eNotes: Liability – January 2025 – New York

SIGNIFICANT CASE SUMMARIES

New York Case Summaries

Moller v. 68 W. 128th St. Partners LLC
New York Supreme Court, New York County
2024 N.Y. Misc. LEXIS 24727

Decided: December 9, 2024

Certain claims alleging individual liability dismissed against owner of construction company accused of trespass, nuisance and damage to neighboring property. An Amended Complaint was also permitted to add subcontractor Defendants despite argument by general contractor Defendant that a contractual obligation to one party standing alone does not give rise to tort liability to another.

Background

This case arises from the all-too-common scenario in NYC where neighboring buildings abut very closely to one another and access agreements, easement and potential strict liability causes of action exist for damages to neighboring buildings. Here, Plaintiff sought to maintain claims directly against both the construction company conducting the work at issue without an access agreement and which clearly caused undisputable damages as well as the construction company’s owner, Shalom Malul. The Court began by explaining that an injunction stopping the work had already been ordered by the Court and an engineering report appeared to find obvious and undisputable damages incurred by the neighboring property. The Motion for summary judgment dismissing the claims against the individual Defendant argued NY law disfavors individual liability absent exclusive control, even where there is participation in the breach. However, Plaintiffs responded that while the negligence claims and breach of building code allegations involve nonfeasance, the claims of trespass and nuisance involve engagement in active tortious behavior and such claims may be asserted against individuals.

Additionally, the moving contractor Defendants argued against Plaintiff being allowed to amend the complaint to assert new claims against various subcontractors of the general contractor.

Holding

As to the causes of action which allege negligence and building code violations (and by definition nonfeasance) against the individual Defendant and the managing agent Royal Homes, the Court held these causes of action dismissed based upon the Affidavits of lack of exclusive control by Malul and no active participation by Royal Homes. The Court found, however, that with respect to the claims for private trespass and nuisance, if a director or officer commits or participates in the commission of such a tort, whether or not it is also by or for the corporation, he can be liable to third parties injured thereby. The Court also pushed aside the claim that Defendants are provided protection from tort claims to a contractor that was onsite and conducted the actual tort at issue. The Court concluded by noting that leave to amend is always freely given, while also finding that Defendants had not established a failure to state a claim by Plaintiffs with regard to the proposed Amended Complaint.

Questions about this case can be directed to James Cardenas at (908) 574-0504 or jcardenas@tthlaw.com.

Abreu v. Metro. Transit Auth.
New York Supreme Court, New York County
2024, N.Y. Misc. LEXIS 22522

Decided: November 25, 2024

Petitioner denied leave to extend the time to file a notice of claim.

Background

On March 13, 2023, Plaintiff was involved in a slip and fall incident on the platform of the number 6 train at the Grand Central Station stop. Following the incident, on April 6, 2023, Petitioner sent Respondent a notice/demand to preserve video, which was acknowledged by the Respondents on April 12, 2023. On April 17, 2023, Petitioner’s counsel submitted a Freedom of Information Law (“FOIL”) request seeking the video, which was also acknowledged by Respondents the same day. Subsequently, on August 7, 2023, Petitioner delivered a notice of claim to the New York City Transit Authority.

Where an action against the MTA and the NYCTA is founded on a tort (except for wrongful death), Public Authorities Law §§ 1212 (2) and 1276 (2) require service of notices of claim upon the NYCTA and MTA, respectively, prior to the commencement of the action, “within the time limited by and in compliance with all of the requirements of section [50-e] of the general municipal law” (90 days). Under General Municipal Law § 50-e (5), courts have discretion to grant an extension of time for service of a notice of claim. “In determining whether to grant or deny leave to serve a late notice of claim, the court must consider ‘in particular’ whether the municipality ‘acquired actual knowledge of the essential facts constituting the claim within [90 days of the claim’s accrual] or within a reasonable time thereafter.’”

In order to succeed, Petitioner must articulate the reason for the delay, that the respondents had actual knowledge of the essential facts, and there was no substantial prejudice in the late filing. Here, Petitioner did not provide a reasonable excuse for the delay in filing the notice of claim. Petitioner argued that Respondents had actual knowledge of the essential facts based on the timeliness of the notice/demand to preserve and the FOIL request. Respondent argued that the information contained in the notice/demand to preserve and the FOIL were insufficient because the information relating to the incident that was contained in the notice of claim, notably the date and location of the incident were different. Finally, Petitioner argued that there was no substantial prejudice to respondents. A showing need not be extensive, but the Petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice. Here, Petitioner argued that Respondents were on notice of a slip and fall accident with a transient substance and Respondents had sufficient time to investigate the claim.

Holding

The Court denied Petitioner’s Motion and dismissed the action. Although not fatal to Plaintiff’s Petition, the Court held Petitioner did not provide a reasonable excuse for her delay in filing the notice of claim. With respect to actual knowledge of the essential facts requirement, the Court found in favor of Respondents. The Court found that the preservation notice and the FOIL request lacked the essential facts for all elements of an actionable wrong. Further, neither alleged that the Respondents were negligent nor the cause of the alleged accident, nor did they mention there was an accumulation of water upon which a legal theory of premises liability could be predicated. Ultimately, the Court found that Petitioner had no reasonable excuse for the delay in serving notice, and Petitioner did not establish that Respondents had actual knowledge of the essential facts constituting Petitioner’s claim. The Motion was denied and the proceeding was dismissed.

Questions about this case can be directed to Meagan Gabriel at (646) 298-3630 or mgabriel@tthlaw.com.