Homeowners Away on Vacation Not Insulated From Ice/Injury Incident on Their Property

In Giambruno v. Albrechet (Index No. 601245/18, recently decided on March 3, 2021), the Appellate Division, Second Department denied a defendants/homeowners' motion for summary judgment, holding, among other things, that they failed to demonstrate that no issues of fact existed regarding the issue of notice of an allegedly icy/dangerous condition.  The case arose due to an incident on February 18, 2015, in which the plaintiff - a letter carrier employed by the United States Postal Service - when delivering mail to the defendants/homeowners, was caused to slip, fall, and sustain injuries due to snow and/or ice on their ground.  He thereafter commenced a lawsuit against the homeowners, which included claims that defendants had actual and constructive notice of the snow and/or icy condition.  The defendants eventually filed a motion for summary judgment (which sought dismissal of the case), and the lower court denied it.

On appeal, the Appellate Division affirmed the lower court's ruling, holding as follows: "The evidence...demonstrated that it had snowed the day prior to the plaintiff's accident, and that the plaintiff observed snow on the ground immediately before he fell.  The defendants also submitted affidavits in which they attested that they did not shovel or disturb any snow or ice which may have been on their driveway.  Moreover, the defendants were not relieved of their 'duty to keep their property in a reasonably safe condition' even though they were away on vacation at the time of the plaintiff's accident...and they did not submit evidence demonstrating that they arranged for the inspection and maintenance of their property while they were away.  Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

Negligent Supervision Case Survives Summary Judgment Motion from School District

In Cole Nizen-Jacobellis v. Lindenhurst Union Free School District (Index No. 1616/16, and recently decided on February 24, 2021), the Appellate Division, Second Department denied a defendant school district's motion for summary judgment (which sought dismissal of a case), finding that issues of fact warranted the matter to proceed to trial.  The case arose due to an incident occurring on April 22, 2014, in which the plaintiff - then a 10th grade student at a pubic high school within the defendant Lindenhurst Union Free School District - suffered injuries after being attacked by a student (particularly, after a class ended, the plaintiff's head was thrust into a bulletin board by another student).  Thereafter, in February 2016, the plaintiff commenced a lawsuit against the defendant school district, alleging claims including negligent supervision.  At some point during the pre-trial process, the defendant moved for summary judgment, and the lower court granted the motion - thereby dismissing the lawsuit.

On appeal, however, the Appellate Division reversed (resulting in the case being restored), holding, among other things, the following: "While the plaintiff testified that he had never been physically assaulted by the other student prior to the subject incident, he testified that the other student always made threatening comments to him during Spanish class, of which seven or eight were serious in nature, and three or four were accompanied by a closed fist motion in an attempt to get the plaintiff to flinch.  The plaintiff also testified that he complained about these threats to the Spanish teacher, who had witnessed the other student make a closed fist motion toward the plaintiff on at least one or two occasions, and that he asked the teacher if she could do something about these threats, but she never said anything to the other student...With respect to proximate cause, the School District did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously 'that even the most intense supervision could not have prevented it'...The plaintiff testified that approximately 10 minutes before the end of class on the date of the assault, while the class was silently working on an assignment, the other student threatened out loud to stab him, which was overheard by the rest of the class and the teacher."

Salvatore R. Marino, Esq.

Motion for Directed Verdict Decision Reversed

In Creutzberger v. County of Suffolk, et al (Index No. 39984/08, decided on February 26, 2020), the Appellate Division, Second Department, reversed a trial court's decision that denied a defendants' motion for a directed verdict pertaining to an issue of creation of a dangerous condition.  The case arose in September, 2007, when the plaintiff, while attending a music festival at property owned by the County of Suffolk and occupied by the Long Island Maritime Museum, was caused to fall and sustain injuries after the bicycle he was riding on grass struck the edge of a portion of a boardwalk.  Thereafter, he commenced a lawsuit against the aforesaid entities, alleging, among other things, that the defendants breached their duty to adequately illuminate the incident location area, and that they created a dangerous condition by cutting the grass to the same level as the boardwalk, thereby concealing the height differential between the boardwalk and the grass path. 

The matter proceeded to a jury trial, and after the plaintiff presented his direct case, the defendants' attorneys made a CPLR 4401 motion for a directed verdict to dismiss plaintiff's case.  The motion included an argument that the plaintiff failed, as a matter of law, to prove that the defendants created a dangerous condition, and as such, the plaintiff's case should be dismissed.  The trial court denied the motion, and thereafter the jury found that the County of Suffolk was 45% at fault, the Long Island Maritime Museum was 40% at fault, and that the plaintiff was 15% at fault.  On appeal, however, the Appellate Division, Second Department, reversed the trial court's aforesaid motion for directed verdict decision, holding as follows:

"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon evidence presented, there is no rational process which the fact trier could base a finding in favor of the nonmoving party...Where, as here, a municipality has enacted a prior written notice statue, it may not be subjected to liability for a defect within the scope of the law unless it received prior written notice of the defect or an exception to the prior written notice requirement applies...The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property...

Here, the plaintiff asserted that the requirement for prior written notice was obviated because the defendants created a dangerous or defective condition through an affirmative act of negligence by cutting the grass to the same level as the boardwalk, thereby concealing the height differential between the boardwalk and the path.  However, at trial, the plaintiff failed to proffer any evidence that the defendants mowed the grass abutting the boardwalk to the same level of the boardwalk...To the contrary, the plaintiff presented testimony of a park supervisor employed by the County, who testified that the grass was not cut to make it even with the boardwalk, but rather, the grass was cut '[d]own to the ground.'  Thus, upon the evidence presented at trial, there was no rational process by which the jury could base a finding in favor of the plaintiff on the theory that the defendants created a dangerous condition through an affirmative act of negligence....Since a general verdict sheet was submitted to the jury, we cannot ascertain whether the jury's verdict was predicated on a finding in the plaintiff's favor on the theory that the defendants breached their duty to adequately illuminate the area where the accident occurred, or on the affirmative negligence theory, which should not have been submitted to the jury...Accordingly, the interlocutory judgment must be reversed, and the matter remitted to the Supreme Court, Suffolk County, for a new trial on the issue of liability."

Salvatore R. Marino, Esq.

Rehabilitation Center's Lawsuit Against Former Caretaker Dismissed

In Santoro v. Poughkeepsie Crossings LLC (2019 NY Slip Op 08883, decided on December 11, 2019), the Appellate Division, Second Department dismissed a lawsuit brought by a rehabilitation center against a former caretaker of a decedent suing the rehabilitation center.  Particularly, the plaintiff's mother was a patient at the rehabilitation center of Poughkeepsie Crossing (hereinafter referred to as "PC"), after the mother was hospitalized after a heart attack.  While at PC, however, in March 2015, she was caused to fall, sustaining injuries including fractured ribs and punctured lungs.
In May 2015 she passed away, and her former caretaker, and eventual executor of her estate, commenced a lawsuit against entities including PC for claims alleging negligence and inadequate treatment (as it was claimed that the March 2015 fall at PC ultimately resulted in her mother's passing).  In response to this lawsuit, however, PC sued the executor plaintiff for indemnification and contribution, alleging that negligent supervision of the former caretaker/executor's mother and failing to follow PC's discharge instructions resulted in the plaintiff's fatal injuries.

The lower court granted PC's motion, but the Appellate Division, Second Department reversed, thereby dismissing PC's action, and holding, among other things, the following: "The defendant [PC] would impose a new duty on those who live with infirm individuals 'to use reasonable care' and 'be liable for harm caused by the failure to use reasonable care by affirmative act or omission'...A lower court has recognized such a duty, but would define it as a duty owned by 'a child who assumes responsibility for the care of a parent who is limited by age or illness, or both'...The imposition of such an obligation carriers with it public policy considerations of possible negative consequences, such such a general obligation could discourage persons from residing with the infirm, discourage children and inform parents from living together, and discourage the infirm from attempting to resume independent living...The circumstances alleged here 'provide no justification for creating' such a duty...."

Salvatore R. Marino, Esq.

Jury Verdict Set Aside as Driver's Negligence was Substantial Factor in Causing Injuries

In Nieves v. 8 Avenue Furniture, Inc. (Index No. 24506/12, decided on March 20, 2019), the plaintiff, a pedestrian, was injured after being struck by a vehicle in Brooklyn.  During the trial of the matter in Kings County Supreme Court, the defendant owner of the vehicle denied any knowledge of, or involvement in, the incident, and insisted that the plaintiff had identified the wrong vehicle.  The jury returned a verdict holding that the defendant was liable for the incident, but that it was not a substantial factor in causing plaintiff's injuries.  As a result, the plaintiff timely moved pursuant to CPLR 4404(a) to set aside the verdict, contending that it was contrary to the weight of the evidence.  The Supreme Court granted the motion, and the defendant thereafter appealed.

The Appellate Division, Second Department, affirmed the trial court's ruling, holding, among other things, the following: "A jury finding that a party was negligent but that the negligence was not a proximate cause of the accident is contrary to the weight of the evidence 'only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'...Here, the defendant made no attempt to present a nonnegligent explanation for the accident; instead, it contended only that the plaintiff misidentified the van that struck her.  The jury, having rejected the defendant's theory and found not only that the defendant's van was involved in the accident but also that the driver of the van was negligent in its operation, lacked a sufficient factual basis upon which to conclude that the defendant's negligence was not a substantial factor in causing the accident...."

Salvatore R. Marino, Esq.

Village's Motion Denied as Prior Written Notice Exists

In Bochner v. Town of Monroe, et al (Index No. 8529/14, decided on or around February 8, 2019), a defendant municipality's motion for summary judgment was denied by the Appellate Division, Second Department, as that defendant submitted evidence in support of its motion that demonstrated that it received prior written notice of the subject defective condition.  Particularly, the case arose in August 2013, when the plaintiff was injured in the Village of Kiryas Joel, as she stepped off a curb and into a pothole in the roadway of Carter Lane, thereafter suffering injuries and commencing a lawsuit against entities including the Village of Kiryas Joel.  At some time during the pre-trial litigation process, the defendant Village of Kiryas Joel moved for summary judgment (seeking to dismiss the plaintiff's case) contending that it did not receive the requisite written notice of the subject dangerous condition prior to the date of the plaintiff's incident.

The Supreme Court of Orange County denied the defendant's motion, and the Appellate Division, Second Department affirmed the trial court's decision, holding, among other things, as follows: "In supports of its motion, the Village submitted evidence that itself demonstrated the existence of triable issues of fact as to whether it had received the requisite prior written notice of the alleged defect.  This evidence established that in the weeks before the plaintiff allegedly was injured, an officer designated by the Village Code as a recipient of written notice, the Village Superintended of Public Works, himself drafted two worksheets detailing defects in the roadway of Carter Lane.  Additionally, the Village submitted evidence that the Village Superintendent of Public Works emailed those worksheets to the Village Clerk - the other officer designated under the Village Code as a proper recipient of written notice - weeks before the date on which the plaintiff was allegedly injured...."

The Court also noted that although it was not clear whether the worksheets identified the precise defect that allegedly caused the plaintiff's injuries, the documents still presented a triable issue a fact (thereby warranting a denial of the motion) as, "'A recent prior written notice that does not provide an exact location, but which nevertheless reasonably identifies the area of the purported defect, may give rise to a question of fact for the jury as to the sufficiency of the notice' [citing Massey v. City of Cohoes, 35 AD3d 996; Blanc v. City of Kingston, 68 AD3d 1525; and Delaney v. Town of Islip, 63 AD3d 658]."

Salvatore R. Marino, Esq.

Plaintiff's Cross-Motion for Costs Granted Based on Defendants' Frivolous Post-Trial Motion

In Cram v. Keller, 2018 NY Slip Op 08007 (decided on November 21, 2018), the Appellate Division, Second Department granted a plaintiff's cross-motion for costs based on a defendants' frivolous post-trial motion.  The case arose when the plaintiff, who was visiting her son at a house he rented from the defendants, was caused to fall and sustain injuries after she fell down exterior stairs of the house.  As a result of the incident, plaintiff commenced an action against the defendants, with claims including that the defendants were at fault for failing to install a handrail on the righthand portion of the stairs (the area where the plaintiff ultimately fell to the ground).  At the trial for this matter, the jury determined that the defendants were sixty (60) percent at fault in the happening of the incident.  The defendants thereafter moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, contending that the plaintiff failed to establish that the defendants owned the subject house, and that the allegedly dangerous condition was open and obvious.  The plaintiff thereafter cross-moved for costs pursuant to 22 NYCRR 130-1.1 on the ground that the defendants' motion was frivolous.  The Supreme Court granted the defendants' motion, denied the plaintiff's motion, and the plaintiff thereafter appealed the decision.

With respect to the defendants' motion, the Appellate Division reversed the lower court's decision, holding, among other things, the following: "The plaintiff read into the record excepts from the deposition of the [defendants] where [defendants] admitted that, since purchasing the property, he put up a wrought iron railing and that the defendants had rented the property to a tenant.  The admission by [defendants] that he and his wife had purchased the property, made an improvement on it, and had rented it out is legally sufficient evidence of ownership.  Regarding the defendants' contention that the condition was open and obvious, a rational jury could have concluded that the defendants were negligent in maintaining the property, and that their negligence was the proximate cause of the plaintiff's injuries...'Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition' [citing Russo v. Home Goods, Inc., 119 AD3d 924]...

With respect to the plaintiff's cross-motion for sanctions based on defendants' frivolous conduct in making their motion, the Appellate Division reversed the lower court's decision pertaining to this matter as well, holding, among other things, the following: "Here, the Supreme Court should have granted the plaintiff's cross motion for an award of costs in the form of reimbursement of reasonable attorneys' fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants [in making their motion]...Under the circumstances of this case, the defendants' post-trial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owed the property, the lack of good faith underlying the denial of ownership appearing in the defendants' answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony [by the trial court] that would have eliminated any doubt on the issue of ownership."

Salvatore R. Marino, Esq.