[Updated October, 2016]

SUMMARY JUDGMENT MOTIONS

"NON SLIP AND FALL" (DEFENSE)

 
DEFENSE MOTIONS "NON SLIP AND FALL" PERSONAL INJURY CASES:
SCHOOL LIABILITY; LANDLORD/TENANT LIABILITY; MUNICIPAL LIABILITY; LABOR LAW LIABILITY(NEGLIGENCE); RES IPSA LOQUITUR LIABILITY; MEDICAL MALPRACTICE LIABILITY (INFORMED CONSENT); BAR-OWNER LIABILITY (CRIMINAL ACTS OF PATRONS).
 

[DEFENSE  MOTIONS IN SLIP AND FALL CASES ARE COVERED SEPARATELY.] 

 
CASE SUMMARIES WHICH ILLUSTRATE THE STRINGENT PROOF REQUIREMENTS IMPOSED BY OUR APPELLATE COURTS IN THESE CONTEXTS

 

 
DEFENSE SUMMARY JUDGMENT MOTIONS---GENERALLY

 

A frequent, recurring issue in the appellate review of summary judgment motions brought by a defendant is the fatal failure to affirmatively address all possible theories of recovery available to the plaintiff.

 

In bringing a summary judgment motion, a defendant must "think like a plaintiff." Every potential theory under which the plaintiff could prevail must be affirmatively addressed and negated in the defendant's papers.

 

If even one potential theory of recovery is left out of or inadequately addressed in the defendant's papers, the motion will be denied, WITHOUT ANY NEED FOR THE COURT TO ADDRESS PLAINTIFF'S OPPOSING PAPERS.

 

A plaintiff defending a summary judgment motion, therefore, should "think like a defendant" and expose any and all gaps in the defendant's proof.

 

Although the "proof-requirement" issues discussed below are most often addressed at the appellate level in the context of defense summary judgment motions, the decisions act as "checklists" of the essential elements in personal injury actions which must be proven by the plaintiff. The decisions. therefore, are worth consulting before before drafting a complaint, answering a demand for a bill of particulars, and preparing for examinations before trial.

 

 

 

EXAMPLES OF FAILED DEFENSE SUMMARY JUDGMENT MOTIONS IN SELECTED "NON-SLIP-AND-FALL" PERSONAL INJURY CASES

 

 

SCHOOL LIABILITY

 

"Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident ...".

 

School Failed to Demonstrate Assault on Student Was Unforeseeable---Summary Judgment Properly Denied

 

The Second Department determined the defendant school district was not entitled to summary judgment because it failed to demonstrate the alleged assault on another student was unforeseeable:

 

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ... . In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated ... .

 

Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident ... . Cruz v Brentwood Union Free Sch Dist, 2015 NY Slip Op 01604, 2nd Dept 2-25-15

 

 

SCHOOL LIABILITY

 

"Here, in support of their motion for summary judgment, the defendants failed to establish, prima facie, that the Board of Education lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the injury ...". 

 

Question of Fact Whether Board of Education Liable for Negligent Supervision of Violent Student

 

The Second Department determined questions of fact existed re: whether the school had notice of a student's propensity for violent behavior.  The student allegedly held plaintiff partially outside a fourth-floor window at the school. The court noted that the city was not a proper party to the suit:

 

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ... . "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" ... . Actual or constructive notice to the school of prior similar conduct generally is required, and "an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence" ... . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained ... .

 

Here, in support of their motion for summary judgment, the defendants failed to establish, prima facie, that the Board of Education lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the injury ... . The defendants' motion papers reflect the existence of triable issues of fact as to whether the Board of Education had knowledge of the offending student's dangerous propensities arising from his involvement in other altercations with classmates in the recent past ... . Thus, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligent supervision insofar as asserted against the Board of Education.  Mathis v Board of Educ. of City of New York, 2015 NY Slip Op 02459, 2nd Dept 3-25-15

 

 

 

SCHOOL LIABILITY

 

"Contrary to the Supreme Court's determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor's] propensity to engage in the misconduct alleged."

 

Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

 

The Second Department, reversing Supreme Court, determined the defendant school district's motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs' son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor's propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs' son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a "respondeat superior" theory would be possible:

 

Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... . The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information ... . Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable ... .

 

Contrary to the Supreme Court's determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor's] propensity to engage in the misconduct alleged. ***

 

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs' second cause of action insofar as it alleged negligent supervision and training of [the monitor]. A necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury ... . * * *

 

"Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training".  ... [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

 

SCHOOL LIABILITY

 

"[The school district's] submissions failed to eliminate all triable issues of fact as to whether the School District had actual or constructive notice of the fellow student's potential for causing harm, and whether, under the circumstances, the School District provided adequate supervision during the field trip ...".

 

School District Failed to Demonstrate It Did Not Have Actual or Constructive Notice of Student's Potential to Harm Other Students

 

The Second Department, over a dissent, determined the school district's motion for summary judgment was properly denied. The district failed to demonstrate it did not have actual or constructive notice of a student's potential for harming other students:

 

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ... . "An injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ... .

 

* * * [The school district's] submissions failed to eliminate all triable issues of fact as to whether the School District had actual or constructive notice of the fellow student's potential for causing harm, and whether, under the circumstances, the School District provided adequate supervision during the field trip ... . Lennon v Cornwall Cent. School Dist., 2015 NY Slip Op 07628,, 2nd Dept 10-21-15

 

 

SCHOOL LIABILITY

 

"Here, the moving defendants failed to establish, prima facie, that the DOE [Department of Education] had no specific knowledge or notice of Watts' propensity to engage in the misconduct alleged in the complaint ... . * * *

 

... [T]he complaint adequately alleged that other employees of the DOE were negligent in the performance of their respective duties, and that such negligence constituted a proximate cause of the infant plaintiff's injuries. In this regard, the moving defendants failed to establish, prima facie, that these other employees were not acting within the scope of their employment ..., that they were not negligent, or that any such negligence was not a proximate cause of the alleged injuries ...".

 

Negligent Supervision and Retention and Respondeat Superior Causes of Action Against City Department of Education (DOE) Should Not Have Been Dismissed---Complaint Alleged Sexual Abuse of Student By Teacher

 

The Second Department determined the causes of action against the City of New York Department of Education (DOE) alleging negligent supervision and retention of a teacher, as well as liability based upon respondeat superior, should not have been dismissed. The complaint alleged the sexual abuse of a student by a teacher, Watts, over the course of two years. The DOE failed to demonstrate it did not have actual or constructive notice of the teacher's propensity for sexual abuse. Although the respondeat superior theory did not apply to the teacher (who acted outside the scope of employment) other employees, who were acting within the scope of employment, may have been negligent:

 

"Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ... . "The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" ... . "Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable" ... . "Actual or constructive notice to the school of prior similar conduct generally is required" ... . Similarly, in order to establish a cause of action based on negligent retention of an employee, "it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ... .

 

Here, the moving defendants failed to establish, prima facie, that the DOE had no specific knowledge or notice of Watts' propensity to engage in the misconduct alleged in the complaint ... . * * *

 

The Supreme Court also should have denied that branch of the moving defendants' motion which was for summary judgment dismissing the cause of action alleging liability based upon a theory of respondeat superior insofar as asserted against the DOE. "Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" ... . Here, the DOE may not be held liable under a theory of respondeat superior for the alleged misconduct committed by Watts, as it is undisputed that those acts were not committed in furtherance of the DOE's business and within the scope of Watts' employment ... . However, as the plaintiffs correctly contend, the complaint adequately alleged that other employees of the DOE were negligent in the performance of their respective duties, and that such negligence constituted a proximate cause of the infant plaintiff's injuries. In this regard, the moving defendants failed to establish, prima facie, that these other employees were not acting within the scope of their employment ..., that they were not negligent, or that any such negligence was not a proximate cause of the alleged injuries ... . Nevaeh T. v City of New York, 2015 NY Slip Op 07642, 2nd Dept 10-21-15

 

 

 

SCHOOL LIABILITY [HORSE-RIDING INSTRUCTION]

 

"Here, the defendants failed to establish [their] prima facie entitlement to judgment as a matter of law. The defendants failed to establish, prima facie, that the conduct of [the instructor] did not unreasonably increase [plaintiff's] exposure to the risk of falling."

 

Defendant's Failure to Demonstrate the Normal Risks Associated with Horseback Riding Were Not Unreasonably Increased by the Riding Instructor Required Denial of Defenant's Motion for Summary Judgment.

 

The Second Department determined defendants' motion for summary judgment should not have been granted. Plaintiff was injured when she fell off a horse during riding instruction. The instructor had plaintiff execute a maneuver with her feet outside the stirrups. The plaintiff had told the instructor she could not do the maneuver and she fell when attempting it:

 

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity " consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'" ... . The doctrine operates to limit the scope of the defendant's duty, and "it has been described [as] a principle of no duty' rather than an absolute defense based upon a plaintiff's culpable conduct" ... . "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" ... . "The risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding" ... .

 

The primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased ... . "[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" ... . Furthermore, "in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'" ... .

 

Here, the defendants failed to establish [their] prima facie entitlement to judgment as a matter of law. The defendants failed to establish, prima facie, that the conduct of [the instructor] did not unreasonably increase [plaintiff's] exposure to the risk of

falling. Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 2015 NY Slip Op 09249, 2nd Dept 12-16-15

 

 

SCHOOL LIABILITY

 

The court noted that defendant's attempt to place the burden on plaintiff to demonstrate a causal link between her injury and the failure to provide physical therapy must fail in the context of a defense summary judgment motion. The burden never shifted to plaintiff on that issue because the defendant did not demonstrate, through an expert affidavit, the absence of causation.

 

Because Defendant Presented No Affirmative Proof of the Causation of Plaintiff's Injury, the Burden of Proof on that Issue Never Shifted to the Plaintiff, Defendant Can Not Rely on Gaps in Plaintiff's Proof.

 

The First Department, over a two-justice dissent, determined defendant synagogue's motion for summary judgment was properly denied. Plaintiff was a participant in a study-abroad program run by defendant in Israel. She injured her knee and alleged she was prescribed physical therapy but defendant refused to provide it (delaying and compromising recovery). The First Department held defendant owed a duty of care to plaintiff because it had agreed to provide medical care and was in the best position to protect plaintiff from injury. The court noted that defendant's attempt to place the burden on plaintiff to demonstrate a causal link between her injury and the failure to provide physical therapy must fail in the context of a defense summary judgment motion. The burden never shifted to plaintiff on that issue because the defendant did not demonstrate, through an expert affidavit, the absence of causation. [Yet another example of the need for a defendant to present affirmative proof on every relevant issue when seeking summary judgment. Without affirmative proof on a necessary issue, the burden never shifts to plaintiff.] Katz v United Synagogue of Conservative Judaism, 2016 NY Slip Op 00094, 1st Dept 1-12-16

 

 

 

 

 

 

 

LANDLORD/TENANT LIABILITY

 

"Here, on its motion for summary judgment, [the landlord] failed to establish, prima facie, that it lacked notice of the same or similar criminal activity occurring on the premises." 

 

Landlord Failed to Demonstrate Assault on Tenant Was Not Foreseeable---Landlord's Summary Judgment Motion Properly Denied

 

The Second Department determined Supreme Court properly denied landlord's motion for summary judgment in an action stemming from an assault on a tenant at the landlord's premises.  The assault took place when the lone security guard took his regular lunch break, leaving the premises unguarded. The defendant did not demonstrate a lack of notice of the same or similar criminal conduct and therefore failed to demonstrate the assault was not foreseeable:

 

A landlord is not the insurer of the safety of its tenants ... . Nevertheless, landlords have a duty to take reasonable precautions to protect tenants and visitors from foreseeable harm, including foreseeable criminal conduct by third parties ... . To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location ... .

 

Here, on its motion for summary judgment, [the landlord] failed to establish, prima facie, that it lacked notice of the same or similar criminal activity occurring on the premises. Karim v 89th Jamaica Realty Co., L.P., 2015 NY Slip Op 03329, 2nd Dept 4-22-15

 

 

 

 

LANDLORD/TENANT LIABILITY

 

"[A]n out-of-possession landlord may be liable for injuries occurring on the premises if 'it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs' ...". 

 

Question of Fact Whether Out-of-Possession Landlord Relinquished Control of the Premises to the Extent that Its Duty to Maintain the Premises in a Reasonably Safe Condition Was Extinguished---Lease Allowed Landlord to Reenter to Inspect and Make Repairs and Improvements

 

The Second Department determined there were questions of fact whether an out-of-possession landlord (Marphil Realty) was liable for a dangerous condition (resulting in a fire). The lease gave the landlord the right to reenter during usual business hours in order to inspect the premises and to make repairs and improvements. Therefore there was a question of fact whether the landlord had relinquished complete control over the property such that its duty to maintain the property in a reasonably safe condition was extinguished:

 

"Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition" ... . "That duty is premised on the landowner's exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others'" ... . Accordingly, "a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property" ... . However, an out-of-possession landlord may be liable for injuries occurring on the premises if "it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs" ... . Yehia v Marphil Realty Corp., 2015 NY Slip Op 05670, 2nd Dept 7-1-15

 

 

 

LANDLORD/TENANT LIABILITY

 

Defendant failed to demonstrate, inter alia, the absence of a hazardous condition and her lack of actual or constructive notice of the [lead-paint] condition.

 

Defendant Should Not Have Been Granted Summary Judgment in this Lead-Paint-Injury Case

 

The Fourth Department determined defendant landlord should not have been granted summary judgment in this lead-paint-injury action.  [The case presents another example of a defendant's failure to affirmatively address all possible theories of recovery in summary-judgment-motion papers.] Defendant failed to demonstrate, inter alia, the absence of a hazardous condition and her lack of actual or constructive notice of the condition.  Rodrigues v Lesser, 2016 NY Slip Op 00836, 4th Dept 2-5-16

 

 

 

 

MUNICIPAL LIABILITY

 

"Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition ...".

 

Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement

 

The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:

 

A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies ... . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality ... . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ... .

 

Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition ... . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15

 

 

 

 

MUNICIPAL LIABILITY (PROPERTY DAMAGE)

 

"In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no notice of a dangerous condition, and that it regularly inspected and maintained the subject sewer line ...".

 

 

Town Failed to Show Routine Inspection of Sewer System---Summary Judgment in Sewer-Backup Case Properly Denied

 

The Second Department determined the town was not entitled to summary judgment in a case alleging the failure to maintain the town's sewer system.  The court explained the relevant analytical criteria:

 

A municipality is immune from liability "arising out of claims that it negligently designed [a] sewerage system" ... . However, a municipality "is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature"... . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no " notice of a dangerous condition,'" and that "it regularly inspected and maintained the subject sewer line" ... .

 

Here, the defendant Town ..., failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines ... . The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs' residence ... . Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 2015 NY Slip Op 02719, 2nd Dept 4-1-15

 

 

 

 

MUNICIPAL LIABILITY

 

"Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition ... . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition ...". 

 

Question of Fact Whether City Created Hazardous Condition

 

The Second Department, reversing Supreme Court, determined there was a question of fact whether the city created the allegedly hazardous condition (an expansion joint cover plate on a bridge which was struck by plaintiff's bicycle):

 

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury ... . In addition, "[a] municipality that has adopted a prior written notice law' cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" ... . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality ... .

 

Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition ... . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition ... . Oser v City of New York, 2015 NY Slip Op 08393, 2nd Dept 11-18-15

 

 

LABOR LAW LIABILITY (NEGLIGENCE)

 

"... [W]here a plaintiff's injury arose from a dangerous condition at a work site, a property owner moving for summary judgment dismissing a cause of action alleging common-law negligence has 'the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence' ... . Here, the defendant failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. ... Further, the defendant failed to demonstrate the absence of any triable issues of fact as to whether he had actual or constructive notice of the dangerous condition ...".

 

Defendant Failed to Affirmative Address All Theories of Recovery Alleged in the Complaint

 

The Second Department, reversing Supreme Court, determined defendant property owner was not entitled to summary judgment in this common-law negligence and Labor Law 200, 240(1) and 241(6) action. Plaintiff was injured working on defendant's building. Defendant, in his motion papers, did not affirmatively address all the possible theories of recovery available to the plaintiff. Therefore summary judgment should not have been granted. [Another example of the need for a defendant bringing a summary judgment motion to affirmative address every theory raised in the complaint.]:

 

Liability on common-law negligence and Labor Law § 200 causes of action "generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site" ... . Where, as alleged here, the plaintiff's accident arose from an allegedly dangerous premises condition, a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it .... Thus, where a plaintiff's injury arose from a dangerous condition at a work site, a property owner moving for summary judgment dismissing a cause of action alleging common-law negligence has "the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence" ... . Here, the defendant failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. ... Further, the defendant failed to demonstrate the absence of any triable issues of fact as to whether he had actual or constructive notice of the dangerous condition ... . ...

 

Moreover, the Supreme Court erred in directing the dismissal of the Labor Law §§ 240(1) and 241(6) causes of action because, while the defendant generally sought dismissal of the plaintiff's complaint insofar as asserted against him, he did not demonstrate the absence of any triable issues of fact in connection with these causes of action... . Korostynskyy v 416 Kings Highway, LLC, 2016 NY Slip Op 00939, 2nd Dept 2-10-16

 

 

 

LABOR LAW LIABILITY (NEGLIGENCE)

 

"Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both of the foregoing liability standards ... . A defendant moving for summary judgment in such a case may prevail 'only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard'...". 

 

To Be Entitled to Summary Judgment on a Labor Law 200 Cause of Action, the Defendant Must Demonstrate the Defendant (1) Did Not Control the Plaintiff's Work and (2) Did Not Create or Have Constructive Knowledge of the Dangerous Condition 

 

The Second Department determined summary judgment should not have been granted to defendant homeowners in this Labor Law 200 action. It was alleged the homeowners created a dangerous condition by placing an unsecured tarp in the area where plaintiff placed his ladder. Plaintiff was injured when he fell from the ladder.  The Second Department explained that the defendants, to be entitled to summary judgment, were required to demonstrate (1) they did not "have authority to supervise or control the methods or materials of the injured plaintiff's work" and (2) they did not create the dangerous condition that caused the accident or have actual or constructive notice of the dangerous condition. Here the defendants failed to demonstrate they did not create the dangerous condition:

 

Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both of the foregoing liability standards ... . A defendant moving for summary judgment in such a case may prevail "only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard" ... . Pacheco v Smith, 2015 NY Slip Op 04293, 2nd Dept 5-20-15

 

 

 

 

LABOR LAW LIABILITY (NEGLIGENCE)

 

"When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging common-law negligence is obligated to address the proof applicable to both liability standards ... . A defendant moving for summary judgment in such a case may prevail 'only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard' ...".

 

Defendant-Property Owners Negated Both Potential Theories of Liability for Injuries to Worker, Summary Judgment Should Have Been Granted to Defendants.

 

The Second Department, reversing Supreme Court, determined defendant landowners were entitled to summary judgment dismissing the common law negligence complaint brought by a worker injured constructing a gazebo in the landowners' backyard. The court explained that the defendant had properly addressed and negated both theories of liability raised in the complaint, i.e. liability stemming from supervision of the work and liability stemming from a dangerous condition:

 

Landowners and general contractors have a common-law duty to provide workers with a reasonably safe place to work ... . To be held liable for common-law negligence for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the means and methods of the plaintiff's work ... . Where a plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable for common-law negligence if it " either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" ... . When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging common-law negligence is obligated to address the proof applicable to both liability standards ... . A defendant moving for summary judgment in such a case may prevail "only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard" ... . Wejs v Heinbockel, 2016 NY Slip Op 05989, 2nd Dept 9-14-16

 

 

 

RES IPSA LOQUITUR LIABILITY

 

"Plaintiff alleged liability under common-law negligence and res ipsa loqutur. The Second Department determined defendant's summary judgment was properly denied because defendant did not affirmatively demonstrate (1) a lack of exclusive control over the picture frame, (2) the picture frame did not constitute a dangerous condition, and (3) defendant did not create a dangerous condition."

 

 

Defendant's Failure to Address "Exclusive Control" Element of Res Ipsa Loquiture Required Denial of Summary Judgment

 

The plaintiff alleged she was injured by a picture frame which fell on her inside an office leased by defendant.  Plaintiff alleged liability under common-law negligence and res ipsa loqutur. The Second Department determined defendant's summary judgment was properly denied because defendant did not affirmatively demonstrate (1) a lack of exclusive control over the picture frame, (2) the picture frame did not constitute a dangerous condition, and (3) defendant did not create a dangerous condition. [Again, failure of the defense to affirmatively address every alleged theory of liability requires denial of summary judgment.]. Assil v Camba, Inc., 2016 NY Slip Op 00914, 2nd Dept 2-10-16

 

 

 

MEDICAL MALPRACTICE LIABILITY (NFORMED CONSENT)

 

"The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law ... . The consent form provided by the defendants and signed by the plaintiff warned generally that there was a risk of scarring after the biopsy was conducted. However, the deposition testimony of the plaintiff and Barazani, which was submitted by the defendants in support of their motion, revealed a factual dispute as to whether Barazani properly advised the plaintiff of the risk of scarring before she signed the form ... . The defendants also failed to establish, prima facie, that if the plaintiff had received full disclosure, she still would have consented to the procedure ...".

 

Defendant Did Not Address All Elements of Recovery Under Lack of Informed Consent

 

The Second Department determined defendant physician (Barazani) was not entitled to summary judgment on the "lack of informed consent" cause of action, despite the plaintiff's signing of a consent form. Although the consent form mentioned scarring as a possibility, there was no showing the defendant discussed scarring with the plaintiff before the consent form was signed. In addition, there was no showing plaintiff would have gone through with the surgery had scarring been adequately discussed. [Another example of the need for a defendant seeking summary judgment to affirmatively address every possible theory of recovery.]:

 

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 actual procedure performed for which there was no informed consent was the proximate cause of the injury (see Public Health Law § 2805-d[1]...).

 

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law ... . The consent form provided by the defendants and signed by the plaintiff warned generally that there was a risk of scarring after the biopsy was conducted. However, the deposition testimony of the plaintiff and Barazani, which was submitted by the defendants in support of their motion, revealed a factual dispute as to whether Barazani properly advised the plaintiff of the risk of scarring before she signed the form ... . The defendants also failed to establish, prima facie, that if the plaintiff had received full disclosure, she still would have consented to the procedure ... . Schussheim v Barazani, 2016 NY Slip Op 00958, 2nd Dept 2-10-16

 

 

 

BAR-OWNER LIABILITY (DUTY TO PROTECT AGAINST CRIMINAL ACTS)

 

"[This] evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants' part was not a proximate cause of the incident ... . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties ...".

 

 

Bar Patron Was Beaten to Death by Other Patrons---Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack---Defendants' Summary Judgment Motion Properly Denied 

 

The Second Department determined there were questions of fact whether a bar patron could have been protected from harm.  "The plaintiff's decedent was assaulted by other patrons of a lounge on premises leased by the defendant Bartini's Pierre, Inc., also known as Station Bar Corp., doing business as Bartini's Lounge, and owned by the defendant Reiner & Keiser Associates (hereinafter together the appellants)." The appellants were not able to demonstrate prima facie that the attack was not foreseeable, that the attack could not have been prevented, that the appellants' negligence was not the proximate cause of the attack, or that reasonable security measures to guard against criminal acts by third persons were taken:

 

 "Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" ... .

 

Here, the appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. In support of their motion, the appellants submitted the deposition testimony of a witness to the incident, who testified that, shortly before the incident, he noticed the decedent being restrained by a security guard, but was not aware of the events which led the security guard to restrain the decedent. The witness testified that the security guard then proceeded to escort the decedent out of the premises, during the course of which the decedent was severely beaten by other patrons, resulting in his death. This evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants' part was not a proximate cause of the incident ... . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties ... . Walfall v Bartini's Pierre, Inc., 2015 NY Slip Op 03830, 2nd Dept 5-6-15