New York Civil Law

Appellate Division, Third Department's Curious Holding Regarding Recurring Dangerous Condition in Premises Liability

Last Thursday, the Appellate Division, Third Department in Black v. Kohl's Dept. Stores, Inc. held that general awareness of that a dangerous condition may be present on its premises  might be enough to hold a premises owner liable.  The case concerns a subset of constructive notice -- i.e., an unsafe recurring dangerous condition.

The plaintiff claimed that she caught her foot on a purse that was lying on an aisle in the defendant's store.  The defendant proffered evidence that an employee inspected the floor at 3:00 p.m. and that there was no merchandise on the floor at that time.  The plaintiff alleged that the accident occurred between 3:15 p.m. and 4:00 p.m., and an accident report indicated that emergency medical services received a call regarding the injury at 3:48 p.m.

The Third Department held that the plaintiff raised a material question of fact as to whether the defendant had constructive notice of a recurring condition regarding its merchandise.  The odd part about the decision is that the evidence does not speak to the fact that there was a recurring dangerous condition that  regularly went unaddressed.

The Court pointed out that one employee "acknowledged that he had seen merchandise, including handbags, on the floor in the store and that customers would commonly knock merchandise onto the floor.  The Court pointed to another employee's affidavit who stated that the "plaintiff's accident occurred in an aisle near a price checker and that customers would occasionally leave clothing hanging near the price checker or on shelves nearby, causing employees to more frequently attend to that aisle and the merchandise misplaced therein."  Based on this evidence, the Court concluded that the plaintiff raised a material issue of fact to defeat the defendant store's summary judgment motion.

Justice Mecure dissented, noting that the Majority's holding on these facts creates a precedent that expands the recurring unsafe condition beyond manageable bounds.  In my opinion, Justice Mecure hits the nail on the head.  The Majority's rule ignores that the plaintiff failed to demonstrate that the defendant had actual notice of this alleged unsafe recurring condition.

(Note: The law firm for which I work represented the defendant in this matter.  I had no involvement in the case, however)

New York Court of Appeals Recently Holds That CPLR 2001 May Cure Defect In Service of Summons and Complaint In Some Instances

Even though the CPLR is clear on this point, litigants still seem to make mistakes when serving their summons and complaints.  In Ruffin v. Lion Corp., 2010 N.Y. Slip Op. 8767, 2010 N.Y. LEXIS 3464 (Nov. 30, 2010), the plaintiff used a process server who was not a New York resident to serve the defendants with the summons and complaint concerning her personal-injury action.  Two years after a default judgment was entered against the defendant, it moved to dismiss the action under CPLR 3211(a)(8) and to vacate the default judgment.  The defendant argued that the process server was not authorized under CPLR 313 to effect service in Pennsylvania because he was not a New York resident, he was not a sheriff authorized to make service by Pennsylvania law, and he was not an attorney, solicitor, barrister or equivalent.

The plaintiff conceded that the process server was not authorized to make service in Pennsylvania but challenged the jurisdictional implication of the improper service by relying on CPLR 2001.  CPLR 2001, among other things, applies to the commencement of an action regarding mistakes in the filing process. The Court of Appeals concluded that the error regarding the plaintiff’s failure to fulfill the service requirements of CPLR 313 could be disregarded.  Analyzing CPLR 2001 and the legislative history of its recent amendment, the Court concluded that CPLR applies to both non-prejudicial defects in filing and service of initiatory papers such as a summons and complaint.

The Court pointed out that the CPLR 2001 point was not dispositive because the service of initiatory papers also implicated due process concerns of notice.  The Court noted that courts should analyze whether the error is merely technical or one that impacted whether notice was reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.  The Court provided two examples where an error was more than just a technicality: (1) simply mailing the document to the defendant or e-mailing them to the defendant’s web address, or (2) the delivery of a summons and complaint to the wrong person.  The Court noted that delivery of a summons and complaint by a process server who is unauthorized to serve simply because of his place of residence will not affect the likelihood that the summons and complaint will reach defendant and inform him that he is being sued.  As such, the Court concluded that a defect related to the residence of a process server has no effect on the likelihood of defendant's receipt of actual notice, and the court may choose to correct or disregard it as a technical infirmity under CPLR 2001.

 This opinion serves as a reminder that these procedural details should be followed closely when initiating an action to avoid unnecessary motion practice.  On the other side of the caption, defendants should not gloss over analyzing these details upon receiving these initiatory papers.