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December Page II

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


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Repeated Invitations to Review 60 to 80 Banker's Boxes of Documents In Response to a Discovery Demand Constituted Willful and Contumacious Behavior Justifying the Striking of the Complaint


The Third Department determined Supreme Court properly struck the pleadings based upon plaintiffs' failure to comply with discovery demands.  Plaintiffs sued defendants for profits allegedly lost when plaintiffs failed to procure a printing and copying contract with the state.  The defendants sought discovery of documents related to the lost profits (alleged to be $1,500,000). Although plaintiffs supplied some relevant information, the discovery demands were repeatedly met with an invitation to review 60 to 80 banker's boxes of documents in a warehouse:


We recognize that plaintiffs provided certain documents and that [plaintiff's principal] appeared at a deposition. This limited cooperation does not necessarily preclude a finding of willful and contumacious behavior... . Plaintiffs had the burden to prove damages and defendants were entitled to review documents supporting the damages claim prior to trial. Notably, plaintiffs were able to create and provide annual sales summaries, but never provided the documents that were used to calculate the sales figures. The record confirms that despite Supreme Court's frequent intervention and direction to produce the documents in a more organized fashion, plaintiffs continued to insist that their offer to have defendants sift through 60 to 80 boxes of miscellaneous business records was adequate. Indeed, plaintiffs refused to respond otherwise even after defendants narrowed their document request following [a] deposition. * * *


In our view, the record demonstrates "[a] pattern of noncompliance" sufficient to support Supreme Court's finding that plaintiffs' conduct was willful ... . Under the circumstances, we thus conclude that the court did not abuse its discretion in granting defendants' motion and striking plaintiffs' complaint. BDS Copy Inks Inc, v International Paper, 2014 NY Slip Op 08692, 3rd Dept 12-11-14





Court Must Consider Whether Both Parties, Not Only the Bank, Have Negotiated in Good Faith in the Mandatory Pre-Foreclosure Settlement Conferences (Re: Possible Modification of the Terms of a Mortgage Subject to Foreclosure)---Under the Totality of the Circumstances, Supreme Court's Finding that the Bank Did Not Negotiate in Good Faith Was Not Supported


The First Department, in a full-fledged opinion by Justice Andrias, determined that Supreme Court should have considered the defendant's actions in deciding whether the parties had negotiated in good faith during the pre-foreclosure settlement conferences mandated by CPLR 3408 (a) [Subprime Residential Loan and Foreclosure Laws].  The conferences are required to ascertain whether a modification of the terms of a mortgage otherwise subject to foreclosure can be reached in a settlement. Supreme Court's finding that the plaintiff bank did not negotiate in good faith was not warranted, in large part, because Supreme Court did not take into account the inaccurate and inconsistent information provided by the defendant during the conferences:


CPLR 3408 was enacted in 2008, as part of the omnibus "Subprime Residential Loan and Foreclosure Laws" (L 2008, ch 472, effective August 5, 2008), remedial legislation intended to assist homeowners at risk of losing their homes to foreclosure due to the subprime credit crisis (See Sponsor's Mem., Bill Jacket (L 2008, ch 472). As part of the protections afforded to homeowners by the legislation, CPLR 3408 requires that conferences be conducted in residential foreclosure actions "for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate" (CPLR 3408[a]).


These mandatory settlement conferences are intended to "provide an opportunity for borrowers and lenders to try to reach a solution that avoids foreclosure" (see Letter of Sen Farley, Bill Jacket, L 2008, ch 472 at 6).


CPLR 3408(f), added in 2009 as part of legislation designed to provide broader protection for homeowners (L 2009, ch 507 effective February 13, 2010), states that "[b]oth the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible." "The purpose of the good faith requirement is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution" (2009 Mem of Governor's Program Bill, Bill Jacket, L 2009, ch 507 at 11). The language of the statute and legislative history confirm that the obligation to negotiate in good faith is intended to be a two way street, imposing reciprocal obligations on both the lender and the borrower to cooperate with the other to enable achievement of a reasonable resolution ... . Towards this end, 22 NYCRR 202.12-a(c)(4) directs the court to "ensure that each party fulfills its obligation to negotiate in good faith."


The term "good faith" is not defined in the statute. However, this Court has held that compliance with the good faith requirement of CPLR 3408 is not established by merely proving the absence of fraud or malice on the part of the lender and that "[a]ny determination of good faith must be based on the totality of the circumstances," taking into account that CPLR 3408 is a remedial statute ... .


"While the aspirational goal of CPLR 3408 negotiations is that the parties reach a mutually agreeable resolution to help the defendant avoid losing his or her home' (CPLR 3408[a]), the statute requires only that the parties enter into and conduct negotiations in good faith ... . ...[T]his Court [has] noted that "there are situations in which the statutory goal is simply not financially feasible for either party" and that "the mere fact that plaintiff refused to consider a reduction in principal or interest rate does not establish that it was not negotiating in good faith. Nothing in CPLR 3408 requires plaintiff to make the exact offer desired by [the] defendant[ ] [mortgagors], and the plaintiff's failure to make that offer cannot be interpreted as a lack of good faith" ... . * * *


...[W]e find that [defendant] has not established that, under the totality of the circumstances, plaintiff failed to engage in a meaningful effort at reaching a solution during the settlement conferences. Although plaintiff presented [defendant] with repeated requests for documentation and, at times, failed to timely comply with deadlines issued by the court, the record establishes that [defendant] created a moving target for plaintiff by repeatedly changing her alleged sources of income in her loan modification applications, and failing to disclose substantial and material liens encumbering the property. Citibank NA v Barclay, 2014 NY Slip Op 08757, 1st Dept 12-11-14





Motion to Strike Errata Sheet "Correcting" Substantive Discrepancies in Deposition Testimony Should Have Been Granted


The Second Department reversed Supreme Court and dismissed the complaint.  In her deposition plaintiff testified at length about where she tripped and fell but identified a very different location from that described in the complaint.  Plaintiff then sought to "correct" the "errors" in the deposition transcript by executing an errata sheet:


Notwithstanding the detailed, consistent, and emphatic nature of the plaintiff's deposition testimony regarding the location of her accident, she subsequently executed an errata sheet containing numerous substantive "corrections" which conflicted with various portions of her testimony and which sought to establish that she actually fell at 197 Fifth Avenue, not 140 Fifth Avenue. The only reason proffered for these changes was that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs. The defendants ... moved, to strike the errata sheet and for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions. We reverse.


Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony (see CPLR 3116[a]...). Horn v 197 5th Ave Corp, 2014 NY Slip Op 08605, 2nd Dept 12-10-14





Plaintiff Did Not Sufficiently Allege Colorado Defendant Had Purposefully Transacted Business In New York---Motion to Dismiss for Lack of Personal Jurisdiction Should Have Been Granted


The Second Department determined Supreme Court should have granted the Colorado defendant's motion to dismiss the complaint for lack of personal jurisdiction.  Plaintiff requested a loan from her uncle (the defendant), a Colorado resident. After her uncle refused, plaintiff brought this action for prima facie tort and slander based upon her communications with the defendant.  The Second Department found that plaintiff had not sufficiently alleged that defendant "purposefully transacted business" within New York:


A court may exercise personal jurisdiction over any nondomiciliary who "transacts any business within the state" (CPLR 302[a][1]). Generally, a nondomiciliary will be deemed to be subject to the jurisdiction of a New York court pursuant to CPLR 302(a)(1) if he or she has "engaged in some purposeful activity within the State and there is a substantial relationship' between this activity and the plaintiff's cause of action" ... . "Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" ... .


Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211(a)(8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court ... . Here, accepting as true the allegations set forth in the complaint and in the plaintiff's opposition papers, and according the plaintiff the benefit of every favorable inference ... , the plaintiff failed to meet her prima facie burden. The nature and quality of the defendant's alleged contacts with New York do not demonstrate that he purposefully transacted business within this state ... . Whitcraft v Runyon, 2014 NY Slip Op 08634, 2nd Dept 12-10-14





Doctrine of Res Judicata Did Not Preclude Lawsuit Against Defendant Building Inspector In His Individual Capacity After Summary Judgment (In Defendant's Favor) In an Action Against Defendant In His Official Capacity---Transactional Approach to Res Judicata Explained


The Second Department determined that summary judgment in favor of the defendant (Maikisch) in an action brought against a town and defendant in his capacity as building inspector did not, pursuant to the doctrine of res judicata, preclude a lawsuit against the defendant in his individual capacity. The court explained the analytical criteria:


This State has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ... . "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination--—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'" ... . "One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'" 


...[I]n the prior action, the plaintiff made no claim against Maikisch in his capacity as an individual. Rather, the plaintiff sought relief, in the form of a declaratory judgment, against the Town and Maikisch in his capacity as Building Inspector of the Town. "It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued" ... .


In any event, the differences which exist between the issues raised in the prior litigation and those raised now, namely, the differences in the kind of relief sought, in the kind of facts to be proved, and in the kind of law to be applied, outweigh the similarities to such an extent as to render the doctrine of res judicata inapplicable ... . In the prior action, the plaintiff sought a judgment declaring that the subject property was exempt from certain land-use and building code regulations. There, the plaintiff alleged that, for reasons stated, the relevant regulations were inapplicable the subject property. In this action, the plaintiff seeks to recover money damages from Maikisch individually, based on contract and tort theories. In this action, the plaintiff alleges, inter alia, that Maikisch breached an oral contract between the parties, breached a fiduciary duty owed to the plaintiff, and tortiously interfered with the plaintiff's business relations. Specialized Realty Servs LLC v Maickisch, 2014 NY Slip Op 08627, 2nd Dept 12-10-14





Nature of a "Turn-Key" or "Design-Build" Contract Explained---Three-Year Statute of Limitations for Malpractice Applied to Defendant Architects Who Were Engaged Solely to Design, Not Build, the Renovations


In a lawsuit stemming from the failure of a building facade, the Third Department determined that the contract between plaintiff property-owner and defendant architects was not a "turn-key" or "design-build" contract, which encompassed the entire construction project, but rather was a professional services contract for the design of building renovations.  Therefore the three-year statute of limitations for professional malpractice applied. The Third Department affirmed the dismissal of the complaint, explaining the nature of a "design-build" contract:


In "turnkey" or "design-build" construction projects, "an owner contracts with one entity to both design and build the project [and t]he turnkey builder is responsible for every phase of the construction from final design through subcontracting, construction, finishing and testing" ... . The design-builder generally cannot shift liability and is the "single point [of] responsibility" under a design-build contract, because it is "the [d]esign-[b]uilder [who] has the responsibility of the preliminary and construction design, the responsibility of submitting a fixed sum for the construction of the project and the responsibility for holding the contracts with its trade contractors" ... . As plaintiff asserts, it follows that nearly every design-build project involves the existence of two or more contracts — at least one among the members of the design-build team and one between the design-builder and the owner. Here, however, it was not defendant, the purported design-builder, who held the separate contract with the general contractor, but plaintiff as the owner. * * *


...[W]e conclude that plaintiff's ... causes of action — alleging that defendant was negligent and breached the parties' contract by failing to use reasonable care in rendering its professional services — essentially allege professional malpractice ... . Such claims "'come[] within the purview of CPLR 214 (6),'" which sets forth a three-year statute of limitations for nonmedical malpractice, "'regardless of whether the theory is based in tort or breach of contract'"... . We note that "'a claim for professional malpractice against an engineer or architect accrues upon the completion of performance under the contract and the consequent termination of the parties' professional relationship'" ... . 797 Broadway Group LLC v Stracher Roth Gilmore Architects, 2014 NY Slip Op 08689, 3rd Dept 12-11-14





Language of a Guaranty Must Be Strictly Construed


In finding that the language of defendant's (Hart's) guaranty to pay the debts of a business (Gotham) in which Hart had a financial interest did not support the interpretation that the guaranty extended to purchases made by Gotham after the guarantor sold his interest in the business, the Second Department explained the analytical criteria:


Gary Hart, who was then the vice president of Gotham ..., and had a financial interest therein, executed a credit application and agreement (hereinafter the credit agreement) on behalf of Gotham on a preprinted form provided to him by the plaintiff, Solco ... . Pursuant to the credit agreement, Solco agreed to sell and deliver goods to Gotham on credit. The form recited, in pertinent part:


"PERSONAL GUARANTEE OF PAYMENT AND AGREEMENT*****"the undersigned, being financially interested in the above customer, hereby, jointly and severally, unconditionally, guarantee payment when due of all indebtedness of the above customer including any amount currently due to [the plaintiff] as such indebtedness may exist from time to time together with interest and/or finance charges" ... .


The guaranty contained no provision requiring the defendant to notify Solco in the event that his financial interest in Gotham was terminated. * * *


The terms of a guaranty are to be strictly construed ..., and a guarantor should not be found liable beyond the express terms of the guaranty ... . Moreover, since the language in question was part of a form contract prepared by Solco, any alleged ambiguity should be interpreted against Solco ... . Further, in determining the meaning of contractual language, "a court should not read a contract so as to render any term, phrase, or provision meaningless or superfluous" ..., but should give effect to all of the contract's provisions ... . Solco Plumbing Supply Inc v Hart, 2014 NY Slip Op 08626, 2nd Dept 12-10-14





Analytical Criteria Re: the Validity of a Stipulation Explained


In affirming the validity of a stipulation related to a divorce, the Second Department explained the relevant analysis, including the concept of ratification of the agreement by accepting its benefits:


" Stipulations of settlement are favored by the courts and are not lightly set aside'" ... . A stipulation of settlement is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law ... . "Judicial review is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own" ... . " [A] stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability'" ... .


Here, the defendant established her prima facie entitlement to judgment as a matter of law by submitting, inter alia, the Stipulation, which contained an express representation that it was not a product of fraud or duress and which awarded the plaintiff meaningful benefits, as well as her affidavit wherein she averred that the parties' attorneys were engaged in negotiations for months regarding the distribution of marital assets ... . Furthermore, the defendant established that the plaintiff ratified the Stipulation and waived his claim to set aside the Stipulation by accepting the benefits of the Stipulation for a significant period of time ... . Sabowitz v Sabowitz, 2014 NY Slip Op 08624, 2nd Dept 12-10-14





Plaintiff Wife's Waiver of Her Entitlement (Pursuant to a Divorce Stipulation) to Cost of Living Adjustments (COLA) to Maintenance Payments (By Acceptance of Checks With No COLA for Years) Was Withdrawn In 2008 When She Commenced Suit to Enforce the COLA Provision of the Stipulation


The Second Department determined that plaintiff wife had waived her entitlement, pursuant to the terms of a divorce stipulation, to cost of living adjustment (COLA) of her maintenance until she commenced an action to enforce the COLA provision of the stipulation. Plaintiff wife had waived the COLA by accepting maintenance payments (without COLA) for years. The waiver, however, was withdrawn when suit was commenced in 2008:


Waiver, which is the voluntary and intentional relinquishment of a contract right, " should not be lightly presumed' and must be based on a clear manifestation of intent' to relinquish a contractual protection" ... . It may be accomplished by affirmative conduct or failure to act so as to evince an intent not to claim the purported advantage ... .


The mere existence of a nonwaiver clause does not preclude waiver of a contract clause ... . However, a "waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence" ... .


As the plaintiff correctly contends, the record demonstrates that the plaintiff voluntarily relinquished her right to receive maintenance COLA increases as provided in the parties' 1983 stipulation from 1984 through May 2008, when such waiver was withdrawn ... . Although the defendant is correct that the plaintiff raises for the first time on appeal her contention that she withdrew her waiver upon commencing this action, this contention may be reached since it involves a question of law that is apparent on the face of the record and could not have been avoided by the Supreme Court if it had been brought to its attention ... . Thus, we reach this issue.


"A waiver, to the extent that it has been executed, cannot be expunged or recalled, but, not being a binding agreement, can, to the extent that it is executory, be withdrawn, provided the party whose performance has been waived is given notice of withdrawal and a reasonable time after notice within which to perform" ... . Since the stipulation was an executory contract between the parties pursuant to which the defendant remained under a continuing obligation to pay maintenance to the plaintiff, upon the plaintiff's filing of the summons and complaint in this action, such waiver was withdrawn ... . Stassa v Stassa, 2014 NY Slip Op 08629, 2nd Dept 12-10-14




Lineup Was Unduly Suggestive


The Second Department determined the pretrial lineup identification procedure was unduly suggestive and sent the case back for an inquiry into whether the complainant had an independent source for the in-court identification:


The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant's clothing that the complainant gave to the police. Thus, at the lineup, the defendant's red shirt improperly drew attention to his person ... . Since the hearing court's erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant's in-court identification, we remit the matter to the Supreme Court, Richmond County, to provide them with an opportunity to do so ... . Pending a hearing and determination on that issue, the appeal is held in abeyance. People v Pena, 2014 NY Slip Op 08667, 2nd Dept 12-10-14 



Court's Failure to Inquire About a Juror's Sleeping During Deliberations Required Reversal


The First Department reversed defendant's conviction and ordered a new trial because the trial judge did not conduct a "probing inquiry" after being informed by jurors that a juror was sleeping during the deliberations:


The court should have conducted a "probing and tactful inquiry" ... into whether, and to what extent, the juror had been sleeping, in order to determine whether this behavior rendered him grossly unqualified ... . The court's observation of jury demeanor during the supplemental instruction was not enough to resolve the issue of what was going on in the jury room, and this was not a case where reliance on a general instruction was an appropriate exercise of discretion ... . Without any inquiry of the allegedly sleeping juror, or of any other juror, it is impossible to know whether the juror was innocuously dozing off from time to time, or whether he slept through so much of the deliberations that he could be deemed absent, such that the verdict was reached by a jury of 11 persons. Accordingly, we are constrained to reverse. People v Franqui, 2014 NY Slip Op 08736, 1st Dept 12-11-14




Because the Presence of THC Can Be Detected Long After Marijuana Use, the People Were Not Able to Prove Defendant Used Marijuana During a One-Week Furlough


The Third Department determined that the People did not prove by a preponderance of the evidence that the defendant used marijuana when he was on furlough, thereby justifying an enhanced sentence.  THC can be detected long after marijuana-use.  The proof therefore did not establish the defendant used it during a one-week furlough:


...[W]e find merit in defendant's argument, preserved by objection at sentencing ..., that the People failed to establish at the enhancement hearing that he violated a condition of his furlough, as the proof did not demonstrate when he used marihuana, i.e., that it occurred during, rather than prior to, his furlough. When the court granted defendant a one-week furlough, it warned him that it would enhance his prison sentence to 4½ years if he were "charged with any criminal conduct" or "arrested for any reason" and that, "[w]hile you are out, if you engage in the use of any illegal drugs or alcohol and I find out about it" (emphasis added), the enhanced sentence would be imposed. At the hearing, while the investigator testified that defendant's test was positive for THC, he was not able to estimate the date when defendant used marihuana, and conceded that it could have been months earlier; he also recounted that defendant stated, after being told of the positive test result, that "he had been smoking in the jail prior to his furlough" (emphasis added). Moreover, the reference guide for the test, which was admitted into evidence at the hearing, indicates that "[m]any factors influence the length of time required for drugs to be metabolized and excreted in the urine" and that the "general time" established for cannabinoids with "chronic use" is "less than 30 days typical."... Defendant admitted to previously being a daily, heavy user of marihuana, and testified that he did not use marihuana during his furlough.


Given the foregoing, we find that the People did not prove by a preponderance of the evidence ... and the court did not have a "legitimate basis" for concluding — that defendant used marihuana during his furlough... . People v Criscitello, 2014 NY Slip OP 08678, 3rd Dept 12-11-14




Reference to Statute Cured Any Omissions from the Description of the Elements of the Offense Charged in a Superior Court Information


The Third Department noted that a Superior Court Information (SCI) charging aggravated unlicensed operation was sufficient even though it did not state the road upon which defendant was driving was a public highway because the SCI specifically referenced Vehicle and Traffic Law 511 (3) (a) and therefore incorporated all the elements of the crime:


...[D]efendant argues that the SCI failed to allege all material elements of aggravated unlicensed operation of a motor vehicle in the first degree because the People did not state that the crime occurred on a public highway (see Vehicle and Traffic Law § 511 [3] [a]). While this claim survives defendant's guilty plea and appeal waiver ..., no defect exists when the SCI incorporates elements by specific reference to the crime's relevant statutory authority, because such incorporation "constitute[s] allegations of all the elements of the crime" ..., while also giving the defendant "fair notice of the charges made against him [or her]" ... . Here, although the SCI failed to state that the road on which defendant was driving was a public highway, it specifically referenced Vehicle and Traffic Law § 511 (3) (a) and, as such, sufficiently incorporated all of the specific elements of the crime. People v Brothers, 2014 NY Slip Op 08682, 3rd Dept 12-11-14




Motion to Set Aside a Verdict Properly Denied When Based Upon an Error Not Preserved by Objection


The Second Department noted that a motion to set aside a verdict (Criminal Procedure Law 330.30) is properly denied when it is based upon an error that was not preserved by objection.  (The issue could be addressed by the appellate court in the interest of justice, but the exercise of interest of justice jurisdiction was declined here.) People v Clayborne, 2014 NY Slip OP 08659, 2nd Dept 12-10-14





Convictions Based Upon an Unconstitutional Statute Must Be Vacated


The Second Department noted that when a statute upon which defendant's conviction is based is declared unconstitutional the conviction must be vacated:


Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime" ... . The Court of Appeals has held that Penal Law § 240.30(1), as written at the time of the defendant's conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions ... . Accordingly, the defendant's convictions of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 240.30(1)(a) and (1)(b) must be vacated. People v Edrees, 2014 NY Slip Op 08660, 2nd Dept 12-10-14




Defendant's "Agency" Defense to a Drug Sale Addressed Under a "Weight of the Evidence" Review (Defense Was Disproved Beyond a Reasonable Doubt)


The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a "weight of the evidence" review.  The Third Department then went on to find the defendant's agency defense had been disproved by the People beyond a reasonable doubt.  The court explained the agency defense:


To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant's generalized motion to dismiss at the close of the People's case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt ... . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant's challenge to the legal sufficiency of the evidence is not preserved for our review ... . "That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial" ... .


Insofar as is relevant here, "[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug" (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy's agent in this regard and, at best, is guilty of criminal possession of a controlled substance ... . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell ... . "[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case" ... . Such a determination, in turn, may hinge upon a number of factors, including "the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction" ... . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job ... in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14



Teacher Who Was Encouraged by the Superintendent to Resign Her Tenured Teaching Position to Take A Library-Position Which Was Subsequently Eliminated Did Not Thereby Voluntarily Waive Her Seniority Rights---She Was Entitled to Reinstatement In Her Tenured Teaching Position With Back Pay


The Third Department determined that a teacher (petitioner) who, at the request of the school superintendent resigned her teaching position to take a library media specialist (LMS) position, did not waive her seniority rights.  After the LMS position was eliminated and petitioner was terminated, petitioner brought an Article 78 proceeding to reinstate her as a tenured teacher. Supreme Court granted the petition and the Third Department affirmed:


Respondents maintain that Supreme Court erred in finding that the termination of petitioner's employment was arbitrary and capricious and irrational, inasmuch as petitioner freely waived her seniority rights when she resigned from her position as an English teacher. Although an employee may waive his or her seniority rights by resigning or retiring, "such a relinquishment must be knowing and voluntary" ... . An effective waiver of such rights must be free from any indicia of duress or coercion ... .


The record demonstrates that, when petitioner was encouraged by the interim Superintendent to take the LMS position, she expressed her reluctance to leave her position as an English teacher and asked if she could take a leave of absence rather than resign. The interim Superintendent indicated that a leave of absence would not suffice and that petitioner's resignation was required. After tendering her letter of resignation, which the Board accepted a month after appointing her to the LMS position, petitioner received a longevity pay increase, continued to accrue sick and personal leave time that had carried over from her English teaching position and also received a severance payment from the District that would not have been made if petitioner had voluntarily severed her employment. Notably, when petitioner moved into the LMS position, she assumed such position without any interruption in service ... . Where, as here, an employee does not take the necessary "affirmative steps to terminate all aspects of his or her employment by a school district," no waiver of seniority and tenure rights will be found ... . Accordingly, as the Commissioner's dismissal of petitioner's appeal was arbitrary and capricious and lacking a rational basis, Supreme Court's judgment annulling that determination shall remain undisturbed ... . Matter of Kwasnik v King, 2014 NY Slip Op 08697, 3rd Dept 12-11-14





Indian Point Nuclear Power Plants Exempt from a Consistency Review Under New York's Coastal Management Program---No State Environmental Impact Statements Required---Federal Environmental Impact Statements Prepared in the 1970's Deemed Sufficient to Trigger the Exemption Under the Plain Meaning of the Statutory and Regulatory Language


The Third Department, in a full-fledged opinion by Justice Clark, determined that the petitioners, owners and operators of Indian Point nuclear power plants seeking renewal of operating licenses, were exempt from New York's Coastal Management Program (CMP).  The court explained that the plain language of the relevant statutes and regulations did not require the preparation of environmental impact statements pursuant to New York's State Environmental Quality Review Act (SEQRA), as the Department of State and the lower court had ruled. The fact that environmental impact statements had been prepared in the 1970's under the federal National Environmental Policy Act (NEPA) was deemed sufficient to trigger the exemption:


Petitioners particularly focus upon the second exemption in the CMP, which exempts from consistency review "those projects for which a final [e]nvironmental [i]mpact [s]tatement has been prepared prior to the effective date of the Department of State [p]art 600 regulations ... ." 19 NYCRR part 600 took effect in 1982. Indian Point 2 and Indian Point 3 went into operation prior to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) taking effect in 1976 and, as such, environmental impact statements were not prepared under SEQRA. Final environmental impact statements were prepared pursuant to the National Environmental Policy Act of 1969 (42 USC § 4321 et seq. [hereinafter NEPA]), however, and statements were completed for Indian Point 2 and Indian Point 3 in 1972 and 1975, respectively. Accordingly, applying the plain meaning of the language in the CMP, Indian Point 2 and Indian Point 3 are exempt from consistency review.


The Department nevertheless held that the exemption did not apply to Indian Point 2 and Indian Point 3 because their final environmental impact statements had not been prepared pursuant to SEQRA. There is simply no basis in law for injecting such a requirement. The Department noted that 19 NYCRR 600.3 (d) is cited in the exemption and refers to final environmental impact statements prepared under the SEQRA regulatory regime, but that regime permits the use of final environmental impact statements prepared under NEPA (see 6 NYCRR 617.2 [n]; 617.15 [a]; Philip Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17½, ECL 8-0111). Indeed, SEQRA is modeled upon NEPA, and there is no indication that the final environmental impact statements prepared for Indian Point 2 and Indian Point 3 would not have complied with SEQRA ... . Matter of Entergy Nuclear Operation Inc v New York State Dept of State, 2014 NY Slip Op 08702, 3rd Dept 12-11-14




Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff's Counsel Should Not Have Been Allowed to Comment on Defense's Failure to Call the Nurse Who Was Going to Testify About the Statements---New Trial Ordered


The Second Department determined plaintiff's alleged statements about the trip and fall which were referenced in hospital records were not admissible because the statements were not germane to diagnosis and treatment and were not prior inconsistent statements.  The defense was therefore prohibited from calling the triage nurse who heard the statements.  Plaintiff's counsel, however, was erroneously allowed to comment on the absence of the nurse from the trial (the defense had indicated in its opening that she would testify about discrepancies in the plaintiff's account of the accident).  A new trial was therefore ordered:


Supreme Court providently exercised its discretion in precluding the admission into evidence of the entries in the injured plaintiff's hospital records. The evidence, which purportedly constituted statements by the injured plaintiff indicating that the accident did not occur on the defendants' premises, were not germane to the injured plaintiff's diagnosis and treatment ... . Further, those statements were either equivocal as to how the accident occurred, or consistent with the injured plaintiff's testimony at trial ... . Accordingly, they were not admissible as prior inconsistent statements to impeach her credibility. Since those entries were not admissible, the testimony of the triage nurse with respect to those entries was not admissible.


However, permitting the plaintiffs' counsel to comment on the failure to call the triage nurse as a witness was error, since the defendants in fact produced the witness and were precluded from calling her to testify by the trial court. Further, the comments by the plaintiffs' counsel in summation were not supported by the evidence, and were inflammatory and unduly prejudicial, depriving the defendants of a fair trial ... . Nelson v Bogopa Serv Corp, 2014 NY Slip Op 08612, 2nd Dept 12-10-14




Mother's Parental Rights Should Not Have Been Terminated Based Upon a Violation of a Suspended Judgment---Best Interests of the Child Should Have Been Considered


The Second Department determined Family Court erred when it terminated the mother's parental rights after she violated a suspended judgment (imposing drug-related conditions) without taking into account the best interests of the child.  The evidence supported the conclusion that terminating the mother's parental rights was not in the best interests of the child:


The Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence adduced, that the parent failed to comply with one or more of the conditions of the suspended judgment ... . The best interests of the child, however, remain relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment ... . Here, the preponderance of the evidence supported a finding that the mother failed to comply with certain conditions set forth in the suspended judgment. However, the evidence did not support the Family Court's conclusion that it was in the best interest of the child to terminate the mother's parental rights.  Matter of Phoenix DA ..., 2014 NY Slip OP 08638, 2nd Dept 12-10-14




Court Should Not Have Denied Biological Mother's Petition to Enforce the Visitation Provision in a Surrender Agreement Without Making a Finding Based Upon the Best Interests of the Child---Failure to Make Such a Finding Rendered the Record Insufficient for Review---Matter Sent Back for a Hearing


The Second Department, over a dissent, determined that Family Court should not have denied the biological mother's petition to enforce the provision of a surrender agreement which allowed her to visit the child without a finding that the requested visitation is not in the best interests of the child.  Finding the record inadequate for review, the Second Department sent the matter back for a hearing:


Social Services Law § 383-c(2)(b) permits the parties to a judicial surrender agreement to provide for a biological parent's continued communication or contact with the child. In determining whether to approve the agreement, the court must determine whether continued contact with the biological parent would be in the child's best interests (see Social Services Law § 383-c[2][b]). A provision providing for visitation with the biological parent is not legally enforceable unless the court that approved the surrender agreement states, in a written order, that the provision would be in the child's best interests (see Domestic Relations Law § 112-b[2]; cf. Social Services Law § 383-c[2][b]). Even then, in an enforcement proceeding pursuant to Domestic Relations Law § 112-b, a court "shall not enforce an order under this section unless it finds that the enforcement is in the child's best interests" (Domestic Relations Law § 112-b[4]). In other words, there must be a best interests judicial determination both at the time the surrender agreement is accepted and at the time that enforcement of a visitation provision is sought ... . * * *


Here, the Family Court dismissed the petition without affording the biological mother an opportunity to establish that enforcement of the visitation provision of the surrender agreement would be in the child's best interests. Thus, there is no hearing record for us to review. Further, while it may be true that the Family Court was aware of facts and circumstances that may have supported a determination that enforcement of the visitation provision would not have been in the child's best interests, the record before us does not contain those facts. Accordingly, we are unable to conduct effective appellate review of the court's determination or to make required findings on our own  ... . Matter of Jayden A, 2014 NY Slip Op 08637, 2nd Dept 12-10-14




Question of Fact Raised About Whether Any Delay In Insured's Notifying the Insurer of the Accident Was Attributable to the Insured's "Good-Faith Belief of Non-Liability"


The Second Department determined a question of fact had been raised about whether any delay in notifying the insurer of the accident was the result of a good-faith belief of non-liability:


"A provision that notice be given as soon as practicable' after an accident or occurrence, merely requires that notice be given within a reasonable time under all the circumstances" ... . An insured's failure to provide the insurer notice within a reasonable period of time constitutes "a failure to comply with a condition precedent which, as a matter of law, vitiates the contract" ... .


However, there may be circumstances that will explain or excuse a delay in giving notice and show it to be reasonable, such as an insured's "good-faith belief of nonliability" ... . The insured's belief of nonliability "must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence" ... . "Ordinarily, the question of whether the insured had a good-faith belief in nonliability, and whether that belief was reasonable, presents an issue of fact and not one of law" ... . "It is only when the facts are undisputed and not subject to conflicting inferences that the issue can be decided as a matter of law" ... . Integrated Constr Servs Inc v Scottsdale Ins Co, 2014 NY Slip Op 08606, 2nd Dept 12-10-14




Plaintiff's Expert's Failure to Address Indications in Plaintiff's Evidence that the Physical Deficits Were the Result of a Preexisitng Degenerative Condition (Not the Accident) Required the Grant of Summary Judgment to the Defendants---Plaintiff Failed to Raise a Question of Fact Re: Suffering a "Serious Injury" [Insurance Law 5102 (d)] as a Result of the Accident


The First Department determined, over a two-justice dissent, that summary judgment was properly granted to the defendants because plaintiff was unable to raise a question of fact whether plaintiff's injury was a "serious injury" within the meaning of Insurance Law 5102 (d).  Plaintiff's evidence indicated plaintiff's physical deficits may be the result of a preexisting degenerative condition, rather than the accident.  However, plaintiff's expert did not address the preexisting condition in response to the motion for summary judgment:


Plaintiff submitted his ... orthopedic surgeon's opinion that he suffered a knee injury "secondary" to the car accident. However, the surgeon's opinion failed to raise an issue of fact since the surgeon not only failed to address or contest the opinion of defendants' medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the finding of degenerative changes in the MRI report in plaintiff's own medical records, which the same surgeon had acknowledged in his ... note.


Our dissenting colleague overlooks that recent precedents of this Court establish that a plaintiff cannot raise an issue of fact concerning the existence of a serious injury under the No-Fault Law where, as here, the plaintiff's own experts fail to address indications from the plaintiff's own medical records, or in the plaintiff's own expert evidence, that the physical deficits in question result from a preexisting degenerative condition rather than the subject accident (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, his expert failed to address "detailed findings of preexisting degenerative conditions by defendants' experts, which were acknowledged in the reports of plaintiff's own radiologists"]; Farmer v Ventkate, Inc., 117 AD3d 562, 562 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, "(h)is orthopedic surgeon concurred [*2]that the X rays showed advanced degenerative changes"]; Mena v White City Car & Limo Inc., 117 AD3d 441, 441 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, "plaintiff's own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiff's injuries"]; Paduani v Rodriguez, 101 AD3d 470, 470, 471 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, defendants submitted "a radiograph report of plaintiff's radiologist finding severe degenerative changes" and, "(w)hile (plaintiff's) expert acknowledged in his own report MRI findings of degenerative changes in the lumbar spine, he did not address or contest such findings, and the MRI report of (plaintiff's) radiologist found herniations but did not address causation"]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, "plaintiff's own radiologist . . . confirmed degenerative narrowing at the L5-S1 intervertebral disc space' without further comment"]). Rivera v Fernandez & Ulloa Auto Group, 2014 NY Slip Op 08735, 1st Dept 12-11-14





Failure to Wear a Safety Harness Could Not Constitute the Sole Proximate Cause of Plaintiff's Fall (Caused by the Failure of a Scaffolding Plank)---Therefore Plaintiff Entitled to Partial Summary Judgment on the Labor Law 240(1) Claim


The Third Department noted that plaintiff's failure to wear a safety harness did not preclude recovery for a fall caused by the failure of a scaffolding plank. Under the facts, plaintiff's failure to wear a harness could not constitute the sole proximate cause of the accident:


...[D]efendant alleged that claimant was recalcitrant in, among other things, failing to use an available safety harness. With respect to such defense, liability pursuant to Labor Law § 240 (1) does not attach when safety devices are readily available at the work site and a claimant knows that he or she is expected to use them but, for no good reason, chooses not to and such omission is the sole proximate cause of the accident ... . However, where a device intended to support a worker at an elevated height fails and that failure is a proximate cause of the accident, it is "conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant's] injury) to occupy the same ground as a [claimant's] sole proximate cause for the injury" ... .


Here, the facts are undisputed that, in an effort to assist with the construction of a platform, claimant stepped onto a plank on the existing scaffold, which was the primary safety device erected for the work, and the plank collapsed, causing claimant to fall and sustain his injuries. Accordingly, claimant's decision not to wear an available safety harness, or employ other safety measures that might have been available, could not have been the sole proximate cause of the accident, and the Court of Claims correctly awarded claimants partial summary judgment on the issue of liability with respect to their Labor Law § 240 (1) claim ... . Fabiano v State of New York, 2014 NY Slip Op 08695, 3rd Dept 12-11-14





Landlord Properly Granted Summary Judgment in Action Stemming from an Assault on Landlord's Premises---Plaintiff Unable to Raise a Question of Fact Whether the Assailants Were Intruders, as Opposed to Tenants or Invitees


The First Department determined summary judgment was properly awarded to the landlord in an action based upon an attack upon plaintiff on the landlord's premises.  Plaintiff was not able to raise a question of fact about whether the assailants were intruders, as opposed to tenants or invitees:


A landlord has a common-law duty to take minimal precautions to protect tenants from a third party's foreseeable criminal conduct ... . In order to recover damages, a tenant must establish that the landlord's negligent conduct was a proximate cause of the injury ... . Where a plaintiff alleges that a criminal attack in a building was proximately caused by a landlord's failure to provide adequate security, "[the] plaintiff can recover only if the assailant was an intruder" (id. at 551). "To defeat a motion for summary judgment, a plaintiff need not conclusively establish that the assailants were intruders, but must raise triable issues of fact as to whether it was more likely than not that the assailants were intruders who gained access to the premises through the negligently-maintained entrance" ... . Applying these principles, no triable issue of fact exists here because there is no evidence from which a jury could conclude, without pure speculation, that the assailants were intruders, as opposed to tenants or invitees. Hierro v New York City Hous Auth, 2014 NY Slip Op -8734, 1st Dept 12-11-14





Under Liberal Construction of Lien Law Defendant Did Not Waive Its Mechanic's Lien by Failing to Assert Lien-Based Counterclaims and Cross Claims In Its Initial Answer


The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the defendant had not waived its mechanic's lien by failing to assert lien-based counterclaims and cross claims it in its initial answer and therefore could amend its answer accordingly:


"The duration of a lien is prescribed by statute and the right to enforce it, like the right to file and create it, is derived therefrom" ... . That statutory framework "is remedial in nature and intended to protect those who have directly expended labor and materials to improve real property at the direction of the owner or a general contractor" ... . The law governing mechanic's liens is thus liberally construed to ensure that its purpose is accomplished, and substantial compliance with its provisions is generally sufficient (see Lien Law §§ 23, 40...).


Lien Law § 44 (5) provides in pertinent part that "[e]very defendant who is a lienor shall, by answer in the action, set forth his [or her] lien, or he [or she] will be deemed to have waived the same, unless the lien is admitted in the complaint, and not contested by another defendant." * * *


...[H]ere, at the time [defendant] made its motion to amend its answer, plaintiff's complaint, read in conjunction with [defendant's] answer as well as the other pleadings, constituted a sufficient substantial admission of [defendant's] lien such that, had the matter gone to trial on those pleadings, [defendant's] rights would have been preserved under the statutory language ... . Since [defendant's] lien rights had not been already waived as a matter of law when it made its motion to amend its answer, its proposed counterclaim and cross claims were not wholly devoid of merit. Edwards & Zuck PC v Cappelli Enters Inc, 2014 NY Slip Op 08690, 3rd Dept 12-11-14





Operating Agreements Created a Limited Liability Company In Which Members Did Not Share Control of the Development Project or Responsibility for Losses/No Fiduciary Duty Arises from a Limited-Liability-Company Relationship, As It Does from a Partnership or Joint Venture


The Second Department noted that a fiduciary duty did not arise among members of a limited liability company, as it would have in a partnership or joint venture.  Here, the operating agreements created a limited liability company in which (unlike a partnership or joint venture) the members did not share control of the project or responsibility for losses:


"Generally, where parties have entered into a contract, courts look to that agreement to discover . . . the nexus of [the parties'] relationship and the particular contractual expression establishing the parties' interdependency. If the parties . . . do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them'" ... . Here, the written operating agreements submitted in support of the motions demonstrated an intent to form a limited liability company, not a partnership or joint venture that would have given rise to a fiduciary relationship. Moreover, the members of the limited liability company did not share control of the subject development project or responsibility for the losses, which are elements of both a joint venture and a partnership ... . Grand Pac Fin Corp v 97-111 Hale LLC, 2014 NY Slip Op 08604, 2nd Dept 12-10-14




Single Step Was Open and Obvious and Not Inherently Dangerous


The Second Department determined a single step separating the carpeted dining area from the rest of the restaurant was open and obvious and not inherently dangerous:


A property owner has a duty to maintain his or her property in a reasonably safe manner ... . However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous ... . Here, the defendants ... submitted evidence sufficient to establish, prima facie, that the single step separating the carpeted dining area from the rest of the restaurant in which the plaintiff allegedly fell, which consisted of wooden flooring, was open and obvious, and not inherently dangerous ... . Dillman v City Cellar Wine, Bar & Grill, 2014 NY Slip Op 08598, 2nd Dept 12-10-14


Similar issue and result in Varon v New York City Dept of Educ, 2014 NY Slip Op 08633, 2nd Dept 12-10-14.



There Can Be More than One Proximate Cause of an Accident---Plaintiff, to Prevail On a Motion for Summary Judgment, Must Demonstrate Both Defendant's Negligence as a Matter of Law and Plaintiff's Freedom from Comparative Fault


The Second Department determined plaintiff's motion for summary judgment was properly denied, in part, because she failed to demonstrate she was free from comparative fault.  Defendant's truck and plaintiff's vehicle were stopped side by side in two left-turn lanes. When the light turned green both vehicles turned left.  Plaintiff alleged that defendant's truck crossed into her lane during the turn, striking her vehicle.  The court noted that there was a question of fact whether the truck crossed into plaintiff's lane, as well as whether plaintiff was comparatively negligent (two possible proximate causes of the accident):


A driver is negligent if he or she violates Vehicle and Traffic Law § 1128(a) by, inter alia, failing to drive "as nearly as practicable entirely within a single lane" (Vehicle and Traffic Law § 1128[a]...). However, there can be more than one proximate cause of an accident ... . Accordingly, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault ... .


Here, the deposition testimony of the parties, which the plaintiff submitted in support of her motion, was insufficient to demonstrate, prima facie, her entitlement to judgment as a matter of law. The deposition testimony raised triable issues of fact as to whether the defendant driver violated Vehicle and Traffic Law § 1128(a) by failing to drive the tractor-trailer "as nearly as practicable entirely within a single lane," and whether negligence, if any, on the part of the plaintiff, who admitted that she was not aware of what the defendant driver was doing while she made her turn, contributed to the happening of the accident. Kaur v Demata, 2014 NY Slip Op 08607, 2nd Dept 12-10-14




Sudden and Frequent Stops In Traffic Must Be Anticipated by Drivers


The Second Department, in finding no question of fact had been raised about the existence of a non-negligent explanation for a rear-end collision, explained the relevant law:


A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision ... .


"One of several nonnegligent explanations for a rear-end collision [may be] a sudden stop of the lead vehicle" ... . However, "vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" ... . Le Grand v Silberstein, 2014 NY Slip OP 08608, 2nd Dept 12-10-14




Defendant Driver Could Not Avoid Striking Bicyclist Who Did Not Stop at a Stop Sign


The Second Department determined summary judgment was properly granted to the defendant re:  a bicycle/car collision in which the bicyclist was killed.  Defendant driver demonstrated plaintiff's decedent rode through a stop sign and there was no time to avoid the collision:


The defendant was entitled to anticipate that the plaintiffs' decedent would stop at the stop sign and yield the right-of-way to him ... . Moreover, the evidence submitted by the defendant eliminated any triable issue of fact as to the defendant's alleged negligence in failing to avoid the impact ... . The defendant established, prima facie, that he had only a second to react ... . The evidence further established that, in an attempt to avoid impact, the defendant braked and slowed his vehicle to a stop immediately after impact. In opposition, the plaintiffs failed to raise a triable issue of fact. Under the circumstances presented, the defendant's alleged failure to reduce speed or alter his direction prior to impact did not raise a triable issue of fact as to whether he was negligent ... . Yun Lu v Saia, 2014 NY Slip Op 08635, 2nd Dept 12-10-14




Fight On School Bus Was Not Foreseeable and Could Not Have Been Prevented


The Second Department determined that the duty to supervise students on a school bus is identical to the duty to supervise students in school.  Here infant plaintiff was injured on the bus when punched by another student.  The bus driver did not see the incident and neither the infant plaintiff nor the assailant had been involved in or witnessed any other fights on the school bus. The court held that brief incident was not foreseeable and could not have been prevented:


Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances ... . However, schools and school bus companies are not insurers of their students' safety; rather, for liability to result, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it ... .


Here, the bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant. Rather, the assailant's act of punching the infant was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries ... . Braun v Longwood Jr High School, 2014 NY Slip Op 08595, 2nd Dept 12-10-14





Out-Of-Possession Landlord Liability Criteria Explained


The Third Department determined an out-of-possession landlord was not liable to an employee of the tenant who slipped and fell on a loose stair tread.  Neither the terms of the lease nor a course of conduct rendered the out-of-possession landlord responsible for repairing the condition.  The Third Department explained the relevant analytical criteria:


"Generally, 'an out-of-possession landlord who relinquishes control of the premises is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'" ... . "'Exceptions to this rule include situations where the landlord retains control of the premises, has specifically contracted to repair or maintain the property, has through a course of conduct assumed a responsibility to maintain or repair the property or has affirmatively created a dangerous condition'" ... . Whittington v Champlain Ctr N LLC, 2014 NY Slip Op 08691, 3rd Dept 12-11-14





Statutory Privilege Afforded Emergency Vehicles (Imposing a "Reckless Disregard" Standard for Accident-LiabilIty) Is Not Dependent Upon Whether the Emergency Lights and Siren Were Activated

The First Department determined summary judgment was properly granted to the city in a case stemming from a collision with a police car.  The evidence that the police car, which was "performing an emergency operation," stopped at a stop sign before proceeding into the intersection where it was struck by the taxi in which plaintiff was a passenger was sufficient to demonstrate the police officer did not act recklessly.  It did not matter whether the emergency lights and siren were activated:


As the police vehicle was an authorized emergency vehicle (Vehicle and Traffic Law § 101), performing an emergency operation by "pursuing an actual or suspected violator of the law" (Vehicle and Traffic Law § 114-b), the operator was authorized to proceed through the red light, once it slowed down "as may be necessary for safe operation" (Vehicle and Traffic Law § 1104 [a],[b][2]). Thus, in order to hold the municipal defendants liable, plaintiff must demonstrate that the officer driving the police vehicle acted with "reckless disregard for the safety of others," which requires a showing that he "has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" ... .


Here, the officer's uncontroverted testimony was that he came to a complete stop prior to entering the intersection. That he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless ... . That issues of fact exist as to whether the police lights were on (which plaintiff saw prior to the accident, but the taxi driver testified he did not), or whether the siren was activated, is not material, as a police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light (Vehicle and Traffic Law § 1104[c]). Thus, the evidence demonstrates that the officer driving the police vehicle lawfully exercised the privilege, and appellants have produced no evidence of any other facts or circumstances which would raise a triable issue as to any reckless conduct by the officer.  Flynn v Sambuca Taxi LLC, 2014 NY Slip OP 08723, 1st Dept 12-11-14







Leased Right-of-Way Was an Easement Appurtenant Which Can Only Be Extinguished by Abandonment, Conveyance, Condemnation or Adverse Possession


The Third Department determined a preliminary injunction was properly granted in an action alleging defendant's interference with plaintiff's leased right-of-way:


Plaintiff owns an industrial building with deeded easements located within defendant's industrial park in the City of Schenectady, Schenectady County. Plaintiff also leases from defendant an adjoining parcel with a general right of ingress and egress. Plaintiff commenced this action seeking a declaration that its leased right-of-way entitles it to a general right of passage of commercial vehicles in connection with its heavy steel fabrication business operated on the premises. Plaintiff also seeks a permanent injunction prohibiting defendant from interfering with plaintiff's use of the general right-of-way and compelling defendant to remove certain obstructions to its right of passage. * * *


Supreme Court did not abuse its discretion by concluding that defendant was unlikely to succeed on its claim that the metes and bounds easement conveyed to plaintiff when it purchased the building from defendant's predecessor limits and restricts the general right of ingress and egress granted in the lease that was entered into at the same time with that same predecessor. The general right-of-way in the lease is an easement appurtenant that "may be extinguished only by abandonment, conveyance, condemnation or adverse possession" ... . Inasmuch as there is no evidence that the general right-of-way was abandoned, conveyed, condemned or adversely possessed, it continues to exist, notwithstanding any easement provided for in connection with the separate conveyance of the building to plaintiff ... .


Given that plaintiff has a general right of ingress and egress, defendant may only alter the passageway "so long as [plaintiff's] right of passage is not impaired" ... . Plaintiff presented photographs and an affidavit from its president establishing that defendant's placement of steel poles along the easement's boundaries and a locked gate at one of the entrances restricted plaintiff's ingress and egress, thereby showing a likelihood of success on the merits of its action ... . STS Steel Inc v Maxon Alco Holdings LLC, 2014 NY Slip OP 08694, 3rd Dept 12-11-14





Action Dismissed Because Letters of Administration Had Not Been Issued to Plaintiff at the Time the Action Was Commenced


The Second Department affirmed the dismissal of the action because the plaintiff had not received letters of administration at the time the summons with notice was filed and because the plaintiff did not allege any injury to him individually.  The court also noted that the plaintiff did not have standing (no representative capacity at the time the action was commenced) to request more time to serve the complaint:


A personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death ... . Here, at the time the action was commenced by the filing of the summons with notice, the plaintiff had not yet received letters of administration of the decedent's estate and, thus, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff in a representative capacity ... . Moreover, although the action was commenced by the plaintiff, both individually and as "executor" of the decedent's estate, no cause of action asserted any injury or wrongdoing to him ... . Thus, the Supreme Court also properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff individually.


Moreover, as the plaintiff lacked standing to sue in his representative capacity at the time he commenced the action, he could not establish any meritorious basis to extend his time to serve the complaint ... . Shelley v Sooth Shore Healthcare, 2014 NY Slip Op 08625, 2nd Dept 12-10-14



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