Municipality’s Cross-Motion for Summary Judgment Deemed Premature When the Motion was Based on Materials Likely in the Plaintiff’s Possession
In Beck v. City of Niagara Falls, 2019 NY Ap. Div. Lexis 10002, a premise liability action, 17-year-old Daniel J. Beck alleged injuries sustained while working as an employee of the National Maintenance Contracting Corporation (NMCC), a welding and fabricating company with a facility located at the intersection at 56th Street and Simmons Avenue in the City of Niagara Falls. The plaintiff and a co-worker were using a forklift and clamp to transport steel beams within NMCC’s facility. While traveling on Simmons Avenue, the forklift struck one or more potholes and the beam fell causing an injury to plaintiff’s foot. One of the defendants, Niagara Falls Water Board was responsible for the care and maintenance of the area on Simmons Avenue where the incident is alleged to have occurred. The defendant, Niagara Falls Water Board, filed a cross-motion for summary judgment to dismiss the complaint and all cross-claims against it on the ground that the plaintiff failed to identify the specific cause and the location of the incident. The Niagara Falls Water Board’s cross-motion for summary judgment was denied at the lower Court and the defendant appealed to the Fourth Department.
The Niagara Falls Water Board claimed that in plaintiff’s pleadings, they failed to identify the cause and location of the incident, thus the Niagara Falls Water Board would be entitled to summary judgment. The Fourth Department ruled that the Supreme Court properly denied the cross-motion as premature because discovery, including the depositions of the parties involved in the incident, had not been completed. Furthermore, the plaintiffs, in opposing defendant’s cross-motion as premature pursuant to CPLR §3212(f), made the requisite evidentiary showing to support the conclusion that facts essential to justify opposition may exist but could not then be stated at the time. The plaintiff also made a showing that written statements from three witnesses and NMCC’s accident reports establish that the testimony regarding both the specific cause and specific location of the incident could be obtained through discovery and that facts essential to oppose the cross-motion were in the movant’s exclusive knowledge and possession and could be obtained through discovery.
The Court Erred in Tolling Plaintiff’s Entitlement to Pre-Judgment Statutory Interests for the Period Following the Initial Trial and the New Trial on Damages
In the matter of Gibbs v. State Farm Fire and Casualty Company, 2019 N.Y. App. Div. LEXIS 1013, the plaintiff commenced this action seeking damages for breach of homeowner’s insurance policy issued by State Farm Fire and Casualty Company as a result of defendant’s refusal to pay under the policy after the plaintiff’s home suffered water damage. Following the trial, the jury returned the verdict finding State Farm liable for breach of the policy and awarding damages. The Supreme Court, however, ordered a new trial on damages to the dwelling and additional living expenses unless the plaintiff agreed to a stipulation of a reduced award. The plaintiff opted for a new trial on damages and the Court granted the motion of plaintiff’s counsel who wished to withdraw from representing the plaintiff and charge a lien on the proceeds of any amount recovered by the plaintiff in this action. The Supreme Court adjourned the new trial on damages, stayed the proceedings, and granted defendant’s request to toll plaintiff’s entitlement to prejudgment statutory interest on any award until the commencement of the new trial on damages.
The plaintiff appeals the defendant’s request to toll plaintiff’s entitlement to prejudgment statutory interest. The Fourth Department agreed with the plaintiff and ruled that the Supreme Court erred in tolling plaintiff’s entitlement to prejudgment statutory interest on an award until the commencement of the new trial on damages. The Court held that prejudgment interest must be calculated from the date that liability is established regardless of which party is responsible for the delay, if any, in the assessment of the plaintiff’s damages. Therefore, regardless of whether the plaintiff has caused the delay, if the delay is for just cause, prejudgment interest must continue to be calculated as accruing despite the delay.
Actual & Constructive Notice in Slip and Fall Matter and Question of Fact on Storm-In-Progress Affirmative Defense
In the matter of Johnson v. Pixley Development Corp., et al., 2019 N.Y. App. Div. LEXIS 1012, the plaintiff was seeking damages for injuries he sustained when he allegedly slipped and fell on ice in the rear delivery area behind the plaza owned by defendant, Pixley Development Corp. while delivering supplies to defendant, Candy Apple, Inc., a tenant of the plaza. The plaintiff moved for summary judgment on the complaint and defendants separately moved for summary judgment dismissing the complaint against them. The Supreme Court granted the cafe’s motion dismissing the complaint as well as all cross-claims against the café but denied the motion of defendant, Pixley Development Corp. and the plaintiff’s motion. Plaintiff appeals and Pixley Development Corp. cross-appeals.
The Fourth Department ruled in favor of Pixley Development Corp. indicating that the café failed to establish as a matter of law that it did not owe a duty to the plaintiff. Furthermore, “liability for a dangerous condition on properties predicated upon occupancy, ownership, control or a special use of premises…. the existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property.” Clifford v. Woodlawn Volunteer Fire Company, Inc., 31 A.D.3d 1102, 1103 (4th Dept., 2006). The Court held that although the café established that it did not occupy or own the rear delivery area where the accident took place, and did not employ it for a special use, that the café failed to establish as a matter of law that it did not exercise control over that area. Evidence submitted by the café demonstrated that it had a procedure in place to clear snow and ice from at least some portion of the subject rear delivery area and thus assumed some responsibility for the maintenance of that area including snow removal.
On the issue of actual or constructive notice, the Fourth Department held that the café and Pixley met their initial burdens of establishing that they lacked such notice by demonstrating they received no complaints concerning the relevant area and were unaware of any ice in that location before the plaintiff’s accident. The court further held that a general awareness that snow or ice may be present is legally insufficient to constitute notice of the particular condition that caused a plaintiff to fall.
Lastly the Fourth Department held that defendants were not entitled to summary judgment related to the storm-in-progress affirmative defenses because, while there was a storm in progress at the time of the accident, the deliveryman raised a triable issue of fact as to whether the ice on which he slipped had formed before the storm commenced by submitting the detailed affidavit of his expert meteorologist, the relevant weather reports, and the affidavit of his coworker.
Plaintiff’s Case Dismissed Under CPLR §3012, For Failure To Timely Serve A Complaint When Plaintiff Failed To Demonstrate A Reasonable Excuse For The Delay Despite Demonstrating A Meritorious Claim
In the matter of Bittinger v. Erie Insurance Company, 2019 N.Y. App. Div. LEXIS 801, defendant, Erie Insurance Company appeals from an order denying its motion, to dismiss the action based on plaintiffs’ failure to timely comply with defendant’s demand for service of a complaint pursuant to CPLR §3012(b). The Fourth Department overturned the Supreme Court’s ruling.
Citing and CPLR §3012(b) Berges v. Pfizer, Inc., the court indicated that “[t]o avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR §3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” (Berges v. Pfizer, Inc., 108 AD3d 1118, 1119, 969 N.Y.S.2d 657 (4th Dept 2013).
The Fourth Department ruled in favor of Erie Insurance Company holding that even assuming, that plaintiffs showed a meritorious cause of action, the plaintiffs failed to provide any excuse for the delay in serving their complaint, and thus dismissal of the action is required. The Fourth Department further held that the plaintiffs’ contention that defendant has not been prejudiced or harmed by the delay is irrelevant. Lastly the Court cited Verre v. Rosas, indicating “[t]he absence of any reasonable excuse for plaintiffs’ delay is determinative; there is no requisite that prejudice be shown before a motion to dismiss is granted in a case of this nature” Verre v. Rosas, 47 NY2d 795, 796, 391 N.E.2d 1010, 417 N.Y.S.2d 929 ). Therefore, a showing must be made with for both prongs of the test as an element will not be presumed. Courts are not to presume that a plaintiff can demonstrate a reasonable excuse for the delay in serving the complaint or that the plaintiff in fact has a meritorious cause of action.
A Property’s Classification As Commercial In Certain Tax Filings Does Not Estop It From Relying On The One- or Two- Family Home Exemption From Liability
In the matter of Wood v. Artifact Properties, LLC. et. al., 2019 N.Y. App. Div. LEXIS 1008, the plaintiff was hired to demolish the roof of an outbuilding on an 85-acre residential property owned by defendant Artifact Properties, LLC in the Town of Vienna, Oneida County. Plaintiff was injured in the course of that work and commended an action against Artifact and its alleged statutory agent, defendant David Perkins, asserting causes of action against the defendants for common-law negligence and the violation of Labor Law §§ 240(1) and 241(6). Defendant Artifact thereafter moved for summary judgment on the grounds that it is entitlement to the one-or two-family home exemption from liability under Labor Law § 240(1).
The Fourth Department held that in a contractor’s action against a property owner and its statutory agent, arising from injuries he sustained while demolishing an outbuilding roof on the property, the property owner should have been granted summary judgment as it was entitled to the one- or two-family home exemption from liability under Labor Law § 240(1) despite that it classified the property as commercial on certain tax filings. Furthermore, the Internal Revenue Code’s definition of a residential property is considerably narrower than the scope of the one-or two-family home exemption to liability under section 240(1).
The Fourth Department further held that the property owner established its entitlement to judgment dismissing the common-law negligence claim against it, and the contractor failed to raise a triable issue of fact.