June 2, 2020 | Vol. 213


MUST READS
(3 summaries)
NOTEWORTHYIF YOU MUST READ

Battery   1983 Action   Police   Wrongful Death   Probable Cause   Governmental Immunity   Judgment Rule   NYC  

Second Department
In case where 18-year-old emotionally disturbed person was shot 14-times by police and killed, NYC granted summary judgment on claim its officers violated Patrol Guide section on “apprehension of barricaded and emotionally disturbed persons” as it does not have a clear mandate, making their actions discretionary and entitled to qualified immunity. In contrast, Patrol Guide section providing that “[p]olice officers shall not use deadly physical force against another person unless they have probable cause to believe they must protect themselves or another person present from imminent death or serious physical injury” has a clear mandate, was not discretionary or entitled to qualified immunity resulting in denial of summary judgment on claims of excessive force where questions remained on whether decedent posed a threat of imminent death or serious physical injury and whether force used was necessary. Summary judgment on 1983 claims, other than for number of shots fired, denied for question of probable cause to believe decedent posed threat of death or serious injury to officers or others. Summary judgment granted on 1983 claim for firing 14 shots since officers who have probable cause to believe death or serious injury threatcan continue to shoot until threat has stopped. Defendants granted summary judgment of 1983 claim that supervisor failed to intervene based on facts and that action was discretionary. Owens v City of New York


Premises Liab   Out of Possession   § 7-210   Storm in Progress   Expert Aff  

First Department
Defendant denied summary judgment for slip/fall on snow on claim it was out-of-possession landlord which is not an exception to administrative code §7-210. Plaintiff raised issue by expert’s affidavit that it was not snowing at time of accident, 3” of prior snow and ice was on the ground, and plaintiff’s testimony of the conditions at the time. Herrera v Vargas


Premises Liab   Slip/Trip   Wet Floor   Recurring Condition   Last Inspection   Prejudice   3rd Party Contractor   Duty   Espinal  

First Department
NYCHA denied summary judgment where plaintiff slipped on water from leaking ceiling as he stepped out of elevator witnessed by friend/tenant. NYCHA proved lack of constructive notice of a transient condition by testimony of cleaning/inspection practices but failed to rebut proof it was a recurring condition not reasonably addressed including why it was never discovered during its scheduled inspections. Witness affidavit made before lawsuit was more not less probative than had it been made at time of opposition and technical errors did not substantially prejudice defendants. Roofing contractors who finished roof renovation and certified it watertight shortly before accident granted summary judgment as they owed plaintiff no duty and did not fall within any Espinal exception. Williams v New York City Hous. Auth.

NOTEWORTHY
(10 summaries)
MUST READSIF YOU MUST READ

Premises Liab   Slip/Trip   Snow/Ice   Stairs   Storm in Progress   De Minimus   Causation   NYC  

Second Department
DOE denied summary judgment despite agreement storm was in progress where it failed to show that accident was not caused by defective stair condition in addition to wetness as there can be more than 1-cause of an accident and DOE failed to submit affidavit from expert or its own witness regarding the condition of the stair, and prior report showing stair in poor condition from “stone deteriorated substrate” with recommendation for replacement and indistinct B/W photo failed to meet burden of showing defect was trivial. NYC granted summary judgment on proof it did not own or control building. Mejias v City of New York


Governmental Function   Governmental Immunity   Special Duty  

Second Department
Municipal defendants granted summary judgment where police officers responded to 911 call of plaintiff’s decedent having heart attack, administered AED, and called for an ambulance which did not arrive until after decedent died as they were providing a governmental function and did not have a special duty to plaintiff’s decedent. Plaintiff could not show her or her husband relied on any representations of defendants to their detriment where she continued to make calls to get an ambulance faster while waiting for the ambulance requested by the police officers. Marks-Barcia v Village of Sleepy Hollow Ambulance Corps


False Arrest   False Imprisonment   Malicious Prosecution   1983 Action   Probable Cause   NYC  

Second Department
Defendants failed to eliminate all issues on probable cause where affidavit and deposition of non-party witness who identified plaintiff as shooter raised questions on whether identification was coerced by police. One officer granted summary judgment on proof he was not involved in arrest, criminal complaint, grand jury, or when witness was coerced. Elie v City of New York


Premises Liab   Slip/Trip   Stairs   Building Code   Expert Aff  

First Department
Defendants denied summary judgment where plaintiffs alleged that inadequate/missing handrail caused his fall because he was unable to grab top of small adjacent wall capped with wood piece too wide to grab and they did not submit an expert opinion that stairs met applicable building codes. Bako v Zaman


Premises Liab   Slip/Trip   Stairs   Expert Aff  

Second Department
NYCTA met burden for summary judgment on expert’s affidavit that lighting met all standards, including NYCTA standards, and inspection 3-weeks before accident showed lighting in working order but plaintiffs’ expert raised issue getting different readings on inspection that were below standards, and plaintiff testified he could not see the top step due to lighting. Brown v New York City Tr. Auth.


Premises Liab   Slip/Trip   Stairs   Causation   Comparative Fault  

First Department
Defendants denied summary judgment where plaintiff fell on right side of exterior stair without handrail. Fact that there was a handrail on the left side went to comparative fault only. Gil v Margis Realty LLC


Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal  

Second Department
Snow removal contractor granted summary judgment on proof plaintiff who slipped and fell on snow/ice in parking lot was not a party to its contract to remove snow with property owner. Contractor was not required to show Espinal exceptions did not apply where facts demonstrating Espinal exceptions were not pleaded by plaintiff. Arnone v Morton


Motion to Dismiss   Amend Complaint   Prejudice   NYC  

First Department
NYC’s motion to dismiss denied and plaintiff’s cross motion to amend Complaint to name NYC instead of Dept. of Sanitation granted where Complaint was served on Corporation Counsel who answered for NYC, error was a misnomer and NYC was not prejudiced. Rivera v New York City Dept. of Sanitation


Legal Mal   CPLR §306-b   Untimely   Prejudice   Statute of Limitations  

First Department
Plaintiff granted extension to serve Summon and Complaint under CPLR §306-b even though he delayed in seeking extension on proof of several factors favoring extension including loss of the claim due to statute of limitations and defendants did not show substantial prejudice where they had notice of the claim early on. Fernandez v McCarthy


False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause   Police   NYC  

First Department
Defendants granted summary judgment of false arrest, false imprisonment, and malicious prosecution claims on proof they had probable cause based on constructive possession which justified use of force, including handcuffing plaintiff, to effectuate arrest. Jackson v City of New York

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

MVA   Discovery   Premature Motion  

Second Department
Plaintiff’s motion for summary judgment brought 1-month after last defendant answered, before any discovery exchanged, denied as premature where record showed discovery might lead to relevant information regarding the accident. The court does not give the details of the proofs. Cascio v YRC, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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