Battery 1983 Action Police Wrongful Death Probable Cause Governmental Immunity Judgment Rule NYC
 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
 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
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.
|
Premises Liab Slip/Trip Snow/Ice Stairs Storm in Progress De Minimus Causation NYC
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
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
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
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
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
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
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
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
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
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
|
