Social Media Networks: Access Denied

In the current age of electronic discovery, social media networks provide an insight into a plaintiff’s state of mind and daily activities, which was once otherwise impossible to obtain. In a blow to the defense, the First Department recently held that a plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage. In Tapp v. New York State Urban Dev. Corp., the defendant sought an authorization for plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived. In affirming the lower court’s denial of defendant’s request, the First Department held that to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account. Specifically, they need to identify information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” Given an individual’s ability to close their Facebook page to the public, and place various restrictions on who may access the content contained on their profile page, the First Department’s ruling makes it increasingly difficult to obtain access to social media networks, which may be a useful tool in challenging a plaintiff’s credibility at the time of trial.

Reasonable Inspections Trump 24-Hour Per Day Patrolling

In Rodriguez v. NYCHA, the First Department reinforced well established precedent that a defendant is not required to patrol its halls and stairs 24-hours a day, looking for dangerous conditions. In Rodriguez, the plaintiff slipped and fell on a wet substance in a stairwell in defendant’s building. The court held that the defendant established its right to summary judgment with evidence that it neither created nor had notice of the allegedly hazardous condition. The court recognized that it was sufficient that the defendant’s caretaker inspected the stairwell twice every morning and once every afternoon, and promptly mopped any spills she found during her inspections. Indeed, the building was not required to patrol the staircase 24 hours a day.

Taut Tape Injury Not Within the Ambit of Labor Law 240(1)

In Garcia v. DPA Wallace Avenue I, LLC, et al., the First Department reaffirmed the lower court’s decision, awarding DPA Wallace summary judgment, and denying plaintiff’s cross motion for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241-a claims. Garcia, an elevator mechanic, was preparing to dismantle components of an elevator when the “selector tape,” a thin strip of metal, broke and “snapped” upwards, cutting his hand. Garcia creatively argued that the tension put on the tape was created by a gravitational force from a weight in the overhead room, which essentially acted as a counterweight to keep the tape taut.  The First Department rejected plaintiff’s argument, noting that the object upon which the force of gravity was applied — the weight in the overhead room — was not material being hoisted, nor was it a load requiring securing for plaintiff’s work. Thus, the snapping of the tape was not the result of the gravitational pull, necessary to put the case within the ambit of Labor Law 240(1). The First Department also upheld the dismissal of the Labor Law § 241(6) and Labor Law § 241-a claims since plaintiff was not subject to the overhead hazard of falling objects. While the courts have continually expanded the breadth of Labor Law 240(1), this case reinforces that plaintiffs must prove that their resultant injury stems from a true gravity-related hazard.


Experts Are Not Always Right – Or Accurate

In Gibbs v. 3220 Netherland Owners Corp., the First Department recognized that just because an expert claims a building code was violated, it does not necessarily mean that there was a code violation, or that the expert is even assessing the correct code. The First Department upheld the trial court’s decision that the stairs on which Gibbs allegedly slipped and fell (leading from the first floor to the lobby) were not “exit” stairs within the meaning of two building code provisions. Thus, the expert’s opinion that the stairs violated relevant codes to “exit” stairs, failed to raise an issue of fact. The court further disparaged the expert by recognizing that an opinion regarding the absence of slip resistant material lacked probative value because the expert failed to identify any minimum requirement of non-skid material. The positive defense lesson to be learned is that simply because an expert is retained, it does not mean that a question of fact, sufficient to defeat a motion for summary judgment, will automatically be created.


Health Club Escapes Liability for Unforeseen Sports Brawl

In Ullrich v. Bronx House Community Ctr., the First Department reversed the lower court and granted the defendants’ motion for summary judgment, holding that an assault by a fellow basketball player was an intentional and unforeseeable act of a third party, for which the defendants were not liable.  Plaintiff sustained injuries when another player punched him in the jaw. Based on the facts of the case, the assault was unprovoked, unanticipated, and could not have been prevented because it occurred so quickly. However, plaintiff argued that the assailant’s club membership should have been suspended prior to the incident because he had been involved in a dispute with other club members several months earlier, thereby putting the defendants on notice of his violent demeanor.  In granting the defendants’ motion, the First Department held that the notice was not sufficiently specific for the defendants to have reasonably anticipated the assault upon plaintiff. Rather, the incident was an intentional and unforeseeable act of the assailant. Thus, when participating in sports events, would-be plaintiffs should take note that they cannot necessarily blame a sports club for a hot headed player who assaults them. It is the offending player – not the “deep pocket” sports club – that they should be suing.

Cheerleaders Assume Risk Of Injury

In Kristina D. v. Nesaquake Middle Sch., the Second Department reversed the lower court’s denial of defendants’ motion for summary judgment and dismissed plaintiff’s complaint. In doing so, the Second Department reaffirmed the long standing precedent that one cannot recover for injuries sustained in recreational activities, for those commonly appreciated risks inherent in the participation of the activity.

Plaintiff was an experienced middle school cheerleader, who was allegedly injured during cheerleading practice when she fell during the performance of a “shoulder stand,” a stunt she had performed many times in the past. Plaintiff sued the school district and cheerleading coach, alleging a failure to properly supervise the cheerleaders.

The complaint was ultimately dismissed despite the Second Department’s acknowledgement that even if the risk is assumed, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from “unassumed, concealed, or unreasonably increased risks.” In this instance, it was clear that plaintiff, an experienced cheerleader, assumed the risks involved in cheerleading and the performance of stunts. Moreover, the school made a prima facie showing that the plaintiff was adequately supervised.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact


Permanent Structures Afforded Labor Law § 240 Protection

In Burton v. CW Equities, LLC, et al, , the First Department reversed the lower court’s denial of plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim. The plaintiff had fallen  from a permanent concrete walkway that provided access to the rear yard of a building under construction. The walkway extended over a 15-foot deep vaulted area below grade level and had no guardrails or barriers. In reversing the lower court, the First Department held that simply because the walkway was a permanent structure did not mean that it was not protected under Labor Law § 240(1).  Rather, since the plaintiff’s injuries were the direct result of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, he was entitled to the protections afforded by Labor Law § 240. As for the Labor Law § 200 claim, the fact that the plaintiff’s injury did not arise from the method he used to perform his work, but from a dangerous condition, was not dispositive on the issue of defendant CW Equities’ control of the worksite.

Expert Affidavit Trumps Speculation Defense

In Rodriguez v. Leggett Holdings, LLC, the First Department reinstated plaintiff’s complaint despite the fact that plaintiff was unable to identify the cause of his fall down a set of stairs. Although defendants established their prima facie entitlement to summary judgment since plaintiff’s deposition testimony revealed that he was unable to identify the precise cause of his fall, plaintiff’s expert engineering affidavit, which attributed various defects and building code violations (without specifically referencing the code sections or precise measurements taken) as the cause of the accident, was sufficient to raise a triable issue of fact as to whether the alleged defective conditions caused the fall. Chiseling away at the proposition that a defendant is entitled to summary judgment where a plaintiff’s claims are based on speculation and conjecture, the First Department held that in this instance, summary judgment was not appropriate because plaintiff was able to identify the general site of his fall, and his expert was then able to identify defective conditions on the stairway. Plaintiffs, who now have the ability to submit expert affidavits in order to defeat motions that may have once been favorably decided for the defense, will undoubtedly rely upon this case in the First Department.

Stilt Fall Does Not Trigger Labor Law 240(1) Claim

In a minor victory for defendants in the recent Richmond County decision of Garcia v. Mt. Airy Estates, Inc., the trial court dismissed Garcia’s Labor Law 240(1) claim due to the fact that there was no issue raised regarding the malfunctioning of his safety device – a pair of stilts.  Garcia, a dry wall laborer, wore stilts as he applied spackle to the ceiling of a garage.  While working on the stilts, he claimed that he fell because of debris on the floor.  The court held that there was no issue raised to suggest that the stilts failed to perform the function required of them by statute or that they failed to allow Garcia to safely perform his work at the required elevation.  All claims sounding in Labor Law 240(1) were dismissed despite the fact that Garcia was in fact working from a height. The court did permit Garcia’s Labor Law §§ 200 and 241(6) claims to proceed due to the allegation that debris on the floor caused his fall.


Vehicle Itself Must Be The Proximate Cause Of Injures For No Fault Law To Apply

In Cividanes v. City of N.Y., 2012 NY Slip Op 02179, plaintiff was allegedly injured when she stepped into a hole and fell after alighting from a bus owned and operated by the City defendants. The defendants moved for summary judgment, arguing that the plaintiff’s injuries did not meet the “serious injury” requirement of No-Fault Law. In affirming the lower court’s denial of the motion, the First Department held that No-Fault Insurance Law only applies if the vehicle is the proximate cause of plaintiff’s injuries. Here, plaintiff’s accident did not occur because of the bus, but rather, occurred outside the bus. Thus, the court held that: (1) the accident did not arise out of the “inherent nature” of the bus;  (2) the accident did not arise within the “natural territorial limits” of the bus, as plaintiff fell on the street; and, (3) the bus itself was not the instrumentality that produced the alleged injury. As a result, plaintiff did not have to meet the “serious injury” threshold requirements, thus limiting a defendants ability to succeed on a threshold summary judgment motion where the vehicle in question was not the specific cause of the accident, but still seemingly related to the accident.