Court: Supreme Court, Appellate Division, Second Department, New York
Case: Alami v. 215 East 68th Street, L.P.
Date: Oct. 25, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)
Comment: Plaintiff hurt in an accident while working for a family on Manhattan's Upper East Side. She claims to have suffered a slip-and-fall accident in the building laundry room, on liquid laundry soap spilled by the two-year-old child of another building resident, who was in the laundry room with his nanny, or that family's maid.
The owner and managing agent of the building are let out (case against them dismissed) on their summary judgment motion, because the accident victim/plaintiff can't show that they had notice of the spill (the dangerous condition).
The parents of the child that spilled the detergent and the woman minding the child are also let out on summary judgment, because they did not own or control the laundry room, and did not have a "duty" to keep the laundry room safe.
In what in football would be called a "Hail Mary pass," the plaintiff tried to save her case by throwing into her bill of particulars a last-second claim of "negligent supervision." The appeals court rejected this device for several reasons.
First, a bill of particulars is supposed to amplify the claims written out in plaintiff's complaint and here there was no allegation in the complaint of negligent supervision. Second, this claim should not have succeeded even if it had been properly written in plaintiff's complaint, because "negligent supervision" holds parents or care givers liable for letting a child use dangerous stuff that then injures another. The usual negligent supervision case is where an underage child is entrusted with a "dangerous instrumentality" with which they injure someone. Common are things like motorized mini-bikes or ATV's and BB guns. Here, the appeals court correctly observed that laundry detergent was not a dangerous instrumentality.
NO "NOTICE" OF RAISED RUG ON FLOOR; CASE DISMISSED ON DEFENSE SUMMARY JUDGMENT MOTION (Posted Brooklyn accident attorney by Gary E. Rosenberg on Nov 5, 2011)
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County (Lane, J.), entered December 31, 2009, as granted that branch of the cross motion of the defendants Jeffrey L. Klein, Cara L. Klein, and Claudette Lathom which was for summary judgment dismissing the complaint insofar as asserted against them, and (2) so much of an order of the same court entered January 5, 2010, as granted that branch of the motion of the defendants 215 East 68th Street, L.P., and Rudin Management Co., Inc., which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the defendants appearing separately and filing separate briefs.
At the time of the accident that is the subject of this action, the plaintiff was employed by a family which leased an apartment in a building allegedly owned by the defendant 215 East 68th Street, L.P. (hereinafter 215), and operated by the defendant Rudin Management Co., Inc. (hereinafter Rudin). She allegedly sustained personal injuries when she slipped and fell on laundry detergent that had spilled on the floor in the common laundry room located in the basement of the building. The liquid detergent had been spilled by the two‑year‑old son of the defendants Jeffrey L. Klein and Cara L. Klein (hereinafter together the Kleins), who was being supervised by his nanny, Claudette Latham, sued herein as Claudette Lathom.
The Supreme Court properly granted that branch of the motion of 215 and Rudin which was for summary judgment dismissing the complaint insofar as asserted against them. A defendant who moves for summary judgment in a slip‑and‑fall case has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Totten v. Cumberland Farms, Inc., 57 A.D.3d 653, 871 N.Y.S.2d 179; Cohn v. Mayfair Supermarkets, 305 A.D.2d 528, 759 N.Y.S.2d 131). "Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances" (Friedman v. Gannett Satellite Info. Network, 302 A.D.2d 491, 491-492, 755 N.Y.S.2d 412; see Stasiak v. Sears, Roebuck & Co., 281 A.D.2d 533, 722 N.Y.S.2d 251; LoSquadro v. Roman Catholic Archdiocese of Brooklyn, 253 A.D.2d 856, 678 N.Y.S.2d 347).
Here, the defendants 215 and Rudin submitted evidence establishing that the incident occurred approximately 10 minutes after the laundry detergent was spilled. They also submitted evidence that Latham reported the spill to an elevator operator less than five minutes before the plaintiff fell. Under the circumstances of this case, the submissions of the defendants 215 and Rudin established, prima facie, that they neither created nor had actual or constructive notice of the alleged dangerous condition for a sufficient length of time to discover and remedy it (see Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 523, 855 N.Y.S.2d 155; Ulu v. ITT Sheraton Corp., 27 A.D.3d 554, 554-555, 813 N.Y.S.2d 441; Tkach v. Golub Corp., 265 A.D.2d 632, 633, 696 N.Y.S.2d 289; Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 698-699, 633 N.Y.S.2d 413). In opposition, the plaintiff failed to raise a triable issue of fact.
The Supreme Court also properly granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the Kleins and Latham. In the complaint, the plaintiff alleged that her injuries were caused by the negligence of the Kleins and Latham, their agents, servants, and/or employees "in their ownership, operation, maintenance, management, and control" of the subject premises. Since the Kleins and Latham did not own, maintain, operate, or control the premises, they owed no duty of care to the plaintiff to maintain the premises in a safe condition (see Segura v. City of New York, 70 A.D.3d 670, 892 N.Y.S.2d 870).
It was improper for the plaintiff to assert, for the first time in her bill of particulars, a cause of action alleging negligent supervision of the Kleins' son. Although a bill of particulars may be used to amplify the allegations in a complaint (see Nader v. General Motors Corp., 25 N.Y.2d 560, 565, 307 N.Y.S.2d 647, 255 N.E.2d 765), and considered in determining the "sufficiency of a pleaded cause of action" (Siegel, N.Y. Prac. Sec. 238, at 401 [4th ed.]), a bill of particulars may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint (see Sullivan v. St. Francis Hosp., 45 A.D.3d 833, 846 N.Y.S.2d 338; Castleton v. Broadway Mall Props., Inc., 41 A.D.3d 410, 411, 837 N.Y.S.2d 732; B. & F. Leasing Co. v. Ashton Cos., 42 A.D.2d 652, 653, 345 N.Y.S.2d 687; Melino v. Tougher Heating & Plumbing Co., 23 A.D.2d 616, 617, 256 N.Y.S.2d 885). Moreover, the Kleins and Latham established, prima facie, that an uncapped bottle of detergent was not a dangerous instrument entrusted to a minor such that liability could be imposed upon them for negligent supervision, and they further established that Latham owed no duty of care to the plaintiff (see Simcha v. Simcha, 292 A.D.2d 591, 741 N.Y.S.2d 245). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.