Constructive notice in a slip and fall action.

Practice point:  The Appellate Division reversed, on the law, and denied defendant's motion for summary judgment in this action resulting from plaintiff's fall on an oil patch in defendant's parking lot.

A defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident.  Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Student note:  The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Case:  Bruni v. Macy's Corporate Servs., Inc., NY Slip Op 09238 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Failure to identify the cause of the fall.

A missing witness charge.

Practice point:  Upon a jury verdict in defendants' favor, plaintiff appealed and the Appellate Divison reversed, on the law, and remanded for a new trial.

Plaintiff claims that she sustained a permanent, consequential limitation of her neck and back as a result of a motor vehicle accident. The accident occurred while she was on a trip  with other members of her Jehovah's Witness congregation. Four years before the motor vehicle accident, plaintiff had injured her back when a bookcase fell on her. In connection with the earlier injury, she saw an orthopedist and a physical therapist.

Plaintiff claims that, at trial, the court erred in giving a missing witness charge. The charge was related to her testimony that, in connection with the earlier accident, she saw an orthopedist who referred her to physical therapy. Plaintiff did not call the orthopedist as a witness, nor did she introduce into evidence any of the medical records generated by him or the physical therapist.

The Appellate Division noted that the record does not reflect when defendants asked for a missing witness charge. This presents the possibility that they did not do so until after plaintiff presented her case.  If that were so, plaintiff had no chance to account for the orthopedist's absence, argue that plaintiff did not have the requisite control over him, or attempt to procure his appearance. The Appellate Division determined that, since there is no indication that defendants promptly notified the court when the need for the charge arose, the charge was improperly given.

Student note:  The party seeking a missing witness charge has the burden of promptly notifying the court when the need for the charge arises. The purpose of imposing the burden is, at least in part, to permit the parties to tailor their trial strategy to avoid substantial possibilities of surprise. Once the party requesting the charge meets its initial burden, the party opposing the request can defeat it by demonstrating that the witness was not available or beyond its control, or that the issue about which the witness would have been called to testify is immaterial.

Case:  Herman v. Moore, NY Slip Op 09352 (1st Dept. 2015)

Tomorrow's issue: Constructive notice in a slip and fall action.

Disclosure and social media.

Practice point:  This is a personal injury action in which plaintiff alleges that, while riding one of defendant's horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent in failing to prepare the horse for riding, and in maintaining and inspecting the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates, and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff appealed, and the Appellate Division vacated those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial and authorizations related to plaintiff's private Facebook messages.

The Appellate Division noted that courts consistently have required a threshold showing before allowing access to a party's private social media information.  The Appellate Division determined that defendant failed to establish entitlement to either plaintiff's private Facebook photographs or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information.  Further, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account.

Student note:  CPLR 3101(a) provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.  In determining whether the information sought is subject to discovery, the test is one of usefulness and reason.

Case:  Forman v. Henkin, NY Slip Op 09350 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A missing witness charge.

CPLR 205(a) and 306-b.

Practice point:   The Appellate Division affirmed the denial of the 306-b cross-motion to dismiss and the granting of the 205(b) motion for leave to extend time to serve process.  After the dismissal of a previous action without prejudice, the plaintiff commenced the instant action within the applicable limitations period.  The six-month period in CPLR 205(a) is not a limitations period but a tolling provision, which has no application where, as here, the statute of limitations has not expired at the time the second action was commenced.

Student note:   The Appellate Division determined that the Supreme Court did not improvidently exercise its discretion in finding, in effect, that the time for service should be extended in the interest of justice.

Case:  Bonilla v. Tutor Perini Corp., NY Slip 09237 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Disclosure and social media.

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division reversed the Supreme Court's sua sponte dismissal of the complaint in this action against the store's owner and the store's lessee. The Appellate Division rejected lessee-defendant's argument that it owed no duty to plaintiff.  As the operator of a place of public assembly, a store lessee has a duty to provide its customers with a safe means of entering and leaving the store.

Student note:  On a summary judgment motion, a defendant must establish prima facie entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a material issue of fact

Case:  Taveras v. 1149 Webster Realty Corp, NY Slip Op 09192 (1st Dept. 2015)

Here is the decision.

Monday's issue:  CPLR 205(a) and 306-b.

A police accident report and summary judgment.

Practice point:  The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability, finding that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact.

In support of his motion, plaintiff submitted his own affidavit, in which he alleged that defendant was negligent because he violated Vehicle and Traffic Law § 1128(a), and that plaintiff could not avoid the collision. However, plaintiff also submitted an uncertified police accident report containing defendant's statement that plaintiff sped up to prevent defendant from merging into the lane in which the plaintiff was traveling and, thus, contributed to the accident.

Student note:  In submitting the uncertified police accident report, plaintiff waived any objection to its admissibility.

Case:  Kadashev v. Medina, NY Slip Op 09069 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Summary judgment in a slip-and-fall action.

A plaintiff's negligence and proximate cause.

Practice point:  The Appellate Division affirmed the jury verdict that, while the plaintiff was negligent, her negligence was not a proximate cause of her injury. The Appellate Division found that  the issues were not so inextricably interwoven as to make it logically impossible to find negligence but not proximate cause.

Student note:  The defendant's argument that the jury verdict was inconsistent was not raised before the jury was discharged, and therefore was unpreserved for appellate review.

Case: Blechman v. New York City Tr. Auth., NY Slip Op 09173 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A police accident report and summary judgment.

Limiting the scope of discovery.

Practice point:  The Appellate Division affirmed the motion court's denial of those branches of the plaintiff's motion which were to extend the time to complete discovery and compel the defendants to respond to his discovery demands. The Appellate Division determined that the plaintiff's discovery demands were overly broad and unduly burdensome, and sought a large number of documents that were irrelevant to his remaining causes of action.

Student note:  The Supreme Court has broad discretion to supervise disclosure to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. Discovery demands that are overly broad, are lacking in specificity, or seek irrelevant documents are improper and will not be allowed.

Case:  Jacobs v. Mostow, NY Slip Op 09067 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A plaintiff's negligence and proximate cause.

Jurisdiction based on a tort committed outside the State causing injury inside the State.

Practice point:  The Appellate Division affirmed dismissal for lack of personal jurisdiction in this action stemming from the sale and deliver of steel from a New York company to two New Jersey corporations.  It determined that the motion court properly rejected plaintiff's assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the State causing injury within the State. As to the tort committed without the State, plaintiff points to the alleged fraudulent conveyance of plaintiff's assets to defendant. This fails, however, because the situs of the injury is the location of the original event which caused the injury, not the location where the resulting damages are subsequently felt.  Therefore, the alleged tortious act did not cause]injury within New York, but in New Jersey.

Student note:  The Appellate Division determined that plaintiff has also offered nothing but conclusory allegations that any defendant derives substantial revenue from interstate or international commerce, as required for jurisdiction under CPLR 302(a)(3)(ii).

Case:  Cotia (USA) Ltd. v Lynn Steel Corp., NY Slip Op 09169 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Limiting the scope of discovery.

Darkness falls.

Practice point:  The Appellate Division the denial of defendant's summary judgment motion in this action where plaintiff seeks damages after he was injured when he tripped over the forks of a power jack parked in the 25-foot-wide central walkway between rows of work tables in a commercial warehouse leased by defendant. Plaintiff, a subcontractor of defendant, had been working at one of the tables when a power outage plunged the warehouse into complete darkness, and after about 20 seconds he decided to leave the warehouse. He turned from his table and took a few steps into the central walkway, and tripped over the jack. About 10 seconds later, the power was restored.

Defendant failed to establish prima facie that it maintained the premises in a reasonably safe condition and did not create a dangerous condition that posed a foreseeable risk of injury to individuals expected to be on the premises. Plaintiff testified that the power jacks were usually stored in an area near the front of the building and that he had never seen one unattended in the central walkway. Moreover, the record shows that machinery in the warehouse was operated solely by defendant's employees.

Student note:  The Appellate Division rejected defendant's argument that the power jack was an open and obvious hazard and not inherently dangerous as misplaced. Nor did defendant establish as a matter of law that plaintiff's decision to walk through the dark warehouse was the sole proximate cause of his injury, since, even in the dark, plaintiff could not have tripped over a jack that was not there. Defendant also failed to establish as a matter of law that the power outage was a supervening event that severed the causal connection between any negligence on its part and plaintiff's injury. Finally, defendant made no showing that power outages in the area were a very rare occurrence in the area, and the record demonstrates that the warehouse had a working back-up generator.

Case:  Washington v. Autumn Props. II, LLC, NY Slip Op 08950 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Jurisdiction based on a tort committed outside the State causing injury inside the State.