Who’s Liable For Injuries Sustained On A Public Sidewalk–the City or Land Owner? (NY)
Sidewalks are a tricky business. On one hand, they are public property and maintenance is the city’s responsibility whereas on the other hand, you own land bordering that same sidewalk and are responsible for making nonnegligent repairs and not creating dangerous conditions on that sidewalk. There’s a fine line between the two and issues arise when someone gets injured on the sidewalk. Does liability lie with the city or the owner of the land? In Xiao Jin v. City of New York, et al., the plaintiff was allegedly injured when she fell after stepping into a hole in a grassy area between the sidewalk and the curb abutting premises owned by the defendant. The defendant who owned the land was granted summary judgment by the court holding that they were not liabile since the dangerous condition was not created by them nor did they make negligent repairs that caused the condition. Even though defendant admitted to trying to fill the hole on several occasions, it did not rise to making negligent repairs that caused the dangerous condition. Rather the court followed the well-established rule, “[l]iability for injuries sustained as a result of a dangerous condition on a public sidewalk is generally placed on the municipality and not on the owner of the abutting land (see Gelstein v City of New York, 153 AD3d 604, 604; Buonviaggio v Parkside Assoc., L.P., 120 AD3d 460, 461). That said, generally the city is responsible for its sidewalks and always maintaining safe conditions and as a landowner abutting the sidewalks, be sure not to (1) create the dangerous condition, (2) make negligent repairs that cause the dangerous condition, (3) create the dangerous condition through a special use of the sidewalk, or (4) violate a statute or ordinance. Thanks to Ishra Glasswala for her contribution to this article. Should you have any questions, contact James Scott.Read More
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MTA Cannot Avoid Liability Under Emergency Doctrine (NY)
In Greene v. MTA Bus Co. 2023 NY Slip Op 04658, (September 20, 2023) plaintiff brought action against the MTA, and another motorist, when plaintiff sustained injuries caused by the sudden stop of the bus she was riding on. The facts here appeared clear cut as Plaintiff was riding an MTA bus on Hillside Avenue in Queens. When the bus was pulling away from the pickup stop, the co-defendant made a right turn directly into the path of the bus causing the bus driver to make a sudden stop. At summary judgment, MTA moved under the emergency doctrine, arguing they were faced with sudden and unexpected circumstances not of the driver’s own making, leaving the driver no time for reflection and that the driver is compelled to make a quick decision without weighing any alternative courses of conduct. Yet, both the lower court and the Second Department denied the MTA’s motion for summary judgment finding the MTA failed to eliminate their driver was not at fault for the accident, and that there were still questions of fact as to whether the driver exercised reasonable care to avoid the accident, or if his actions were contributing to the emergency. This case highlights the importance introducing the testimony that affirms your client’s “innocence.” Eliminating potential issues of fact, especially in situations where there is incentive to leave things open for interpretation, is imperative to get a court to grant summary judgment motions. Thanks to Chris Palmieri for his assistance with this article. Should you have any questions, please contact Tom Bracken.Read More
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Factual Pleadings In Complaint Will Not Be Dismissed Without Discovery Regarding Liability Due To Ownership Of Vehicle
In Sharon Holmquist v. Harry Orphanides and Rallye BMW, 2023 NY Slip Op 04660 (2d Dept. 2023), plaintiff suffered personal injuries arising from a motor vehicle accident involving a vehicle that was owned by Rallye BMW and leased to Orphanides. Defendant Rallye BMW filed a motion to dismiss under CPLR 3211(a)(1) and (7) arguing that they could not be held liable under the Graves Amendment 49 USC § 30106. Briefly, under the Graves Amendment, “the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” (Harewood v Zip Car, 189 AD3d 1192, 1193 [emphasis added]; see 49 USC § 30106[a]). Here, the Court determined the Complaint had a cause of action for negligent maintenance against Rallye BMW and Rallye failed to offer evidence that the allegation was not a fact. Any arguments that Rallye BMW’s vehicle was in good working order would be an issue to be discerned on discovery. The liberal pleadings precedent dictats a trial court will only dismiss all or part of a Compliant if there is no have no cause of action at law. A Complaint that states facts and allegations arising from those facts as stated, will likely survive any arguments for dismissal under CPLR 3211. Thanks to Ray Gonzalez for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More
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Duty To Defend An Additional Insured May Extend Even If Named Insured Is Not A Defendant (NY)
The United States District Court in the Southern District of New York recently held that Harleysville Insurance Company had a duty to defend the City of New York as an additional insured in an underlying personal injury action, even though the insured was not a named defendant. City of New York v. Harleysville Insurance Company, No. 22-CV-3306 (RA), 2023 WL 4548715 (S.D.N.Y. July 14, 2023). The City entered into a contract with Prestige Pavers of NYC to reconstruct an entrance to a playground in Manhattan. Prestige was the named insured under a commercial general liability policy issued by Harleysville. The relevant language of the policy included an additional insured endorsement, which identified the City as an additional insured but only for “bodily injury,” “property damage,” or “personal and advertising injury” caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) in the performance of your ongoing operations; or (b) in connection with your premises owned by or rented to you. Id. at 2. In February 2020, a minor child filed an action against the City alleging that a gate at the playground fell on the minor child and caused serious and permanent personal injuries alleging it was the duty of the City to maintain the Playground. The City notified Harleysville of the action and demanded a defense. Harleysville initially denied coverage, stating that the contract did not contain language that required defense and indemnity on behalf of the City for their “sole independent negligence” since the underlying case did not name Prestige as a defendant. The City argued the complaint presented a reasonable possibility of coverage because the complaint alleged that the City “and its agents”, including Prestige, had a duty to maintain the safety of the playground, and the injury stemmed from the alleged negligence of both parties. Harleysville argued that the City failed to establish that the accident was caused by Prestige’s acts or omissions, and so the City does not qualify as an additional insured. Id. The court held for the City, and that it met its burden of demonstrating that the allegations in the underlying complaint suggested a reasonable possibility of coverage under the Harleysville Policy and thus Harleysville’s duty to defend under the Policy was invoked. The court opined there was a “reasonable possibility” that Prestige, as a contractor, was acting as the City’s agent and there was a “reasonable possibility” that the gate fell due to Prestige’s negligence. Thus, the court held the City is entitled to a defense as an additional insured, at least until the accident is later proven to be outside coverage. Even though the underlying action did not name the insured as a defendant, Harleysville is still compelled to defend the City as an additional insured because the duty to defend is based only on the “reasonably possibility of coverage” and not definitive proof of coverage. Thanks to Martha Osisek for her assistance with this article. Should you have any questions, please contact Tom Bracken.Read More
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Second Department Reaffirms Standard For Denial of Summary Judgment On Grounds Of Prematurity
New York’s Appellate Division, Second Department, recently held that in motor vehicle rear-end collision cases, defendant drivers occupying the rear must do more than speculate if they are to prevail in opposing a plaintiff’s summary judgment motion. In Yonghong Xia v. Zhao Xian Zeng, Paul Gornie Briggs, et al, the Court credited plaintiff’s affidavit that demonstrated, prima facie, that defendant Briggs was negligent in striking plaintiff’s vehicle from the rear and rejected the defendant’s attempt to raise a triable issue of fact by merely contending that plaintiff’s vehicle slowed down abruptly. It has long been the rule in New York that, “[a] driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle.” Xia v. Zeng, 2023 N.Y. Slip Op. 04435 (2d Dep’t Aug 30, 2023) (internal citations omitted). Liability in rear end collisions is, barring contrary evidence, typically imposed on the rear driver. Considering Second Department precedent, the Court held that defendant Briggs’ contention was insufficient to raise a triable issue of fact as to whether Zeng contributed to the accident. Slowing down or stopping short, barring further evidence of negligence, was no basis for finding plaintiff comparatively negligent in this case. The Court noted that Briggs’ own affidavit weakened his position, as he conceded an awareness of earlier rainfall that day, and equipped with such awareness, he should have been able to avoid skidding. The Court reaffirmed its standard that “[a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.” Skura v. Wojtlowski, 165 A.D.3d 1196 (2d Dep. 2018) (emphasis added). Ultimately, Briggs did nothing more than speculate that depositions would lead to relevant evidence. Given the substantial credibility of the plaintiff’s affidavit, the Court was unwilling to yield to such speculation, and affirmed the order of the Supreme Court. The Court’s decision demonstrates the importance of party affidavits in motor vehicle rear end collision cases. Thanks to Mark Kindschuh for his contribution to this post. Should you have any questions, contact Abed Bhuyan.Read More
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New York Municipalities Have Potential Liability For Non-Owed Trees Adjacent To Their Roads
The Appellate Division, Second Department, recently addressed the liability of public entities for an accident involving a tree adjacent to a roadway. In Jourdain v. Metropolitan Transp. Auth, plaintiff was injured when a tree, located on an embarkment owned by the Metropolitan Transit Authority (“MTA”), fell onto her vehicle as she was driving on a street. Plaintiff sued the MTA and township where the accident occurred. The trial court granted the Town’s motion for summary judgment but denied the MTA’s motion. The Second Department affirmed the denial of the MTA’s motion and reversed as to the dismissal of the Town, holding that neither defendant was entitled to summary judgment. As to the MTA, the Court determined that they were “not entitled to governmental immunity, as the plaintiff’s claim arises out of the MTA’s duties as landowner, which is a proprietary function.” As for the Town, the Court observed that “[a] municipality’s duty to maintain its roadways in a reasonably safe condition encompasses those trees, adjacent to the roads, which could reasonably be expected to pose a danger to travelers.” The Court found that although the tree was not located on the Town’s property, it was undisputed that the Town owned and maintained the road where the accident occurred and that the duty to maintain that road extended to the adjacent tree. However, the Court also observed that the Town still needed to have actual or constructive notice of the alleged dangerous condition, and subsequently failed to take reasonable measures to correct the condition. To constitute constructive notice, a defect must be visible, apparent and “exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” The Court found that the Town failed to establish, prima facie, that it did not have constructive notice of the tree’s condition or that it met its common-law duty to inspect trees adjacent to its roadways. The Jourdain case serves as a reminder that a municipality’s duty to maintain roads extends to adjacent trees and that this includes a duty to inspect the trees for defects. The failure to do so could result in liability under New York law. Thank you to Rebecca Edelman for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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Fact Issues Concerning Plaintiff’s Fault Precludes Summary Judgment in New York Labor Case (NY)
New York courts hold that comparative negligence is not a defense in cases involving a claim under Labor Law § 240(1). However, plaintiff’s fault can still form the basis for a defense and prevent plaintiffs from obtaining summary judgment as to a defendant’s liability under § 240(1). The Appellate Division, Second Department, recently addressed these issues in Elibox v. Nehemiah Spring Cr. IV Mixed Income Hous. Dev. Fund Co., Inc. In that case, the plaintiff was performing work on a construction project and was allegedly injured when a scaffold he was working on collapsed. Plaintiff sued the owner and general contractor on the project alleging violations of Labor Law § 240(1) and § 241(6). Plaintiff moved for summary judgment as to defendants’ liability under those sections and the trial court denied the motion. The Second Department affirmed, recognizing that although plaintiff’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1), “[a] defendant is not liable under Labor Law § 240(1) where the plaintiff’s own actions are the sole proximate cause of the accident.” Viewing the evidence in a light most favorable to defendants as the non-moving party, the Court found that the trial court’s denial of plaintiff’s summary judgment motion was proper because the defendants raised a triable issue of fact by showing that (1) the scaffold was correctly constructed, and (2) that plaintiff affected the condition of the scaffold by removing the nails securing the plank upon which he was standing “in such a manner as to create the condition causing its collapse.” In doing so, defendants were able to avoid summary judgment as to their liability and preserve the proximate cause defense for trial. The Elibox decision serves as a reminder that plaintiff’s fault is still a valid consideration in Labor Law cases and can represent a complete defense where a defendant can establish that plaintiff’s conduct was the sole proximate cause of an accident. Courts may find the existence of fact issues as in Elibox, but defendants should pursue the defense if there is evidence that plaintiff was at fault. It should also be noted that defendants in Elibox did not cross move for summary judgment, which would have imposed a higher burden of proof. Instead, they opposed the plaintiff’s motion and benefited from the reasonable inferences given to the non-moving party. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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New York’s Anti-SLAPP Law & New Jersey’s Entire Controversy Doctrine Result In Pre-Answer Dismissal
The Appellate Division, First Department, recently affirmed a trial court’s pre-answer dismissal of a complaint alleging defamation and breach of contract. In Gillespie v, Kling, plaintiff was an actor and formerly married to defendant, the host of a podcast that was streamed on Apple Music. The couple resided in New Jersey and filed divorce proceedings in that state after their marriage failed. Defendant subsequently published a podcast alluding to suffering abuse from plaintiff during their marriage. This allegedly caused plaintiff to request a mutual non-disparagement clause in their marital separation agreement which was entered into after the podcast was published. The podcast remained online, and plaintiff alleged that it caused him to lose acting opportunities. Plaintiff sued defendant in New York Supreme Court alleging defamation and breach of contract based on the non-disparagement clause in the agreement. Defendant moved to dismiss the defamation action in lieu of filing an Answer based on New York’s recently amended Anti-SLAPP statute, claiming that the podcast was speech touching on a matter of public concern directed at a public forum. Defendant also moved to dismiss the breach of contract claim based on New Jersey’s entire controversy action, asserting plaintiff should have raised the issue during the divorce proceedings. The trial court granted the motion on both grounds and plaintiff appealed. The First Department affirmed, holding that statements describing domestic violence during a marriage made on a podcast fell within the protection of the anti-SLAPP law. The First Department found that since the anti-SLAPP law applied, it was Plaintiff’s burden to show, by clear and convincing evidence, that Defendant’s statements were false and made with knowledge of their falsity. Plaintiff only submitted a conclusory and self-serving affidavit and therefore did not meet this burden. The First Department also held that New Jersey’s entire controversy doctrine barred the breach of contract cause of action. Because plaintiff had knowledge of defendant’s statements before entering into the marital separation agreement, he was required to bring his breach of contract claim during the divorce proceedings. The Court also held that based on the merger doctrine, the marital separation agreement was merged into the judgment of divorce, and thus ceased to exist as a separately enforceable contract. This decision shows the utility of the newly amended Anti-SLAPP statute in obtaining favorable defense decisions on dispositive motions. It also highlights the importance of considering all potential defenses, even those arising from the law of other jurisdictions, in defending cases. Thank you to Brendan Gilmartin for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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Second Department Clarifies Distinction Between Administrative And Legislative Actions (NY)
In In the Matter of Lishan Aklog v. Town of Harrison, a four-judge panel at the Second Department ended a town drama predating the Covid-19 Pandemic, and in so doing, clarified the sometimes-nuanced distinction between legislative and administrative actions by a township. See Aklog v. Harrison, N.Y.S.3d (2023).
The Respondent, Anthony Robinson, has since 2012 served as the Commissioner of Public Works in the Town of Harrison in Westchester County. At a 2020 Town Board meeting, members expressed concerns about Robinson’s primary residency outside Harrison. Fueled by these concerns, the Board voted not to reappoint Robinson to his position, and instead, to appoint an acting commissioner. Importantly, the Board concretized its goals by adopting two resolutions.
But to the Board’s chagrin, the resolutions were never implemented as Counsel for Harrison advised, on bases unexplored by the Court, of legal consequences of summarily removing Robinson from his post. Thus, Robinson has continued serving as Commissioner despite the figurative coup d’état attempt.
But the Petitioner refused to accept the status quo, and filed suit in the Supreme Court, Westchester County. Petitioner initiated the action pursuant to CPLR § 78, seeking declaratory relief that would remove Robinson from his post and install the acting commissioner. The Court was persuaded by the argument of Robinson’s Counsel that the Petitioner lacked standing, and Petitioner appealed.
New York courts have long been guided by the rule that “citizen taxpayers have standing to ‘challenge important governmental actions’ when the failure to accord standing would ‘erect an impenetrable barrier to any judicial scrutiny of legislative action’” See Matter of Colella v. Bd of Assessors of Nassau Cty., 95 NY2d 401 (Ct. of Appeal 2000). In the instant matter, the Court needed to examine whether town board resolutions constituted administrative or legislative action and deemed them the former.
The Court relied on Matter of Clark v. Town Bd. Of Town of Clarkstown and held that Robinson’s appointment was a matter of administrative, rather than legislative, determination. See Clark v. Clarkstown, 28 A.D.3d 553 (2nd Dept. 2006). Much like Clark, which concerned the appointment of a local police chief, Aklog concerned the appointment of a local official. The Petitioner also failed to demonstrate that Robinson’s continuation as Commissioner was a matter “imperiling the public interest,” as required by General Municipal Law § 51.
In Aklog, the Second Department did not outline an ironclad or universal principle that town board resolutions are not legislative in nature. But the key trend within the Department is towards such resolutions constituting administrative action.
Thanks to Mark Kindschuh for his contribution to this post. Please contact Heather Aquino with any questions.Read More
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NY Court Dismisses Child Cyclist Lawsuit Due To Improper Crossing (NY)
In the matter of A.B. v. Waring, 2023 NY Slip Op 03671, (July 5, 2023) the infant plaintiff brought action after he was struck by a vehicle operated by the defendant driver, while the plaintiff was attempting to cross a street on his bicycle. The Second Department reversed the lower courts holding and awarded summary judgment to the defendant motorist that struck an infant bicyclist. In reaching their holding, the Second Department stated that the burden of proof to establish lack of negligence rests on the shoulders of the movant defendant. The court went on to state that when a driver has a right of way, they are entitled to assume that all other parties will obey the traffic laws, and they cannot be held to be comparatively at fault when they only have seconds to react when one fails to obey those laws. Specifying that every person riding a bicycle upon a roadway, shall be subject to all of the duties applicable to the driver of a vehicle. Here, the infant plaintiff was found to have been negligent when he entered the roadway mid-block from in front of a parked van without yielding to oncoming traffic. This action was deemed to be the sole proximate cause of the accident. The court noted that the driver was only traveling between 15-20 miles per hour and had at most two seconds to react before the incident occurred. Therefore, the Defendant was able to establish that they had no manner to avoid the collision. This was sufficient to be granted summary judgment and have the complaint be dismissed. Thanks to Chris Palmieri for this assistance with this article. Should you have any questions, please contact Tom Bracken.Read More
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