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August Part I

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



Walkway Defect Trivial as a Matter of Law


In finding a one-half inch defect in a walkway was trivial as a matter of law (in a slip and fall case), the Second Department explained the legal principles as follows:


"[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury" … . However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . "In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury'" … . "[T]here is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" … . "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" … .  Schiller v St Francis Hosp Roslyn NY, 2013 NY Slip Op 05521, 7-31-13



Verdict Set Aside as Irreconcilably Inconsistent (Jury Found Defective Sidewalk Was Not Proximate Cause of Plaintiff’s Fall)


The Second Department, over a dissent, set aside a verdict in a slip and fall case which found that the defendant’s (City of New York’s) negligence was not the proximate cause of the fall.  Plaintiff fell on a portion of sidewalk which “was all patched” and which had “a hole in it.”  The court explained:


A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors … . Where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence … . 


Contrary to the contention of the defendant City of New York, the plaintiff sufficiently identified the sidewalk defect which allegedly caused her fall … . Under the circumstances of this case, for the jury to find the City negligent for failing to repair a sidewalk defect while on notice of its existence, yet to find that this negligence was not a proximate cause of the plaintiff's injuries, was contrary to the weight of the evidence and irreconcilably inconsistent… .  Wallace v City of New York, 2013 NY Slip Op 05523, 2nd Dept 7-31-13



No Liability for Third Party Attack Inside Apartment Building/No Evidence Defendant Aware of Alleged Door-Lock Defect


The First Department determined the defendant Housing Authority could not be held liable for a criminal attack inside plaintiff’s apartment building absent proof the entry door lock was defective (and defendant had actual or constructive knowledge of the defect) or that defendant knew the door could be opened without a key:


While an assault on a young victim is most disturbing, a possessor of land is not an insurer of the safety of those who come onto its premises … . It remains that plaintiff's injuries were the immediate and proximate result of a criminal attack committed by third parties, for whose actions the landlord is not responsible absent a failure to provide "even the most rudimentary security" of an entry door lock … . In the absence of proof that the Housing Authority contributed to the injuries sustained by plaintiff, a visitor to its premises, by failing to timely repair a "visible and apparent" defect in its front-door lock, no liability can be imposed … .  Batista v City of New York, 2013 NY Slip Op 05502, 1st  Dept 7-30-13






Family Court Should Have Granted Change-of-Custody Petition


The Second Department determined Family Court erred in not granting father’s petition for a modification of a custody arrangement. Father was awarded temporary custody while the mother dealt with abuse or neglect allegations which were eventually determined to be “unfounded.”  The father then petitioned for sole residential custody:


The evidence presented at the hearing on the father's petition established that, while living with the father …, the child, who has special needs, had thrived both at home and in school. It would be disruptive to remove the child from the father's house and his established routine … . Moreover, the father is ensuring that the child maintains a strong and continuing relationship with the mother. The continuation of a liberal visitation schedule will provide the mother with a meaningful opportunity to maintain a close relationship with the child … . We note that the attorney for the child supports the award of sole residential custody of the child to the father… .  Matter of Ellis v Burke, 2013 NY Slip Op 05524, 2nd Dept 7-31-13



Money Available to Father from Relatives for Children’s College Expenses Should Have Been Considered in Allocating those Expenses between Mother and Father


The Second Department determined the Support Magistrate’s failure to take into account money received by the father from relatives for the children’s college required the case to be remitted to determine father’s and mother’s shares of the college expenses:


In determining a parent's child support obligation, a court need not rely upon a party's own account of his or her finances, but may impute income on the basis of the party's past income or earning capacity …, or on the basis of "money, goods, or services provided by relatives and friends" (Family Ct Act § 413[1][b][5][iv][D]…). "A Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent" …, and we accord deference to a support magistrate's credibility determinations … . However, "a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion" … . 


While the record supports the conclusion that the mother should share in the college expenses of the subject children, the Support Magistrate improvidently exercised her discretion by failing to impute additional income to the father for money he received from his family for the subject children's college expenses. The father's testimony established that the funds he received from his family to pay for the subject children's college expenses were not loans that he was obligated to repay. Thus, the mother's objections to so much of the order … as directed her to pay the father the principal sum of $28,210.02 in arrears for college expenses and to pay for 67% of the subject children's future college expenses should have been granted… .  Matter of Kiernan v Martin, 2013 NY Slip Op 05527, 2nd Dept 7-31-13



Income of Mother’s Cohabiting Fiance Should Not Have Been Considered in Determining Mother’s Entitlement to Assigned Counsel


In finding mother was deprived of her right to counsel in a guardianship proceeding, the Second Department determined the income of mother’s cohabiting finance should not have been considered:


…[T]he Family Court erred in considering the income of the mother's cohabiting fiancé in making a determination as to whether she was needy and, therefore, entitled to appointment of counsel …. Furthermore, nothing in the record supports a finding that the mother waived her right to counsel … . Thus, the mother was deprived of her right to counsel (see Family Ct Act § 262[a][v]…).  Matter of Angel L, 2013 NY Slip Op 05528, 2nd Dept 7-31-13






Absence of 90-Day Demand to Serve a Note of Issue Precluded Dismissal of Lawsuit Based on Gross Laches (12-Year Delay)


In a full-fledged opinion by Justice Chambers, the Second Department determined that the doctrine of laches was not available to dismiss a pre-note-of-issue case which had been dormant for 12 years.  In this slip and fall case, the incident occurred in 1992, issue was joined, plaintiffs served a bill of particulars, but plaintiffs failed to appear at a June 1996 status conference. The action was “marked off” the calendar and later marked “disposed.”  In October, 2008, the plaintiffs moved restore the action to the active pre-note-of-issue calendar. Supreme Court denied the motion to dismiss based on laches “concluding that it lacked the power to dismiss the … complaint.”  The Second Department affirmed, explaining:


At the outset, we note that we summarized the law applicable to the issue in this case in Lopez v Imperial Delivery Serv. (282 AD2d 190), where we explained the interplay among three case management devices: CPLR 3404, 22 NYCRR 202.27, and CPLR 3216. In Lopez, we made clear that none of these devices applies to a pre-note-of-issue case where, as here, there has been no order dismissing the complaint pursuant to 22 NYCRR 202.27, and the defendant has never made a 90-day written demand on the plaintiff to serve and file a note of issue pursuant to CPLR 3216… . In this case, the [defendant] attempts to avoid the holding in Lopez by relying on the doctrine of laches as the basis for dismissing the complaint. * * *


…[T]he Court of Appeals concluded in Airmont Homes that dismissal for either gross laches or failure to prosecute was not available in the absence of compliance with CPLR 3216 (see Airmont Homes v Town of Ramapo, 69 NY2d at 902). To allow dismissal under the circumstances of this case based on the doctrine of laches would be tantamount to permitting dismissal for general delay, which the courts lack inherent authority to do, and which is inconsistent with the legislative intent underlying CPLR 3216 [which requires a 90-day demand to serve and file a note of issue]. …


Although an extensive delay in prosecuting an action may, at times, prejudice a defendant's ability to defend against a suit, a defendant has the statutory means of avoiding such prejudicial delay by serving a 90-day demand … . Laches, which is an equitable doctrine, does not provide an alternate route to dismissal where a defendant has not served the 90-day demand statutorily required to prompt resumption of the litigation … .  Arroyo v Board of Educ of City of NY, 2013 NY Slip Op 05507, 2nd Dept 7-31-13



Absence of Adequate Reason for Errata Sheet (CPLR 3116(a)) Altering Deposition Testimony Precluded Its Acceptance


Plaintiff was injured when he fell while using a ladder at the plumbing business where he worked. The ladder was owned by plaintiff’s employer and the property was owned by an out-of-possession landlord.  During his deposition, plaintiff said he had no idea why the ladder slid out from under him when he attempted to step on a shelf.  In reversing Supreme Court and dismissing the complaint, the Second Department determined plaintiff’s post-deposition errata sheet could not be considered in opposition to the defendant’s motion for summary judgment because plaintiff did not provide an adequate reason for the alteration of his deposition testimony:


In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been "nervous" during his deposition. CPLR 3116(a) provides that a "deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them." Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall… . In the absence of the proposed alterations, the injured plaintiff's deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment. Likewise, in opposition to the defendants' prima facie showing that the trust was an out-of-possession landlord with no duty to repair or maintain the ladder or the floor, the plaintiffs failed to raise a triable issue of fact. Ashford v Tannenhauser, 2013 NY Slip Op 05508, 2nd Dept 7-31-13



Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act


The Third Department, over a dissent, declined to follow the Second Department in its application of CPL 440.46 (Drug Law Reform Act).   The defendant was eligible to apply for resentencing based upon his offense, but, under the sentence defendant was serving at the time of his application for resentencing, he was not entitled to a merit time allowance pursuant to the Correction Law.  The Third Department determined defendant was eligible to apply for resentencing:


 Although defendant, having been sentenced pursuant to his drug offense convictions as a persistent felony offender, is serving a sentence that would preclude him from earning merit time pursuant to Correction Law § 803 (see Correction Law § 803 [1] [d] [ii]; Penal Law § 70.10 [2]), he was not convicted of an "offense for which a merit time allowance is not available" (CPL 440.46 [5] [a] [ii] [emphasis added]; see Penal Law §§ 10.00 [1]; 220.39).  This distinction is significant.  The Penal Law states:


"'Offense' means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same" (Penal Law § 10.00 [1]).  


Defendant's offense and his sentence are thus two separate components that we decline to conflate for purposes of depriving an otherwise eligible person of the benefits of the remedial legislation that we are tasked with interpreting here.  To the extent that the Second Department held to the contrary in People v Gregory (80 AD3d 624 [2011], lv denied 17 NY3d 806 [2011]), we decline to follow that case.  Accordingly, we find that defendant is eligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009, and County Court erred in denying defendant's motion.  People v Coleman, 104851, 3rd Dept 8-1-13






DNA Reports Did Not Violate Right to Confrontation/Reports Admissible as Business Records

In finding DNA-profile reports generated by the City of New York’s Medical Examiner did not violate defendant’s right to confrontation, the Second Department wrote:

The reports contained no conclusions, interpretations, comparisons, or subjective analyses, and "consisted of merely machine-generated graphs" and raw data … . Accordingly, the reports were not "testimonial" in nature … . 
Further, a foundation for the admission of these reports as business records was established through the testimony of an assistant director employed by the Office of the Chief Medical Examiner of the City of New York (see CPLR 4518[a]…), who also conducted the actual analysis and interpretation of the data contained in the reports at issue.  People v Fucito, 2013 NY Slip Op 05538, 2nd Dept 7-31-13





16-Ounce “Portion Cap Rule” for Sugary Drinks Invalid


In a full-fledged opinion by Justice Renwick, the First Department determined the “portion cap rule” (limiting the volume of certain “sugary drink” products to 16 ounces) was invalid because the Board of Health “overstepped the boundaries of its lawfully delegated authority” when it promulgated the rule.  In so finding, the First Department applied the analysis used by the Court of Appeals in Boreali v Axelrod, 71 NY2d 1 (1989):


We must … examine whether the Board of Health exceeded the bounds of its legislative authority as an administrative agency when it promulgated the Sugary Drinks Portion Cap Rule. Boreali illustrates when the "difficult-to-demarcate line" between administrative rulemaking and legislative policymaking has been transgressed. In Boreali, the PHC [Public Health Council] promulgated regulations prohibiting smoking in a wide variety of public facilities following several years of failed attempts by members of the state legislature to further restrict smoking through new legislation. Boreali found the regulations invalid because, although the PHC was authorized by the Public Health Law to regulate matters affecting the public health, "the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be" (id. at 9). Boreali relied on four factors in finding that the PHC's regulations were an invalid exercise of legislative power. First, Boreali found the PHC had engaged in the balancing of competing concerns of public health and economic costs, "acting solely on [its] own ideas of sound public policy" (id. at 12). Second, the PHC did not engage in the "interstitial" rule making typical of administrative agencies, but had instead written "on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance" (id.). Third, the PHC's regulations concerned "an area in which the legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions" (id.). Boreali [*9]found that the separation of powers principles mandate that elected legislators rather than appointed administrators "resolve difficult social problems by making choices among competing ends" (id.). Fourth, Boreali found that the agency had overstepped its bounds because the development of the regulations did not require expertise in the field of health (id. at 14).  Matter of New York Statewide Coalition … v NYC Dept of Health and Mental Hygiene, 2013 NY Slip Op 05505, 1st Dept 7-30-13






Lawsuit Alleging Lehman Brothers’ Substitution of Toxic Securities for High Value Securities Can Go Forward


In a full-fledged opinion by Justice Saxe, the First Department determined plaintiff Aetna Life Insurance Company had sufficiently alleged causes of action stemming from Lehman Brothers’ alleged removal of high-grade securities from a trust account and replacement of those securities with toxic subprime-mortgage-backed securities. The First Department summarized the facts and its rulings as follows:


Aetna asserts that defendants [replaced the high value securities with toxic securities] as part of an effort to prop up Lehman Brothers' financial position in the final days prior to its 2008 collapse. The complaint alleges causes of action for breach of the Connecticut Unfair Trade Practices Act (CUTPA) (Conn Gen Stat § 42-110b[a] et seq.); breach of fiduciary duty; negligence; and recklessness. We affirm the determination of the motion court holding that the allegations are sufficient to support each of the causes of action, and modify only to the extent of denying dismissal of the negligence claims against the individual defendants.  Aetna Life Ins Co v Appalachian Asset Mgt Corp, 2013 NY Slip Op 05506, 1st Dept 7-30-13






Cause of Action Alleging Retaliation for Sexual Harassment Complaint in Violation of New York City Human Rights Law Dismissed


The Second Department affirmed the dismissal of a complaint alleging that defendant Prison Health Service (PHS) retaliated against the plaintiff after she made a sexual harassment complaint.  The retaliation was alleged to have violated the New York City Human Rights Law (NYCHRL).  Plaintiff claimed she was subjected to excessive demands for her professional credentials and health clearance forms and the denial of overtime work.  In explaining the proof requirements, the Second Department wrote:


…"In assessing retaliation claims that involve neither ultimate actions nor materially adverse changes in terms and conditions of employment, it is important that the assessment be made with a keen sense of workplace realities, of the fact that the chilling effect' of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities" … .

… [T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct (see Administrative Code of City of NY § 8-107[7]…). Once the plaintiff has met this initial burden, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions … . Then, if the defendant meets this burden, the plaintiff has the obligation to show that the reasons put forth by the defendant were merely a pretext… .  Brightman v Prison Health Serv Inc, 2013 NY Slip Op 05510, 2nd Dept 7-31-13






Losing Balance On Ladder Did Not Support Labor Law 240(1) Cause of Action


Plaintiff was standing on the second highest rung of a ladder when he lost his balance and fell.  In reversing Supreme Court’s grant of summary judgment to the plaintiff on his Labor Law 240(1) cause of action, the Second Department explained:


" Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'" … . " To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries'" .. . "The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided" … . There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries … . Where a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach … . To impose liability under such circumstances would make a defendant an insurer of the workplace, a result which the Legislature never intended in enacting Labor Law § 240(1) … .  Hugo v Sarantakos, 2013 NY Slip Op 05512, 2nd Dept 7-31-13



Homeowner’s Exception Did Not Apply


Plaintiff lost fingers operating a table saw which was alleged not to have had a blade guard.  In determining the homeowner’s exception to the Labor Law 241(6) cause of action did not apply, the Second Department wrote:


With respect to the cause of action pursuant to Labor Law § 241(6), the appellant claimed the homeowners' exemption for owners of one and two-family homes who did not supervise the work. In order to receive the protection of the homeowners' exemption, a defendant must satisfy two prongs: that the work was conducted at a dwelling that is a residence for only one or two families, and the defendant did not direct or control the work … . Summary judgment on this issue was properly denied, as the evidence described above raised a triable issue of fact as to whether the appellant supervised or controlled the work and, further, there was a triable issue of fact as to whether the appellant intended to use the subject house as rental property… .  Murillo v Porteus, 2013 NY slip Op 05517, 2nd Dept 7-31-13






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