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September Page II

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


Click on the Case Name to View Full Decision


Supreme Court Erred When It Ruled Plaintiff Had "Defaulted" on Its Summary Judgment Motion by Failing to Appear for Oral Argument


The First Department affirmed the denial of plaintiff's summary judgment on the merits in a breach of contract action. However, the First Department noted that the alternative ground for Supreme Court's ruling, i.e., that plaintiff had "defaulted" on its motion by failing to appear for oral argument, was not appropriate:


We find ... that Supreme Court erred in finding that plaintiff had "default[ed]" on this motion. We fail to perceive the conduct that constituted plaintiff's default. It was plaintiff who submitted the motion for summary judgment. Typically, a motion for summary judgment can be readily decided on the papers unless oral argument is mandated by the motion court as "necessary." Nothing in the record before us suggests that the parties were on notice that oral argument was indispensable for resolution of plaintiff's motion. Indeed, when Supreme Court ultimately rendered its decision on the record, counsel for both parties were present. Under the circumstances, Supreme Court abused its discretion as a matter of law by disposing of the motion on the procedural ground sua sponte imposed by the court. All State Flooring Distribs., L.P. v MD Floors, LLC, 2015 NY Slip Op 06751, 1st Dept 9-8-15






Use of an Address to Which the Respondent Was in the Process of Moving Did Not Constitute a False Statement within the Meaning of the Election Law


In an action seeking to invalidate a nominating petition, the Fourth Department determined the respondent (a candidate for Common Council Member in Utica) did not provide a false address when she witnessed signatures on her nominating petition. Respondent was in the process of moving to the address used on the petition. Although she had spent time at the new address, the certificate of occupancy for the property had not yet been issued and she, therefore, could not yet formally reside there. The Fourth Department explained the law relevant to the use of an address where one intends to reside:


We explained in Matter of McManus v Relin (286 AD2d 855, lv denied 96 NY2d 718) that where, as here, "[t]he witness was in the process of moving from one apartment to another during the period in which signatures were being obtained and he provided his new address as a current address on . . . designating petitions signed before he actually moved," the witness complied with Election Law § 6-132 (2). Although respondent had not yet moved to the address at the time she witnessed the signatures, the record establishes that the address was intended to be "that place where [she] maintains a fixed, permanent and principal home" (§ 1-104 [22]). "The determination of an individual's residence is dependent upon an individual's expressed intent and conduct ..., and we conclude that the record establishes that respondent's conduct reflects her intent that the address is her residence ..., despite her inability to move in for reasons beyond her control. Thus, the witness statement using that address does not, under the circumstances of this case, constitute "a material false statement" (§ 6-132 [2]), and there is no indication of fraud ... . Where an alleged impropriety "does not involve the substantive requirements of witness eligibility[,]' [i.e., that respondent is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition] and there is no implication of fraud, resort to strict construction should be avoided if it would lead to injustice in the electoral process or the public perception of it' " ... . We therefore conclude, contrary to petitioner's contention, that strict construction of Election Law § 6-132 (2) is not necessary with respect to respondent's specification of the address on the witness statement. Matter of Vescera v Karp, 2015 NY Slip Op 06755, 4th Dept 9-8-15





Error to Charge Jury on Comparative Negligence/Inadequate Awards for Pain and Suffering and Loss of Consortium


The First Department determined the jury should not have been charged on comparative negligence in this Labor Law 241 (6) action. Plaintiff's decedent was injured when he tripped and fell over construction debris. Because defendant was obligated to keep the area clear of debris, and because there was no clear path plaintiff's decedent could use, the comparative negligence jury instruction was not warranted. The First Department further determined that the award for pain of suffering ($100,000) was inadequate and the failure to award any damages for loss of consortium was against the weight of the evidence and rendered the verdict inconsistent. Pursuant to plaintiff's motion to set aside the verdict, a new trial was ordered unless defendant agreed to a $400,000 award for pain and suffering and a $50,000 award for loss of consortium:


The evidence established that, as a result of his hand injury, [plaintiff's decedent] developed, inter alia, nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety, and significant limitation of the use of his left hand due to permanent contracture of the fingers. Upon a review of other relevant cases, we find that the award of $100,000 for pain and suffering materially deviates from reasonable compensation ... .


The jury's decision not to award damages to plaintiff (wife) for loss of consortium was against the weight of the evidence ... . Plaintiff (wife) described significant changes in [plaintiff's decedent's] behavior after his accident and explained the impact this had on their relationship. On this record, the jury's decision to award damages for pain and suffering, but none for loss of consortium, is inconsistent. Kutza v Bovis Lend Lease LMB, Inc., 2015 NY Slip Op 06753, 1st Dept 9-8-15






Plaintiff Entitled to Summary Judgment on His Labor Law 240 (1) Cause of Action---Plaintiff Fell from Temporary Staircase Which Was Wet from Rain 


The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from a temporary staircase which was wet from rain. The dissent argued that there was a question of fact whether a safer temporary staircase could have been provided, and, therefore, summary judgment in plaintiff's favor was not appropriate. The majority wrote:


Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. As the dissent recognizes, plaintiff was engaged in a covered activity at the time he slipped and fell down the stairs of a temporary tower scaffold. A fall down a temporary staircase is the type of elevation-related risk to which section 240(1) applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute ... . As we stated in Ervin v Consolidated Edison of N.Y. (93 AD3d 485, 485 [1st Dept 2012]), involving a worker who fell when the temporary structure he was descending gave way, "It is irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity-related risk." We are thus at a loss to comprehend the dissent's reasoning that although the temporary staircase was a safety device and although it admittedly did not prevent plaintiff's fall, there is nonetheless a factual issue which would defeat plaintiff's entitlement to partial summary judgment on his section 240(1) claim.


The fact that the affidavits of plaintiff's and defendant's experts conflict as to the adequacy and safety of the temporary stairs does not preclude summary judgment in plaintiff's favor. A plaintiff is entitled to partial summary judgment on a section 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants' failure to take mandated safety measures to protect him against an elevation-related risk ... . Plaintiff's expert opined, inter alia, that the stairs showed obvious signs of longstanding use, wear and tear; therefore, a decrease in anti-slip properties was to be expected. Given that it is undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been. O'Brien v Port Auth. of N.Y. & N.J., 2015 NY Slip Op 06749, 1st Dept 9-8-15







School's Knowledge that Infant-Plaintiff Was Being Taunted and Bullied Did Not Constitute Notice that Another Student Would Act Violently Toward Infant-Plaintiff---Supervision Could Not Have Prevented the Sudden Action by the Student Who Pushed Infant-Plaintiff


The First Department, over a dissent, determined the defendant New York City public school was entitled to summary judgment dismissing infant-plaintiff's "negligent supervision" complaint. Infant-plaintiff had been taunted and bullied by a fellow student, referred to in the decision as WEM. Infant-plaintiff was injured when WEM pushed him into a bookcase. Although infant-plaintiff's teacher had been notified of WEM's bullying on the day of the incident, and the school administration had been notified infant-plaintiff was being taunted and bullied by (unidentified) students, the majority concluded the school was not on notice that WEM would act violently toward infant-plaintiff, and, even if the school had been so notified, the sudden incident could not have been prevented by supervision. The majority wrote: 


Initially, while "schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ..., "unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct" ... . Here, the record contains no evidence that the school had notice that WEM had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that WEM was "picking on him" and calling him names, and that his mother had called the principal's office and reported that some unidentified boys were "picking on her son," when viewed in the light most favorable to plaintiff, shows only that the school knew that WEM had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school "sufficiently specific knowledge or notice" of "prior conduct similar to the unanticipated injury-causing act" by WEM to support a finding of actual or constructive notice of the risk that he would engage in violent or physically aggressive behavior against plaintiff ... . 


Summary judgment is also warranted because plaintiff has not raised an issue as to proximate causation. There is no non-speculative basis for finding that any greater level of supervision than was provided would have prevented the sudden and spontaneous altercation between the two students. "Schools are not insurers of safety" and "cannot reasonably be expected to continuously supervise and control all movements and activities of students" ... . Emmanuel B. v City of New York, 2015 NY Slip Op 06750, 1st Dept 9-8-15






Plaintiffs Entitled to Damages Re: City's Failure to Timely Notify Plaintiffs of the Death of a Family Member


The First Department, in a full-fledged opinion by Justice Tom, affirmed Supreme Court's rulings re: allegations that (1) the City of New York failed to timely notify plaintiffs of the death of a family member (a 36-hour delay in violation of the right of sepulcher) and (2) the City negligently performed an autopsy, which violated the family's religious beliefs. The First Department determined plaintiffs were entitled to summary judgment on the "failure to timely notify" causes of action, and the City was entitled to summary judgment dismissing the "negligent performance of an autopsy" cause of action (by statute, in the absence of receipt of an objection on religious grounds, the City has the authority to conduct an autopsy without first seeking consent from the family). With respect to the "failure to timely notify" causes of action, the court wrote:


The first cause of action alleges that as a result of the failure to receive timely notification of the death of Darden Binakaj, plaintiffs sustained emotional injury. The second cause of action specifies that mental anguish resulted from defendants' interference with the family's right to the immediate possession of decedent's body. Thus, these causes of action can be read to advance a claim for violation of the common-law right of sepulcher. * * *


While emotional distress resulting from injury inflicted on another is not compensable under New York law, as the City argues, the emotional harm alleged in this matter is the direct result of the breach of a duty to timely communicate information about a death to plaintiffs themselves ... .  In Johnson v State of New York (37 NY2d 378 [1975]), the plaintiff alleged emotional harm as a result of receiving a message that negligently reported the death of her mother, a patient in a state hospital, when in fact the person who had died was another patient with the identical name. The Court of Appeals sustained recovery for emotional suffering on the reasoning that the particular circumstances were associated with " genuine and serious mental distress . . . which serves as a guarantee that the claim is not spurious'" ... . The Court noted that the false message informing the plaintiff of the death and the resulting psychological injury were within the orbit of duty owed by the hospital to the patient's daughter and that she was entitled to recover for breach of that duty ... . Contrary to the City's contention, Johnson holds that in the case of negligent communications involving the death of a family member, damages are recoverable for purely emotional injury, expressly distinguishing negligent communication that causes emotional suffering from that sustained "solely as a result of injuries inflicted directly upon another, regardless of the relationship" ... . The unavoidable implication is that such communication is a ministerial function, as opposed to the discretionary exercise envisioned by the City for which no recovery is available. While the injury alleged in this matter resulted from an untimely rather than false communication, the City's contention that it cannot be held liable for negligence in informing the plaintiffs about the death of their loved one finds no support under Johnson.


The second cause of action alleges that as a result of the untimely notification, which deprived plaintiffs of any opportunity to state their objection to the autopsy, the City interfered with their right to immediate possession of decedent's body. As this Court stated in Melfi v Mount Sinai Hosp. (64 AD3d 26, 31 [1st Dept 2009]), "the common-law right of sepulcher gives the next of kin an absolute right to the immediate possession of a decedent's body for preservation and burial, and . . . damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body." Damages are awarded as compensation to the next of kin for the "solely emotional injury" experienced as a result of the interference with their ability to properly bury their decedent ... . * * *


As this Court stated:


"[F]or a right of sepulcher claim to accrue (1) there must be interference with the next of kin's immediate possession of decedent's body and (2) the interference has caused mental anguish, which is generally presumed. Interference can arise either by unauthorized autopsy or by disposing of the remains inadvertently or, as in this case, by failure to notify the next of kin of the death" ... .


The City states no compelling reason to depart from clear precedent to bar a cause of action for loss of sepulcher in this instance ... . Rugova v City of New York, 2015 NY Slip Op 06754, 1st Dept 9-8-15





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