Feldman, Kronfeld & Beatty Law Blog

Tuesday, October 27, 2015

2d Judicial Department, Appellate Division Roundup: October 14, 2015 Edition

In this edition, be prepared to explore summary judgments, including several involving slip-and-falls in the rain, bus shelters shattering on people for no reason, and some interesting labor law cases. More, after the jump . .  . 

John Banscher v. Actus Lend Lease, LLC et al.

In this Labor Law case, a construction worker who was installing shingles on a pitched roof was struck by another worker’s water jug, which caused him to slip and fall. Summary judgment motions were made, and the Supreme Court dismissed the Labor Law S 200 claims of the plaintiffs. The plaintiff alleged both a dangerous condition (premises liability) and a “means and methods” liability theory, which meant that the defendant had to prove their prima facie case to summary judgment on both theories in order to succeed. Here, the Court found that the defendants (especially, in this case, the general contractor and the owner of the premises) had established that they did not create or have actual notice of the allegedly dangerous condition which caused the plaintiff’s accident, nor did they have the authority to supervise or control the means and methods of the injured plaintiff’s work.

Florencio Pascual Gonzalez v. City of New Rochelle

In this bicycle versus automobile accident case, the plaintiff was riding a bicycle near the intersection of Main Street and Stephenson Boulevard in New Rochelle, when the bicycle collided with a truck owned by the City of New Rochelle. The plaintiff lost their summary judgment motion, even though he had met his prima facie case. He had submitted an affidavit, stating that he was in the eastbound right lane of Main Street, and the defendants’ truck was directly behind him in the right lane, sped up and around him and turned right in front of him. The defendant, however, submitted an affidavit which directly contradicted the plaintiff’s affidavit, making a triable issue of fact as to how the accident happened. Even though the plaintiff alleged that the defendant’s affidavit was an attempt to create a feigned issue, the Court decided that the affidavit raised issues of credibility that were for a jury to decide.

Helena Grib v. New York City Housing Authority

In this slip and fall case, the defendant won on summary judgment and the Court affirmed. The crux here was that it was raining at the time the plaintiff slipped and fell on a wet floor in the hallway of the apartment building where she resided. A general awareness that water might be tracked into a building when it rains is insufficient to impute constructive notice of a particular dangerous condition. A property owner is not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain.

Ainsley Murray v. Banco Popular

In this slip and fall case, like the one above, the plaintiff slipped and fell on wet floor while it was raining. The judge denied the motion for summary judgment on behalf of the defendants, and the Court reversed and dismissed the case. As above, while it is raining, there must be something more than a general awareness that water might be tracked into a building for the defendants to have actual or constructive notice of the wet condition that caused the plaintiff’s injury.

Erik Koelling v. Central General Community Services

In this slip and fall action, Mr. Koelling, the plaintiff, fell on black ice in the parking lot of North Shore University Hospital at Plainview. They sued the hospital, and after some time, amended their complaint to include the company hired by the hospital defendants to perform snow and ice removal services. In snow and ice cases, especially, when a defendant property owner has totally contracted out the responsibility to manage or clean the premises, it is the contracted party who is the defendant against whom negligence must be alleged. Unfortunately, the Court found that the plaintiff’s expert affidavit that the black ice on which the plaintiff fell was speculative, conclusory, and insufficient to raise a triable issue. The plaintiff’s case was dismissed.

Myron Little v. New York City Transit Authority

In this unusual case, Mr. Little was standing under a bus shelter when it suddenly shattered and struck him. He sued the New York City Transit Authority and CEMUSA, but most importantly he did not sue the City of New York. Since bus shelters are properly the property of the City of New York, and not the Transit Authority or CEMUSA, the case against the Transit Authority was dismissed.

Frantz Olmann v. Beatrice Neil

In this Graves Amendment case, the defendant PV Holding Corp. had been dismissed from the case because the Supreme Court had found that, although they were the owner of an automobile involved in a motor vehicle accident that injured the plaintiff, they were in the trade or business of renting or leasing motor vehicles and were protected by the Graves Amendment. The Graves Amendment is a federal law that protects owners of leased or rented motor vehicles from lawsuits for personal injuries resulting from the use of such vehicle if there is no negligence or criminal wrongdoing on the part of the owner. The Court here reversed, partially because one of the claims alleged by the plaintiff was improper maintenance, which, if the defendant PV Holding Corp. wished to defeat, it had to prove a prima facie case defeating that claim. As they submitted no admissible evidence to demonstrate that the accident was not caused by the condition of the vehicle as a consequence of PV Holding Corp’s allegedly negligent failure to maintain it, they could not win the summary judgment motion.

DISCLOSURE OF MENTAL HEALTH RECORDS: Michael Quinones v. 9 East 69th Street, LLC

In this Labor Law case, the defendants sought to retrieve records and authorizations relating to the plaintiff’s mental health, which the plaintiff’s attorney refused to provide and moved for a protective order. As the plaintiff did not seek damages for emotional or psychological injury, he did not placed his mental condition in issue and therefore it would not be relevant to the defense of the action. Furthermore, as the plaintiff did not expressly seek damages for loss of enjoyment of life, and a simple claim for damages of pain and suffering related to physical injuries did not warrant disclosure of those records. And even though the physical condition of the plaintiff was relevant to the defense of the action, the defendants still failed to show the materiality or necessity of records related to drugs prescribed or treatment for the plaintiff’s hepatitis. Therefore, the plaintiff successfully won a protective order to prevent the disclosure of those documents.


On November 21, 2012, Ms. Richards was crossing Linden Boulevard near its intersection with Van Siclen Avenue in Brooklyn. As she was crossing the street within the crosswalk, with the signal in her favor, a New York City sanitation truck, which was attempting to make a left turn onto Linden Boulevard, struck her. The plaintiff submitted an affidavit stating these facts in support of a motion for summary judgment, and the defendants won a counter-argument that the motion was premature. The judge denied the motion with leave to renew, and the Court reversed and granted the plaintiff’s motion. The Court, in its opinion, made it clear that in order to prove prematurity, a party opposing the summary judgment motion is specifically required to demonstrate that discovery might lead to relevant evidence or that the facts necessary to oppose the motion are exclusively within the knowledge and control of the movant. The failure to do so, on behalf of the defendants, was fatal in its opposition to the motion.

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