not yet had an opportunity to depose the plaintiff, the defendants failed to demonstrate that facts essential to justify opposition may exist (but could not be stated). The appellate court further reasoned that the defendants were unable to identify what information was in the exclusive control of plaintiff that would raise a material issue of fact.

Accordingly, the Appellate Division unanimously modified the earlier ruling, reversing the lower court's decision and granting the plaintiff’s summary judgment on liability. However, the court held that dismissal of the affirmative defense of plaintiff’s alleged comparative fault was unwarranted.

Plaintiff Paints Picture for Potential Liability

In Westbay v Costco Wholesale Corp., the court decided a slippery issue.

Having alleged personal injuries after falling in the parking lot of a store owned by the defendant Costco Wholesale Corporation, the plaintiff, Dennis J. Westbay, asserted that he slipped on a painted portion of the rain-splattered asphalt 20 feet from Costco’s entrance.

Costco then began a third-party action for contractual and common-law indemnification against Appell Striping and Sealcoating, Inc.---the company that had painted and re-striped a portion of the store's parking lot two months prior to the plaintiff's accident. Appell moved for summary judgment dismissing the third-party complaint and Costco subsequently initiated a cross-motion to dismiss plaintiff’s complaint.

In New York, "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."

While the court found that Costco established that it did not have actual, constructive, or imputed knowledge that the subject paint could render the walkway slippery, the court noted that plaintiff cited Appell’s "application bulletin," which acknowledges the inherent danger present when painted surfaces become wet, and explicitly states that the paint "should not be used to paint large areas subject to pedestrian traffic." As a result, the court found that given the size of the painted area outside the store’s entrance, there was indeed a triable issue of fact as to whether Costco should have known that the product could render the parking lot slippery.

Accordingly, the Appellate Division, Second Department, reversed the order granting Costco’s cross-motion for summary judgment dismissing the plaintiff’s complaint.

Defense Has No Leg to Stand On

In Susan Moss, et al. v. Westside Supermarket LLC doing business as Westside Market NYC, according to the plaintiff, Susan Moss (“plaintiff” or Moss”), Westside Market, the defendant, negligently failed to provide an unobstructed means of ingress and egress within a supermarket aisle. That is, a display case’s unobservable legs protruded into the aisle, causing Ms. Moss to plunge and fall. This "defective, hidden, trap-like condition" posed a major "tripping hazard." Moreover, Moss claimed there was no warning of the danger. At the conclusion of discovery, Westside Market moved for summary judgment dismissing the complaint. The lower court denied defendant’s motion and defendant appealed.   

Having patronized the Westside Market on 25 occasions prior to the accident, Moss testified that she was never able to observe any legs undergirding the display case. The Appellate Division, First Department found that the defendant’s own surveillance footage reinforced the plaintiff’s assertion that the structure’s legs were well-nigh invisible to the naked eye. Moreover, the photographic image clearly showed how Ms. Moss’s foot became entangled in one of the unseeable legs of the display case.

Accordingly, the Appellate Division found that no person making reasonable use of his or her senses could have avoided such an accident and unanimously affirmed the lower court’s decision.

Season's Greetings from Iaconis Fusco, LLP

Iaconis Fusco, LLP Wins Summary Judgment

Iaconis Fusco, LLP’s Joseph P. Fusco, Rosemarie Iaconis, and Dina Aversano DiBlasi recently won summary judgment in a pedestrian knockdown case (B.M., an infant under the age of 18 by her mother and natural guardian, Cadijah Morba v. Orion Fernandez and Juan A. Almonte Abreu) in which they defended a rideshare driver in a claim by an injured infant plaintiff and her mother.

The defendant, Juan A. Almonte Abreu, a rideshare driver, asserted that on October 31, 2018, at approximately 7:45AM, on Linwood Street in Brooklyn, NY, the infant plaintiff, who was in sixth grade at the time, suddenly dashed into the one-way street from between two parked cars. Mr. Abreu testified that he did not see the pedestrian prior to his vehicle striking her---and that he was traveling at a low rate of speed at the time of the impact, having just stopped seconds before to drop off a passenger. Mr. Abreu had dashcam footage of the incident that corroborated his testimony. Mr. Abreu moved for summary judgment dismissing the complaint at the close of discovery.

In opposition, the plaintiffs submitted only an attorney’s affirmation, arguing that the defendant failed to meet his initial burden to eliminate all material questions of fact as to whether his negligence contributed to the accident. Plaintiffs further argued that as the accident occurred in front of a school at time of day during which students typically arrive at school, the infant plaintiff’s actions were completely foreseeable.

The Supreme Court found the plaintiffs’ arguments meritless and held that plaintiffs failed to raise a triable issue of fact. Moreover, the court found that plaintiffs’ contention that Mr. Abreu could have avoided the accident had he timely observed the infant plaintiff was unsupported by evidence.

Ultimately, the defendant’s submissions, namely the deposition testimony of Mr. Abreu and the dashcam video of the accident, established prima facie entitlement to judgment as a matter of law and dismissal of the complaint.

Shopping Cart Wheel of Misfortune

In Scalia v King Kullen Grocery Co., Inc., plaintiff, Kimberly Scalia, claimed she was injured when she fell while pushing a shopping cart along a sidewalk toward a grocery store operated by defendant, King Kullen Grocery Co., Inc. King Kullen had leased the store abutting the sidewalk where the accident occurred from Serota Northport, LLC, which owned the property.

During her deposition, Scalia testified that the left front wheel of the shopping cart she was using was wobbly and that, when that wheel came into contact with a crack in the sidewalk in front of the King Kullen store, the cart stopped abruptly, causing her to fall to the ground.

The defendants both moved for summary judgment and lost. The Court asserted that neither Serota nor King Kullen established their prima facie entitlement to judgment--- which would have dismissed the plaintiff’s complaint--- as a matter of law.

On appeal, the Appellate Division, Second Department affirmed the lower court’s decision and held that neither Serota nor King Kullen demonstrated that the injured plaintiff was unable to identify the cause of her accident. Moreover, Serota could not establish that the sidewalk crack, which the plaintiff identified in a series of photographs, was trivial. Although King Kullen demonstrated that it did not create or have actual notice of any defect or dangerous condition of the shopping cart, it failed to indicate a lack of constructive notice of the shopping cart’s alleged condition. Indeed, the assistant store manager’s deposition testimony could not establish when---relative to the time of the accident---any of King Kullen’s shopping carts were last inspected. 

What to Do with a Forklift in the Road

On October 20, 2021, the Appellate Division, Second Department affirmed an order of the Supreme Court, Kings County, dated January 5, 2018, in Hensel v Aviator FSC, Inc.

In an action to recover damages for personal injuries, the plaintiff, Michael Hensel, claimed that the accident occurred as he was loading heavy soccer boards into the back of a box truck. The boards, which had been used to form the walls for indoor soccer fields, were between 6 and 12 feet long and weighed more than 100 pounds each.

While standing on the ground next to a forklift, one of the boards slid off the mechanism and struck Hensel in the head. In alleging the forklift was defective and lacked safety devices that would have secured the boards and prevented the accident, the plaintiff cited common-law negligence and a violation of Labor Laws.

Moreover, the plaintiff opposed the defendant's motion, arguing that the removal of the boards constituted "demolition work" within the meaning of Labor Law § 240(1). 

Although the Supreme Court correctly concluded that the disassembly and removal of the boards from the soccer field was a partial dismantling of a structure and constituted "demolition" within the meaning of the Labor Law, the disassembly and removal of the boards was also a significant physical change to the configuration of the structure.

The plaintiff's role in hauling away the boards after they had been removed by the defendant was an act "ancillary" to the demolition and alteration of the field structure, and protected under the Labor Law.

Furthermore, there is absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure" 

And "'[F]alling object' liability is not limited to cases in which the falling object is in the process of being hoisted or secured." Rather, liability may be imposed where an object or material that fell, causing injury, was "a load that required securing for the purposes of the undertaking at the time it fell" 

The plaintiff was struck in the head by a board, weighing approximately 200 pounds, when it slid sideways off the stack and over the cab of the forklift while the plaintiff stood at ground level.

At the time of the accident, the plaintiff and his coworkers were attempting to slide one of the boards from a stack on the raised forklift into the back of the truck. The stack was raised to a height of approximately 8 or 9 feet at the time of the accident.

A professional engineer, demonstrated that the forklift had been modified and lacked certain safety devices, including "load guides and/or guide rails," which could have been used to "constrain the boards as they were moved from the elevated forks into the truck."

The absence of an adequate safety device constituted a Labor Law hazard, resulting in Michael Hensel’s injury.

Plaintiff’s Case is a Pipe Dream

 Justice may be blind. But New York’s labor laws governing personal injury are crystal clear.

In Fonck v City of New York, the plaintiff appealed an order of the Supreme Court, Kings County, issued on November 13, 2017. 

The injured plaintiff, Charles Fronck (and his wife) had commenced an action to recover damages for personal injuries against the City of New York, the owner of the property, and the Commodore Construction Corp., a prime contractor working on the project. Fronck alleged violations of Labor Laws and common-law negligence

The plaintiff had performed work at a construction project on a public pool located in Brooklyn. This entailed placing and tying rebar in a grid pattern on top of plastic sheeting in what would become the "beach," or sprinkler, area of the pool. While Fonck was retrieving his pliers, which were located five feet away, the plaintiff allegedly tripped on a piece of pipe concealed underneath the plastic sheeting, causing him to fall and sustain injuries.

The defendants sought summary judgment dismissing the Labor Law and common-law negligence causes of action. And in an order dated November 13, 2017, the Supreme Court, inter alia, granted the defendants' motion.

To prevail on a cause of action alleging a violation of the Labor Laws, a plaintiff must establish the violation of a specific and concrete provision of the Industrial Code, and that such violation was a proximate cause of his or her injuries

On October 20, 2021, the Appellate Division, Second Department, reaffirmed the Kings County Supreme Court’s ruling of November 13, 2017, that the spot where the plaintiff fell did not constitute a passageway. The New York Codes, Rules and Regulations citation was inapplicable to the facts of this case, as the pipe and vapor barrier over which the plaintiff tripped were not "debris" or "scattered" materials, but rather had been intentionally installed and were a "permanent and an integral part of what was being constructed." 

The Street-smart Logic of New York City

When it comes to liability in personal injury actions, the City never sleeps.

Such was the case in Gallis v 23-21 33 Road, LLC, defendant, City of New York, respondent.

On March 5, 2017, Konstantinos Gallis tripped and fell on an uneven portion of a sidewalk adjacent to the property in Queens owned by 23-21 33 Road, LLC (“LLC”). In alleging an injury, the plaintiff claimed that both LLC and NYC were culpable.

And in moving for summary judgment on the issue of liability against the City---having obtained a default judgment against LLC for failing to respond to the complaint---the plaintiff contended that Gotham had negligently allowed tree roots to grow and lift the sidewalk, creating a dangerous condition.

The Supreme Court denied the motion, and the plaintiff appealed.

According to Administrative Code § 7-210, which established that the City Council intended to shift liability for sidewalk accidents away from NYC to the abutting landowner: “Where a sidewalk may have been damaged by growing tree roots, abutting property owners are responsible for remedying the condition and are liable for damages that may occur because of the defect.”

However, this exemption recognizes "the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair."

But the plaintiff failed to prove that New York City is liable pursuant to Administrative Code § 7-210(b) for abutting property that is "in whole or in part, owner occupied" and "used exclusively for residential purposes." 

The plaintiff proffered no evidence that the LLC actually occupied the property at the time of the accident, or that use of the property was limited to residential purposes. (His reliance on hearsay statements found in New York Post articles was inappropriate and did nothing to support the belief that section 7-210 of the Administrative Code is not applicable to the alleged circumstances involving the growth of tree roots.)

Moreover, the plaintiff failed to establish that the sidewalk was not maintained in a reasonably safe condition. Nor could he definitively show, prima facie, that the sidewalk was defective.

Accordingly, the Supreme Court’s decision denying summary judgment was affirmed.

SUM-Thing for Insurers to Consider When Seeking Discovery

In Matter of Allstate Ins. Co. (Twomey), 2021 NY Slip Op 05418, an insurer moved to stay arbitration of a SUM claim to compel discovery pursuant to CPLR 3102(c). The Supreme Court denied the petition and the insurer appealed.

New York’s Appellate Division, Fourth Department affirmed the Supreme Court’s decision, finding that the Supreme Court correctly found that the insurer “had ample time . . . to seek discovery of the respondent insured as provided for in the insurance policy, and unjustifiably failed to utilize that opportunity” to obtain the discovery. The Appellate Court also found that the insurer failed to establish any of the “extraordinary circumstances” necessary to warrant court-ordered disclosure in aid of arbitration under CPLR 3102 (c).

The court also rejected the insurer’s argument that the insured respondent’s demand for arbitration was premature in that he had not complied with the terms of the SUM endorsement in the policy. Not only did the insurer fail to properly raise the issue on appeal, but the insurer failed to show that the insured had failed to comply with the terms of the endorsement.

This decision reinforces the importance of promptly seeking discovery in SUM arbitration, as an insurer can lose the right to do so if the request is not made in a timely manner.

Pre-Deposition Death Kills Liability

The death of an injured party can be devastating to a case — especially where the decedent dies before being deposed. In Thompson-Shepard v. Lido Hall Condominiums, the trial court granted defendant’s motion for summary judgment because there was no way for the cause of the decedent’s unwitnessed accident to be established.

There, the decedent was allegedly injured when he fell on the stairs at the defendant’s premises. The decedent’s pre-deposition death, unrelated to the unwitnessed fall, precluded his estate from asserting a conclusive cause of the accident.

The estate attempted to remedy the lack of testimony about the cause of the accident by submitting an expert affidavit claiming that the irregular and excessive riser heights, coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser, caused the decedent’s accident. The court found that the expert failed to raise an issue of fact, as there were no witnesses to link the claimed defect to the decedent’s accident. Indeed, there was no sworn statement or testimony by the decedent claiming he fell due to the alleged defect in the riser height.

In personal injury lawsuits, a plaintiff’s cause of action hinges upon the cause of the accident. When a plaintiff is unable to conclusively determine what caused the fall, there is no way for defendants to be on notice. When possible, it is important for defense counsel to lock in inconclusive testimony as to the proximate cause of an accident, as such testimony is fatal to a plaintiff’s negligence action. 

Good Maintenance Practices Make Great Case Law for Supermarket

In Velocci v Stop & Shop, the Appellate Division, First Department provided a notable reminder of the importance of inspection efforts to prevent liability for slip and fall accidents. There, the plaintiff fell on a puddle of water on the floor in front of an ice machine in a supermarket. The plaintiff and his wife had shopped at the supermarket frequently and never saw or complained of water in the area prior to his fall. The plaintiff also did not see the puddle until after he fell. Ultimately, the plaintiff testified that he did not know where the water came from.

The supermarket’s witness had seen drops of water on the floor in front of the ice machine on one occasion, but could not remember whether there had been any prior accidents. According to the supermarket’s records, a porter had inspected the area where the plaintiff fell shortly before the accident.

The defendants moved for summary judgment, arguing that they had no actual or constructive notice of the condition. Indeed, the water was not visible and not on the floor long enough for employees to clean it before the plaintiff’s fall. Defendants submitted an affidavit from the porter who noted that she inspected the area 30 minutes before the accident and did not see water on the floor.

Plaintiff opposed the motion with two affidavits claiming that he and his wife never saw mats or carpets on the floor in front of the freezer and would notice water accumulate after bags of ice were left on the floor. Plaintiff also submitted expert affidavits which claimed that defendants failed to address a long-term water issue from the replenishment of ice and that it was custom and practice in the industry to place rubber cones and an absorbent mat on the floor in front of such machines because water accumulates when bags of ice are placed on the floor.

The trial court granted defendants motion for summary and the First Department affirmed, finding that the trial court correctly held that the defendants did not have actual or constructive notice of the condition under the circumstances. Plaintiff’s testimony confirmed that the water on the floor was not visible or apparent prior to his fall, and any statements that the employees or customers created the condition were speculative, at best. The court found that the water was not present for enough time to give defendants an opportunity to discover and remedy it, and that supermarket’s log showed that the area was inspected consistently and had been inspected only a half hour prior to the plaintiff’s fall. The court further found that the expert affidavits submitted by plaintiff did not create triable issues of fact since there was no evidence that similar falls had occurred.

The upshot from Velocci is that timely inspections and good record keeping can help a New York business prevent liability for slip and fall accidents.