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Mandatory, Non-Binding Arbitration Arrives In New York

On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program [1], effectively bringing mandatory mediation to the New York System court system by the end of 2019.  The Presumptive ADR program is being implemented and modeled from similar practice in other jurisdictions, with a special focus eyeing New Jersey, where an automatic presumptive mediation program has been in place for more than a decade [2].  Local protocols and best practices are being developed by the Administrative Judges of each of New York’s 13 Judicial Districts to facilitate the process.

For the Supreme Court, Kings County in Brooklyn, the new rules for presumptive mediation are set to take effect on October 1, 2019.  All cases in Brooklyn where the Request for Judicial Intervention is filed on or after October 1, 2019 will be required to participate in the mediation program.  Mediations will begin in November, and will be scheduled 90 days from the date of the RJI.  Attorneys will be given 30 minutes of no-cost mediation, after which free half-hour the cost will be $400 per hour.  There will be an opt-out provision, available by order to show cause or by an in-person application to the mediator, if all parties agree that the mediation would not be feasible [3].  Court officials are estimating that nearly 20,000 mediation conferences will be held on Kings County civil cases in the first year [4].

Hon. George Silver, deputy chief administrative judge for the NYC courts has expressed his optimism that Presumptive ADR will benefit litigants and the court system alike, freeing up judicial resources for the more difficult cases.  “What we’re really doing, and it’s to the benefit of everyone, is we’re looking at cases earlier than later.  Certainly we know that there are cases that will never settle and will have to go to trial, but there certainly are that we can identify, and if we can settle 15 to 20 percent of cases [in Presumptive ADR], that leaves room for judges and everyone to work on more difficult cases.” [5].

 

Sources:

[1] A copy of the press release is available herehttps://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf

[2] “New York Courts to Begin Presumptive Mediation for Civil Cases Later This Year”, New York Law Journal, May 16, 2019 by Dan M. Clark  https://www.law.com/newyorklawjournal/2019/05/16/new-york-courts-to-begin-presumptive-mediation-for-civil-cases-later-this-year/

[3] “Dear Colleagues: Kings County Mediation Rules”, open letter dated August 28, 2019 by NYSTLA President Michele S. Mirman

[4] “Brooklyn Supreme Court expects 20,000 cases to be mediated each year”, Brooklyn Daily Eagle September 4, 2019, by Rob Abruzzese.

[5] “Columbian Lawyers get a crash course in new presumptive mediation program”, Brooklyn Daily Eagle September 6, 2019, by Rob Abruzzese.

New York’s Office of Court Administration has announced its intent to adopt the Uniform Mediation Act (“UMA”) as promulgated by the National Conference of Commissioners of Uniform State Laws,

[https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2019-CivilPractice.pdf]  The new rules regarding mediation will become Article 74 of the CPLR and be known as the ‘Uniform Mediation Act’.  There will be a waiver provision, provided in CPLR §7404

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Appellate Division Finds Big Apple Maps Did Not Provide City With Legally Adequate Notice Due to Minor Discrepancy Between Plaintiff’s Testimony and Map’s Sidewalk Defect Description

Typically, in New York City, the Big Apple Pothole and Sidewalk Protection Committee (“Big Apple”)’s maps provide legally sufficient notice to the City of dangerous potholes or sidewalk conditions. See https://www.nystla.org/index.cfm?pg=Pothole for more information. Big Apple was established in 1982 by the New York State Trial Lawyers Association to map the City’s 13,000 miles of sidewalks in New York that were capable of causing personal injury. See https://www.nytimes.com/2009/01/04/nyregion/04pothole.html for more information.

These maps were presented annually to the City of New York Department of Transportation (“DOT”) to provide them with the current status of the various sidewalks in the City. For many years, the Big Apple maps forced the City of New York to pay out millions of dollars in claims for personal injuries sustained on City sidewalks. However, in De Zapata v. City of New York, the Appellate Division of the Supreme Court recently decided that the City did not have the proper notice.

Plaintiff was injured on January 24, 2014 when she fell while walking along a public sidewalk in front of a property located at 96 Hemlock Street, Brooklyn, NY. The Plaintiff filed a Notice of Claim against the City of New York on April 16, 2014, asserting a claim against the City for physical injuries from the hazardous snow and ice that was in the depressed and broken section of the sidewalk.

The City moved to dismiss, arguing that it did not have prior written notice of the alleged icy condition and that, therefore, it lacked constructive notice of any icy condition. In opposition, Plaintiff pointed to her §50-h testimony, General Municipal Law §50-h, photographs, and the map served upon the DOT by Big Apple. Specifically, Plaintiff contended that the Big Apple map constituted prior notice and constructive notice of the defect.

The Administrative Code of the City of New York § 7-201(c), specifically limits the City’s responsibility over municipal streets and sidewalks by allowing for liability only if the City had actual notice of the defect at that location. Katz v. City of New York, 87 N.Y.2d 241, 243. Therefore, the Plaintiff must plead the City had prior written notice of the defect in order to maintain an action against the City. Katz, supra, 87 N.Y.2d at 243. Importantly, “Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality.” Farrell v. City of New York, 49 A.D.3d 806, 807.

With that legal background, the Appellate Division held that the City was entitled to summary judgment and a dismissal of all of Plaintiff’s claims against it. The basis for this decision was that the Big Apple map only indicated that the sidewalk abutting the property located at 96 Hemlock Street, Brooklyn, NY had an “[e]xtended section of raised or uneven sidewalk.” However, the Court held that the true defect, as established throughout the case, was the existence of a “hole,” “ditch,” or “icy condition” that Plaintiff claimed to have caused her fall. Therefore, the Court found that the Big Apple map did not provide adequate notice of the sidewalk’s dangerous condition to the City.

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New York Court of Appeals Finds that Plaintiffs Moving for Partial Summary Judgment on Liability are not Required to Prove the Absence of their Own Comparative Negligence

Plaintiff Carlos Rodriguez, a garage utility worker for the New York City Department of Sanitation, was standing between a parked car and a rack of tires when a sanitation truck, which was trying to back into a garage, crashed into the front of the parked car, propelling it into plaintiff and pinning him up against the tires.  The plaintiff sued the City of New York for negligence and moved for partial summary judgment on liability.  The Supreme Court denied plaintiff’s motion and the First Department of the Appellate Division affirmed, finding that plaintiff had failed to make a prima facie showing that he was free of comparative negligence.  The question in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), was whether plaintiffs moving for partial summary judgment in a comparative negligence action must establish the absence of their own comparative negligence.

The Court of Appeals answered this question in the negative: “To be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.”  Rodriguez, 31 N.Y.3d at 315, 324-25.  In so holding, the Court of Appeals recognized that under New York’s comparative negligence statute, a plaintiff’s culpable conduct “shall not bar recovery” because it “is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence”; rather, such conduct only serves to diminish “the amount of damages otherwise recoverable.”  Id. at 317-19.  The Court also noted that since a plaintiff’s culpable conduct is an affirmative defense to be pleaded and proved by the party asserting it, a rule requiring plaintiffs to disprove their culpability would flip the burden of proof and would thus be inconsistent with the plain language of the comparative negligence statute.  See id. at 318.  The Court found that such an outcome would not be consistent with the legislative history of the comparative negligence statute, which indicated that the law was designed to bring “New York law into conformity with the majority rule and represent[ed] the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff.”  Id. at 321.

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Storm In Progress Defense Under New York Law

By: Kristen Mowery, Law Clerk

Under New York law, courts recognize an exception to the ordinary duty of care owed—that is, to keep the landowner’s premises reasonably safe of dangerous or hazardous conditions—known as the storm in progress doctrine.  Brandimarte v. Liat Holding Corp., 158 A.D.3d 664, 664-65 (N.Y. App. Div. 2018); Gervasi v. Blagojevic, 158 A.D.3d 613, 613 (N.Y. App. Div. 2018).  According to the storm in progress rule, plaintiffs are precluded from recovering for injuries that occur on a landowner’s property and are caused by the accumulation of snow and ice.  Smith v. Christ’s First Presbyterian Church, 93 A.D.3d 839, 839-40 (N.Y. App. Div. 2012).  The exception shields landowners from liability where the storm is ongoing because “shovel[ing] snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned [would] render[] the effort fruitless.”  Powell v. MLG Hillside Assocs., 290 A.D.2d 345, 345 (N.Y. App. Div. 2002).  Thus, landowners are afforded a reasonable time following the cessation of a storm to remedy the dangerous condition the storm created. Id.

Where a defendant presents sufficient evidence that the storm was ongoing during the time of the injury, she is entitled to judgment as a matter of law. See id. at 345 (“Where the evidence is clear that the accident occurred while the storm was still in progress, defendants may avail themselves of the rule as a matter of law.”); see also Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1021 (N.Y. 2016); Smith, 93 A.D.3d at 839; Marchese v. Skenderi, 51 A.D.3d 642, 642 (N.Y. App. Div. 2008). Furthermore, as the party moving for summary judgment, a defendant “ha[s] the burden of establishing, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition.” Smith, 93 A.D.3d at 839.

Defendants can satisfy this prima facie burden by presenting testimonial or deposition evidence of witnesses, experts, or the plaintiff herself.  See Sherman, 27 N.Y.3d at 1021.  The most persuasive evidence, however, is “the analysis of a licensed meteorologist.”  Powell, 290 A.D.2d at 345.  In Powell, one of the leading New York cases on the doctrine, plaintiff’s meteorologist presented climatological charts to show that approximately two inches of snow had fallen overnight, but that “precipitation had tailed off to less than one-tenth of an inch (the equivalent of less than 0.01 inches of rain) per hour” by 6:00 a.m. the following morning.  Id. at 346.  Because the fall occurred around 9:15 a.m., and because the custodian was not brought to the scene until anywhere from 8:00 a.m. to 9:40 a.m., the court concluded that the defendants failed to act with the appropriate degree of care once the storm ceased and their duty of care arose.  Id. at 345-46.  To this end, the court noted, “[o]nce there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.”  Id. at 346.

In 2016, the highest New York court supported its decision to affirm the Appellate Division’s grant of summary judgment for defendants with defendant’s uncontroverted evidence of plaintiff’s own testimony and a certified weather report.  Sherman, 27 N.Y.3d at 1021.  Sherman involved a New York State Trooper who sought recovery from the New York State Thruway Authority following a fall on an icy sidewalk outside the plaintiff’s barracks.  Id. at 1020.  Defendant presented plaintiff’s deposition, in which plaintiff testified that “‘an ice storm’ had taken place the night before the accident, and an ‘intermittent wintry mix’ of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work.”  Id. at 1021.  Because there was continuous precipitation at the time of the accident around 8:15 a.m., that had been ongoing since the night before and involved near freezing temperatures, the court concluded that defendant was entitled to the storm in progress defense and thus, not liable as a matter of law. Id.

Landowners must keep their premises free of dangerous conditions, including those caused by snow, ice, and freezing rain.  However, New York law recognizes the need to allow for a reasonable period of time before the obligation to clear walkways arises.  Where a storm is still ongoing and an unfortunate accident occurs, the injured party can only recover if it shows the landowner’s duty arose following the storm’s cessation, and that the landowner failed to remedy the dangerous situation within a reasonable time.  New York courts will grant summary judgment and dismiss a plaintiff’s complaint where landowners present prima facie evidence, especially from a certified meteorologist, that the storm was ongoing at the time of the injury.  As one New York opinion expressed, “in the absence of proof that the plaintiff slipped and fell as a result of something other than snow, the plaintiff has no cause of action against the defendants.” Marchese, 51 A.D.3d at 643.