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August Page III

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


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Even Though the Appeal Had Been Rendered Moot, It Was Appropriate for the Appellate Court to Vacate the Underlying Order


The Second Department explained that, although the appeal had been rendered academic, it was appropriate for the appellate court to vacate the underlying order in order to prevent the order from spawning any further legal proceedings:


While it is the general policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur of an order or judgment on appeal may be an appropriate exercise of discretion where necessary "in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent" ... . Here, the plaintiffs sold the premises and satisfied the subject mortgage under threat of foreclosure. They " ought not in fairness be forced to acquiesce in'" the unreviewable order, which could spawn adverse legal consequences due to its res judicata effect ... . Accordingly, we vacate so much of the order ... as awarded the defendants summary judgment dismissing the complaint. Mannino v Wells Fargo Home Mtge Inc, 2014 NY Slip Op 05846, 2nd Dept 8-20-14





Case Against Non-Debtor Not Entitled to Automatic Stay


The Second Department, in reversing Supreme Court's granting of a stay, explained the circumstances when cases by and against non-debtors can be stayed under the bankruptcy law (11 USC 362(a)):


"[T]he bankruptcy court can stay actions against any party, even a non-debtor, whenever the objective of the action is to obtain possession or exercise control over the debtor's property. Unless a case involves unusual circumstances, however, the bankruptcy court cannot halt litigation by non-debtors, even if they are in a similar legal or factual nexus with the debtor.


"The unusual circumstances in which the bankruptcy court can stay cases against non-debtors are rare. They typically arise where there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor. In other words, the automatic stay will apply to non-debtors only when a claim against the non-debtor will have an immediate adverse economic consequence for the debtor's estate" ... . Bankdirect Captial Fin v Insurance Co of State of PA, 2014 NY Slip Op 05824, 2nd Dept 8-20-14





Sua Sponte Dismissal of Complaint Not Justified and Improperly Imposed


In reversing Supreme Court, the Second Department noted the "sua sponte" dismissal of a foreclosure-complaint with prejudice was not justified and was improperly imposed without affording the plaintiff an opportunity to be heard:


The Supreme Court ... erred in, sua sponte, directing dismissal of the action in its entirety with prejudice ... . "A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ... . Furthermore, when a court exercises its power to impose a sanction sua sponte, it must afford the party to be sanctioned a reasonable opportunity to be heard ... . Bank of NY v Castillo, 2014 NY Slip Op 05823, 2nd Dept 8-20-14




Supreme Court Erred by Making Dispositive Rulings on Grounds Not Raised in the Motion Papers


The Second Department determined Supreme Court should not have made dispositive rulings on grounds not raised in the motion papers. The court had granted plaintiff's (Evans') motion to discharge Citifinancial's mortgage and cancel the notice of pendency:


Civil Practice Law and Rules § 2214(a) provides that "[a] notice of motion shall specify . . . the relief demanded and the grounds therefor." However, the court "may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" ... . * * *


On grounds not raised or argued by the parties nor contained in the pleadings, the Supreme Court granted Evans's motion, determining that Citifinancial never actually owned the mortgage. The Supreme Court determined that a prior assignment of the mortgage to Citifinancial's predecessor had been defective on the grounds that the power of attorney needed to execute such assignment was not recorded and, as a result, the mortgage could not thereafter properly be assigned to Citifinancial. The Supreme Court erred in discharging the mortgage and cancelling the notice of pendency on such grounds since Evans failed to dispute or contest the validity of Citifinancial's mortgage and actually affirmatively acknowledged the validity of the mortgage in his complaint and motion to the court ... . Evans v Argent Mtge Co LLC, 2014 NY Slip Op 05835, 2nd Dept 8-20-14





Allegation Corporation Was Deliberately Rendered Judgment Proof by Parent Corporation Is Sufficient to Support Action in Equity to Pierce the Corporate Veil


The First Department explained the nature of "wrongdoing" which will support a complaint in equity seeking to pierce the corporate veil:


....[T]he allegations that defendant [parent corporation], through its domination of [its subsidiary] PFLLC, misrepresented the value of the assets sold and then caused PFLLC to become judgment proof, are ... sufficient to support claims that defendant perpetrated a wrong or injustice against plaintiff, thus warranting intervention by a court of equity ... . Wrongdoing in this context does not necessarily require allegations of actual fraud. While fraud certainly satisfies the wrongdoing requirement, other claims of inequity or malfeasance will also suffice ... . Allegations that corporate funds were purposefully diverted to make it judgment proof or that a corporation was dissolved without making appropriate reserves for contingent liabilities are sufficient to satisfy the pleading requirement of wrongdoing which is necessary to pierce the corporate veil on an alter-ego theory ... . Baby Phat Holding Co LLC v Kellwood Co., 2014 NY Slip Op 05925, 1st Dept 8-21-14





Court Should Have Held a Hearing to Determine Whether Exigent Circumstances Justified Warrantless Forced Entry to an Apartment


The First Department determined that the motion court should have held a hearing to determine whether the forced entry of an apartment was justified by exigent circumstances.  At the time of defendant's motion for a hearing, the facts surrounding the incident were not available to the defendant and the People's response to the motion was "conclusory:"


In denying defendant's application for a hearing, the Court summarily found that exigent circumstances justified the pursuit and warrantless entry, based upon the individuals in the hallway reportedly having smoked marijuana, then racing into the apartment and locking the door, and the need to prevent destruction of evidence. Defendant argues in his brief that at most some individuals were seen smoking marijuana, a class B misdemeanor that would not present exigent circumstances sufficient for a forced entry.


Under the circumstances presented here, where the information proffered by the People to support the forcible entry was conclusory and defendant did not have access to available information, we find that it was incumbent upon the motion court to conduct a hearing to determine whether there were sufficient exigent circumstances to justify the forced warrantless entry... . People v Chamlee, 2014 NY Slip Op 05921, 1st Dept 8-21-14





Defense Counsel Should Have Been Allowed to Cross-Examine Cooperating  Accomplice/Witness to Demonstrate Motivation and Bias


The First Department, in a full-fledged opinion by Justice Acosta, determined that the curtailment of cross-examination of a cooperating witness deprived defendant of his right to confront the witnesses against him.  Four were charged in a robbery.  One of the four, referred to as "M," entered a cooperation agreement and testified against the defendant. Defense counsel was prohibited from asking M a line of questions intended to reveal M's motivation and bias:  


Here, defendant sought ... [to question] M. in an attempt to cast doubt on his credibility by revealing his bias and motive to fabricate testimony. Defense counsel's theory was that M. had implicated defendant in the prior uncharged robberies in order to bolster the value of his cooperation agreement with the People. This was unquestionably an appropriate trial strategy, since "exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination" ... . That M. intended to invoke his Fifth Amendment privilege and refuse to answer the questions does not abrogate defendant's Sixth Amendment right of confrontation. As an accomplice witness, M.'s credibility, bias, and motive to fabricate were not collateral issues ... . Therefore, defense counsel should have been permitted to question him on the prior crimes. If he subsequently invoked his Fifth Amendment privilege, the trial court should have gone as far as striking all or some of his direct testimony ... . At a minimum, the court should have pursued the "least drastic relief" (typically reserved for "collateral matters or cumulative testimony concerning credibility") by instructing the jury that it could consider M.'s invocation of the Fifth Amendment in determining his credibility ... . People v McLeod, 2014 NY Slip Op 05926, 1st Dept 8-21-14




Allowing the Prosecutor to Tell the Jury in Summation that the Person Who Provided the Police with a Tip Must Have Identified the Defendant as the Perpetrator Was Reversible Error---The Prosecutor Effectively Told the Jury Another "Witness" Had Identified the Defendant, But that "Witness" Did Not Testify and Could Not, Therefore, Be Cross-Examined


The Second Department reversed defendant's conviction because the prosecutor, in summation, had improperly been allowed to tell the jury that the person who provided the police with a tip must have identified the defendant as the perpetrator.  Because the person who provided the tip did not testify, the defendant was effectively deprived of the opportunity to cross-examine a "witness against him:"


During summation, the prosecutor strongly implied that whoever had provided the tip had implicated the defendant: "Someone calls 577-TIPS . . . . [The detective] gets this information and where does he go? 82-01 Rockaway Beach Boulevard, make a left out of the elevator. I'm looking for a guy named Rick who lives on the sixth floor. Ricardo Benitez." After defense counsel's objection to this remark was overruled, the prosecutor continued: "Gave Detective Lopez the following address. 82-01 Rockaway Beach Boulevard, 6B. Rick. Ladies and gentlemen, I introduce you to Rick." Defense counsel again objected, but the Supreme Court again overruled the objection.


The only purpose of the prosecutor's improper comments was to suggest to the jury, in this one-witness identification case, that the complainant was not the only person who had implicated the defendant in the commission of the robbery (see People v Mendez, 22 AD3d 688, 689). Moreover, in overruling defense counsel's objections, the Supreme Court "legitimized" the prosecutor's improper remarks (People v Lloyd, 115 AD3d 766, 769). The defendant, of course, was given no opportunity to cross-examine the unnamed witness who had allegedly provided the tip ... . The evidence against the defendant was not overwhelming, so there is no basis for the application of harmless error analysis ... . To the extent that the defendant failed to preserve the claim by specific objection, we reach the issue in the exercise of our interest of justice jurisdiction, and reverse the judgment ... . People v Benitez, 2014 NY Slip Op 05890, 2nd Dept 8-20-14






Police Officer's Tripping Over a Fire Hose at the Scene of a Fire Was Not a "Service-Related Accident"


The First Department, over a dissent, determined that a police officer who tripped over a fire hose at the scene of a fire was entitled to ordinary (ODR) , as opposed to accidental (ADR), disability retirement benefits:


Not every line of duty injury will result in an award of ADR ... . When the denial of ADR benefits to a police officer is the result of a tie vote by the Board of Trustees, this Court is required to uphold the denial unless "it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident" ... . Thus, the issue before us is whether, reviewing the record, it can be said, as a matter of law, that petitioner's disability was the natural and proximate result of a service-related accident.


In the context of ADR benefits, the Court of Appeals has defined an accident as a " sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,'" while " an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury'" ... . It is petitioner's burden to establish that his injuries resulted from an accident as defined in the context of ADR ... .


Normal risks in most jobs are not unexpected * * *.


While it is true that petitioner was a police officer, not a firefighter, it cannot be said as a matter of law that his ordinary employment duties did not include responding to a fire emergency. As the Board of Trustees had before it some credible evidence of lack of causation, it did not err as a matter of law in concluding that petitioner's disability was not the result of an accident within the meaning of Administrative Code § 13-252 ... . Finally, contrary to the dissent, we do not regard the charging of fire hoses at the scene of a fire as a sudden, fortuitous, or unexpected event. Matter of Pastalove v Kelly, 2014 NY Slip Op 05922, 1st Dept 8-21-14





Highest and Best Use is Measure of Damages---Unconsummated Purchase Contract Is Valid Proof of Value


The Second Department explained the measure of damages for a taking (highest and best use) and determined an unconsummated purchase contract was valid proof of value:


"The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time" ... . The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future ... . Here, contrary to the Sewer District's contentions, Split Rock satisfied its burden of demonstrating that the highest and best use of the subject property was for the commercial development of an office center.


A property's market value is defined as " the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell'" ... . "[T]he purchase price set in the course of an arm's length transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of the highest rank' to determine the true value of the property at that time" ... . Matter of Western Ramapo Sewer Extension Project, 2014 NY Slip Op 05889, 2nd Dept 8-20-14





Child's Move To Connecticut Did Not Strip New York of Jurisdiction and Did Not Justify Finding that New York Was an Inconvenient Forum


The Second Department determined Family Court erred when it determined the child's moving to Connecticut removed the child from its jurisdiction.  The court further noted that Family Court erred when it state that, even if it had jurisdiction, it would decline to exercise it.  The Second Department determined the analysis of the statutory factors favored New York's continued jurisdiction:


Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Article 5-A of the Domestic Relations Law (hereinafter UCCJEA), a court in this State that has made an initial custody determination has exclusive continuing jurisdiction over that determination until it finds, as is relevant here, that the child does not have a "significant connection" with New York, and "substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76-a[1][a]...). Here, while the subject child moved to Connecticut to live with her father approximately eight months before the mother petitioned to modify a prior order of custody so as to award her sole custody of the child, the record reveals that the child retained a significant connection to New York, including attending school and having frequent visitation with her mother in New York, and that substantial evidence was available in this state concerning her present and future welfare ... . The child's significant connection to Connecticut does not diminish her significant connection to New York as well ... . 


A court of this State that has jurisdiction under the UCCJEA may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1]...). However, the court is required to consider the factors set forth in Domestic Relations Law § 76-f(2)(a)-(h) before determining that New York is an inconvenient forum ... . The Family Court failed to do so here. However, we need not remit the matter to the Family Court, Queens County, for consideration of the statutory factors because the record is sufficient for this Court to consider and evaluate those factors ... . Consideration of the relevant statutory factors, including the nature and location of relevant evidence, and the Family Court's greater familiarity than the courts of Connecticut with the facts and issues underlying the mother's modification petition, supports a conclusion that New York is not an inconvenient forum ... . Matter of Mojica v Denson, 2014 NY Slip Op 05882, 2nd Dept 8-20-14





Law of Contracts, Not Law of Torts, Applied to Conflict of Laws Analysis Concerning Motor Vehicle Insurance Policy


The Second Department determined the law of contracts, as opposed to the law of torts, controlled which state law applied.  The case involved a car accident in Florida and an insurance policy issued in New York:


It is undisputed that this conflict of law question, although arising in the context of a motor vehicle accident, must be resolved by the conflict of law rules relevant to contracts, not torts ... . Generally, "the courts apply the more flexible center of gravity' or grouping of contacts' inquiry, which permits consideration of the spectrum of significant contacts' in order to determine which State has the most significant contacts to the particular contract dispute" ... . "In general, significant contacts in a case involving contracts, in addition to the place of contracting, are the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties" ... . As to insurance contracts specifically, significance has been attached to the " local law of the state which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 [of the Restatement] to the transaction and the parties'" ... . In the case of a noncommercial vehicle, which is by its nature mobile, the principal location of the insured risk is the place where the vehicle is to be principally garaged ... .


Here, as the Supreme Court correctly noted, the insurance contract at issue was written to conform to the laws, rules and regulations of New York State, and was obtained in New York by Brand, a New York resident, from an insurance company doing business in New York. Furthermore, Brand served the demand for SUM [supplemental uninsured/underinsured motorist] arbitration upon the American Arbitration Association in New York. Applying the grouping of contacts inquiry to these facts, New York has the most significant contacts with the parties and the contract. Indeed, such a conclusion would be in conformity with the reasonable expectations of the contracting parties. Matter of Unitrin Direct/Warner Ins co v Brand, 2014 NY Slip Op 05887, 2nd Dept 8-20-14





Labor Law 200 Action Is Not Based Upon Supervision or Control of Plaintiff's Work, But Rather on the  Property Owner's Creation or Failure to Remedy a Dangerous Condition


The Second Department noted that a negligence case of action pursuant to Labor Law 200 is not based upon supervision or control over the plaintiff's work, but rather is based upon whether the property owner (the Town)ncreated or failed to remedy a dangerous condition:


The Supreme Court also properly denied those branches of the Town's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it. Before the Supreme Court and on appeal, in support of these branches of its motion, the Town focused exclusively upon its alleged lack of supervision of, or control over, the plaintiff's work. That argument is only relevant where the claimed injury arises from the manner in which the work is performed ... . Where, as here, the injury arises from an allegedly defective or dangerous condition on the premises, the allegedly unsecured and improperly stored electrical wire, a property owner will be liable under a theory of common-law negligence, as codified by Labor Law § 200, when the owner created the alleged dangerous or defective condition, or failed to remedy a dangerous or defective condition of which it had actual or constructive notice ... . Baumann v Town of Islip, 2014 NY Slip Op 05825, 2nd Dept 8-20-14





Failure to Identify in the Complaint and Bill of Particulars the Specific Code Provision(s) Alleged to Have Been Violated Is Not Fatal to a Labor Law 241(6) Cause of Action


The Second Department noted that the failure to identify, in the complaint and bill of particulars, the specific code provision alleged to have been violated (in support of a Labor Law 241(6) cause of action) is not a fatal defect:


Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code ..., the failure to identify the code provision in the complaint or bill of particulars is not fatal to such a claim ... . Here, the plaintiff's belated allegations that Cook violated 12 NYCRR 23-1.21(b)(1), 23-1.21(b)(3)(i), 23-1.21(b)(3)(iv), 23-1.21(b)(4)(ii), and 23-1.21(e)(2) involved no new factual allegations, raised no new theories of liability, and caused no prejudice ... . Moreover, these code provisions set forth specific, rather than general, safety standards, and are sufficient to support a Labor Law § 241(6) cause of action ... . Przyborowski v A&M Cook LLC, 2014 NY Slip Op 05852, 2nd Dept 8-20-14





Subcontractor Which Supervised Plaintiff's Work Was An Agent for the General Contractor


The Second Department determined a subcontractor which assumed a supervisory role over plaintiff's work was liable under Labor Law 240(1) as an agent of the general contractor:


To hold a defendant liable as an agent of the general contractor for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work ... . "The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right" ... . Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor ... . Van Blerkom v America Painting LLC, 2014 NY Slip Op 05858, 2nd Dept 8-20-14





Non-Sex-Offense Committed While On Supervised Released for a Sex Offense Was a "Related Offense" Within the Meaning of Article 10 of the Mental Hygiene Law


The Second Department, in a full-fledged opinion by Justice Hall, determined that a sex offender who had been released and was serving a period of post-release supervision at the time he was arrested and re-incarcerated on a credit-card charge, was incarcerated on a "related offense" within the meaning of the Mental Hygiene Law.  Therefore, the state could properly proceed with civil management proceedings pursuant article 10 of the Mental Hygiene Law.  The respondent argued, and Supreme Court had held, that the credit card offense was not related to his sex offense and therefore the state could not start a civil management proceeding based upon his current incarceration:


The respondent's 2011 conviction of criminal possession of stolen property in the fourth degree clearly does not fall within the first two categories of a "related offense," i.e., offenses which are prosecuted as part of the same criminal action or proceeding as the sex offense, and offenses which are part of the same criminal transaction as the sex offense (see Mental Hygiene Law § 10.03[l]). However, the crime of criminal possession of stolen property does fall within the third category, which covers offenses "which are the bases of the orders of commitment received by [DOCCS] in connection with an inmate's current term of incarceration" (Mental Hygiene Law § 10.03(l)). This category covers "inmates" serving their "current term[s] of incarceration" (...  see Mental Hygiene Law § 10.03[l]). The Court of Appeals has recognized that this third category of "[r]elated offenses" is "broadly worded, reflecting the legislature's apparent decision to give the State more leeway to pursue civil commitment against soon-to-be-released [DOCCS] inmates than parolees" (Matter of State of New York v Rashid, 16 NY3d at 14 n 12).


When the State initiated this civil management proceeding, the respondent was in the custody of DOCCS, and still subject to the sex offense order of commitment, inasmuch as he had not yet completed the postrelease supervision portion of that sentence. In other words, he was incarcerated on a "related offense," because he was convicted of that offense while still serving his sentence for the underlying sex offense. Matter of State of New York v Claude McC, 2014 NY Slip Op 05885, 2nd Dept 8-20-14





Disposing of Key Evidence Warranted Striking of Answer


The Second Department determined Supreme Court properly struck the defendant's answer and awarded summary judgment to plaintiffs on liability because the defendant disposed of crucial evidence after having been asked to preserve it.  Students were directed to stand on a grate to pose for a class picture.  The grate collapsed and the students fell eleven feet.  The defendant disposed of the grate:


Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126 ... . Since the Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence ..., it may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation ... .


Here, the Supreme Court providently exercised its discretion in striking the defendant's answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff's attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant's conduct in disposing of the grate. Biniachvili v Yeshivat Shaare Torah Inc, 2014 NY Slip Op 05826, 2nd Dept 8-20-14




Golfer Assumed the Risk of Tripping on Grate in Golf-Cart Path


The Second Department determined the doctrine of primary assumption of the risk precluded a suit by a golfer who tripped on a grate in a golf-cart path:


Under the doctrine of primary assumption of the risk, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ... . Those risks include risks associated with the construction of the playing surface and any open and obvious condition on it ... . Here, contrary to the plaintiffs' contention, the defendants established their prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied ... . Simon  v Hamlet Windwatch Dev LLC, 2014 NY Slip Op 05855, 2nd Dept 8-20-14





Criteria for Granting Leave to Serve a Late Notice of Claim Explained


The Second Department determined Supreme Court had properly granted plaintiff's motion for leave to serve a late notice of claim. The infant plaintiff was injured at school and there was no doubt the school was aware of the injury, and the background of the injury, at the time it occurred.  The court included a succinct summary of the applicable analytical criteria:


General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim ... . Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim ... . "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves" ... .


Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5]...). The presence or absence of any one of these factors is not necessarily determinative ... .  Kellman v Hauppauge Union Free School Dist, 2014 NY Slip Op 05844, 2nd Dept 8-20-14





Firefighter Injured in Apartment Fire Which Stemmed from the Use of a Cooking Stove to Provide Heat Can Sue the Owner of the Apartment House Based Upon the Owner's Failure to Provide Adequate Heat


The Second Department determined that an injured firefighter had stated a cause of action pursuant to General Municipal Law 205-a against the owner of an apartment building based upon owner's failure to provide adequate heat in the apartments.  The fire in which the firefighter was injured was started when a child put paper in the open flame of a stove burner which the child's mother had turned on to provide heat:


... Multiple Dwelling Law § 79 ...and Administrative Code of the City of New York § 27-2029, ...require ...that, between October 1 and May 31, a landlord provide heat sufficient to maintain a temperature of 68 degrees Fahrenheit between the hours of 6 a.m. and 10 p.m. * * *


General Municipal Law § 205-a affords firefighters and their survivors a statutory cause of action for line-of-duty injuries resulting from negligent noncompliance with the requirements of any governmental statutes, ordinances, rules, orders, and requirements ... . "To establish a defendant's liability under General Municipal Law § 205-a, a plaintiff firefighter must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter'" ... . The statute or ordinance identified must be part of a "well-developed body of law and regulation" that imposes "clear legal duties" or mandates the "performance or nonperformance of specific acts" ... .


* * * ... [T]he plaintiff made the requisite showing that Multiple Dwelling Law § 79 and Administrative Code of City of N.Y. § 27-2029 are part of well-developed bodies of law and regulation that impose clear legal duties, or mandate the performance or nonperformance of specific acts ... . Both provisions mandate the performance of specific acts. Moreover, failure to comply with the provisions can result in criminal sanctions (see Multiple Dwelling Law § 304; Administrative Code City of N.Y. § 27-2118[a]). "Where criminal liability may be imposed, we would be hard put to find a more well-developed body of law and regulation that imposes clear duties" ... . Thus, Multiple Dwelling Law § 79 and Administrative Code § 27-2029 can properly serve as predicates for liability under General Municipal Law § 205-a. Paolicelli v Fieldbridge Assoc LLC, 2014 NY Slip Op 05849, 2nd Dept 8-20-14




Seriousness of Injuries Warranted Allowing Service of Late Notice of Claim


The Second Department determined that the seriousness of plaintiff's injuries justify granting leave to serve a late notice of claim:


In this case, the extremely serious and incapacitating injuries that the claimant suffered in the underlying car accident reasonably excused the minimal delay in seeking leave to serve a late notice of claim against the County of Nassau (see General Municipal Law § 50-e[5]...). The record further demonstrates that the County acquired actual knowledge of the facts underlying the claim within the 90-day statutory period or within a reasonable time thereafter .... Finally, under the circumstances of this case, the County was not prejudiced by the delay in serving the notice of claim ... . Matter of Lopez v County of Nassau, 2014 NY Slip Op 05879, 2nd Dept 8-20-14





Town Not Liable for Negligently Picking Up Personal Items from Driveway During Garbage Collection---Garbage Collection Is a Ministerial Function---No Special Relationship with Plaintiff


The Second Department determined the town was not liable for picking up items plaintiff had placed in his driveway to dry out after a storm.  The items were picked up as "bulk garbage" prior to the date bulk-garbage collection was slated to begin:


Garbage collection is considered a governmental function ... . A municipality cannot be held liable for negligence in the performance of discretionary acts, but can be held liable for negligence in the performance of ministerial acts, if there is a special relationship between the plaintiff and the defendant ... . The difference between ministerial or discretionary acts is described thusly: " discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'"... . Garbage collection falls within the definition of a ministerial function.


A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following elements: " (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking'" ... . No facts were alleged indicating that the defendants undertook an affirmative duty to act on behalf of the plaintiff. Therefore, no basis was alleged to impose liability upon the defendants, based on the negligent destruction of property. Katz v Town of Clarkstown NY, NY Slip Op 05843, 2nd Dept 8-20-14 




Ordinance Making Abutting Property Owners Responsible for Removal of Ice and Snow from a Sidewalk Did Not Impose Tort Liability on Abutting Property Owner


The Second Department determined that an abutting property owner (Atlantic) could not be held liable for an ice/snow slip and fall on a sidewalk in the absence of an ordinance specifically imposing tort liability on the property owner, even where, as here, an ordinance made the property owner responsible for removal of ice and snow:


"Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk" ... . Although section 229-6 of the Code of the Village of Ossining (hereinafter the Village Code) requires a landowner to remove snow and ice from abutting public sidewalks, it does not specifically impose tort liability for a breach of that duty ... . "In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous" ... . In their pleadings, the plaintiffs did not allege that the Atlantic defendants created the icy condition. Rather, the pleadings alleged that the Atlantic defendants were negligent in, inter alia, failing to remove snow and ice from the sidewalk. Since the Atlantic defendants established that section 229-6 of the Village Code did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk, they demonstrated their prima facie entitlement to judgment as a matter of law ... . Palka v Village of Ossining, 2014 NY Slip Op 05848, 2nd Dept 8-20-14




Memorialized Telephone Notification About Pothole Does Not Satisfy Written Notice Requirement---Inadequate Repair Is Not Sufficient to Demonstrate Municipality Created the Dangerous Condition


The Second Department determined Supreme Court should have dismissed the complaint against the village because the village did not receive written notice of the pothole which allegedly caused plaintiff's injury.  The court noted that phone calls to the village about the pothole, even if memorialized in writing, did not meet the written notice requirement.  The court also noted that an inadequate repair of the pothole is not enough to demonstrate the village created the defect:


The plaintiff contends that there is a triable issue of fact as to whether the Village received prior written notice of the defect, because the oral notice provided by residents of the street, including voicemail, could have been reduced to writing by an employee of the Village. However, Hempstead Village Code § 39-1 requires that "written notice of said defect causing the injuries or damages was actually given to the Village Clerk." There are no provisions permitting other types of notice, such as a written acknowledgment of oral notice ... . Therefore, a verbal or telephonic communication which was reduced to writing by the Village would not satisfy the prior written notice requirement ... .


In Yarborough v City of New York (10 NY3d 726), the Court of Appeals noted that once the municipality establishes lack of written notice, "the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule —that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality." A negligent repair of the defective condition is insufficient to establish that the municipality affirmatively created the defect ... . To fall within the exception, the repair must immediately result in a dangerous condition ..., which made the defective condition more dangerous than it was before any efforts were made to repair it ... . Wilson v Incorporated Vil of Hempstead, 2014 NY Slip Op 05861, 2nd Dept 8-20-14





Criteria for Appointment of Temporary Receiver to Wind Up Dissolution of Partnership Not Met


The Second Department determined Supreme Court should not have appointed a receiver to wind up the dissolution of a partnership because the criteria for the appointment (irreparable loss or waste of property) had not been met:


The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiffs' motion which was pursuant to CPLR 6401 for the appointment of a temporary receiver to wind up the affairs of a partnership ... and to liquidate and distribute its assets. "A party moving for the appointment of a temporary receiver must submit clear and convincing evidence of irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests'" (...see CPLR 6401[a]...). Here, the plaintiffs failed to make a "clear evidentiary showing that property of the [partnership] was in danger of being removed from the state, or lost, materially injured or destroyed'" ... . Accordingly, that branch of the plaintiffs' motion which was for the appointment of a temporary receiver should have been denied. Magee v Magee, 2014 NY Slip Op 05845, 2nd Dept 8-20-14





Action Based Upon Misclassification of Property Must Be Brought Under Article 7 of the Real Property Tax Law


In determining that an action based on the allegation property had been misclassified must be brought under article 7 of the Real Property Tax Law (RPTL), the Second Department explained when a plenary action challenging property tax can and cannot be maintained:


In general, the proper method for challenging excessive or unlawful real property tax assessments is by the commencement of a tax certiorari proceeding pursuant to RPTL article 7 ... . Such a proceeding, which must be commenced within 30 days after the filing of the final assessment roll, can challenge an assessment as being excessive, unequal, or unlawful, or as resulting from the property being misclassified (see RPTL 702[2]; 706[1]).


The procedures of RPTL article 7 need not be followed, and a plenary action may be commenced collaterally attacking the assessment where the challenge is that the taxing authority has exceeded its power, such as by effectively withdrawing a previously recognized exemption ... . A collateral attack may also be mounted where the challenge is based upon "the method employed in the assessment involving several properties rather than the overvaluation or undervaluation of specific properties" ... .


Here, all of the allegations regarding the assessment stem from the Board's determination that the subject property should be classified as "Class two" property on the 2007/2008 tax roll ... . As the Supreme Court properly pointed out, a challenge to this alleged misclassification had to be asserted in a proceeding pursuant to RPTL article 7 ... . Tricarico v County of Nassau, 2014 NY Slip Op 05857, 2nd Dept 8-20-14





Husband, Criminally Responsible for the Death of His Mother-in-Law, Could Not Inherit the Mother-in-Law's Estate Indirectly After the Death of His Wife


The Second Department, in a full-fledged opinion by Justice Hall, determined the husband, Brandon, who was criminally responsible for the death his mother-in-law, could not inherit the mother-in-law's estate indirectly after the death of his wife, Deanna:


The principle that a wrongdoer may not profit from his or her wrongdoing is deeply rooted in this State's common law. In 1889, the Court of Appeals decided the seminal case of Riggs v Palmer (115 NY 506) . In Riggs, a grandson, who had intentionally killed his grandfather in order to ensure his inheritance, was prevented from inheriting under the grandfather's will. In reaching this determination, the Court of Appeals held that, "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime" (id. at 511). In short, the Riggs rule "prevents wrongdoers from acquiring a property interest, or otherwise profiting from their own wrongdoing" ... . * * *


The issue here is whether the Riggs doctrine may be extended to prevent a wrongdoer from indirectly profiting from his or her own wrongdoing. More specifically, we are asked to determine whether Brandon may inherit assets of the decedent's estate indirectly through Deanna's estate. While it is clear that Brandon would not be able to inherit from the decedent's estate directly, the issue of whether he may do so indirectly through Deanna's estate is less settled. Indeed, this is an issue of first impression, as there is no appellate precedent from New York addressing whether the Riggs doctrine applies where a killer seeks to inherit assets from his or her victim indirectly through the estate of a person not implicated in the unlawful killing. * * *


Here ... there is a clear causal link between the wrongdoing and the benefits sought ... . But for Brandon's killing of the decedent, the estate of Deanna would not likely include any assets from the decedent's estate. Furthermore, since only a relatively short period of time elapsed between the decedent's death and the death of Deanna, it is clear that Deanna's estate would include assets traceable to the decedent. Indeed, according to [the] petition for letters of administration, Deanna's estate consists only of funds Deanna received as beneficiary of the decedent's retirement plan, and the expected inheritance from the decedent. Significantly, the decedent's estate has not yet been distributed to Deanna's estate, and no commingling of any funds between the two estates has occurred.


Under these circumstances, the Surrogate's Court appropriately exercised its equitable powers (see SCPA 201[2]) in extending the Riggs doctrine to prevent Brandon from inheriting any portion of the decedent's estate through the estate of Deanna ... . Matter of Dianne Edwards, 2014 NY Slip Op 05873, 2nd Dept 8-20-14




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