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August Part II

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Proof Requirements for Lack of Constructive Notice of Dangerous Condition Explained


The Second Department reiterated the summary-judgment proof-requirements for a lack of constructive notice of a hazardous condition in a slip and fall case:


A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall … . A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case … . Here, the defendant failed to establish, prima facie, that it lacked constructive notice of the hazardous condition which allegedly caused the plaintiff's fall because it offered no evidence as to when the subject stairway was last cleaned or inspected.. .  Campbell v New York City Tr Auth, 2013 NY Slip Op 05553, 2nd Dept 8-7-13



Criteria for Accountant’s Liability to Third Parties in Absence of Contractual Relationship Explained


In finding that the complaint did not state a cause of action against an accountant for negligent misrepresentations made to third parties with no contractual relationship, the Second Department explained:


In certain circumstances, accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant… . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: "(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance"… . Signature Bank v Holtz Rubenstein Reminick LLP, 2013 NY Slip Op 05564, 2nd Dept 8-7-13






Family Offense of Disorderly Conduct Established


The Second Department determined the family offense of disorderly conduct had been established by a fair preponderance of the evidence:


...[T]he petitioner established, by a fair preponderance of the evidence …, that the appellant, who …made verbal threats to the petitioner in the hallway of the Family Court building and physically blocked the petitioner's car from exiting the parking lot of the Family Court, engaged in threatening behavior that recklessly created a risk of causing public inconvenience, annoyance, or alarm (see Penal Law § 240.20...... .Matter of Banks v Opoku, 2013 NY slip Op 05568, 2nd Dept 8-7-13



Excessive Corporal Punishment Constituted

Neglect and Derivative Neglect


In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote:


Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family Ct Act § 1012[f][i][B]). The Family Court's finding of neglect as to the child Briana M., based upon the mother's use of excessive corporal punishment, is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The evidence demonstrated that the mother struck then-eight-year-old Briana with a belt numerous times, causing marks on her back and arms … . 


The evidence, which established that the mother inflicted excessive corporal punishment on Briana, was sufficient to support the Family Court's determination that the children Matthew M. and Alexis M. were derivatively neglected… . Matter of Matthew M (Fatima M), 2013 NY slip Op 05573, 2nd Dept 8-7-13






No Article 78 Review Where Petitioner Defaulted


The Second Department noted that there can be no Article 78 review where the petitioner defaulted in the administrative proceeding.  Only the denial of the request to vacate the default can be reviewed:


"[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination"… . Although the petitioner is not entitled to CPLR article 78 review of the Review Board's determination to sustain the charges and revoke its registration, which was made upon its default, the Review Board's determination to deny its application to vacate the default may be reviewed… .  Matter of Tony’s Towing Serv Inc v Swarts, 2013 NY Slip Op 05577, 2nd Dept 8-7-13



Criteria for Prohibition Explained


In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained:


" [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law'" (Matter of Soares v Herrick, 20 NY3d 139, 145, quoting Matter of Schumer v Holtzman, 60 NY2d 46, 51). Rather, "the extraordinary remedy of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction" … . Even where prohibition is an available remedy, it " is not mandatory, but may issue in the sound discretion of the court'" … . " In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'" … . 


Prohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice … . However, it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating "suspicious circumstances" with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature … . Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act. Accordingly, prohibition does not lie.  Matter of Working Families Party v Fisher, 2013 NY slip Op 05578, 2nd Dept 8-7-13






Sheetrock Resting on Blocks Satisfied Height Differential in Labor Law 240(1) Action


The First Department determined that plaintiff was not entitled to summary judgment on her Labor Law 240(1) claim which was based on injuries from sheetrock boards which slipped from where they were leaning against a wall and resting on blocks of wood two feet high.  The two-foot height differential was sufficient to implicate 240(1).  However the record was not sufficient to find, upon a summary judgment motion, that the injuries were proximately caused by the absence of a safety device.  Rodriguez v SRLD Dev Corp, 2013 NY Slip Op 05548, 1st Dept 8-6-13.






Published Information Gleaned from Court Submission Privileged


The First Department determined that news articles based upon papers filed in court proceedings were privileged pursuant to Civil Rights Law section 74:


Defendants moved to dismiss the complaint on the ground that all of the published material was absolutely privileged under Civil Rights Law § 74, which protects "the publication of a fair and true report of any judicial proceeding." Supreme Court granted the motion, and we affirm. 


It is undisputed that all statements claimed to be libelous are part of a "report of [a] judicial proceeding" (Civil Rights Law § 74) since the article reports on court papers, i.e., the FBI affidavit. Russian Am Found Inc v Daily News LP, 2013 NY Slip Op 05549, 1st Dept 8-6-13






Automobile Policy Does Not Cover Injury to Passerby

Bitten by a Dog Which Was Inside a Vehicle


In finding that the underinsured endorsement for automobile insurance did not cover injuries incurred when plaintiff was bitten by a dog through the window of a car as she walked past, the Second Department explained:


Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines … . To satisfy the requirement that it arose out of the "ownership, maintenance or use of" a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury … . "[T]he vehicle itself need not be the proximate cause of the injury," but "negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury" … . "To be a cause of the injury, the use of the motor vehicle must be closely related to the injury" … . 


Here, as a matter of law, Reyes's injuries did not result from the inherent nature of Kazimer's vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Kazimer's dog, and the vehicle merely contributed to the condition which produced the injury, namely, the location or situs for the injury. Allstate established that a causal relationship between the car and the incident was lacking, and Reyes failed to rebut that showing … .  Matter of Allstate Ins Co v Reyes, 2013 NY Slip Op 05566, 2nd Dept 8-7-13



DNA Evidence Which Excluded Defendant Was Not Enough to Warrant Vacation of Conviction, or Even a Hearing on the Motion to Vacate


Defendant was convicted of the rape of one victim and the murder of another during an incident in 1980.  Over a substantial dissent, the First Department determined that the recent DNA test results re: hairs found on the perpetrator’s hat and DNA found under the fingernails of the murder victim---results which ruled out the defendant---did not warrant vacation of defendant’s conviction pursuant to a CPL 440 motion, and did not warrant a hearing.  The First Department noted the strength of the identification evidence provided by the rape victim and the fact that only three of 18 hairs taken from the hat were tested by the defense.  The majority of the First Department wrote:


Defendant has not established that the newly discovered DNA evidence "is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [him]" … * * *


In deciding a CPL 440.10 motion, a hearing to develop additional facts is not "invariably necessary"; rather, CPL 440.30 contemplates that a court will make an initial determination on the written submissions whether the motion can be decided without a hearing … . Here, we find that even if the reliability of the evidence is assumed, defendant still did not establish a legal basis for ordering a new trial. Accordingly, the factual disputes in this case were not material, and defendant was not prejudiced by the absence of a hearing.


The dissent wrote:


I respectfully dissent, because I believe the motion court should have granted defendant further DNA testing and held an evidentiary hearing before determining his motion under CPL 440.10.  People v Jones, 2013 NY Slip Op 05547, 1st Dept 8-6-13



Exclusion of Defense Counsel’s Colleague from a

Wade Hearing Deprived Defendant of His Right to a Public Trial


The First Department, in a full-fledged opinion by Justice Richter, reversed a conviction finding the defendant was denied his right to a public trial. To protect the undercover officer and others, the defendant was excluded from the Wade hearing concerning the validity of the undercover officer’s identification of the defendant.  The trial court, in ordering partial closure of the courtroom, had allowed defense counsel, and colleagues of defense counsel, to be present during the hearing. During the hearing, defense counsel’s officemate was denied entry to the courtroom by the court officer stationed at the door, who had consulted with the sergeant inside the courtroom.  The First Department determined the exclusion of the defendant from the hearing was proper, but the exclusion of the attorney required reversal.  The court wrote:


Here, the undercover was the critical witness, and excluding defense counsel's colleague from the courtroom during this time was not inconsequential. Furthermore, defense counsel explained that the excluded attorney was his officemate, with whom he had consulted about the case. The court also acknowledged that the excluded attorney had substantial experience in criminal defense cases. Although there would have been a problem even if the attorney had no such experience or connection to the case, the exclusion here was particularly troubling because defense counsel alerted the court that his colleagues might be coming, and the excluded attorney could have been of assistance to defense counsel during this critical phase of the trial … .  *  *  *


…[T]he exclusion of defense counsel's colleague interfered with the very purpose of the requirement of a public trial. The requirement that the courtroom be open whenever possible and that closure orders be narrowly tailored "is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions" …. Excluding defense counsel's experienced colleague, who was familiar with the case, deprived defendant of his right to have this person present to assess the undercover's testimony, and enabled the People to present the undercover's testimony without the salutary effects of extra scrutiny.  People v Moise, 2013 NY Slip Op 05550, 1st Dept, 8-6-13



SORA Court Has Discretion to Deny Downward Departure Even When Mitigating Factor Demonstrated by Preponderance of Evidence


In affirming the SORA court’s denial of an application for a downward departure, the Second Department noted that even where the defendant makes a showing by a preponderance of the evidence in support of a mitigating factor, the court need grant the application:


" A sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its sound discretion upon further examination of all relevant circumstances'" … .  People v Martinez-Guzman, 2013 NY Slip Op 05561, 2nd Dept 8-7-13



Burden Upon Police to Determine Whether Defendant

Represented by Counsel Explained


In affirming the denial of a motion to vacate a conviction after a hearing (over a substantial dissent), the Third Department explained the burden upon the police to determine whether a defendant is represented by counsel before questioning him. In this case the question was whether defendant’s attorney, who represented defendant in a robbery case resolved by a cooperation agreement and who initially was involved a homicide case in 2003, was still representing the defendant in the homicide case when the defendant was questioned about it in 2006:


Although [defendant’s attorney] clearly participated in the homicide investigation in 2003 and the police were well aware that he had entered into it as defendant's counsel, the parties agree that there was a genuine lack of clarity …surrounding the question of whether that representation was limited to the cooperation agreement and had terminated once defendant was sentenced in the robbery case.  


It is well settled that where, as here, there is any ambiguity as to whether the defendant is represented by counsel, the burden rests squarely on the police to resolve that ambiguity prior to questioning … .  Here, before questioning defendant in 2006, [the police] met with [defendant’s attorney], who told them unequivocally that he no longer represented defendant.  Inasmuch as the police fulfilled their obligation to resolve the ambiguity by determining that [the attorney’s] representation of defendant had terminated prior to questioning him, County Court did not err in concluding that defendant's right to counsel had not been violated … .  People v McLean, 104691, 3rd Dept, 8-8-13






Supreme Court Does Not Have the Power to Dismiss a Complaint for Delay in Prosecution Absent 90-Notice (CPLR 3216)


The Second Department reversed Supreme Court’s dismissal of a complaint based on delay in prosecuting the action because the 90-day demand (CPLR 3216) had not been served on the plaintiff.  The First Department wrote:


CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Here, the Supreme Court did not possess the power to dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue … .  Armouth-Levy v New York City, 2013 NY Slip Op 05551, 2nd Dept, 6-7-13



Complaint Can Not Be Deemed Dismissed in

Absence of Final Judgment


In reversing Supreme Court, the Second Department determined a complaint had not been dismissed because no final judgment dismissing the complaint had been entered after an order vacating a default:


…[T]he Supreme Court issued an order granting the defendant's motion to vacate his default in appearing and answering the complaint on the ground of lack of personal jurisdiction. However, no judgment dismissing the complaint on the ground of lack of personal jurisdiction was entered. The plaintiff subsequently moved to extend her time to serve the defendant with process in the action. …[T]he court denied the plaintiff's motion on the ground that its prior order had dismissed the action and, thus, there was no pending action in which to grant an extension of time for service of process … . On her appeal from the August 13, 2012, order, the plaintiff contends that, inasmuch as there was no judgment dismissing the action, the action was pending when she moved to extend the time to serve the defendant with process. We agree. An action is deemed pending until there is a final judgment (see CPLR 5011…)… .  Cooke-Garrett v Hoque, 2013 NY Slip Op 05554, 2nd Dept 8-7-13



Courts Have Discretion to Grant Affirmative Relief in Absence of a Formal Cross-Motion


In a full-fledged opinion by Justice Balkin, the Second Department determined trial courts have the discretion to determine applications made in the absence of the formal requirements of a cross-motion.  In this case the defendant answered a motion for a default judgment demonstrating a reasonable excuse and a meritorious defense. Included in the answering papers was an application for leave to serve a late answer to compel plaintiff to accept the answer.  Supreme Court granted all the requested relief.  The plaintiff appealed on the ground that the affirmative relief should have been requested through a formal cross-motion.  The Second Department wrote:


Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion, at least to have a right that the request be determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility. 


Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, we are in agreement with our colleagues in the Appellate Division, Third Department, who, in Fox Wander W. Neighborhood Assn. v Luther Forest Community Assn. (178 AD2d at 872), held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not "prohibited" from entertaining the nonmoving party's request for relief.  Fried v Jacob Holding Inc, 2013 NY Slip Op 05555, 2nd Dept 8-7-13

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