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August Page I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


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"Transactions Involving Commerce" and "Waiver of Arbitration by Participating in Litigation"  (Re: the Federal Arbitration Act) Defined


The First Department, in a full-fledged opinion by Justice Richter, determined that the Federal Arbitration Act applied because the underlying transactions "involv[ed] commerce" within the meaning of the federal statute. The court further determined that the plaintiffs did not pursue litigation to the extent necessary to constitute a waiver of arbitration.  The court explained the criteria for "transactions involving commerce" and waiver of arbitration by participating in litigation:


[The Supreme Court] found the phrase "involving commerce" to be the equivalent of "affecting commerce," a term associated with the broad application of Congress's power under the Commerce Clause ... .


The Supreme Court reaffirmed this interpretation of "involving commerce" ... , stating that "it is perfectly clear that the FAA encompasses a wider range of transactions than those actually in commerce, that is, within the flow of interstate commerce" ... . Further, the Court held that individual transactions do not need to have a substantial effect on interstate commerce in order for the FAA to apply ... . Rather, as long as there is economic activity that constitutes a general practice "bear[ing] on interstate commerce in a substantial way" ... . * * *


Although a party may have a right to arbitrate, the court may determine that a party has waived this right by having participated in litigation ... . There is a "strong federal policy [*6]favoring arbitration," and waiver should not be "lightly inferred" under the FAA ... . A party does not waive the right to arbitrate simply by pursuing litigation, but by "engag[ing] in protracted litigation that results in prejudice to the opposing party" ... . Cusimano v Schnurr, 2014 NY Slip Op 05702, 1st Dept 8-7-14





Written Waiver of Conflict by Defendants Precluded Disqualification of Plaintiff's Counsel 


The Second Department reversed Supreme Court, finding that the motion by the defendants to disqualify plaintiff's attorney (Brooks) based upon a conflict of interest should have been denied.  The defendants had signed a waiver after full disclosure of the conflict:


" [T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion'" ... . Here, the Supreme Court improvidently exercised its discretion in granting the motion to disqualify Brooks ..., as counsel for the plaintiff. Pursuant to the written waiver, the ...defendants specifically waived any conflict of interest that might arise from Brooks's representation of the plaintiff. The waiver fully informed the ...defendants of the potential conflict of interest and, by executing the waiver, the ... defendants consented to have Brooks represent them notwithstanding that conflict ... . Grovick Props LLC v 83-10 Astoria Blvd LLC, 2014 NY Slip Op 05627, 2nd Dept 8-6-14





"Sua Sponte" Dismissal of Complaint Based on Lack of Standing Reversed


The Second Department, in a foreclosure action, determined Supreme Court abused its discretion in dismissing, sua sponte, the complaint on the ground the plaintiff lacked standing.  The court explained that sua sponte dismissal is warranted only in extraordinary circumstances, the defendants had not raised the "lack of standing" defense, and lack of standing is not a jurisdictional defect:


A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal ... . Here, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint and cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing ... . Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court ... . Bank of NY v Cepeda, 2014 NY Slip Op 05614, 2nd Dept 8-6-14





Distinction Between New York College Funds, Which Are Protected Against Creditors, and College Funds Established in Other States, Which Are Not Protected, Does Not Violate the Equal Protection Clause


The Second Department determined that a college fund established under the laws of New Hampshire, unlike a college fund established under the laws of New York, was not entitled to the protection from creditors afforded by CPLR 5205.  The distinction between New York funds and funds established in other states was deemed to be constitutional:


The parties do not dispute that the protection from creditors afforded by CPLR 5205(j)(2) to college tuition savings program accounts defined in 26 USC § 529 (hereinafter 529 savings plans) does not apply where, as here, the accounts are not qualified college savings program accounts established pursuant to the New York State College Choice Tuition Saving Program, as set forth in Education Law article 14-A. The Supreme Court correctly concluded that the distinction made in CPLR 5205(j) between 529 savings plans established under the laws of New York, and those established in other states, or under the laws of other states, does not violate the equal protection clause of the United States Constitution. Since the classification "is not based on an inherently suspect characteristic and does not impermissibly interfere with the exercise of a fundamental right, it need only rationally further a legitimate state interest to be upheld as constitutional" ... . Applying this standard of rational basis review, the court properly determined that CPLR 5205(j) was not unconstitutional, as the disparate treatment is not " so unrelated to the achievement of any combination of legitimate purposes'" as to be irrational ... . County Bank v Broderick, 2014 NY Slip Op 05621, 2nd Dept 8-6-14





Partial Performance of an Oral Modification Will Allow Enforcement of the Oral Modification Even Where the Written Agreement Prohibits Oral Modification



The Second Department explained that an oral modification of a written agreement which prohibits oral modification can be enforced if there is partial performance of the oral modification:


"Generally, a written agreement which prohibits oral modification can only be changed by an executory agreement . . . in writing'" (...General Obligations Law § 15-301 [1]). "However, an oral modification is enforceable if the party seeking enforcement can demonstrate partial performance of the oral modification, which performance must be unequivocally referable to the modification" ... . Matter of Latin Events LLC v Doley, 2014 NY Slip Op 05644, 2nd Dept 8-6-14





Criteria for "Apparent Authority" to Enter a Binding Contract, Including the "Apparent Authority" of a Member of a Limited Liability Corporation, Explained


In determining the criteria for apparent authority, including apparent authority under the Limited Liability Corporation Law, had been met, the Fourth Department held that member of the defendant limited liability corporation (Sultan) entered into a binding contract on behalf of the defendant corporation:


"Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority. Rather, the existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent" ... . Here, we conclude that plaintiffs reasonably relied on, inter alia, their prior course of dealing with Sultan in his capacity as president, principal and manager of defendant ... . * * *


...[W]e note that Limited Liability Company Law § 412 (a) provides that, "[u]nless the articles of organization of a limited liability company provide that management shall be vested in a manager or managers, every member is an agent of the limited liability company for the purpose of its business, and the act of every member, including the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business of the limited liability company, binds the limited liability company, unless (i) the member so acting has in fact no authority to act for the limited liability company in the particular matter and (ii) the person with whom he or she is dealing has knowledge of the fact that the member has no such authority." A nearly identical subsection provides that, where management of an LLC is vested in a manager, the acts of the manager are binding upon the LLC unless the manager at issue has in fact no authority to act for the LLC, and the person with whom he or she is dealing knows that the manager lacks such authority (§ 412 [b] [2] [A], [B]). Thus, regardless whether Sultan was acting as a manager of defendant, as reflected by his signature on the contract, or as a member of defendant, as he and defendant's attorney previously had indicated to plaintiffs, he had apparent authority to act and his acts were binding upon defendant unless, inter alia, plaintiffs had "knowledge of the fact that [Sultan] ha[d] no such authority" ... . Pasquarella v 1525 William St LLC, 2014 NY Slip Op 05745, 4th Dept 8-8-14





Corporation Dissolved for Failure to Pay Franchise Taxes Can Be Sued On Its Pre-Dissolution Obligations


The Second Department explained that a corporation that has been dissolved by the Secretary of State for failure to pay franchise taxes continues to exist for winding up its affairs and may be sued on its pre-dissolution obligations:


Pursuant to Tax Law § 203-a, a corporation can be dissolved by proclamation of the Secretary of State for failure to pay its franchise taxes. A dissolved corporation may not carry on new business (see Business Corporation Law § 1005[a][1]) and no longer has the right to commence an action in the courts of this State, except in specific circumstances permitted by statute ... . Business Corporation Law § 1006 provides, in relevant part, that a dissolved corporation "may continue to function for the purpose of winding up the affairs of the corporation . . . The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution, except as provided in sections 1007 . . . or 1008."


A corporation therefore "continues to exist after dissolution for the winding up of its affairs, and a dissolved corporation may sue or be sued on its obligations, including contractual obligations and contingent claims, until its affairs are fully adjusted" ... . The Business Corporation Law requires that the claim was to have existed before dissolution ... . MMI Trading Inc v Nathan H Kelman Inc, 2014 NY Slip Op 05632, 2nd Dept 8-6-14




Sentence for Weapons Charge Should Have Been Imposed Concurrently with the Sentence for Manslaughter---No Evidence the Possession of the Weapon Was Unrelated to the Manslaughter


The Second Department determined the sentence for the weapons charge should not run consecutively with the sentence for the manslaughter charge because there was no evidence the weapon was possessed for reasons unrelated to the manslaughter:


The Supreme Court erred in directing that the term of imprisonment imposed on the conviction of criminal possession of a weapon in the second degree with the intent to use it unlawfully against another, pursuant to Penal Law § 265.03(1)(b), was to run consecutively to the term of imprisonment imposed on the conviction of manslaughter in the first degree. The evidence adduced at trial did not demonstrate that the defendant possessed the gun with a purpose unrelated to his intent to use it against the victim (see Penal Law § 70.25[2]...). Therefore, the sentence imposed on the conviction of criminal possession of a weapon in the second degree with the intent to use it unlawfully against another, pursuant to Penal Law § 265.03(1)(b), must run concurrently with the sentence imposed on the conviction of manslaughter in the first degree. People v Fitzgerald, 2014 NY Slip Op 05649, 2nd Dept 8-6-14




Closed Box Properly Seized and Searched Under the Plain View Doctrine


The Second Department determined a police officer properly seized evidence under the plain view doctrine.  The box that was seized and opened had the words "Smith & Wesson" on it:


Here, the evidence at the suppression hearing established that a police officer was lawfully present in the apartment building where the defendant resided ... . The officer discovered the challenged physical evidence, a handgun and ammunition, in a gun box located in a common storage area accessible to anyone in the building. The box was not locked, and there was no indication that the defendant's name or other personal identification, such as his apartment number, was on the box which would lead one who observed it to understand that it belonged to the defendant or a person living in his apartment ... . The box was clearly marked "Smith and Wesson." Under these circumstances, the distinctive label on the outside of the box "proclaimed [its] contents" and, as such, made it immediately apparent to the officer that the box contained a firearm ..., thus authorizing the officer to seize the box without a warrant ... . Furthermore, since the gun box, "by its very nature, could not support any reasonable expectation of privacy because its content could be inferred from its outward appearance" ... , the officer lawfully opened the box, and discovered the handgun and ammunition inside. People v John, 2014 NY Slip Op 05653, 2nd Dept 8-6-14




Speedy Trial Clock Starts Running Only On the Charges Included in the Original Felony Complaint, Not On Separate and Distinct Charges Ultimately Included in the Indictment


The Second Department determined defendant's "speedy trial" motion to dismiss certain counts of the indictment should not have been granted.  Although the speedy trial clock started to run when the felony complaint was filed for the charges in the felony complaint, it did not start to run on the new charges appearing for the first time in the indictment:


Where a defendant is charged with a felony, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a]...). A criminal action is commenced when the first accusatory instrument is filed, and "includes the filing of all further accusatory instruments directly derived from the initial one" (CPL 1.20[16][b]...). Therefore, subsequent accusatory instruments that are "directly derived" from the first instrument will relate back to the first instrument for purposes of assessing the People's compliance with their speedy trial obligations ... . The filing of a felony complaint signals the commencement of a criminal action (see CPL 1.20[1], [17]). Where, however, "the felony complaint and subsequently filed indictment allege separate and distinct criminal transactions, the speedy trial time clock commences to run upon the filing of the indictment with respect to the new charges" ... . People v Sant, 2014 NY Slip Op 05658, 2nd Dept 8-6-14





SORA Point Assessments Affirmed Over Two-Justice Dissent Arguing the Proof of Online Sexual Conduct Was Insufficient, the Evidence of "Grooming" the Victims Was Insufficient, and the Social Immaturity of the Defendant Should Have Been Considered as a Mitigating Factor


The Third Department, over a two-justice dissent, determined that the points assessed by County Court in a SORA proceeding were appropriate.  The charges were based entirely upon online communication between the defendant and three underage girls.  The decision is notable for the extensive dissent which found the evidence defendant had masturbated during online communication through a webcam, and the evidence that the defendant engaged in "grooming" the victims was insufficient, and further found that certain mitigating factors, including that defendant functioned socially at the level of a young teenager, should have been considered:



Here, the record lacks clear and convincing proof of prohibited sexual conduct with the third victim referenced in the indictment — as to whom defendant pleaded guilty to endangering the welfare of a child and aggravated harassment in the second degree. During the plea allocution, defendant admitted that he had engaged in conversations of a sexual nature with this victim, and the victim testified before the grand jury that defendant had contacted her by webcam video, during which time he touched himself in the area of his genitals, over his clothing. There was no physical sexual contact between the two at any time. As defendant argues, the grand jury testimony included too little factual detail to constitute clear and convincing evidence that he was masturbating. Although this might be inferred, it was not clearly revealed; viewed objectively, the testimony demonstrates nothing more than a brief swipe of defendant's hand in his genital region, accompanied by innuendo. Our precedent establishes a significantly higher standard of misconduct ... . 


We further find that the record supports defendant's contention that he was improperly assessed 20 points under risk factor 7 because his conduct was not "directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). The majority accepts County Court's finding that defendant and the victims were not "strangers," but that defendant had engaged in "grooming" behavior; we disagree. An example of grooming behavior provided in the guidelines is that of a scout leader who chose the position in order to gain access to his victims (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). As defendant argues, the record does not establish this type of calculated behavior on his part, nor was there a showing of emotional manipulation, undue influence or other customary indicia of grooming conduct. People v Izzo, 2014 NY 05679, 3rd Dept 8-7-14




Decision Offers a Rare, Detailed Discussion of the Probable-Cause Analysis of a Search Warrant Application Which Included Hearsay from Confidential Informants (Analyzed Under the Aguilar-Spinelli Reliability Tests), Controlled Buys and Surveillance


In a rare, detailed analysis of the sufficiency of a search warrant application which relied on confidential informants, surveillance, controlled buys, and hearsay found sufficient under the Aguilar-Spinelli tests, the Fourth Department determined the motion to suppress was properly denied.  The decision is notable for the depth of discussion and the full range of issues involved in the analysis of a search warrant application. People v Myhand, 2014 NY Slip Op 05742, 4th Dept 8-8-14




In a Matter of First Impression, the Fourth Department Determined that Criminal Records Are Eligible for Sealing Pursuant to CPL 160.58 Even If They Relate to Convictions that Predate the Statute


The Fourth Department, in a full-fledged opinion by Justice Whalen, determined that criminal records eligible for sealing pursuant to Criminal Procedure Law 160.58 even if they related to convictions that predate the statute. People v M.E., 2014 NY Slip Op 05748, 4th Dept 8-8-14




Grand Jury Testimony Given a Year After the Relevant Event Should Not Have Been Admitted as "Past Recollection Recorded"---New Trial Ordered


After noting that the defendant, who refused to sign a written waiver of his right to remain silent, waived the right by agreeing to speak to the police, the Second Department determined grand jury testimony, given a year after the relevant event, should not have been allowed in evidence as past recollection recorded:


"The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information" ... . In light of the one-year gap between the time the witness allegedly heard the defendant's alleged inculpatory statements and the witness's grand jury testimony, the People failed to establish that the witness's recollection of the matter was "fairly fresh when recorded or adopted" during the grand jury proceeding ... . People v Wilkinson, 2014 NY Slip Op 05661, 2nd Dept 8-6-14





Supplemental Uninsured/Underinsured Motorist (SUM) Provision Triggered When an Individual Would Be Afforded More Coverage by the Policy with the SUM Provision


The Second Department determined that the supplementary uninsured/underinsured motorist (SUM) provision was triggered when the policy with the provision (the GEICO policy) had a $300,000 single limit liability and the policy which paid out the claim (the Allstate policy) was a "split limit" policy with a $300,000 per accident limit and a $100,000 per person limit. The injured party was paid the $100,000 limit under the Allstate policy:


Benefits under a SUM policy, when SUM coverage is purchased at the option of the insured, are available "if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage" provided by the insured's policy (Insurance Law § 3420[f][2][A]...). "The necessary analytical step, then, is to place the insured in the shoes of the tortfeasor and ask whether the insured would have greater bodily injury coverage under the circumstances than the tortfeasor actually has" ... . The determination of whether SUM benefits are available "requires a comparison of each policy's bodily injury liability coverage as it in fact operates under the policy terms applicable to that particular coverage" ... . "Only by doing that comparison is it possible to make the required determination: whether the tortfeasor has less bodily injury liability coverage than the insured" ... .


Here, a comparison of the two policies at issue, in light of the particular circumstances of this case, demonstrates that an individual ... would be afforded greater per-person bodily liability injury coverage under the GEICO policy than under the Allstate policy. Matter of Government Empls Ins Co v Lee, 2014 NY Slip Op 05642, 2nd Dept 8-6-14






Sheriff's (Lack of) Liability Under Respondeat Superior, Elements of Malicious Prosection, Abuse of Process, False Imprisonment and Libel Per Se Explained


In a lengthy and detailed decision the Fourth Department explained the negligence actions against the sheriff based on respondeat superior were properly dismissed, the action for malicious prosecution was properly dismissed (because the underlying criminal action was not dismissed on the merits and could be renewed), but the actions for abuse of process, false imprisonment, and libel per se should not have been dismissed.  The decision is too lengthy to summarize here, but it includes detailed explanations of the sheriff's immunity from suit under respondeat superior and the elements of malicious prosecution, abuse of process, false imprisonment, and libel per se. The action stemmed from the allegation plaintiff was falsely accused of stealing a computer.  D'Amico v Correctional Med Care Inc, 2014 NY Slip Op -5737, 4th Dept 8-8-14





Fall Into a Three-to-Four-Foot-Deep Hole Is Not an Elevation-Related Event Under Labor Law 240(1)


The Fourth Department determined that falling into a hole is not an "elevation-related event" within the meaning of Labor Law 240(1).  The court further determined that regulation requiring that an excavation near a "sidewalk, street or highway or other area lawfully frequented by any person..." be guarded or covered did not apply to employees at a work site. With respect to the elevation requirement for section 240(1), the court wrote:


Where, as here, a plaintiff falls into a hole while walking at ground level, the plaintiff's injury "[is] not caused by [defendants'] failure to provide or erect necessary safety devices in response to elevation-related hazards,' and, accordingly, the protections of Labor Law § 240 (1) do not apply" ... . The cases relied upon by plaintiff are factually distinguishable because they involve falls into excavated areas, as opposed to mere holes in the ground such as the one here ... . Unlike the excavation cases, this is not a case where protective devices enumerated in Labor Law § 240 (1), e.g., "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes" were designed to apply... . Wrobel v Town of Pendelton, 2014 NY Slip Op 05738, 4th Dept 8-8-14






Contractor Was a Statutory Agent for the Owner for Purposes of the Labor Law Causes of Action


The First Department explained that a contractor (Bovis) with the authority to direct plaintiff's work became a statutory agent for the city with respect to the Labor Law 240(1) and 241(6) causes of action:


...[T]he undisputed evidence established that Bovis was a statutory agent for the City since it possessed and exercised supervisory control and authority over the work being done ... . " When the work giving rise to [the duty to conform to the requirements of section 240(1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owner or general contractor'" ... . Bovis's own superintendent testified that Bovis functioned as the "eyes and ears" of the City for the subject construction project, and it had broad responsibility under its contract to coordinate and supervise the work of the four prime contractors, including plaintiff's employer ... . Johnson v City of New York, 2014 NY Slip Op 05698, 1st Dept 8-7-14





Drug Treatment and Drug Testing Facilities Do Not Have a Duty to Provide the Test Results With a Disclaimer Indicating the Tests Were Done According to "Clinical," Not "Forensic," Standards---Here the "Clinical" Results Were Disseminated and Used In Court Proceedings


The Second Department, in a full-fledged opinion by Justice Skelos, with a concurring memorandum, determined that a substance abuse treatment facility (Daytop) and a drug testing laboratory (Bendiner) could not be liable for damages stemming from the dissemination of the results of drug tests (affecting Family Court and Drug Court proceedings).  The plaintiffs did not claim that the testing procedures were flawed or that the test results were false.  Rather, they claimed that, because the tests were done for "clinical," not "forensic," purposes, the results should have included a disclaimer indicating that they should not be used in court proceedings.  The Second Department refused to extend the duty owed to the plaintiffs by the defendants beyond the duty to ensure accurate test results:


Landon (91 AD3d 79, aff'd 22 NY3d 1) makes clear that there is a duty running from a drug testing laboratory to the subject of a drug test despite the lack of a contractual relationship between those parties. Further, it cannot be gainsaid that Daytop owes some duty of reasonable care to individuals it treats. The question presented here, as to both defendants, concerns the proper scope of that duty. More particularly, the question is whether the defendants' duty of reasonable care includes the duty to label or place a disclaimer on a report, so as to indicate that the results are to be used only for clinical purposes. * * *

We conclude ... that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only.  Braverman v Bendiner & Schlesinger Inc, 2014 NY Slip Op 05618, 2nd Dept 8-6-14




Failure to Submit Management Agreement Required Dismissal of Property Managing Agent's Motion for Summary Judgment in a Slip and Fall Case---the Terms of the Agreement Determine the Agent's Liability


The Second Department determined that the property managing agent, in a slip and fall case, did not eliminate all triable issues of fact concerning liability for plaintiff's fall on black ice because it did not submit a copy of the managing agreement with its motion for summary judgment:


As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property ... . A duty of care on the part of a managing agent may arise where there is a comprehensive and exclusive management agreement between the agent and the owner that displaces the owner's duty to safely maintain the premises ... . Here, in moving for summary judgment, the ... defendants failed to submit a copy of the written management agreement. Consequently, they failed to establish, prima facie, that the managing agent owed no duty of care to the plaintiff ... . Calabro v Harbour at Blue Point Home Owners Assn Inc, 2014 NY Slip Op 05620, 2nd Dept 8-6-14




Criteria for "Trivial Defect" and "Open and Obvious" Explained


The Second Department determined the defendants' motion for summary judgment in a slip and fall case was properly denied.  The plaintiff tripped over a lock on sidewalk-level doors adjacent to the defendants' property (the defendants were the property owner and the tenant in possession).  The defendants unsuccessfully argued the defect was trivial and open and obvious.  The court summarized the relevant law:


An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition ... . "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ... . However, liability will not be imposed for trivial defects which do not constitute a trap or nuisance ... . "In determining whether a defect is trivial as a matter of law, a court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury" ... .


While a possessor of real property has a duty to maintain that property in a reasonably safe condition ..., there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous ... . "Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances" ... . "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" ... .  Doughim v M & US Prop Inc, 2014 NY Slip Op 05623, 2nd Dept 8-6-14





Plaintiff Should Have Been Allowed to Add Doctor to Medical Malpractice Action After the Statute of Limitations Had Run---All the Relation-Back Criteria Were Met


The Second Department, reversing Supreme Court, found that the relation-back doctrine allowed the addition of a doctor (Persky) to a malpractice action after the statute of limitations had run.  Several notes in decedent's medical records were signed by the doctor and the decedent died soon after she was discharged from the hospital, which plaintiff alleged was premature.  The court explained the relevant law:


"The relation-back doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest'" ... . In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have know that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well ... . "The linchpin' of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" ... .


it was not reasonable for Persky to conclude that the plaintiff intended to proceed only against the defendants named in the original summons and complaint, especially since the decedent died soon after she was discharged from the hospital, and the complaint asserted specific allegations of negligence relating to the decedent's premature hospital discharge ... . In addition, contrary to the conclusion of the Supreme Court, the plaintiff demonstrated that the failure to originally name Persky as a defendant was the result of a mistake, and there was no need to show that such mistake was excusable ... . Roseman v Baranowski, 2014 NY Slip Op 05635, 2nd Dept 8-6-14




Driver with Right of Way Who Strikes a Vehicle Which Suddenly Enters the Right of Way Is Free from Negligence (No Need to Apply the Emergency Doctrine)/Emergency Doctrine Does Not Automatically Absolve a Driver of Liability


The Fourth Department noted that a driver with the right of way who strikes a vehicle which suddenly enters his or her path is free of negligence absent speeding or some other negligent conduct (no need to apply the emergency doctrine).  The court further noted that the emergency doctrine does not automatically absolve a person of liability.  Here there was a question whether the brakes on the vehicle confronted with the emergency were maintained properly and whether swerving was reasonable:


The existence of an emergency and the reasonableness of a driver's response thereto generally constitute issues of fact" ... . We conclude that there are issues of fact whether the Marriotts' maintenance of their pickup truck was adequate and thus whether the brake failure was truly unexpected and without any fault on their part. Moreover, it cannot be concluded as a matter of law that swerving to the right in order to avoid rear-ending the garbage truck was a reasonable reaction to the emergency created by the loss of brakes on the pickup truck. Colangelo v Marriott, 2014 NY Slip Op 05746, 4th Dept 8-8-14




Allegation in Notice of Claim that Defendant Failed to Maintain a Stairway Was Sufficient to Encompass the Allegation the Handrail Was Obstructed and Could Not Be Used


In a slip and fall case, the First Department, over a two-justice dissent, reversing Supreme Court, determined that a notice of claim which generally alleged a failure to maintain a stairway in the vicinity of the second floor landing was sufficient to encompass allegations in the bill of particulars that the handrail was obstructed and could not be used:


Plaintiff's claim that defendant failed to maintain the handrail along the stairway at or near the second floor may be fairly inferred from the notice of claim, which alleged that defendant was negligent in maintaining the second floor landing area ... . The notice of claim alleged generally that defendant failed to maintain stairway "A" in the vicinity of the second floor landing, causing plaintiff's injury. The bill of particulars merely amplified the allegations of negligence concerning the landing area by further specifying that defendant had failed to maintain the handrail at the landing area... . Thomas v New York City Hous Auth, 2014 NY Slip Op 05696, 1st Dept 8-7-14



Prejudice to County Investigation Stemming from Plaintiff's Describing the Wrong Location of the Slip and Fall in the Notice of Claim Precluded Plaintiff from Amending the Notice


The Second Department determined that the failure to correctly describe the location of the slip and fall in the initial notice of claim prejudiced the investigation of the incident by the county.  Therefore, Supreme Court should not have granted plaintiff's motion to amend the notice of claim:


A court may, in its discretion, grant a motion for leave to amend a notice of claim which has been served where it determines that two conditions have been met: first, the mistake, omission, irregularity, or defect must have been made in good faith; and second, it must appear that the public corporation has not been prejudiced thereby ... . Since bad faith by the plaintiff was not asserted, the only issue presented here is whether service of the amended notice of claim would prejudice the County. The record indicates that the plaintiff's incorrect information as to the accident location prejudiced the County in its ability to conduct a prompt and meaningful investigation of the accident site ... . Murtha v Town of Huntington, 2014 NY Slip Op 05633, 2nd Dept 8-6-14




Criteria Re: Counties' and Foster Care Agencies' Liability for the Acts of Foster Parents Explained


In dismissing a complaint against a foster care agency based upon the alleged failure of the foster parent to seek medical care for the foster child, the Second Department explained the relevant law:


Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers ... .


However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home ... . In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant's injuries ... . In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated ... . Keizer v SCO Family of Servs, 2014 NY Slip Op 06630, 2nd Dept 8-6-14




Negligence and "1983" Causes of Action Against the City and/or City Employees Stemming from the Alleged Failure to Provide Medical Assistance to a Rikers Island Inmate Reinstated


The First Department, reversing Supreme Court, determined there were triable issues of fact concerning whether corrections officers breached a duty to protect the decedent, an inmate at Rikers Island, by failing to respond to decedent's medical emergency.  The court also determined there were triable issues of fact concerning a 1983 action against one of the city employees based upon her alleged "deliberate indifference" to decedent's "serious medical needs."  The court noted that the 1983 action against the city, alleging deliberate indifference, was properly dismissed:


Dozens of eyewitnesses provided conflicting accounts regarding, among other things, the timing of the officers' calls for medical assistance, and whether resuscitative efforts undertaken before medical personnel arrived were performed by the officers or whether other inmates took such measures in the face of inaction by the officers. Plaintiffs' expert affirmation raised triable issues of fact as to the adequacy of the officers' response and the soundness of defendants' expert's opinions. The City's reliance on governmental immunity is unavailing, since there are triable issues of fact as to whether the death was caused in part by a negligent failure to comply with mandatory rules and regulations of the New York City Department of Corrections (DOC), requiring, among other things, that correction officers respond immediately in a medical emergency, and that officers who are trained and certified in CPR administer CPR where appropriate ... . 


The court correctly dismissed the § 1983 claim against the City. ... There is ... no evidence of a "policy or custom" evincing deliberate indifference to the rights of inmates ... . "Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action" ... . "Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights" ... . Luckey v City of New York, 2014 NY Slip Op 05697, 1st Dept 8-7-14





Ordinary Negligence Standard Applied Where Ambulance (Responding to an Emergency) Struck Plaintiff Who Was Lawfully in the Crosswalk/Questions of Fact Whether There Was a "Special Relationship" Between the City's Crossing Guard and the Plaintiff, and Whether the Crossing Guard Was Performing Ministerial, Rather than Discretionary, Functions (Such that the City Could Be Held Liable)


In a case involving a pedestrian who was lawfully crossing a street when struck by an ambulance responding to an emergency, in the presence of a city employee acting as a crossing guard, the Second Department determined that ordinary negligence standards applied to the ambulance (not the "emergence" "reckless disregard" standard of Vehicle and Traffic Law 1104) and that there were questions of fact whether the city was liable based upon a "special relationship" with the plaintiff and whether the city was liable because the crossing guard was performing ministerial, rather than discretionary, functions:


Failure to abide by the provisions set forth in Vehicle and Traffic Law §§ 1111 (duty to yield to pedestrians in crosswalk) and 1112 (pedestrian has right of way), which was the injury-causing conduct at issue here, is not privileged conduct pursuant to Vehicle and Traffic Law § 1104(b). As the injury-producing conduct was not specifically exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the principles of ordinary negligence apply ... . * * *


"To impose liability [upon a municipality], there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity" ... . One of the ways that a special relationship arises is when the municipality "assumes a duty that generates justifiable reliance by the person who benefits from the duty" ... . * * *


Further, "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff apart from any duty to the public in general" ... . Here, the City defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the basis that the crossing guard's actions were discretionary. Based on their submissions in support of their cross motion, and under the circumstances here, the City defendants failed to eliminate all triable issues of fact as to whether the crossing guard's actions constituted ministerial governmental functions ... . Benn v New York Presbyt Hosp, 2014 NY Slip Op 05615, 2nd Dept 8-6-14





Where the Manufacturer Was Not At Fault in a Products Liability Action, the Retailer Is Not Entitled to Indemnification for the Costs of Defending the Action from the Manufacturer


The Fourth Department determined a downstream retailer (GE) was not entitled to indemnification from and upstream manufacturer (Carrier) when both have been absolved of fault in a products liability action.  The basis of the action was a fire which was alleged to have been caused by an air conditioner manufactured by Carrier and marketed and sold by GE.  It was ultimately determined the fire was not caused by the air conditioner.  GE sought indemnification from Carrier for the costs associated with the lawsuit:


The issue in this case is whether GE, a downstream retailer, is entitled to recoup its costs in defending a products liability action from Carrier, an upstream manufacturer, when they both are ultimately absolved of liability. We conclude that GE is not entitled to recoupment, and we therefore affirm.


Indemnification is grounded in the equitable principle that the party who has committed a wrong should pay for the consequences of that wrong ... . Thus, New York courts have consistently held that "common-law indemnification lies only against those who are actually at fault" ..., i.e., the "actual wrongdoer" ... . In the products liability context, a manufacturer is held accountable as a "wrongdoer" when it releases a defective product into the stream of commerce ..., and "innocent" sellers who merely distribute the defective product are entitled to indemnification from the at-fault manufacturer ... . That common-law right of indemnification "encompasses the right to recover attorneys' fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party" ... . * * *


Where, as here, it is ultimately determined that the subject product is free from defect, there is no "fault" or "wrongdoing" on the part of the manufacturer... . Bigelow v General Elec Co, 2014 NY Slip Op 05727, 2nd Dept 8-8-14



Criteria for Standing to Contest Zoning Variances Explained


The Second Department determined the petitioners did not have standing to contest zoning variances granted for property .69 miles from where the petitioners live:


To establish standing, a petitioner must show that he or she "would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" ... . "Injury-in-fact may arise from the existence of a presumption established by the allegations demonstrating close proximity to the subject property or, in the absence of such a presumption, the existence of an actual and specific injury" ... . Here, the appellants failed to satisfy these requirements.


The appellants live .69 miles away from the subject beach club. Thus, they are not entitled to a presumption of injury ... . Their allegations of injury-in-fact due to overcrowding and congestion are purely speculative ... . Moreover, the alleged injuries are not specific to the appellants and distinguishable from those suffered by the public at large... . Matter of Radow v Bpoard of Appeals of Town of Hempstead, 2014 NY Slip Op 05645, 2nd Dept 8-6-14


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