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December Page IV

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


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Plaintiff-Resident of an Adult Care Facility Did Not Have Standing to Object to An Informal Procedure Used by the Department of Health (DOH) Re: the Inspection of Adult Care Facilities (Affording a Meeting Between the Facility and DOH Prior to the Publication of an Inspection Report)---Standing to Challenge Governmental Action Discussed in Some Depth


The First Department determined that the plaintiff in a class action suit did not have standing to object to a procedure used by the Department of Health (DOH) re: its inspection of adult care facilities.  Plaintiff is a resident of an adult care facility. The DOH inspection review process (IRP) affords the operators of adult care facilities the opportunity for an informal one-hour meeting with DOH staff after an inspection report is drafted but before it is published.  Plaintiff alleged the informal meeting was not authorized by any regulation and hampered residents' rights re: grievances against a residential care facility:


Since plaintiff is challenging DOH's implementation of the IRP, a governmental action, he must establish that he has standing to do so by showing an "injury in fact," meaning that plaintiff will actually suffer harm by the challenged administrative action and that the injury asserted by him falls "within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" ... . The alleged injury or harm must also be in some way different from that of the public at large ... .


Although plaintiff alleges that the IRP process favors adult home operators by allowing them to privately address adverse findings or corrective actions DOH identifies, without any input by residents of the adult home, plaintiff does not otherwise articulate how he is disadvantaged by this process, how the outcomes of some of these investigations would have been different had residents been permitted to participate in the IRP, or that the substandard living conditions or mistreatment he complains of are attributable to DOH's implementation of the IRP. The only "injury" plaintiff alleges is that resolution of residents' complaints are delayed when an adult home operator contests the outcome of an investigation and residents are not aware of or notified that any particular complaint is subject to an IRP. These allegations are far too generalized and speculative to satisfy the "injury in fact" requirement that would confer plaintiff with standing to challenge the procedures DOH has implemented ... . Plaintiff does not articulate any harm or injury that he will suffer that is in some way an identifiable interest of his own, different from that of the public at large... .


Plaintiff and the members of the proposed class of adult home residents are also outside the "zone of interests" sought to be protected by the applicable statutory and regulatory framework under which the agency has acted ... . DOH is vested with the authority to establish the procedures by which complaints are investigated and violations corrected (see Social Services Law § 461-o, 18 NYCRR § 486.2[a]). Moreover, DOH's enforcement powers are exceedingly broad, ranging from the imposition of civil penalties to the revocation, suspension or limitation of an operating certificate, after a hearing. DOH can even request that the Attorney General seek injunctive relief or criminally prosecute an operator for any violation or threatened violations of law or regulation (see SSL § 460—d; 18 NYCRR § 486.4[b]; see also 18 NYCRR §§ 486.4[b]-[h]). The governing regulatory scheme--which plaintiff does not challenge--plainly contemplates dialogue between DOH and adult home operators during the inspection process. Rather than providing for universal participation by residents in that process, they are expressly excluded from disclosure of investigation outcomes that are being contested by the operator (see Social Services Law §§ 461-a[1], [2][b], [2][c]; 461-d[3][b], [c], [g]; 461-o; 18 NYCRR 486.2[o]). The IRP is, therefore, wholly consistent with the enabling statutes. Bloomfield v Cannavo, 2014 NY Slip OP 08902, 1st Dept 12-23-14






Arbitrator Exceeded His/Her Powers by Awarding More than the Requested Amount in Damages---Award Properly Vacated


The Second Department explained that the arbitrator exceeded his/her powers by awarding more than the requested damages:


An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511[b]). In addition, an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power ... .


An arbitrator's authority "extends to only those issues that are actually presented by the parties" ..., and an arbitrator exceeds his or her authority by reaching issues not raised by the parties ... . Here, the arbitrator awarded the petitioner $43,000 in damages based on the amount due under the subject contract, although the petitioner sought only $34,920 in damages for work done above and beyond the contract. Accordingly, the Supreme Court properly vacated the award as issued in excess of the arbitrator's authority ... . Matter of Slocum v Madariaga, 2014 NY Slip Op 09005, 2nd Dept 12-24-14






Bank Properly Reversed Wire Transfer to Plaintiff's Account After Learning Payment Was Not Authorized by the Holder of the Account from Which the Money Was Transferred---Plaintiff, Which Had Provided the Fake Buyer with Products Ostensibly Purchased with the Funds Initially Transferred to Plaintiff's Account, Was Not Entitled to Those Funds Because the Funds Had Been Properly Returned by the Defendant Banks Pursuant to the Wire-Transfer Provisions of the UCC


The Second Department determined summary judgment in favor of the defendant banks (TD Bank and Eastern Bank) was properly granted.  Plaintiff, Golden Door, sold watches worth $71,000 to a fake buyer after the money was wired from the ostensible buyer's (MHIC's) account at defendant Eastern Bank to plaintiff's account in defendant TD Bank.  It turned out that the wire transfer was the result of the "hacking" of ostensible buyer's account. When Eastern Bank was notified the buyer had not authorized the transfer, Eastern Bank notified TD Bank which then reversed the transfer of the $71,000. Plaintiff sued for the $71,000.  The Second Department found that, under the wire-transfer provisions of the UCC, plaintiff was not entitled to the $71,000:


Under Article 4-A, a funds transfer is initiated by a "payment order," which is an instruction from the person making the payment (the "originator"), to a "receiving" or "intermediary" bank to transfer the funds to the bank account of the beneficiary, normally in the "beneficiary's bank" (UCC 4-A-103, 4-A-104). Here, MHIC was indicated as the originator, Eastern Bank was the receiving bank, Golden Door was the beneficiary, and TD Bank was the beneficiary's bank.


Under Article 4-A, "a beneficiary's bank accepts a payment order when the bank pays the beneficiary by crediting the beneficiary's account and notifying the beneficiary of the right to withdraw the credit" (...see UCC 4-A-209[a]; 4-A-405[1][i]). Once the beneficiary's bank accepts the payment order, a cancellation of the order is not effective unless the beneficiary's bank agrees and, as relevant here, the order was unauthorized in the first place (see UCC 4-A-211[3][b]...). "If the payment order is cancelled . . . the beneficiary's bank is entitled to recover from the beneficiary any amount paid to the beneficiary to the extent allowed by the law governing mistake and restitution" (UCC 4-A-211[3][b]). Once cancelled, "the acceptance [of the payment order] is nullified and no person has any right or obligation based on the acceptance" (UCC 4-A-211[5], Comment 4, Case #1).


In support of their motion for summary judgment dismissing the complaint, the defendants established prima facie that the cancellation of the payment order was effective. The defendants submitted evidence that TD Bank, the beneficiary's bank, agreed to the cancellation, and that MHIC had not authorized the transfer (see UCC 4-A-211[3][b], Comment 1). The defendants further established prima facie that TD Bank was authorized to recover payment from Golden Door in the amount of the cancelled transfer in accordance with the "law governing mistake and restitution" (UCC 4-A-211[3][b]). The applicable doctrine of restitution is the "discharge for value" rule. Under that rule, " [a] creditor of another or one having a lien on another's property who has received from a third person any benefit in discharge of the debt or lien, is under no duty to make restitution therefor, although the discharge was given by mistake of the transferor as to his interests or duties, if the transferee made no misrepresentation and did not have notice of the transferor's mistake'" (...quoting Restatement of Restitution § 14[1]). Although Golden Door had made no misrepresentation, the defendants established that Golden Door had notice that the transfer from MHIC was given by "mistake," or was unauthorized. Specifically, the transfer order indicated that the transferor was MHIC, which was not Golden Door's "customer," was not indebted to Golden Door, and had no apparent relationship with it or its "customer" (see UCC 4-A-211, Comment 4, Cases #2-#4...). Accordingly, Golden Door could not, under the discharge for value rule, retain the funds that had been transferred into its account. In opposition to the defendants' prima facie showing, Golden Door failed to raise a triable issue of fact. Golden Door V & I Inc v TD Bank, 2014 NY Slip Op 08960, 2nd Dept 12-24-14






Although Not Raised by the Defendant Below, the Appellate Court Vacated the Default Pursuant to CPLR 317


The Second Department determined plaintiff's motion for leave to file a default judgment was properly denied and defendant was properly allowed to serve a late answer.  Although the defendant failed to explain why it failed to file the correct address for service of process with the Secretary of State, there was no question that the defendant did not receive notice of the summons in time to defend and did nothing to deliberately avoid service.  The Second Department used CPLR 317 as its basis for vacating the default, even though that ground was not cited by the defendant below:


Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs' motion, under the circumstances of this case, this Court may consider CPLR 317 as a basis for vacating the default (see CPLR 2001...). CPLR 317 permits a defendant who has been "served with a summons other than by personal delivery" to defend the action upon a finding by the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317...). Here, the record reveals that neither the defendant nor its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend itself against this action ... . There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process, especially since the plaintiffs had knowledge of the defendant's actual business address ... . In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense ... . Gershman v Midtown Moving & Storage Inc, 2014 NY Slip Op 08959, 2nd Dept 12-24-14






Civil Forfeiture Should Not Have Been Made Part of Defendant's Sentence In the Absence of Defendant's Voluntary Agreement


The Second Department noted that civil forfeiture should not have been imposed as part defendant's criminal sentence in the absence of defendant's voluntary agreement:


In appropriate circumstances, the voluntary settlement of a potential civil forfeiture action pursuant to CPLR article 13-A (see CPLR 1311) may be made a lawful condition of a negotiated plea (see CPL 220.50[6]), and an order of forfeiture pursuant to a valid settlement of a civil forfeiture claim may be included as part of the judgment of conviction (see Penal Law § 60.30). Civil forfeiture, however, is not an authorized component of a criminal sentence.


Here, the plea minutes do not reflect that the defendant voluntarily agreed to the civil forfeiture of his mobile telephone and $900 cash as a condition of the plea ... . Then, when the defendant refused to sign the forfeiture documents at the time of sentencing, the County Court improperly imposed civil forfeiture as a portion of the criminal sentence. Accordingly, under the particular circumstances of this case, as the defendant correctly contends, the portion of the sentence which imposed the civil forfeiture of the defendant's mobile telephone and $900 cash must be vacated ... . People v Carmichael, 2014 NY Slip Op 09012, 2nd Dept 12-24-14




T-Shirts With the Victim's Photo Worn by Family Members During the Murder Trial Did Not Deprive Defendant of a Fair Trial


The Second Department, in a full-fledged opinion by Justice Miller, over a dissent, determined that defendant was not denied a fair trial because the victim's family wore T-shirts "remembering" the victim in the courtroom:


The court stated that "it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it." The court stated that the shirts "weren't inflammatory." The court had "noticed that shirt" previously, but it "couldn't read what was written on it." The court stated that the members of the Walton family "sat in the second row of the audience" and that the T-shirts were "not flauntily [sic] displayed in front of the jury, nor . . . did any members of the family bring undue attention to [them]." The court further stated that "most of the members of the family had an outer garment on top of the tee-shirt" so that the jury "wasn't even capable of seeing the entire thing." The court noted that "[w]hen counsel made the objection, [it] responded and made a record at that time indicating that [it] saw nothing wrong with those shirts." The court concluded that the conduct of Walton's family had "not inflamed" the jury.


A criminal defendant's right to a trial by an impartial jury is guaranteed by both the federal and state constitutions (see US Const, Sixth Amend; NY Const, art I, § 1). "The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury" ... . "[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial" ... .  * * *


...[A] trial free from a "coercive . . . atmosphere" is a "fundamental principle of due process [that] is well established" ... . It has long been recognized in this State that such an atmosphere of coercion may arise through the conduct of spectators: "[i]t is not to be tolerated that men [or women] should go into such a place and manifest their feelings, prejudices or passions, for the purpose of exerting an influence upon those who sit in judgment upon the rights of parties" ... .


However, "[t]he safeguards of juror impartiality . . . are not infallible [and] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote" ... . "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen" ... .


A trial court, which is in the best position to detect and evaluate the danger that spectator conduct may present to the integrity of the trial process, has a constitutional duty to monitor the atmosphere of the courtroom to ensure that the jury is not exposed to spectator conduct that poses a coercive threat to the jury's ability to remain impartial (see US Const, Sixth Amend; NY Const, art I, § 1...). * * *


... [W]hether any particular conduct, or a court's response to it, has violated a defendant's right to an impartial jury, depends on the particular circumstances of each case ... . Such circumstances may include the nature of the crime and the evidence adduced at trial, the nature of the spectator conduct, and the degree to which the jury was exposed to such conduct. It is not necessary for an actual prejudicial effect on the jury to be established ... . Ultimately, "the question is whether the [spectator conduct] presents an unacceptable risk . . . of impermissible factors coming into play in the jury's consideration of the case" ... . People v Nelson, 2014 NY Slip OP 09019, 2nd Dept 12-24-14




Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive---Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive---New Trial Ordered


The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:


The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption ... . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness ... . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive ... . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants ... .


We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive ... . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification ... . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant ... . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged ... . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14




Provisions in Personnel Handbook Refuted Petitioner's Allegation that Respondent Failed to Follow the Disciplinary Procedures in the Handbook Prior to Terminating Petitioner/In Addition, Limitations on the Right to Terminate an At-Will Employee Will Not Be Inferred Solely from Policy Manuals or the Existence of an Internal Grievance Procedure


The Second Department determined that the provisions of the personnel handbook did not require the employer to follow a particular disciplinary procedure before terminating the petitioner.  Furthermore, the court noted that any limitation of the right to terminate an at-will employee will not be inferred solely from policy manuals or the existence of a grievance procedure:


"Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" ... . "A disciplined or terminated employee may seek article 78 review to determine whether the employer contravened any of its own rules or regulations in taking . . . disciplinary action" ... .


Here, the petitioner alleged that the respondents, who had employed him since June 2009, acted arbitrarily and capriciously by failing to follow certain disciplinary procedures set forth in their personnel handbook prior to terminating his employment on May 3, 2013. Accordingly, the petition states a cause of action (see CPLR 3211[a][7]). However, the documentary evidence submitted by the respondents established a complete defense to the proceeding (see CPLR 3211[a][1]), as it "utterly refute[d]" the petitioner's factual allegations, "thereby conclusively establishing a defense as a matter of law" ... . Specifically, the respondents' personnel handbook provided that "[t]he steps of the progressive discipline process are not guaranteed," and that management reserves the right to decide what disciplinary action is appropriate, including whether to proceed immediately to termination. Hence, the very document relied upon by the petitioner defeated his contention that the respondents were required to strictly comply with the disciplinary procedures articulated in that document. Moreover, "[a] limitation on the employer's right to terminate at-will employment will not be inferred solely from the existence of policy manuals or the existence of an internal grievance procedure" ... . Matter of Oliner v Sovereign Bank, 2014 NY Slip OP 09002, 2nd Dept 12-24-14




Supreme Court Should Not Have Denied Motion to Set Aside a Stipulation of Settlement Without a Hearing, Criteria Explained/Lower Court Properly Considered Issues Raised for the First Time in Plaintiff's Reply Papers Because Defendant Availed Himself of the Opportunity to Oppose the Contentions at Oral Argument


The Second Department determined Supreme Court should not have denied plaintiff's motion to set aside the stipulation of settlement without a hearing.  The court explained the analytical criteria.  (It is worth noting that the Second Department found that Supreme Court properly considered matters raised for the first time in plaintiff's reply papers because the defendant availed himself of the opportunity to oppose the contentions at oral argument.):


"Marital settlement agreements are judicially favored and are not to be easily set aside" ... . However, because of the fiduciary relationship existing between spouses, " [a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching'" ... .


"To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness" ... . " [N]o actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching . . . in its execution'" ... . "[C]ourts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching" ... . However, generally, if the execution of the agreement is fair, no further inquiry will be made ... . "[W]hile evidence that one spouse was not represented by counsel is insufficient, standing alone, to find overreaching, it is a significant consideration when determining whether the parties entered into the stipulation freely and fairly" ... . "[C]ourts have thrown their cloak of protection [over] separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity" ... . Jon v Jon, 2014 NY Slip Op 08961, 2nd Dept 12-24-14





Child Not Yet Born When Father Neglected Siblings Was Properly Found to Be Derivatively Neglected


The Second Department determined that a child who had not been born at the time father was found to have neglected two siblings was properly determined to be derivatively neglected by the father:


"In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists'" ... . If such a showing is made, " the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future'" ... .


Here, the conduct which formed the basis for the Family Court's finding that the father neglected the subject child's two older siblings was "so proximate in time to [this proceeding] that it can reasonably be concluded that the condition still exists" ..., and the father failed to complete the programs mandated by the prior order of disposition relating to the older siblings ... . Thus, ACS [Administration for Child Services] demonstrated that the father derivatively neglected the subject child, and because the father " failed to present any evidence to either rebut [ACS's] prima facie case or establish that the condition leading to [the] neglect finding as to the other child[ren] no longer existed,'" the derivative neglect finding was proper ... . Matter of Madison B..., 2014 NY Slip Op 08991, 2nd Dept 12-24-14





Petitioner, Who Was Not a Biological or Adoptive Parent of the Child, Was Adjudicated a Parent in a Support Proceeding Brought by the Respondent---Under the Doctrine of Judicial Estoppel, Petitioner Was Deemed a Parent in a Subsequent Custody/Visitation Proceeding Brought by the Petitioner


The Second Department determined a determination that petitioner (Arriago) was the child's parent in a support proceeding precluded the respondent (Dukoff) from arguing petitioner was not the child's parent in a subsequent custody/visitation proceeding.  Arriago and Dukoff were domestic partners in a same-sex relationship.  Arriago was artificially inseminated and gave birth to the child.  After successfully seeking child support from Arriago because Arriago was a parent of the child, Dukoff argued that Arriago did not have standing, as neither the biological or adoptive parent, to bring the custody/visitation proceeding.  Family Court disagreed and awarded Arriago visitation:


Dukoff ... argues that the court's conclusion that Arriaga had standing to commence this [custody/support] proceeding is contrary to the Court of Appeals' holdings in Debra H. v Janice R. (14 NY3d 576) and Matter of Alison D. v Virginia M. (77 NY2d 651). We disagree with Dukoff's contentions.


Domestic Relations Law § 70(a) provides, in part, that "either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and [the court] may award the natural guardianship, charge and custody of such child to either parent . . . as the case may require" (emphasis added). This statute has also been construed to grant standing to " either parent'" to apply for a writ of habeas corpus to determine the issue of visitation rights ... . In Debra H., the Court of Appeals reaffirmed its holding ...  that the term "parent" in Domestic Relations Law § 70 encompasses only the biological parent of a child or a legal parent by virtue of adoption and that a "de facto parent" or "parent by estoppel" could not seek visitation with a child who is in the custody of a fit parent (Debra H. v Janice R., 14 NY3d at 590 [internal quotation marks and emphasis omitted]...). In Debra H., however, the Court analyzed the significance of the civil union the parties had entered into in Vermont prior to the child's birth. The Court determined that, under Vermont law, a child born during a civil union was a child of both partners. Thus, it concluded, Debra H. was the child's parent under Vermont law. As a matter of comity, the Court recognized her as the child's parent under New York law as well, thereby conferring standing for her to seek visitation and custody at a best interests hearing (see Debra H. v Janice R., 14 NY3d at 601).


The Court of Appeals noted that recognizing Debra H. as a parent did not conflict with the public policy of New York and would not "undermine the certainty that Alison D. promises biological and adoptive parents and their children," since "whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent's legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage" (Debra H. v Janice R., 14 NY3d at 600-601). At the heart of the Court's reasoning in Debra H. was a desire to provide a bright-line rule affording certainty and predictability to parents and children. The Court expressed concern that an equitable estoppel hearing would create protracted litigation on the issue of standing.


In this proceeding, Arriaga asserts that she has standing as a parent of the child pursuant to the doctrine of judicial estoppel. Under that doctrine, " a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'" ... .


The concerns expressed by the Court of Appeals in Debra H. are not implicated in the present case, where Arriaga invoked the doctrine of judicial estoppel, not equitable estoppel. No hearing was required to decide whether the doctrine of judicial estoppel applies in this case, nor did the determination involve a "complicated" or "nonobjective test" (Debra H. v Janice R., 14 NY3d at 594). Just as in Debra H., whether Arriaga was adjudicated a parent of the child was "as determinable as whether there has been a second-parent adoption" (id. at 600).


Moreover, just as in second-parent adoptions, the adjudication of Arriaga as a parent of the child required the biological mother's affirmative legal consent, "as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage" (id. at 600-601). Indeed, here, Dukoff was the party who sought to have Arriaga adjudicated a parent. Although Dukoff did not consent to adjudicating Arriaga a parent of the child for the purposes of visitation rights, the biological mother in Debra H. also did not do so.  Matter of Arriaga v Dukoff, 2014 NY Slip Op 08990, 2nd Dept 12-24-14






Documents Explaining Reason for Mail-Watch Order Re: Inmate Exempt from Disclosure Pursuant to Public Officers Law


The Third Department determined the petitioner-inmate was not entitled to documents explaining why a mail-watch order was issued by the Department of Corrections mandating that the petitioner's mail be monitored for two months.  The requested documents were exempt from disclosure as "communications exchanged for discussion purposes not constituting final policy decisions:"


...[T]he withheld document constitutes inter- or intra-agency deliberative material, "i.e., communications exchanged for discussion purposes not constituting final policy decisions" (...see Public Officers Law § 87 [2] [g]...). The withheld document is a mail watch request and consists of "predecisional evaluations, recommendations and conclusions," and is accordingly exempt from disclosure pursuant to Public Officers Law § 87 (2) (g) ... . Matter of Ward v Gonzalez, 2014 NY Slip OP 08931, 3rd Dept 12-24-14






Failure to Notify Insured of Change in Coverage for Fire Insurance (In Violation of Insurance Law 3425 (d)) May Constitute a Deceptive Business Practice Under General Business Law 349


The Second Department determined that the insurer's (Quincy's) failure to notify the insured of a change in a the coverage afforded by a homeowner's policy (in violation of Insurance Law 3425 (d)) supported a cause of action for deceptive business practices under General Business Law 349. Quincy had notified the insured's broker of the change, but not the insured:


The elements of a cause of action to recover damages for deceptive business practices under General Business Law § 349 are that the defendant engaged in a deceptive act or practice, that the challenged act or practice was consumer-oriented, and that the plaintiff suffered an injury as a result of the deceptive act or practice ... . " Intent to defraud and justifiable reliance by the plaintiff are not elements of the statutory claim" ... . Conduct has been held to be sufficiently consumer-oriented to satisfy the statute where it constituted a standard or routine practice that was "consumer-oriented in the sense that [it] potentially affect[ed] similarly situated consumers" ... .


Here, Quincy's submissions failed to demonstrate, prima facie, that its failure to comply with the notice requirements set forth in Insurance Law § 3425(d) did not constitute a deceptive business practice. Quincy, in its submissions, admitted that it sought to change and reduce coverage by eliminating a particular endorsement to its New York homeowners' insurance policies, including the plaintiffs' insurance policy. Upon the plaintiffs' renewal of the policy, Quincy eliminated the endorsement, but failed to notify those insureds of that change in the manner prescribed by the Insurance Law. Moreover, the plaintiffs, who continued to seek full replacement costs in relation to the fire that destroyed their home, were clearly injured by the lack of notice that they were underinsured. Valentine v Quincy Mut Fire Ins Co, 2014 NY Slip Op 08984, 2nd Dept 12-24-14





Failure to Appear at an Examination Under Oath (EUO) Requires Denial of No-Fault Benefits---Failure to Appear Is a Breach of Condition Precedent in a No-Fault Policy


The First Department determined defendants were not entitled to no-fault benefits because their assignors did not appear at the scheduled examinations under oath (EUO):


This Court in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court's holding in Unitrin applies to EUOs ... . Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs ... . * * * Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs ..., plaintiff was not required to demonstrate that the assignors' nonappearances were willful ... . Allstate Ins Co v Pierre, 2014 NY Slip Op 08921, 1st Dept 12-23-14





If the Accident Was Staged by the Insured, the Insurer Would Not Be Required to Cover a Party Injured In the Collision, Even If that Party Was Not Involved in the Staging


Reversing Supreme Court, the Second Department determined that the insurer could disclaim coverage if the accident was staged by the insured (Robinson), even with respect to a party not shown to have been involved in the staging (Pontoon).  Here Robinson's vehicle side-swiped the vehicle in which Pontoon was a passenger:


Robinson's vehicle was covered under an automobile liability insurance policy issued by the proposed additional respondent Government Indemnity Company (hereinafter GEICO). Pontoon sought coverage for the incident from GEICO. GEICO disclaimed coverage on the ground, inter alia, that the collision was staged, and thus resulted from an intentional act. Pontoon then sought arbitration under the uninsured motorist provision of Nelson's policy, which was issued by Nationwide General Insurance Company (hereinafter Nationwide). Nationwide initiated this proceeding under CPLR article 75 seeking to permanently stay the arbitration on the ground that GEICO was required to provide coverage for Pontoon's injuries, and thus Robinson was not "uninsured." * * *


The referee incorrectly concluded that GEICO was required to submit evidence that Pontoon was involved in staging the collision in order to support a disclaimer of coverage. Contrary to the referee's conclusion, if GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party ... . Nationwide Gen Ins v Pontoon, 2014 NY Slip OP 09001, 2nd Dept 12-24-14






Summary Judgment Properly Granted in Labor Law 241 (6) Cause of Action/Although Not Demonstrated Here, the Court Noted that Comparative Negligence Is a Valid Defense to a Labor Law 241 (6) Action


The Second Department determined summary judgment was properly awarded to plaintiff in his Labor Law 241(6) cause of action. Plaintiff was impaled on an uncapped piece of vertical rebar.  (Although not the case here, the court noted that plaintiff's comparative negligence is a valid defense in a Labor Law 241 (6) action.):


Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed ... . The provision requires owners and contractors to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor ... . The particular safety rule or regulation relied upon by a plaintiff must mandate compliance with concrete specifications, and not simply set forth general safety standards ... . Comparative negligence is a valid defense to a Labor Law § 241(6) cause of action ... .


Here, the cause of action alleging a violation of Labor Law § 241(6) was predicated on Industrial Code § 23-1.7(e)(2) (12 NYCRR 23-1.7[e][2]), which provides that "floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed" (12 NYCRR 23-1.7[e][2]). Industrial Code § 23-1.7(e)(2) (12 NYCRR 23.17[e][2]) is sufficiently specific to support a cause of action to recover damages pursuant to Labor Law § 241(6) ... . However, it has no application where the object that caused the plaintiff's injury was an integral part of the work being performed ... .


Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6) by showing that there was a violation of 12 NYCRR 23-1.7(e)(2) and that such violation was a proximate cause of his injuries ... . In opposition, the defendants failed to raise a triable issue of fact as to their allegation that the uncapped rebar was an integral part of the work that was not subject to the cited regulation ..., or as to whether the plaintiff's own negligence contributed to the accident ... . Lopez v NYC Dept of Envtl Protection, 2014 NY Slip Op 08963, 2nd Dept 12-24-14





Questions of Fact Raised Re: Whether Plaintiff's Decedent's Brother and Plaintiff's Decedent Were Employees of the Defendants (Who Then May Be Liable Under the Doctrine of Respondeat Superior) or Independent Contractors


The Second Department determined a question of fact had been raised about whether the brother of plaintiff's decedent was defendants' employee or an independent contractor.  Defendants are the owners of a single family home who hired plaintiff's decedent's brother and plaintiff's decedent to cut down a tree on the property. Plaintiff's decedent was killed when he was thrown head-first into a tree during the tree-felling process. Plaintiff's decedent sued defendants under negligence, violation of Labor Law sections 200 and 240, and wrongful death theories.  Plaintiff's decedent sought to hold defendants liable under the doctrine of respondeat superior (as the employer of decedent's brother, who negligently performed his work, causing plaintiff's decedent's death). Plaintiff's decedent and his brother were hired by the defendants at the suggestion of a mason, Cano, who worked for the defendants.  Cano relayed defendants' instructions concerning the tree removal to plaintiff's decedent's brother:


"The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts" ... . "The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration" ... . Whether a party is an independent contractor or an employee is usually a factual issue for a jury ... .


The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since the evidence they submitted in support of their motion did not demonstrate the absence of any triable issues of fact ... . In support of their motion, the defendants submitted the deposition transcript of the decedent's brother, who testified that the defendant Sean Jencik, in addition to specifying which trees were to be removed, provided instructions as to how the work was to be performed so that the trees would not fall on to the roadway, which were conveyed to him in Spanish through Cano. Moreover, the decedent's brother testified that the defendants gave the money to pay him and the other workers involved with the tree removal to Cano, who then paid them. Sirignano v Jencik, 2014 NY Slip Op 08977, 2nd Dept 12-24-14







Supreme Court Erred In Refusing to Appoint a Guardian---However, Petitioner Was Not the Appropriate Choice for the Guardian


Reversing Supreme Court, the Second Department determined the appointment of a guardian for Mae R, who was 91, was necessary. The Second Department further found that the petitioner was not the appropriate choice for a guardian.  [In addition, the court noted that, in absence of bad faith, it was an abuse of discretion for Supreme Court to order petitioner to pay the fees for the court evaluator and appointed attorney.]  The court explained the relevant law and the facts:


Under Mental Hygiene Law article 81, a court may appoint a guardian for a person or a person's property upon determining, by clear and convincing evidence, that the requirements of article 81 have been met (see Mental Hygiene Law §§ 81.02[a][2], 81.12[a]...). Before a court may appoint a guardian, it must determine (1) that a guardian is "necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person"; and (2) that "the person agrees to the appointment, or that the person is incapacitated" within the meaning of the statute (Mental Hygiene Law § 81.02[a][1], [2]...). The statute specifies the relevant considerations and issues in the determination of the need for a guardian, and expressly requires that the court consider the report of the court evaluator (see Mental Hygiene Law § 81.02[a]) and the "sufficiency and reliability of available resources" that may satisfy the needs of the proposed ward without requiring the appointment of a guardian (Mental Hygiene Law § 81.02[a][2]...). Even where the court finds that appointment of a guardian is necessary, it is not required to appoint the person proposed by the petitioner ... .


Here, contrary to the Supreme Court's determination, which rejected the recommendation of the court evaluator, the petitioner demonstrated by clear and convincing evidence that Mae R. is an incapacitated person as defined in Mental Hygiene Law § 81.02(b). The evidence at the hearing established that Mae R., a 91-year-old woman who presently resides by herself in her two-family home in Queens, is likely to suffer harm because she is unable to provide for her personal needs and manage her property, and does not adequately understand and appreciate the nature and consequences of her limited abilities (see Mental Hygiene Law § 81.02[b][1], [2]...).


The evidence established, among other things, that, until recently, Mae R. managed her person and property with the daily assistance of a tenant who previously resided with her, and Mae R.'s grandniece, both of whom testified at the hearing and were interviewed by the court evaluator. The evidence further established that, subsequently, Mae R. executed a health care proxy and power of attorney in favor of a neighbor, and a last will and testament bequeathing her entire estate to this neighbor, who procured the attorney who drafted the alleged directives and testamentary instrument. At an interview with the court-appointed evaluator, however, Mae R. did not recall issuing the directives and testamentary instrument. Indeed, she told the court-appointed evaluator that she wished to leave her estate to family members. Further, witnesses at the hearing had heard Mae R. say that the same neighbor "makes me say things I don't mean and then I forget." Matter of Loftman ..., 2014 NY Slip Op 08998, 2nd Dept 12-24-14





"Detained Sex Offender," Under Article 10, Applies Equally to Lawfully and Unlawfully Detained Sex Offenders

In the course of affirming the finding that appellant was a dangerous sex offender who must be civilly confined, the Second Department noted that Article 10 of the Mental Hygiene Law, which applies to "detained sex offenders," applies equally to lawfully and unlawfully detained sex offenders.  The court went on to briefly describe the relevant analytical criteria and proof burden:


The appellant's contention that this proceeding was "jurisdictionally flawed" because he did not meet the definition of a detained sex offender is without merit. The appellant was incarcerated upon his conviction of attempted sodomy in the first degree pursuant to Penal Law § 110.00 and former Penal Law § 130.50 at the time that this proceeding was commenced (see Mental Hygiene Law § 10.03[g][1]). The Court of Appeals has made it clear that the statutory language of Mental Hygiene Law article 10 does not distinguish between lawfully and unlawfully detained sex offenders ... . * * *


A "dangerous sex offender requiring confinement" is defined under Mental Hygiene Law article 10 as "a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (Mental Hygiene Law § 10.03[e]). The State must establish by clear and convincing evidence that the appellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f]). Matter of State of New York v Abdul A, 2014 NY Slip OP 09006, 2nd Dept 12-24-14






Requirements for Common Law Indemnification and Contribution Causes of Action Explained


The Second Department, in the context of a legal malpractice action, explained the requirements for common law indemnification and contribution.  The motions to dismiss at issue were brought by the third-party defendant law firm (M & S) against the third-party plaintiff law firm (Danna).  The Second Department determined Danna's common law indemnification cause of action should have been dismissed because Danna's alleged liability was not purely vicarious and Danna's contribution action properly survived dismissal because Danna alleged M & S's legal malpractice contributed to plaintiff's damages:


"The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" ... . "Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious" ... . "Thus, a party which has actually participated in the wrongdoing is not entitled to indemnification" ... . Here, the plaintiffs' claims against the Danna defendants in the instant legal malpractice action are based upon the Danna defendants' representation of the plaintiffs in an accounting proceeding they commenced in the Superior Court of New Jersey (hereinafter the New Jersey proceeding). * * * ...[T]he documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.


As to the contribution cause of action, " [i]n determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff's damages'" ... . " [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors'" ... . "A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney's negligence may have contributed to or aggravated the plaintiff's injuries" ... . Contrary to M & S's contentions, the Supreme Court properly denied those branches of its motion which were pursuant to CPLR 3211(a) to dismiss the contribution cause of action in the third-party complaint insofar as asserted against it, since the defendants third-party plaintiffs properly stated a cause of action alleging that M & S's legal malpractice contributed to the plaintiff's damages, and documentary evidence did not conclusively establish a complete defense to that cause of action... . Bivona v Damma & Assoc PC, 2014 NY Slip Op 08947, 2nd Dept 12-24-14





Evidence of General Cleaning Practices Is Not Sufficient to Demonstrate the Absence of Constructive Notice


The Second Department noted that the absence of construction notice of a dangerous condition in a slip and fall case cannot be demonstrated by evidence of general cleaning procedures, as opposed to specific evidence when the area in question was inspected and cleaned:


In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ... . With respect to the issue of constructive notice, to meet its initial burden, "the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ... . Sesina v Joy Lea Realty LLC, 2014 NY Slip OP 08976, 2nd Dept 12-24-14





Questions of Fact Re: Whether School Owed Duty of Care to Student Struck by a Car While Playing Tag Five Minutes Before School Began and Whether a Breach of that Duty Proximately Caused the Injury


The First Department determined there were issues of fact raised concerning the school's duty to the plaintiff, an eighth grade student, after he was discharged from a school bus five minutes before school began.  The student was struck by a car when he darted or was pushed into the street while playing tag:


Although the driver of the car was not negligent in causing the accident ..., the record presents issues of fact as to whether defendant [board of education] owed a duty of care to protect the infant plaintiff from traffic hazards after he was discharged by the school bus in front of the school, five minutes before the school day would begin ..., and whether that duty was breached by the school's failure to provide adequate safety measures, such as traffic barricades, proximately causing the injury ... . Mamadou S v Feliciano, 2014 NY Slip OP 08909, 1st Dept 12-23-14





Questions of Fact Raised About Whether Student Assumed the Risk of Injury from Indoor Soccer Practice--Relevant Law Discussed In Some Depth


The Second Department reversed Supreme Court's grant of summary judgment to the school finding that questions of fact had been raised about whether plaintiff-student assumed the risk of injury.  Because it was raining, soccer practice was held indoors.  As part of the indoor practice, plaintiff was asked to sprint down a hallway and was told the loser in each pair of sprinters would be required to run laps up and down stairs.  Plaintiff was injured when she was unable to stop after passing the finish line and struck her head on the wall just beyond the finish line:


The doctrine of primary assumption of risk is not a defense based on a plaintiff's culpable conduct, but, rather, is a measure of the defendant's duty of care to participants in certain types of athletic or recreational activities ... . "Under this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk'" ... . "Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed him [or her] by others, the plaintiff's consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist" ... .


"As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" ... . Here, there is no dispute that the infant voluntarily participated on her school's soccer team, a sponsored athletic activity.


"Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, 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" ... .


"...[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport" ... . * * *


..."[T]the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased" ... . "[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" ... .


"[A] board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks" ... . Braile v Patchogue Medford School Dist of Town of Brookhaven, 2014 NY Slip OP 08949, 2nd Dept 12-24-14





Emergency Doctrine Does Not Apply Where Party Invoking It Contributed to the Creation of the Emergency


The Second Department affirmed Supreme Court's ruling that the emergency doctrine did not apply to the defendant (Smith). Defendant crossed over the grassy median from the southbound lane striking plaintiff's vehicle in the northbound lane. Defendant argued that the emergency doctrine applied because defendant's vehicle was struck from behind, causing it to leave its lane of traffic.  The Second Department determined the emergency doctrine did not apply because defendant contributed to the rear-end collision by slowing down without signaling at a time when defendant was aware the vehicle behind was tail-gating:


...[T]he defendants failed to raise a triable issue of fact as to whether the emergency doctrine applied ... . The emergency doctrine is not a defense available to the defendants because the emergency condition was partially created by Smith's disregard of existing traffic conditions ... . Smith had a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision ... . At his deposition, Smith admitted that he was aware that the unidentified vehicle had been tailgating him for about 10 to 20 seconds. Despite being aware that he was being tailgated on a highway, he deliberately slowed his vehicle by disengaging the cruise control without proper signaling. Then, the unidentified vehicle hit the rear of his vehicle. Under these circumstances, it was foreseeable that slowing down without proper signaling could result in a rear-end collision. Accordingly, as Smith contributed to the creation of the emergency situation, the emergency doctrine is not applicable. Pearson v Northstar Limousine Inc, 2014 NY Slip Op 08968, 2nd Dept 12-24-14





2 1/2 Year Delay In Correcting Location of the Slip and Fall Described in the Notice of Claim Prejudiced the Defendant/Motion for Leave to File an Amended Notice Properly Denied


The Second Department determined plaintiffs' motion to amend the notice of claim to change the location of the accident (slip and fall on ice and snow) was properly denied. Although the error was not made in bad faith, the 2 1/2 year delay in correcting the error prejudiced the defendant town agency:


Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby ... . Here, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the "walkway/pathway" in front of 595 Smith Street, East Farmingdale, rather than the correct location, the "roadway/parking lot" at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation ... . The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim ... . Torres v Town of Babylon, 2014 NY Slip Op 08901, 2nd Dept 12-24-14



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