NEGLIGENCE

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Defendant Shoveled Sidewalk and Snow Piled on Either Side Melted/Question of Fact Whether Defendant Created the Dangerous Condition Resulting from Subsequent Freezing of Melted Snow

 

The Second Department determined a question of fact existed about whether defendant created the hazardous condition (ice on a sidewalk) which caused plaintiff to fall.  Defendant testified she shoveled the sidewalk which left one-foot high piles of snow on either side of the sidewalk.  She also testified that she observed the piles of snow melting.  The temperature subsequently fell below freezing and was below freezing at the time of the accident:

 

The defendant, as the property owner, failed to establish as a matter of law that her snow removal activities did not create the allegedly hazardous icy condition which resulted in the plaintiff's injuries … . The defendant's submissions failed to eliminate all triable issues of fact as to whether the ice upon which the plaintiff slipped was formed when snow piles created by the defendant's snow removal efforts melted and refroze … . Viera v Rymdzionek, 2013 NY Slip Op 08615, 2nd Dept 12-26-13

 

 

NEGLIGENCE/TOXIC TORTS

 

 

No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

 

The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case.  Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment:

 

To raise a triable issue of constructive notice, plaintiff was required to show "that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants' awareness that paint was peeling in the apartment.  Cunningham v Keehfus, 516733, 3rd Dept 12-26-13

 

The Third Department affirmed the same result in another lead-paint exposure case:

 

Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in the basement apartment, had the right to enter the apartment to make repairs, and did so.  However, he testified that he "didn't know anything about lead poisoning" before the October 1990 inspection, did not remember peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the building before he purchased it.   This testimony was sufficient to establish on a prima facie basis that defendant did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish triable issues of fact… .

 

…[T]he record includes no evidence that the prior owner told defendant about the building's previous lead problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his education and reading skills were limited – was sophisticated in the ownership and maintenance of rental properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues … Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd Dept 12-26-13

 

 

 

NEGLIGENCE

 

 

Homeowner Did Not Create Dangerous Condition (Wet Leaves on a Slope)/Condition Was Open and Obvious (No Duty to Warn)

 

The Third Department affirmed the grant of summary judgment to the defendants homeowners in a slip and fall case.  Plaintiff, who was following the homeowner as they walked around the house counting windows, slipped on a slope adjacent to the house which was covered with wet leaves.  The court determined defendants did not create the hazardous condition and had no duty to warn of the condition:

 

"Generally, landowners both owe a duty to exercise reasonable care in maintaining their property in a reasonably safe condition and have a duty to warn of a latent, dangerous condition of which the landowner is or should be aware" … . However, the landowner's duty to warn "does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses" … .  As the movants, defendants were required to "make a prima facie showing of entitlement to judgment as a matter of law" … .

 

Defendants satisfied their threshold burden, as the moving parties, by establishing … that they exercised reasonable care by maintaining the premises year round and in a seasonally appropriate manner, and that they did not create the condition, which occurred as a result of natural seasonal changes.  Notably, plaintiff's fall did not occur on a pathway, walkway or driveway but, rather, on the surface of the ground along the side of the house on the unaltered natural contour of the land in an area that was exposed to the elements; it was not foreseeable that someone would traverse on this obviously slippery terrain so as to impose an obligation on the owners to take precautions such as clearing the ground area of leaves and debris … .

 

Moreover, defendants' proof established that the slippery condition of the leaf and debris-covered natural, unimproved downward slope was an open and obvious hazard, as opposed to a latent or concealed one, in that the danger "could not be overlooked by any observer reasonably using his or her ordinary senses"…. . Freeese v Bedford, 516863, 3rd Dept 12-26-13

 

 

 

NEGLIGENCE

 

 

Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply

 

The Fourth Department, over a two-justice dissent, affirmed the grant of summary judgment to defendant restaurant owner.  A chair at the restaurant collapsed when plaintiff sat down.  The court determined the defendant did not have constructive notice of the condition of the chair and the doctrine of res ipsa loquitur did not apply:

 

The duty of a property owner to inspect his or her property “is measured by a standard of reasonableness under the circumstances” … .  Here, defendant testified that she wipes down the chairs at the end of each day and that, “every month or so,” she performs a “major cleaning” of the restaurant, which includes an inspection of the chairs.  In the absence of any prior complaints, incidents, accidents, or any other circumstances that should have aroused defendant’s suspicion that the chairs were defective …, we conclude that plaintiffs failed to raise a triable issue of fact concerning the reasonableness of defendant’s inspection practices, and thus whether defendant had constructive notice of the alleged defective condition of the chair.

 

We reject plaintiffs’ alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies.  That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff’s injuries,” i.e., the chair… . Catalano v Tanner, 1087, 4th Dept 12-27-13

 

 

 

NEGLIGENCE

 

 

Res Ipsa Loquitur Cause of Action Should Not Have Been Dismissed/Question of Fact About Whether Handrail Which Came Loose Was In Exclusive Control of Defendant

 

The Fourth Department determined Supreme Court should not have granted defendant’s motion for summary judgment on plaintiff’s res ipsa loquitur case of action.  Plaintiff was injured when a handrail came loose from the wall in her apartment building:

 

Supreme Court … erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant established as a matter of law that it did not have exclusive control of the handrail, i.e., one of the necessary conditions herein for the applicability of the doctrine of res ipsa loquitur ….  We conclude that plaintiff raised an issue of fact whether the handrail was in the exclusive control of defendant, and thus that the court erred in granting defendant’s motion … .  …

 

“The exclusive control requirement . . . is that evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it . . . The purpose is simply to eliminate within reason all explanations for the injury other than defendant’s negligence” … .  Here, plaintiff established that access to the internal stairway is limited to the residents of the three units in the building and defendant’s maintenance staff …, and a former maintenance staff person testified that railings in other buildings had become loose and were tightened as needed.  We therefore conclude that plaintiff raised an issue of fact “that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it”… . Herbst v Lakewood Shores Condominium Association, 1337, 4th Dept 12-27-13

 

ANIMAL LAW

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

 

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

 

No court has found that a dog's growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog's vicious propensities … . Here, the evidence, which establishes only that defendant's dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog's vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

 

NEGLIGENCE/MUNICIPAL LAW

 

No Special Duty Owed to Claimant/County Clerk Cannot Be Sued For Failure to Properly Docket a Judgment

 

In a full-fledged opinion by Justice Angiolillo, the Second Department determined that the County Clerk could not be sued by a judgment debtor based on the clerk’s failure to properly docket a judgment.  The court held that no special duty of care was owed by the municipality to the claimant, and therefore it was unnecessary to address the “sovereign immunity” and “discretionary” versus “ministerial” issues:

 

A "special duty" is "a duty to exercise reasonable care toward the plaintiff," and is "born of a special relationship between the plaintiff and the governmental entity" (Pelaez v Seide, 2 NY3d 186, 189, 198-199; see McLean v City of New York, 12 NY3d at 199).

 

"A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez v Seide, 2 NY3d at 199-200; see McLean v City of New York, 12 NY3d at 199). * * *

 

To satisfy the first and second prerequisites, the claimant must be "one of the class for whose particular benefit the statute was enacted," and it must be shown that "recognition of a private right of action would promote the legislative purpose" of the governing statutes … . A determination that these two prerequisites are met here would require us to conclude that the class for whose particular benefit the governing statutes were enacted comprises judgment creditors, and that the legislative purpose of the statutory scheme was to make judgment creditors whole for their losses. This is simply not the case. * * *

 

In any event, even if the first two prerequisites have been met, the third one has not. "[T]he most critical inquiry in determining whether to recognize a private cause of action where one is not expressly provided is whether such action would be consistent with the over-all legislative scheme" … . A private right of action for a new type of claim should not be judicially recognized by implication "where the statutes in question already contain[ ] substantial enforcement mechanisms, indicating that the Legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted" … . The judgment lien created by CPLR 5018 and 5203 is simply one weapon in the "arsenal of enforcement mechanisms under CPLR article 52" provided to judgment creditors… .  Flagstar Bank FSB v State of New York, 2013 NY Slip Op 08592, 2nd Dept 12-26-13

 

 

MUNICIPAL LAW

 

Imposition of a Recreation Fee on New Construction In Lieu of Land for a Park Was Proper Pursuant to Town Law 277

 

The Fourth Department determined Supreme Court should not have annulled the town’s imposition of a recreation fee upon each apartment and townhouse in a subdivision plat, in lieu of land for a park, pursuant to Town Law 277:

 

Inasmuch as the Court of Appeals has rejected the notion that section 277 (4) is a “taxing” statute …, we must decide whether respondent’s determination that the Town needs “additional funds to develop parks and recreational facilities,” not additional land, is consistent with the legislative purpose of that statute.  The Court of Appeals has recognized that section 277 (4) “ ‘represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities’ ” … .  In that vein, section 277 (4) (b) provides that a set-aside of land for a park or other recreational purposes may be required if the planning board has made a finding that a proper case for such land exists.  That section further provides that “[s]uch findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which the particular subdivision plat will contribute” (id. [emphasis added]).  Section 277 (4) (c) provides that, in the event the planning board determines that a park may not be suitably located on the subdivision plat, “[a]ny monies required by the planning board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property” (emphasis added).

 

Here, the court concluded that the assessment of recreation fees was unjustified because respondent found that the Town did not need more recreational land.  As noted, however, Town Law § 277 (4) provides that concern over population demand for additional recreational facilities and the unsuitability of the plat at issue may justify the assessment of recreation fees.  Furthermore, contrary to petitioners’ contention, the application of section 277 involves a town-based review, not a plat-based review.  We thus conclude that the court erred in determining that respondent acted irrationally in imposing the recreation fees at issue… . Matter of Legacy at Fairways LLC… v Planning Board of Town of Victor, 1063, 4th Dept 12-27-13

 

 

TRUSTS AND ESTATES

 

No Rigid Formula for a Constructive Trust

 

The Second Department determined that a petition seeking to impose a constructive trust on an IRA properly survived a motion for summary judgment. The petitioners are the children of James (now deceased) and the former beneficiaries of James’ Oppenheiner Funds IRA.  The respondent, Holbrook, is the executor of the estate of James’ second wife (the decedent) and the current beneficiary of the Oppenheimer IRA.  The petitioners alleged that, in return for James’ naming the decedent the beneficiary of the Oppenheimer IRA, the decedent promised to sign a consent form making petitioners the beneficiaries of another IRA.  The petitioners alleged that, when presented with the consent form, the decedent refused to sign it:

 

…[T]he petition seeking to impose a constructive trust adequately states a cause of action to impose a constructive trust on the proceeds of the Oppenheimer Funds IRA. "The usual elements of a constructive trust are (1) a confidential or fiduciary relation[ship], (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment'" … . However, these factors "are not an unyielding formula which limits a court's freedom to fashion this equitable remedy' and the requirements are not to be rigidly applied" … . Thus, a constructive trust "will be erected whenever necessary to satisfy the demands of justice" … .

 

Here, the marital relationship between James and the decedent provides the necessary confidential relationship …. . The petitioners have sufficiently alleged a promise by the decedent, a change in beneficiary of the Oppenheimer Funds IRA to the decedent in reliance upon that promise, and the decedent's, and then Holbrook's, unjust enrichment therefrom. Contrary to Holbrook's contention, the petitioners possessed a sufficient interest as the previously designated beneficiaries of the Oppenheimer Funds IRA to seek to impose a constructive trust on the proceeds … . Matter of Harold, 2013 NYSlip Op 08629, 2nd Dept 12-26-13

 

 

 

TRUSTS AND ESTATES

 

 

Relatives of Persons Buried in Defendant Cemetery Could Not Sue As Beneficiaries of the Charitable Trust Set Up to Ensure Perpetual Care of the Cemetery Plots

 

In a full-fledged opinion by Justice Saxe, the First Department determined that the relatives of persons buried in defendant cemetery did not have standing to sue as beneficiaries of a charitable trust which was supposed to ensure perpetual care of the cemetery plots.  [However, one of the plaintiffs, who himself was a donor to the charitable trust, did have standing to sue:]

 

EPTL article 1, which governs charitable trusts, specifically includes trusts for the perpetual care of graves: "Dispositions of property in trust for the purpose of the perpetual care ... of cemeteries or private burial lots in cemeteries ... shall be deemed to be for charitable and benevolent purposes" (EPTL 8-1.5). The statute directs the State Attorney General to protect and enforce the interests and rights of the beneficiaries: "The attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts" (EPTL § 8-1.1[f] [emphasis added]). "The obvious purpose of this provision was to provide a mechanism for enforcement of trusts whose beneficiaries were unascertainable" … . * * *

 

… [A]llowing relatives to bring lawsuits as to each lot, plot or grave could create endless litigation, substantially depleting the trust assets. Enforcement of the subject charitable trusts is therefore best left to the Attorney General, so as not to expose the trust funds to money-draining multiple lawsuits, and to avoid setting a precedent of allowing a broad, vague beneficiary base to commence multiple actions against a charitable trust. Lucker v Bayside Cemetary, 2013 NY Slip Op 08835, 1st Dept 12-31-13

 

 

LAND USE

 

Petitioners Did Not Have Standing to Challenge Construction of Shopping Mall/No Showing of Unique Environmental Injury

 

The Second Department determined that members of a “Neighborhood Preservation Coalition” did not have standing to challenge the construction of a shopping mall.  The petitioners lived approximately 1300 to 2000 feet away from the proposed construction site:

 

Contrary to the petitioners' contention, the Supreme Court properly concluded that they lacked standing. " [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at …large'" … . Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone … . Further, the individual petitioners' allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course… . Matter of Riverhead Neighborhood Preserv Coalition Inc v Town of Riverhead Town Bd, 2013 NY Slip Op 08640, 2nd Dept 12-26-13