Question of fact as to whether there was a storm in progress at time of plaintiff’s slip and fall precludes summary judgment

In Anson v. Monticello Raceway Mgt., Inc., 2023 NY Slip Op 03393 (3d Dep’t 2023) plaintiff slipped and fell on an icy sidewalk and defendant moved for summary judgment dismissing the complaint upon the ground that the storm in progress doctrine applied. The motion court denied the motion, holding that a question of fact existed as to the application of the doctrine.

On appeal, the Third Department affirmed, and first explained the doctrine:

The storm in progress rule provides that, “[a]lthough a landowner owes a duty of care to keep his or her property in a reasonably safe condition, he [or she] ‘will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter’” (Sherman v New York State Thruway Auth., 27 NY3d 1019, 1020-1021, 32 N.Y.S.3d 568, 52 N.E.3d 231 [2016], quoting Solazzo v New York City Tr. Auth., 6 NY3d 734, 735, 843 N.E.2d 748, 810 N.Y.S.2d 121 [2005]; see Marra v Zaichenko, 214 AD3d 1165, 1166, 185 N.Y.S.3d 815 [3d Dept 2023]). The rule is designed to relieve a landowner of the obligation to clear the area “while continuing precipitation or high winds are simply recovering [it] as fast as they are cleaned, thus rendering the effort fruitless” (Powell v MLG Hillside Assoc., 290 AD2d 345, 345 [1st Dept 2002]). Accordingly, while there does not need to be a major winter storm occurring in order to invoke the storm in progress rule, the proof does need to “establish[ ] the existence of an ongoing hazardous weather condition” (Zima v North Colonie Cent. School Dist., 225 AD2d 993, 994, 639 N.Y.S.2d 558 [3d Dept 1996]; see Camacho v Garcia, 273 AD2d 835, 835, 709 N.Y.S.2d 738 [4th Dept 2000]).

Anson v. Monticello Raceway Mgt., Inc., 2023 NY Slip Op 03393 (3d Dep’t 2023).

The Court parsed the proof submitted in support of the motion:

Defendant provided the deposition testimony of plaintiff, who stated that he arrived at the casino around noon and that, at that time, there were wet patches on the pavement as he walked inside from the parking lot. He added that the sidewalk or parking lot did not appear to have been salted and that, although the weather was “gloomy,” there was no precipitation falling. Plaintiff also testified that he did not recall seeing any precipitation falling when he left the casino, which video footage reflected had happened at 4:18 p.m., and that he slipped and fell on an icy patch on the sidewalk leading out to the parking lot. Defendant offered no evidence to show that anyone had seen precipitation falling at the casino that day or to describe the condition of the parking lot. Defendant did, however, provide the affidavit of two meteorologists who rendered an opinion of conditions at the casino based upon their review of, among other things, surface observations at several locations in the surrounding area, weather bulletins and advisories issued by the National Weather Service, and radar and satellite imaging. The meteorologists opined, in particular, that intermittent light snow, sleet and/or freezing rain was falling at the casino from 11:26 a.m. to 7:30 p.m. and that light rain or sleet was falling for the remainder of the day. The total accumulation, in their view, amounted to a trace of snow and sleet that was “too light to measure” and approximately 1/10th of an inch of ice, with the equivalent of .13 inches of liquid water falling throughout the day. The meteorologists further opined that light freezing rain would have been falling at 5:00 p.m. — 40 minutes after plaintiff left the casino and fell — and that, although the air temperature had risen throughout the day and was above freezing by 5:00 p.m., ice would have still been accumulating given that the ground was still frozen due to cold weather over the previous several days.

Anson v. Monticello Raceway Mgt., Inc., 2023 NY Slip Op 03393 (3d Dep’t 2023).

The Court then, in the context of “[a]ssuming, without deciding, that this evidence satisfied defendant’s initial burden,” considered plaintiff’s opposition:

[P]laintiff pointed to a variety of evidence to call the rule’s applicability into question (see Boynton v Eaves, 66 AD3d 1281, 1282, 888 N.Y.S.2d 253 [3d Dept 2009]; Micheler v Gush, 256 AD2d 1051, 1052, 684 N.Y.S.2d 297 [3d Dept 1998]; Zima v North Colonie Cent. School Dist., 225 AD2d at 994; but see Bodoff v Cedarhurst Park Corp., 213 AD3d 802, 803, 184 N.Y.S.3d 770 [2d Dept 2023]; Govenettio v Dolgencorp of N.Y., Inc., 175 AD3d 1805, 1806, 109 N.Y.S.3d 796 [4th Dept 2019]; Powell v MLG Hillside Assoc., 290 AD2d at 345-346). Initially, plaintiff pointed out that the voluminous weather records provided by defendant showed that areas surrounding the casino received varying amounts of precipitation on the day of the accident, with locations reporting either minimal precipitation or none at all. Plaintiff also provided evidence to challenge the extent and the timing of any inclement weather at the casino, pointing not only to his own deposition testimony that he had not observed any precipitation while entering and exiting the casino, but also an incident report prepared by defendant’s employees that did not attribute plaintiff’s accident to poor weather and, indeed, left the section labeled “[w]eather” conspicuously blank. Plaintiff further produced snow removal logs prepared by defendant’s employees to show that, although the casino’s parking lot and walkways had been plowed, shoveled, salted and/or sanded on the two days prior to plaintiff’s accident and on the day after it, no cleanup or treatment efforts were made on the day of the accident itself. The absence of a snow log for that day was placed in context via the deposition testimony of the executive director of racing and facilities at the casino, who testified, among other things, that employees would have monitored the weather during the day and performed salting or sanding if necessary, as well as that the lack of a snow log meant that no work had been done because it was “not needed.”

Anson v. Monticello Raceway Mgt., Inc., 2023 NY Slip Op 03393 (3d Dep’t 2023).

Affirming, the Third Department identified two questions of fact precluding summary judgment.  First, “whether a storm was in progress so as to suspend defendant[‘s] duty to remedy the dangerous condition until a reasonable time after the storm had ceased,” and second “in view of the proof that defendant’s employees had plowed, salted or sanded in the two days prior to the accident, as well as photographs showing accumulated snow in the unpaved areas near where plaintiff fell, questions of fact also exist as to whether he slipped on preexisting ice.”

Decision Date: June 22 2023

Practical Practice Point

Meteorologists may provide expert testimony concerning weather conditions at a particular moment in time, relevant to a defense of a storm in progress, Smith v. United Ref. Co. of Pa., 148 A.D.3d 1733 (4th Dept 2017):

The court also properly denied that part of defendants’ motion seeking summary judgment based upon the storm in progress doctrine. The affidavit of defendants’ expert meteorologist and the climatological data on which he relied were insufficient to establish the weather conditions at the time and location of the accident.

Expert testimony may also be permitted concerning the length of time a particular weather condition existed, relevant in a snow and ice case, George v. NY City Hous. Auth., 151 A.D.3d 532, 55 N.Y.S.3d 48 (1st Dept 2017):

[P]laintiff raised a triable issue of fact as to whether [defendant] had notice of the condition, by submitting an expert meteorologist’s opinion that, based on meteorological data, the ice condition was present for at least 45 hours prior to plaintiff’s accident.”

However, the use of an uncertified meteorological form, without expert testimony, will not be permitted, Morales v. Gross, 191 A.D.3d 439, 439, 137 N.Y.S.3d 704 (1st Dept 2021).

Foundation for application of res ipsa loquitur established where car owner drove two miles following a tire rotation; this is the “rare” or “exceptional” case where summary judgment was warranted

Bicchetti v. Atlantic Toyota, 2023 NY Slip Op 03219 (2d Dep’t 2023)

On January 23, 2014, the defendants performed a multipoint inspection and tire rotation on the plaintiffs’ vehicle, which required the tires to be removed and reattached. Upon receipt of the vehicle after the service was completed, the plaintiff Kathleen Bicchetti (hereinafter the injured plaintiff) departed from the defendants’ property in the vehicle and drove along Sunrise Highway, at which point the right rear tire detached from the vehicle, causing the vehicle to crash into a snowbank. The odometer readings showed that the vehicle had traveled approximately two miles from the defendants’ property.

In 2016, the plaintiffs commenced separate actions, which were subsequently consolidated, against the defendants, alleging that the defendants negligently serviced and replaced the tire on the vehicle and proximately caused the accident. Following depositions of the injured plaintiff and a representative of the defendants, the plaintiffs moved for summary judgment on the issue of liability under the doctrine of res ipsa loquitur. In opposition, the defendants contended, inter alia, that the plaintiffs failed to establish the defendants’ exclusive control of the vehicle. By order dated June 1, 2020, the Supreme Court denied the plaintiffs’ motion. The plaintiffs appeal.

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Kambat v St. Francis Hosp., 89 NY2d 489, 494, 678 N.E.2d 456, 655 N.Y.S.2d 844; see Berlich v Maimonides Med. Ctr., 208 AD3d 1148, 1149, 175 N.Y.S.3d 95; Marinaro v Reynolds, 152 AD3d 659, 59 N.Y.S.3d 87). Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227, 492 N.E.2d 1200, 501 N.Y.S.2d 784; see Marinaro v Reynolds, 152 AD3d at 659). The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause (see Dermatossian v New York City Tr. Auth., 67 NY2d at 227; Finocchio v Crest Hollow Club at Woodbury, 184 AD2d 491, 492, 584 N.Y.S.2d 201). The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect (see Bonventre v Max, 229 AD2d 557, 558, 645 N.Y.S.2d 867; Raimondi v New York Racing Assn, 213 AD2d 708, 709; see also Matsur v New York City Tr. Auth., 66 AD3d 848, 888 N.Y.S.2d 531). Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence (see Berlich v Maimonides Med. Ctr., 208 AD3d at 1149; Smith v Sommer, 189 AD3d 906, 908, 137 N.Y.S.3d 99).

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence (see Pollock v Rapid Indus. Plastics Co., 113 AD2d 520, 524, 497 N.Y.S.2d 45). Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence (see Dermatossian v New York City Tr. Auth., 67 NY2d at 227; Marinaro v Reynolds, 152 AD3d at 659) and that the plaintiffs did not contribute to the event (see Corcoran v Banner Super Mkt., 19 NY2d 425, 430, 227 N.E.2d 304, 280 N.Y.S.2d 385; see also DiGiacomo v Cabrini Med. Ctr., 21 AD3d 1052, 803 N.Y.S.2d 587). In opposition to the plaintiffs’ prima facie showing, the defendants failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595; Pierre v Demoura, 148 AD3d 736, 737, 48 N.Y.S.3d 260; Morales v Amar, 145 AD3d 1000, 1002, 44 N.Y.S.3d 184).

On this record, “the plaintiff[s’] circumstantial proof is so convincing and the defendant[s’] response so weak that the inference of defendant[s’] negligence is inescapable” (Morejon v Rais Constr. Co., 7 NY3d 203, 209, 851 N.E.2d 1143, 818 N.Y.S.2d 792). Accordingly, since this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” (id. at 209, 212), the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability.

Decision Date: June 14, 2023

Practical Practice Point

Res ipsa loquitur is a form of circumstantial evidence, which permits an inference of negligence to be drawn when three foundation elements are established.

The elements:

1. the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence;
2. it must be caused by an agency or instrumentality within the exclusive control of the defendant; and
3. it must not have been due to any voluntary action or contribution on the part of the plaintiff.

In Morejon v. Rais Constr. Co., 6 N.Y.3d 172, 811 N.Y.S.2d 302 (2006), the Court of Appeals framed the issue before it:

On this appeal, we address defendants’ assertion–supported by the Appellate Division–that circumstantial evidence (res ipsa) may never justify summary judgment for the plaintiff. We conclude that, while there is no rule or policy absolutely foreclosing that possibility, it should be a rare event. Here, open questions of fact remain.

The Court took the opportunity to review the origin and development of the doctrine of res ipsa loquitor, and explained that courts have mistakenly referred to res ipsa as a presumption as opposed to an inference:

In our own taxonomy in other contexts, we speak of “presumptions of law” (Buccini v Paterno Const. Co., 253 N.Y. 256, 259, 170 N.E. 910 [1930]), “presumptions of fact” (Myers v Bartholomew, 91 N.Y.2d 630, 636, 697 N.E.2d 160, 674 N.Y.S.2d 259 [1998]), “conclusive presumptions” (Cornell Univ. v Bagnardi, 68 N.Y.2d 583, 594-95, 503 N.E.2d 509, 510 N.Y.S.2d 861 [1986]), “rebuttable presumptions” (Williams v City of New York, 2 N.Y.3d 352, 366, 811 N.E.2d 1103, 779 N.Y.S.2d 449 [2004]), “conflicting presumptions” (Palmer v Palmer, 162 N.Y. 130, 133, 56 N.E. 501 [1900]) and “statutory presumptions” (DeJesus v DeJesus, 90 N.Y.2d 643, 652, 687 N.E.2d 1319, 665 N.Y.S.2d 36 [1997]). Perhaps even more unsettling, we also hear of “mandatory inferences” (West v Nabors Drilling USA, Inc, 330 F.3d 379 [5th Cir 2003]), “presumptive inferences” (Hines v New York City Housing Auth., 67 A.D.2d 1000, 1001, 413 N.Y.S.2d 733 [2d Dept 1979]) and “permissive presumptions” (County Court v Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]). In (United States v Gainey, 380 U.S. 63, 78, 85 S. Ct. 754, 13 L. Ed. 2d 658 [1965]), Justice Black stated that “in its simplest form a presumption is an inference permitted or required by law . . . ”

In most of the post-Foltis res ipsa loquitur cases cited, the courts would likely have reached the same result whether by way of inference or presumption or some other word or phrase. We adhere, nevertheless, to our jurisprudence, in which we denominate res ipsa loquitur as creating an inference (as defined in this writing and our case law [e.g. Kambat, supra]).

The dizzying array of formulations (from mandatory inferences to permissive presumptions), however, suggests that things would be far less complicated if we viewed the res ipsa loquitur/summary judgment issue without undue emphasis on labels and pigeon holes.  Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence.   Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant’s liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination. This is not such a case. Here, there are material questions of fact for trial.

The Court concluded “[w]e stand by those principles, and in the context of this appeal, reaffirm that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.”

And Bicchetti was one of those “rarest” of cases.

First Department affirms denial of second stay of civil action due to related criminal proceeding 

In Cohen v Gordon & Silber, PC, _AD3d_, 2023 NY Slip Op 02968 (1st Dept. 2023), plaintiff sought a stay of the civil action pending resolution of a related criminal action.  The First Department set forth the criteria to be considered in deciding whether or not to grant the application:

In rendering a decision on such an application, the court will consider a number of factors, including whether a defendant intends to “invoke his or her constitutional right against self-incrimination” (Mook v Homesafe Am., Inc., 144 AD3d 1116, 1117, 41 N.Y.S.3d 759 [2d Dept 2016], quoting Britt v International Bus Servs., 255 AD2d 143, 679 N.Y.S.2d 616 [1st Dept 1998]). Although the intention to invoke the right against self-incrimination is a compelling factor, a court is not obliged to stay a civil proceeding simply because a related criminal matter is pending (see Fortress Credit Opportunities I LP v Netschi, 59 AD3d 250, 250, 873 N.Y.S.2d 562 [1st Dept 2009]; Access Capital v DeCicco, 302 AD2d 48, 51, 752 N.Y.S.2d 658 [1st Dept 2002]).

Cohen v Gordon & Silber, PC, _AD3d_, 2023 NY Slip Op 02968 (1st Dept. 2023)

This was not the first-time plaintiff had sought to stay the civil action:

The court imposed a stay before the one at issue on this appeal, but made that stay contingent on defendant’s filing of his criminal motion by a date certain and declined to vacate the note of issue. Plaintiff admits he failed to file the criminal motion by the date certain, instead filing the motion one week after that date.

Cohen v Gordon & Silber, PC, _AD3d_, 2023 NY Slip Op 02968 (1st Dept. 2023)

However, neither the motion or appellate court rested the denial of the request for a second stay on the untimely filing:

Supreme Court made clear that it was denying the second stay application for several reasons, only one of which pertained to the delayed motion filing in the criminal matter. For example, plaintiff did not make the second application for a stay until after he was deposed and after he had already certified in the note of issue that discovery was complete (cf. Mook, 144 AD3d at 117). Furthermore, as Supreme Court noted, the motion to dismiss the criminal case was only a partial motion to dismiss, raising the possibility that the criminal case could continue for years and deprive defendants of their right to a reasonably timely disposition of the civil case.

Cohen v Gordon & Silber, PC, _AD3d_, 2023 NY Slip Op 02968 (1st Dept. 2023)

Perhaps the most interesting part of the decision involved a prior preclusion order:

Plaintiff’s assertion that he would be deprived of a defense in the absence of a stay, is unavailing in light of the court’s previous order precluding plaintiff from testifying on any matter for which he had invoked his Fifth Amendment privilege at his deposition — a ruling that plaintiff did not appeal. As a result, there is no merit to plaintiff’s suggestion that once the criminal case is over, he will be free to answer questions in the civil matter.

Cohen v Gordon & Silber, PC, _AD3d_, 2023 NY Slip Op 02968 (1st Dept. 2023)

Decision Date: June 6, 2023

Practical Practice Point

Navigating the assertion of the Fifth Amendment privilege in New York State civil actions is a fraught exercise, often requiring exquisite balancing on the part of both attorney and client.

CPLR 4501 provides for a privilege against self-incrimination in civil proceedings:

A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish that he owes a debt or is otherwise subject to a civil suit. This section does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture, nor does it vary any other rule respecting the examination of a witness.

In looking at case annotations for this Practical Practice Point we stumbled upon an interesting trial level decision from 1974, Slater v Slater, 78 Misc 2d 13, 15 (Sup Ct, Queens County 1974), which serendipitously led to other cases illustrating important, but less frequently discussed aspects of the privilege.  First, Slater:

This court recognizes that the privilege protects not only answers which alone could support a criminal conviction, but all responses which could feed the chain of evidence needed to prosecute. ( Hoffmanv.United States, 341 U.S. 479, supra.) Moreover, the one who claims the privilege may invoke it when he has reasonable cause to fear the danger of incrimination, but in this regard he must make a showing of a “real danger”.  “Mere imaginary possibility of prosecution” is insufficient to stave off the direction to respond. ( Rogersv.United States, 340 U.S. 367, 375.) Although the witness may not be compelled to say more than that which asserts the privilege, “It is for the court to say whether his silence is justified”. ( Hoffmanv.United States, supra, p. 486.) In the judicial determination of whether silence is indeed justified, each case must be controlled by its own facts and, as such, general rules cannot be devised to articulate the specific “real danger” that must be shown by the claimant. Here, the defendant “is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination”. (Hoffmanv.United States, supra, p. 486.)

A trail of cases citing Slater led first to a Second Department decision (always nice to have appellate authority), Flushing Natl. Bank v Transamerica Ins. Co., 135 AD2d 486, 487 (2d Dept 1987), which expanded on the holding:

Nevertheless, under the circumstances, Shankman should have been compelled to raise his privilege at the deposition with regard to each question to be asked and with respect to each document required to be produced by him (see, State of New York v Carey Resources, supra). Whether the privilege should be sustained is to be governed by “the implications of the question, in the setting in which it is asked” ( Hoffman v United States, supra, at 486; see, Steinbrecher v Wapnick, supra). “The privilege may only be asserted when the witness has a reasonable cause to apprehend danger from a direct answer (see, Hoffman v United States [supra, at] 486; State of New York v Skibinski, 87 AD2d 974; Southbridge Finishing Co. v Golding, 208 Misc 846, 852, affd 2 AD2d 882). While the witness is generally the best judge of whether an answer may tend to be incriminating ( People v Arroyo, 46 NY2d 928, 930; Matter of Grae, 282 NY 428, 434; People ex rel. Taylor v Forbes, 143 NY 219, 230-231; Triangle Pub. v Ferrare [4 AD2d 591] 593), when the danger of incrimination is not readily apparent, the witness may be required to establish a factual predicate ( People v Priori, 164 NY 459, 465; United States v Roundtree, 420 F2d 845; 8 Wigmore, Evidence [McNaughton rev, 1961], § 2271)” ( State of New York v Carey Resources, supra, at 509).

Therefore, the appellant’s motion is granted to the extent indicated. At the deposition, as noted, Shankman may invoke his privilege against self-incrimination, and the parties, if they be so advised, may seek appropriate rulings from the Supreme Court concerning any invocation of the privilege against self-incrimination by Shankman (see, Slater v Slater, 78 Misc 2d 13, 16; see also, Matter of Lieb v Henry, 99 AD2d 757; State of New York v Carey Resources, supra).

Which in turn led to Carver Fed. Sav. Bank v Shaker Gardens, Inc., 167 AD3d 1337, 1342-1344 (3d Dept. 2018) (always nice to have recent appellate authority) which addressed some of the more nuanced issues connected to asserting the privilege:

Where, as here, “the danger of incrimination is not readily apparent, the witness [should] be required to establish a factual predicate” for the invocation of the privilege (State of New York v Carey Resources, 97 AD2d at 509; accord Matter of Astor, 62 AD3d 867, 869, 879 NYS2d 560 [2009]; see Flushing Natl. Bank v Transamerica Ins. Co., 135 AD2d 486, 487, 521 NYS2d 727 [1987]). Defendant made no such showing, instead merely making a broad, undifferentiated assertion of the Fifth Amendment privilege as to each and every question asked, as well as to all documents requested, on the basis of sweeping and unsubstantiated assertions of counsel. Such a blanket invocation of the privilege—even as to questions as innocuous as defendant’s marital status and whether he has any children or owns his home—simply cannot be sustained on this record (see Chase Manhattan Bank, Natl. Assn. v Federal Chandros, 148 AD2d 567, 568, 539 NYS2d 36 [1989] [concluding, on an application to hold a judgment debtor in contempt for failing to comply with a subpoena, that “a blanket refusal to answer questions based upon the Fifth Amendment privilege against self-incrimination cannot be sustained absent unique circumstances”]; Bank of Am., N.A. v Veluchamy, 643 F3d 185, 187 [7th Cir 2011] [same]; United States v Hatchett, 862 F2d 1249, 1251 [6th Cir 1988] [same]; Capitol Prods. Corp. v Hernon, 457 F2d at 542-543 [same]; Huber v Arck Credit Co., LLC, 2016 US Dist LEXIS 14299 at *18-21, 2016 WL 482955 at *5-6; see also Matter of Astor, 62 AD3d at 869; State of New York v Carey Resources, 97 AD2d at 509).

Under these circumstances, “in order to effectively invoke the protections of the Fifth Amendment, [a defendant] must make a particularized objection to each discovery request” (Chase Manhattan Bank v Federal Chandros, 148 AD2d at 568; accord Matter of Astor, 62 AD3d at 869; see Matter of Lieb v Henry, 99 AD2d 757, 758, 471 NYS2d 674 [1984]; State of New York v Carey Resources, 97 AD2d at 509; Capitol Prods. Corp. v Hernon, 457 F2d at 543). The proper procedure, therefore, is to remit the matter to Supreme Court “to conduct an in camera inquiry to assess the validity of the assertion of the privilege upon such particularized objections” (State of New York v Carey Resources, 97 AD2d at 509; see Matter of Astor, 62 AD3d at 869; Matter of Lieb v Henry, 99 AD2d at 758; Capitol Products Corporation v Hernon, 457 F2d at 544). With request to the subpoenaed documents, defendant must establish a “factual predicate” by submitting the documents for an in camera inspection and/or “compiling a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review” (Matter of Astor, 62 AD3d at 869-870 [internal quotations marks, brackets and citation omitted]; see Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434, 442, 787 NE2d 618, 757 NYS2d 507 [2003]; Ren Zheng Zheng v Bermeo, 114 AD3d 743, 745, 980 NYS2d 541 [2014]; Matter of Lieb v Henry, 99 AD2d at 758).

For the same reasons, we conclude that Supreme Court’s order denying plaintiff’s motion to compel as to Chava Nelkenbaum must be reversed and the matter remitted for an in camera inquiry to test the validity of her invocation of the Fifth Amendment privilege as to each of the questions asked and each of the documents demanded of her. To the extent that Chava Nelkenbaum invoked the spousal privilege as a basis for refusing to answer certain questions propounded at the deposition or to produce documents responsive to the subpoena, we note that the privilege “attaches only to those statements made in confidence and ‘that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship’ ” (People v Fediuk, 66 NY2d 881, 883, 489 NE2d 732, 498 NYS2d 763 [1985], quoting Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73, 439 NE2d 378, 453 NYS2d 662 [1982]; see People v Mills, 1 NY3d 269, 276, 804 NE2d 392, 772 NYS2d 228 [2003]). Further, this privilege does not attach to “ordinary conversations relating to matters of business” (Johnson v Johnson, 25 AD2d 672, 673, 268 NYS2d 403 [1966] [internal quotation marks and citation omitted]; see People v Melski, 10 NY2d 78, 80, 176 NE2d 81, 217 NYS2d 65 [1961] [spousal privilege does not attach “where the communication involved ordinary business matters”]; Parkhurst v Berdell, 110 NY 386, 394, 18 NE 123, 15 Civ Proc R 354, 18 NY St 193 [1888]; Securities Settlement Corp. v Johnpoll, 128 AD2d 429, 431, 512 NYS2d 814 [1987], lv dismissed 70 NY2d 693, 512 NE2d 554, 518 NYS2d 1028 [1987]), nor does it apply “when the substance of [the] communication . . . is revealed to third parties” (Matter of Vanderbilt [Rosner—Hickey], 57 NY2d at 74). Supreme Court did not reach the issue of whether the spousal privilege was properly invoked by Chava Nelkenbaum, having ruled that she properly asserted her Fifth Amendment privilege in response to all inquiries put to her during her deposition and all documents demanded in the subpoena, and the record before us is insufficient to evaluate the merits of the claimed privilege.

Finally, we find no basis upon which to disturb Supreme Court’s decision to seal the two letters proffered by defendant’s counsel as well as the transcript of the in camera conference (see 22 NYCRR 216.1).

We will certainly have the opportunity to return to the privilege against self-incrimination an address some of the fundamental foundation issues, but could not resist visiting these more esoteric issues.

Court of Appeals holds in two premises security cases “that “the sophisticated nature of an attack may in some cases be relevant to the proximate cause analysis, the fact that an attack was “targeted” does not sever the causal chain between a landlord’s negligence and a plaintiff’s injuries as a matter of law.”

In Scurry v NY City Hous. Auth., _NY3d_, 2023 NY Slip Op 02752 (2023), the Court of Appeals addressed two premises security cases involving broken door locks in NYCHA buildings where intruders gained access and specifically targeted their victims, killing them.

The Court of Appeals’ decision begins with a taut précis on the law and its application to the heartbreaking facts in the two cases before it:

Bridget Crushshon and Tayshana Murphy lived in two different public housing complexes owned and operated by the New York City Housing Authority (NYCHA). Their assailants, who were intruders onto the premises, entered their buildings through exterior doors that, for the purpose of these appeals, we assume did not have functioning locks. An intruder murdered Ms. Crushshon in the hallway of her building by immolating her; an intruder murdered Ms. Murphy by shooting her at point-blank range as she begged for her life. In both cases, plaintiffs sued NYCHA for negligence. In both cases, NYCHA admits that it had a duty to provide a locking exterior door. In both cases, NYCHA claimed entitlement to summary judgment on the theory that, because the assailants did not commit crimes of opportunity but instead had “targeted” their victims, NYCHA’s negligence was not a proximate cause of the deaths.

We reiterate that general negligence principles apply to cases in which a tenant is injured by a third party’s criminal attack, including the principle that “[a] defendant’s negligence qualifies as a proximate cause where it is a substantial cause of the events which produced the injury” (citations omitted). As we explained in Burgos v Aqueduct Realty Corp., there is “no need to create a special rule for premises security cases, since the burden regularly placed on plaintiffs to establish proximate cause in negligence cases strikes the desired balance” between “a tenant’s ability to recover for an injury caused by the landlord’s negligence against a landlord’s ability to avoid liability when its conduct did not cause any injury” (citation omitted). We hold that though the sophisticated nature of an attack may in some cases be relevant to the proximate cause analysis, the fact that an attack was “targeted” does not sever the causal chain between a landlord’s negligence and a plaintiff’s injuries as a matter of law. We thus affirm the Second Department’s denial of summary judgment to NYCHA in Scurry and reverse the First Department’s grant of summary judgment to NYCHA in Murphy.

Scurry v NY City Hous. Auth., _NY3d_, 2023 NY Slip Op 02752 (2023)

The Court reviewed a landlord’s duty to protect tenants:

Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party’s foreseeable criminal conduct (citation omitted). That includes what we have deemed “the most rudimentary security—e.g., locks for the entrances” of apartment buildings (citation omitted). NYCHA admits it bears that duty.

A failure to supply minimal security breaches that duty. In Murphy, Supreme Court noted that the door’s lock was not functioning. In Scurry, Supreme Court held, and NYCHA concedes for the purpose of this appeal, that there was an issue of fact as to “whether NYCHA had fulfilled [its] duty to provide a safe environment at the Cypress Hills Houses.” Thus, in both cases, plaintiffs at a minimum demonstrated questions of fact as to breach.

The primary issue on these appeals is whether NYCHA was entitled to summary judgment on the issue of proximate cause.  “A defendant’s negligence qualifies as a proximate cause where it is a substantial cause of the events which produced the injury” (citation omitted). “When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant’s conduct proximately caused plaintiff’s injuries” (citation omitted).

In Burgos, we held that proximate cause in a premises security case may be “established only if the assailant gained access to the premises through a negligently maintained entrance” (citation omitted). Indeed, the risk that an intruder will enter the building and harm residents is the very risk that renders a landlord negligent for failing to provide locked exterior doors. Where minimal security measures, such as a locked door or lobby attendant, “would have had the effect of deterring” an attacker, a jury can infer that the absence of such measures proximately caused an attack (citation omitted). This is so regardless of “whether the crime in question was one of random violence or was a deliberate, planned ‘assassination’ attempt such as apparently occurred in Nallan (citation omitted). Thus, where the defendant fails to demonstrate on its motion for summary judgment that, as a matter of law, minimal security measures would not have deterred the intruder, the defendant is not entitled to summary judgment on proximate cause (citation omitted).

Scurry v NY City Hous. Auth., _NY3d_, 2023 NY Slip Op 02752 (2023)

The Court addressed NYCHA’s proximate cause argument focused on whether the targeted nature of the attacks constituted a superseding cause:

NYCHA argues that as a matter of law, its negligence could not have proximately caused the death of Ms. Crushshon or Ms. Murphy because they were the victims of targeted attacks, and landlords do not have a “duty to outwit or outthink those who are determined to overcome” the “minimal steps a landowner is required to take to secure premises” (citations omitted). In other words, NYCHA contends that where a landlord offers evidence that an attack is “targeted,” that landlord has demonstrated that the assailant would have gained access to the building even if the door had been properly secured; to successfully oppose a motion for summary judgment, the plaintiff must rebut that demonstration by showing that a locked door would have in fact deterred the assailant. In the Appellate Division’s view, because Mr. Cartagena and Mr. Brockington “were intent on gaining access to the building” and “[i]n reality . . . [it] is hardly ever the case” that “minimal precautions would have actually prevented a determined assailant from gaining access . . . it does not take a leap of the imagination to surmise” that they would have killed Ms. Murphy even had the door been locked. Thus, according to the Appellate Division, proximate cause was “negate[d]” as a matter of law (citation omitted).

That reasoning mistakes a patently factual determination—whether a locked door would have prevented an attack—for a legal one—i.e, that an attacker’s intent is a superseding cause as a matter of law. It is well settled that “[g]iven the unique nature of the inquiry in each case, proximate cause is generally an issue for the trier of fact, so long as the court has been satisfied that a prima facie case has been established and the evidence could support various reasonable inferences” (citations omitted). “[I]n order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant’s conduct proximately caused plaintiff’s injuries” (citation omitted). Plaintiffs in both Scurry and Murphy raised triable issues of fact regarding proximate cause; in both cases, proximate cause should be assessed by the finder of fact.

Scurry v NY City Hous. Auth., _NY3d_, 2023 NY Slip Op 02752 (2023)

The Court concluded by addressing NYCHA’s claim that the attacks constituted an intervening cause as a matter of law:

Though NYCHA frames these fact questions as issues of superseding cause as a matter of law, we have repeatedly emphasized that just “[a]s with determinations regarding proximate cause generally, ‘[b]ecause questions concerning what is foreseeable and what is normal may be the subject of varying inferences,’ whether an intervening act is foreseeable or extraordinary under the circumstances ‘generally [is] for the fact finder to resolve” (citation omitted). “[W]here the risk of harm created by a defendant’s conduct corresponds to that which actually results[,] . . . [t]the determination of proximate cause is best left for the factfinder” (citation omitted). Only in “rare cases” can the issue be decided as a matter of law (citation omitted).

There “may be more than one proximate cause of an injury,” and it is “well settled that where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed” (citation omitted). Instead, just as with general determinations of proximate cause, when the issue of proximate cause involves an intervening act, “liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (citation omitted). It is “[o]nly where ‘the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,’ [that it] may possibly ‘break[ ] the causal nexus’“ (citation omitted). But “[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent” (citation omitted).

Here, the risk created by the nonfunctioning door locks—that intruders would gain access to the building and harm residents—is exactly the “risk that came to fruition” (citation omitted). It was not the trial court’s role, on summary judgment, to assess the fact-bound question of whether the intruders in Scurry or Murphy would have persevered in their attacks had the doors been securely locked. This is not to say that the sophistication and planning of an attack is irrelevant to the factfinder’s determination of proximate cause, or even that it could never rise to such a degree that it would sever the proximate causal link as a matter of law (citation and parenthetical omitted). But neither Scurry nor Murphy approaches that level.

***

In sum, what might have happened had the doors in both buildings worked properly is a question of fact. We cannot say that, as a matter of law, it is “extraordinary under the circumstances [or] not foreseeable in the normal course of events” that an abusive former intimate partner or a violent neighboring gang would enter through a door negligently maintained by a landlord and injure a resident (citation omitted). NYCHA thus did not meet its burden as a movant for summary judgment to demonstrate the absence of material issues of fact as to proximate cause (citation omitted).

Scurry v NY City Hous. Auth., _NY3d_, 2023 NY Slip Op 02752 (2023)

The final portion of the opinion addressed, and dispensed with, NYCHA’s argument that it was entitled to summary judgment because it lacked notice of the broken door lock in Murphy.

Decision Date: May 23, 2023

Practical Practice Point

Our Practical Practice Points are intended to add value to the analysis of the decision of the week.  We think the Scurry decision needs no elaboration or explanation.

Defendant moving for summary judgment in premises liability action failed to establish prima facie entitlement as it failed to show it did not create the dangerous condition or that it lacked constructive notice by establishing when the area was last inspected

In Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023) the Second Department sets forth the elements for a defendant to establish prima facie entitlement to summary judgment by discussing the moving parties failure to demonstrate the absence of a triable question of fact for the two critical elements.

The plaintiff was injured while walking toward a parking lot behind an auto parts store owned by the defendant when a metal gate at the entrance to a storage area fell on his foot.

Pena explains the defendant’s burden of proof in moving for summary judgment:

A party in possession or control of real property has a duty to maintain the property in a reasonably safe condition (citations omitted). When such a party moves for summary judgment in a premises liability case, it has “the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” (citations omitted).

Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023)

The Second Department analyzed defendant’s proof submitted to demonstrate it did not create the dangerous condition, and found it lacking:

Contrary to the defendant’s contention, its submissions in support of its motion for summary judgment failed to eliminate triable issues of fact as to whether it created a hazardous condition that caused the plaintiff’s injuries. The defendant submitted the deposition testimony of a service manager who explained that the subject gate, which enclosed an outdoor storage area adjacent to the store, was a sliding metal chain-link gate that was held in place by a track at the top. The service manager testified that it was his regular practice to remove the gate from its track every morning and lean it against the outside of the building to facilitate access to the storage area throughout the day. At the end of his shift, at approximately 3:30 p.m., the service manager would place the gate back on the track, slide it closed, and lock it with a padlock. The plaintiff’s accident occurred at approximately 5:00 p.m. The defendant’s submissions in support of its motion also included the deposition testimony of the plaintiff, who testified that, as he walked by the gate, the gate was struck by a gust of wind and fell down onto his foot. This testimony, if credited, indicates that the gate was not secured to the track, thereby raising a triable issue of fact as to whether the manager created the alleged dangerous condition that caused the plaintiff’s injuries by failing to properly secure the gate at the end of his shift that day (citations omitted).

Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023)

The court next examined defendant’s proof supporting lack of constructive notice by tendering proof of when the area was last inspected and, again, found it lacking:

Here, the service manager testified at his deposition that it was his regular practice to inspect the area of the gate “two [or] three times a day,” but the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries. The service manager’s testimony, which “merely referenced his general inspection practices” and failed to indicate when the area where the accident occurred “was last inspected . . . relative to the accident,” was insufficient to demonstrate a lack of constructive notice (citations omitted).

Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023)

Given the deficits in the defendant’s moving papers, the motion court “should have denied the defendant’s motion without regard to the sufficiency of the plaintiff’s opposition papers (citation omitted),” and the order granting summary judgment was reversed.

Decision Date: May 10, 2023

Practical Practice Point

It is interesting to note that while the Second Department noted that “the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries,” defendant did testify that he closed the gate, and therefore inspected the area at 3:30 pm, two hours before the plaintiff’s 5:00 pm accident.  Accordingly, there was proof in the record of an inspection two hours before the accident.

So how close in time to the accident must the last inspection occur for the defendant to successfully claim lack of constructive notice?  It is going to vary according to the totality of the circumstances surrounding the accident in question.

A last inspection nine hours before the accident was sufficient to establish prima facie entitlement in Perez v NY City Hous. Auth., 75 AD3d 629 (2d Dept 2010):

Shortly after midnight, while descending an interior stairwell in a building owned by the defendant, the plaintiff allegedly was injured when she slipped on a puddle of urine.

***

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony and an affidavit of Lynn Carter, the person assigned to clean the building. According to Carter, she had last inspected the stairwell at approximately 3:00 P.M. the previous day, approximately nine hours before the plaintiff allegedly was injured, and there was no liquid on the stairwell at that time. Additionally, the defendant submitted evidence that no one had complained about the condition of the stairwell between the time it was last inspected and the time of the plaintiff’s alleged injury (citations omitted).

Our working assumption is that the business operated on a nine to five schedule and that the duty to inspect the interior staircase did not extend into the overnight hours between the end of one workday and the start of the next.  Still, 3:00 pm is at least two hours before the end of a “normal” workday, and that was precisely the amount of time in Pena between the time the defendant closed the gate and plaintiff was injured by it.

In Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034 (2d Dept 2010), proof of an inspection fifteen minutes before plaintiff’s accident was sufficient to establish prima facie entitlement:

On October 18, 2005, at approximately 9:00 A.M., the plaintiff allegedly tripped and fell on an entry mat as he entered the Rite Time Dairy grocery store . . . The plaintiff testified at his deposition that while he did not observe the condition of the mat prior to his fall, he noticed after he fell that it was “crumpled up like an accordion.”

***

[Defendants’] met their prima facie burden on the issue of lack of constructive notice by submitting the deposition testimony and affidavit of Abdul Sattar that he had walked through the same entrance approximately 15 to 20 minutes prior to the plaintiff’s fall and observed the mats to be flat on the floor (citations omitted).

Again, the totality of the circumstances are key.  For this reason, a last inspection thirty minutes before an accident (there was contrary proof in the record) did not establish prima facie entitlement in Colantuono v King Kullen Grocery Co., Inc., 2010 NY Slip Op 32382[U] (Sup Ct, Nassau County 2010):

The evidence submitted by defendant’s manager although relevant in opposing plaintiff’s motion, does not establish with sufficient certainty when or if the area was last inspected. The testimony of the manager with respect to his inspection of the area is not sufficiently detailed, precise or unambiguous to permit the conclusion that he did make an appropriate inspection. Moreover if he did inspect one half hour before the accident the court is not prepared to assume that, given the conditions that day and the prior incident, a half hour was enough as a matter of law to satisfy the defendant’s burden under summary judgement principles.