From This Week’s “Latest Posts” Section (Below):
Are a Child’s Out-of-Court Statements Made to Caseworkers and Investigators Enough to Support an Abuse Finding?
Matter of Gabriella X. (Erick Y.), 2024 NY Slip Op 05856, Third Dept 11-21-24
What Happens When a Judge Allows Mother to Determine Father’s Parenting Time?
Matter of Leslie QQ. v Daniel RR., 2024 NY Slip Op 05857, Third Dept 11-21-24
Must a Worker Prove Where the Falling Object Which Struck Him Came from in a Labor Law 240(1) Action?
Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24
If the Jury Deems the Shooting Justified, Can the Defendant Still Be Convicted of Criminal Possession of a Weapon?
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THERE IS NO NOTICE OF CLAIM REQUIREMENT FOR A TORT ACTION AGAINST A CHARTER SCHOOL (SECOND DEPT).
The Second Department, reversing Supreme Court, determined a plaintiff is not required to serve a notice of claim for a tort action against a charter school. Here the infant plaintiff was injured on the playground of a charter school (Evergreen) and Supreme Court dismissed the case because no notice of claim had been served on the school:
… [A]s explained in this Court’s recent opinion and order in A.P. v John W. Lavelle Preparatory Charter Sch. (228 AD3d 138), Education Law § 3813(2) and General Municipal Law § 50-e do not require service of a notice of claim prior to commencement of a tort action against a charter school … . Accordingly, the defendants were not entitled to summary judgment dismissing the complaint insofar as asserted against Evergreen based upon the plaintiffs’ failure to serve Evergreen with a notice of claim … . L.R. v Evergreen Charter Sch., 2024 NY Slip Op 05998, Second Dept 11-27-24
Practice Point: A plaintiff bringing a tort action against a charter school is not required to serve a notice of claim.
A COURT’S POWER TO SEARCH THE RECORD AND AWARD SUMMARY JUDGMENT TO A NONMOVING POWER IS LIMITED TO THE CAUSES OF ACTION OR ISSUES IN THE MOTIONS BEFORE IT (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, noted that a court’s power to search the record and award summary judgment to a nonmoving party is constrained by the causes of action or issues raised in the motions before it:
Although the court has the authority to search the record and grant summary judgment to a nonmoving party (see CPLR 3212[b] …), the “power to search the record and afford a nonmoving party summary relief is not . . . boundless” … . Thus, “a court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court” … . Here, the court improperly considered an issue that was not the subject of the motion before it … . Mejia v 69 Mamaroneck Rd. Corp., 2024 NY Slip Op 05974, Second Dept 11-27-24
Practice Point: A court cannot search the record and award summary judgment to a nonmoving party on a cause of action or an issue not raised in the motions before it.
NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA).
The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA):
… [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, “there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household” as required by CPL 440.47 (2) (c) … . * * *
Where, as here, the Legislature specifically provides for appealability of certain orders but not others, “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . “[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended” … . “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention … . Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, “the [L]egislature could easily have so stated” … . Rather, the language utilized by the Legislature — specifically that dismissal is without prejudice — mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute,” this appeal is not properly before this Court and must be dismissed … . People v Melissa OO., 2024 NY Slip Op 05920, Third Dept 11-27-24
Practice Point: Criminal appeals are creatures of statutes. Here the DVSJA did not provide for an appeal of the dismissal-without-prejudice of defendant’s application for resentencing. County Court dismissed the application because defendant did not submit evidence she was a victim of domestic abuse.
ALTHOUGH THE ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT REBUT THE PRESUMPTION THE REAR DRIVER WAS NEGLIGENT IN A REAR-END COLLISION, THE REAR-DRIVER’S ALLEGATION THE PLAINTIFF STOPPED SUDDENLY FOR NO APPARENT REASON CREATES A QUESTION OF FACT ON THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined defendants’ claim that plaintiff stopped suddenly for no apparent reason supported defendant’s comparative-negligence affirmative defense in this rear-end collision case:
The Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the defendants’ affirmative defense alleging comparative negligence. In support of his motion, the plaintiff submitted his affidavit, in which he averred that his vehicle, after having been stopped at an intersection for approximately 20 to 30 seconds, was struck in the rear by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that he was not at fault in the happening of the accident … . In opposition, however, the defendants raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident because he stopped suddenly for no apparent reason … . Martinez v Colonna, 2024 NY Slip Op 05971, Second Dept 11-27-24
Practice Point: In a rear-end collision, defendant’s allegation plaintiff stopped suddenly does not rebut the presumption defendant was negligent. But defendant’s allegation plaintiff stopped suddenly for no apparent reason raises a question of fact in support of defendant’s comparative-negligence affirmative defense.
SUPREME COURT ERRONEOUSLY IGNORED AN ARTIFICIAL MONUMENT DESCRIBED IN A DEED WHEN ATTEMPTING TO RESOLVE A BOUNDARY DISPUTE (THIRD DEPT).
The Third Department, reversing Supreme Court, determined the court, when attempting to resolve a boundary dispute, erred in ignoring an artificial monument, a railroad right-of-way, which was described in a deed:
Here, plaintiffs’ deed includes the only deed call to a natural landmark, as it places the southeast corner of plaintiffs’ property at “a willow tree on the bank of the creek.” Haley and Glasser [the parties’ surveyors] agreed that neither the willow tree nor its former location could be ascertained; similarly, the stake and stones called for in the deed at that location could not be found. Glasser also posited that, as creeks meander over time, the modern location of “the bank of the creek” provided no information as to the appropriate location of the southeast corner, so he disregarded that deed call. Glasser then opted to draw plaintiffs’ property to comport with the exact metes and bounds called for in plaintiffs’ deed, and Supreme Court adopted such methodology and accepted the resulting boundary. Even crediting Glasser’s methodology and his assertions about the meandering creek, as Supreme Court did here, Glasser also admitted that the deed call to the former railroad right-of-way reflects an artificial monument, and that he disregarded such deed call. In adopting Glasser’s methodology and accepting the resulting boundary, the court erred as a matter of law, as it focused on the courses and distances in the deed, in contravention of the long-established hierarchy giving preference to deed calls to artificial monuments … . As Supreme Court failed to consider the railroad right-of-way, we exercise our broad powers to review the record on appeal and make the appropriate determinations. Zwack v Hunt, 2024 NY Slip Op 05926, Third Dept 11-27-24
Practice Point: If an artificial monument, here a railroad right-of-way, is described in a deed, it cannot be ignored in attempting to locate boundaries.
THE LANDOWNER ABUTTNG A SIDEWALK IN NYC HAS A NONDELEGABLE DUTY TO MAINTAIN THE SIDEWALK; HERE THE LANDOWNER FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF ICE AND SNOW ON THE SIDEWALK BECAUSE IT DID NOT AVER WHEN THE SIDEWALK WAS LAST INSPECTED OR CLEANED PRIOR TO THE SLIP AND FALL (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant landowner’s motion for summary judgment in this sidewalk ice and snow slip and fall case should not have been granted. The landowner failed to demonstrate it did not have constructive notice of the presence of snow and ice:
Section 7-210 of the Administrative Code of the City of New York imposes a nondelegable duty on certain landowners, which includes 149-53 14th Avenue, LLC, to maintain sidewalks abutting their land, including the removal of snow and ice … “[T]he duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner” … . Landowners, however, are not strictly liable for all personal injuries that occur on the abutting sidewalk, as “section 7-210 adopts a duty and standard of care that accords with traditional tort principles of negligence and causation” … .
“A defendant property owner moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” … . “A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, 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” … .
Here, the defendants failed to establish, prima facie, that 149-53 14th Avenue, LLC, did not have constructive notice of the alleged snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants failed to establish when the sidewalk was last cleaned or inspected relative to when the plaintiff fell … . Marinis v Loschiavo, 2024 NY Slip Op 05970, Second Dept 11-27-24
Practice Point: Pursuant to the NYC Administrative Code a landowner abutting a sidewalk has a nondelegable duty to maintain the sidewalk, which includes removal of ice and snow. The landowner can demonstrate it did not have constructive notice of the presence of ice and snow by proof the sidewalk was inspected or cleaned close in time to the slip and fall, not the case here.
CLAIMANT DEMONSTRATED HE HAD NOT REMOVED HIMSELF FROM THE LABOR MARKET WITH DOCUMENTARY EVIDENCE; CLAIMANT WAS THEREFORE ENTITLED TO BENEFITS FROM THE TIME HE DEMONSTRATED ATTACHMENT TO THE WORKFORCE (THIRD DEPT).
The Third Department, reversing the Workers’ Compensation Board, over a dissent, determined claimant sufficiently demonstrated he had not removed himself from the job market and was therefore entitled to benefits:
Claimant submitted extensive evidence of his job search, both through job location services and individually, providing more than 600 pages of proof that he filed applications to numerous job postings. These included applications for positions such as dishwasher, doorman, cook, parking garage attendant, kitchen attendant/helper, juice barista and laundry attendant. However, as claimant testified, despite having applied for innumerable jobs, he did not receive any interviews. He also applied for vocational rehabilitation services and was advised to enroll in English as a second language classes, which he promptly did. The WCLJ found that claimant demonstrated attachment to the workforce as of November 16, 2021, the date his English classes started, and we agree.
We are mindful that the Board “is the sole arbiter of witness credibility” … , but the decision here does not hinge on witness credibility. Rather, documentary evidence amply demonstrates that claimant has engaged in a “diligent and persistent job search so as to demonstrate attachment to the labor market” …, and we find that the Board’s conclusion to the contrary is not supported by substantial evidence…. . Matter of Lapan v Trade Winds Envtl., 2024 NY Slip Op 05929, Third Department 11-27-24
Practice Point: Here there was documentary evidence claimant was trying to find work. The Workers’ Compensation Board’s conclusion claimant had removed himself from the workforce was reversed.
IN THIS LEGAL MALPRACTICE ACTION, THE PLAINTIFF NEED NOT SHOW SHE ACTUALLY SUSTAINED DAMAGES TO SURVIVE A MOTION TO DISMISS (SECOND DEPT).
The Second Department, reversing Supreme Court’s dismissal of a legal malpractice complaint, noted that the plaintiff need show she actually sustained damages to survive a dismissal motion:
The plaintiffs alleged … that they retained the defendants to represent them in an action to recover damages for personal injuries the plaintiff … allegedly sustained in a motor vehicle accident (hereinafter the underlying action) and that due to the defendants’ failures to pursue a theory based on a violation of Vehicle and Traffic Law § 509(3), the plaintiffs were not able to obtain a verdict in their favor in the underlying action. * * *
To state a cause of action to recover damages for legal malpractice, “a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” … . “A plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Kowalski v Gold Benes, LLP, 2024 NY Slip Op 05967, Second Dept 11-27-24
Practice Point: In this legal malpractice case, the court noted the plaintiff need not show she actually sustained damages to survive a motion to dismiss.
HERE THE AUTOMATIC DOOR AT A RESIDENTIAL FACILITY CLOSED ON THE ELDERLY PLAINTIFF; SENSORS WHICH WOULD PREVENT THE DOOR FROM CLOSING WERE AVAILABLE; THERE WAS A QUESTION OF FACT WHETHER THE DOOR WAS SAFE (THIRD DEPT).
The Third Department, reversing Supreme Court, determined the lawsuit stemming from an automatic door at a residential facility closing on the elderly plaintiff should not have been dismissed, despite the evidence that the door was not defective. There was evidence that sensors which would stop the door from closing when a person is in the doorway could have been installed:
Given the competing expert affidavits on whether defendants maintained their property in a reasonably safe condition under the circumstances, Supreme Court erred in awarding defendants summary judgment dismissing the complaint … . Context is essential in gauging whether a property owner has maintained its premises in a reasonably safe condition. Here, defendants knew certain residents required walkers or wheelchairs that would impact their ability to navigate through a doorway, that the facility’s doors were previously serviced for closing too quickly, and that presence sensors were a readily available option from the manufacturer. Plaintiff also sustained a serious injury to her right leg requiring surgery. Viewing the facts in the light most favorable to plaintiff as the nonmoving party, we find that there are triable issues of fact as to whether the premises were reasonably safe … . Any issue of comparative fault on the part of plaintiff and/or her daughter and grandson who were with her at the time of this incident is a question to be resolved by a factfinder … . Spielman v Glenwyck Dev., LLC, 2024 NY Slip Op 05932, Third Dept 11-27-24
Practice Point: Here there was no evidence the automatic door which closed on plaintiff was defective, but there was a question of fact whether the installation of sensors would have rendered the door safe for use by the elderly.
THE HISTORY OF THE INTERACTION BETWEEN INFANT PLAINTIFF AND ANOTHER STUDENT RAISED A QUESTION OF FACT ABOUT WHETHER THE ATTACK ON INFANT PLAINTIFF WAS FORESEEABLE FROM THE SCHOOL’S PERSPECTIVE (THIRD DEPT).
The Third Department, reversing Supreme Court, determined the negligent supervision action against defendant school should not have been dismissed. Infant plaintiff (E.E.) had been attacked and seriously injured by another student (J.H.). Supreme Court found the attack was not foreseeable. The Third Department found the evidence of foreseeability sufficient to raise a question of fact:
The record contains evidence of the following. J.H. had a school disciplinary history of 18 incidents between 2015 and 2018, which resulted in numerous detentions and suspensions. Of these 18 incidents, it appears that at least five involved acts of violence on J.H.’s part. One of the suspensions was for lighting a fellow student’s hair on fire, while another suspension was for her previous attack on E.E. That particular incident involved J.H. borrowing rings from other students in order to maximize the injuries that she could inflict upon E.E. J.H. was also suspended for obtaining unclothed photos of E.E. and posting them online under the guise that it was E.E. who was posting them. By the spring of 2017, school officials were aware that J.H. was suffering from anxiety and depression, had been the subject of a PINS petition, was a runaway risk, exhibited violent behavior, had “no judgment” and was “very unpredictable.” At some point around the middle of the 2017-2018 school year, J.H. screamed at E.E. in a school hallway, “what are you looking at?”, and E.E. reported this to a teacher. Approximately two weeks before the incident in question, J.H.’s mother called a school guidance counselor and warned that J.H. was planning to do something to get herself expelled from school. The district superintendent stated that if she had been made aware of this call, she would have advised the high school principal about it and ensured that there was a safety plan in place.
While we are mindful that there were no specific incidents between J.H. and E.E. for a number of months prior to the subject assault, the evidence of J.H.’s extensive disciplinary history, including acts of violence together with the prior incidents aimed at E.E. herself, as well as the recent warning call from J.H.’s mother, was sufficient to raise triable issues of fact with respect to whether J.H.’s attack on E.E. was foreseeable and whether it was a consequence of a lack of adequate supervision on defendant’s part … . To the extent that defendant argues a lack of foreseeability by pointing to J.H.’s deposition testimony wherein she indicated that she did not plan the attack in advance, we are unpersuaded. “The issue is not the speed of the punch, but the circumstances leading up to and surrounding that conduct” … . In light of the foregoing, it was error to grant defendant’s motion for summary judgment. T.E. v South Glens Falls Cent. Sch. Dist., 2024 NY Slip Op 05934, Third Dept 11-27-24
Practice Point: Consult this decision for insight into the proof necessary to raise a question of fact about the foreseeability of an attack on a student by another student.
PLAINTIFF DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED OR EVEN NOTIFIED OF THE FORECLOSURE ACTION; THE COURT NEVER HAD JURISDICTION OVER DEFENDANT AND THE MOTION TO EXTEND THE TIME TO SERVE HER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate defendant was properly served with the summons and complaint. Therefore the court never had jurisdiction over the defendant:
… [T]he plaintiff was on notice in December 2018 that service upon the defendant allegedly was defective when the defendant moved to dismiss the complaint for lack of personal jurisdiction. The plaintiff nonetheless waited nearly 10 months thereafter to move for an extension of time to serve the defendant. Moreover, the plaintiff’s motion was made more than two months after the hearing before the special referee concluded, even though the evidence at the hearing demonstrated that the defendant had been residing in Canada for decades … . Although the statute of limitations had already expired by the time the plaintiff moved for an extension of time, the plaintiff failed to demonstrate that it diligently prosecuted this action … . “Moreover, . . . the plaintiff submitted no evidence that [the defendant] had actual notice of the action against her within the 120-day service period” … . Further, the plaintiff failed to rebut the inference [*3]of substantial prejudice to the defendant that arose from the protracted delay in obtaining such notice … . Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant.
Since the defendant was not properly served with the summons and complaint and the plaintiff failed to demonstrate entitlement to an extension of time to effectuate service, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her. “The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void” … . HSBC Bank USA, N.A. v Labin, 2024 NY Slip Op 05963, Second Dept 11-27-24
Practice Point: Consult this decision for the analytical criteria for determining whether a motion to extend the time to serve a defendant with the summons and complaint should be granted.
THE ERRORS MADE IN THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE WERE NOT MADE IN BAD FAITH AND DID NOT PREJUDICE THE MUNICIPAL DEFENDANT; THEREFORE AMENDMENT OF THE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the erroneous incident-date in the notice of claim did not justify dismissal of the action in this sidewalk slip and fall case. The error was not made in bad faith and did not prejudice the municipal defendant:
The Transit defendants … moved … pursuant to CPLR 3211(a) to dismiss the complaint … on the ground that the notice of claim did not comply with General Municipal Law § 50-e(2), as it incorrectly listed the date of the accident as March 5, 2016, instead of April 5, 2016, and identified the plaintiff as “Maria Hernandez,” instead of “Maria Hernandez-Panell.” …
General Municipal Law § 50-e(2) requires that a notice of claim set forth … “the time when, the place where and the manner in which the claim arose” … . “[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident” … . 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, there is no indication that the date originally listed in the notice of claim as the accident date was set forth in bad faith, and the Transit defendants did not demonstrate any prejudice as a result of the error … . Moreover, the plaintiff supplied the correct date of the accident at the hearing pursuant to General Municipal Law § 50-h and Public Authorities Law § 1212(5) … . Hernandez-Panell v City of New York, 2024 NY Slip Op 05962, Second Dept 11-27-24
Practice Point: Errors in a notice of claim against a municipality should not result in dismissal of the action if the errors were not made in bad faith and did not prejudice the municipal defendant.
DEFENDANT’ CLOTHING STORE’S EMPLOYEE ALLEGEDLY ATTEMPTED TO RECORD PLAINTIFF IN A CHANGING ROOM; THE NEGLIGENT HIRING CAUSE OF ACTION, BASED ON THE ALLEGATION THE STORE DID NOT CONDUCT A BACKGROUND CHECK BEFORE HIRING THE EMPLOYEE, SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant clothing store (Gap) was entitled to summary judgment dismissing the negligent-hiring-supervision complaint. Plaintiff alleged a store employee, Medel, attempted to record her on a cell phone as she was changing in a fitting room. The negligent hiring cause of action alleged Gap did not do a background check before hiring Medel, which was alleged to have been in violation of store policy:
The Supreme Court erred in denying those branches of the store defendants’ motion which were for summary judgment dismissing the causes of action alleging negligent hiring, training, supervision, and retention insofar as asserted against them. “‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … . Here, the submissions of the store defendants in support of their motion demonstrated, prima facie, that they did not have notice of any propensity of Medel to commit misconduct … .
In opposition, the plaintiff failed to raise a triable issue of fact as to whether Gap or Old Navy knew or should have known that Medel had a propensity to commit misconduct … . The plaintiff’s contention, via the affidavit of her expert, that neither Gap nor Old Navy appeared to have conducted a background check prior to hiring Medel, as was their apparent internal policy before hiring any employees, is without merit. “There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Moreover, the plaintiff failed to submit any evidence that a background check of Medel would have revealed a propensity to commit misconduct … . Hashimi v Gap, Inc., 2024 NY Slip Op 05961, Second Dept 11-27-24
Practice Point: A negligent hiring cause of action based on the allegation the employer did not conduct a background check, without more, will not survive a motion to dismiss. Plaintiff must demonstrate the employer knew of facts which should have triggered a background check.
PLAINTIFF’S AFFIDAVIT DID NOT STATE IT WAS BASED ON FIRST-HAND KNOWLEDGE AND THE UNCERTIFIED POLICE REPORT WAS INADMISSIBLE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PROPERTY-DAMAGE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded plaintiff in this property-damage case. Plaintiff alleged defendant’s vehicle struck a brick wall and fence on plaintiff’s property. Plaintiff’s affidavit did not state it was based on first-hand knowledge and the uncertified police report was inadmissible:
“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “‘A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden’ on a motion for summary judgment” … .
Here, the plaintiff’s conclusory affidavit, which failed to set forth whether he had firsthand knowledge of the event, was insufficient to establish, prima facie, that a vehicle operated by the defendant struck a brick wall and fence located on the plaintiff’s property … . The uncertified police accident report submitted in support of the plaintiff’s motion was not admissible … . Felle v Maxaner, 2024 NY Slip Op 05959, Second Dept 11-27-24
Practice Point: Affidavits which do mot make clear the allegations are based on first-hand knowledge will not support summary judgment.
Practice Point: Uncertified police reports are not admissible.
THE MOTION TO AMEND THE COMPLAINT TO IDENTIFY “JOHN DOE” “JANE DOE” DEFENDANTS AS POLICE OFFICERS IN THIS CIVIL RIGHTS CASE SHOULD NOT HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD EXPIRED AND THE RELATION-BACK DOCTRINE DOES NOT APPLY (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the motion to amend the complaint to identify police officers as the “John Doe, Jane Doe” defendants in this 18 USC 1983 false arrest and unlawful search case should not have been granted. The statute of limitations had expired and the relation-back doctrine did not apply—police officers are not united in interest with the city:
CPLR 1024 provides that a “party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.” “Yet, ‘parties are not to resort to the “Jane Doe” procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so. Any failure to exercise due diligence to ascertain the “Jane Doe’s” name subjects the complaint to dismissal as to that party'” … .
Here, the statute of limitations had expired by the time the defendants were identified in the second amended complaint. Contrary to the plaintiff’s contention, the relation-back doctrine does not apply, because the defendants are not united in interest with the City … . The City “cannot be held vicariously liable for its employees’ violations of 42 USC § 1983, and there is no unity of interest in the absence of a relationship giving rise to such vicarious liability” … . Additionally, the plaintiff failed to demonstrate that he made diligent efforts to ascertain the defendants’ identities prior to the expiration of the statute of limitations or that the City hindered any such efforts … . Contrary to the plaintiff’s contentions, the Supreme Court’s prior orders allowing the plaintiff to amend the complaint to add the then-unknown defendants by name within a certain time period are not binding on these issues. The doctrine of the law of the case does not bind an appellate court … . Agosto v Maria, 2024 NY Slip Op 05950, Second Dept 11-27-24
Practice Point: Here the motion to amend the complaint to identify “John Doe” and “Jane Doe” defendants as police officers should have been denied because the statute of limitations had expired and the relation-back doctrine did not apply because police officers are not united in interest with the city which employs them.
A LIENHOLDER NONPARTY TO AN ACTION THAT RESULTED IN A FEE AWARD TO A DEBTOR MAY SUE TO RECOVER THOSE FEES WHERE THE LIENHOLDER WAS NEITHER JOINED NOR REQUIRED TO INTERVENE IN THAT ACTION (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined: “[a] lienholder nonparty to an action that resulted in a fee award against a debtor may challenge the legal basis of the judgment in a separate proceeding to recover those fees. We conclude that because the nonparty was neither joined nor required to intervene in the action against the debtor, it had no prior opportunity to challenge the award and thus is not barred from doing so in this proceeding … “. Matter of Kasowitz, Benson, Torres & Friedman, LLP v JPMorgan Chase Bank, N.A., 2024 NY Slip Op 05876, CtApp 11-26-24
IN THIS FIRE-DAMAGE CASE, THE INSURANCE POLICY IMPOSED A TWO-YEAR LIMITATION PERIOD; THE ACTION WAS NOT BROUGHT UNTIL SIX YEARS AFTER THE FIRE; PLAINTIFF’S FAILURE TO PROVIDE ANY DETAILS DEMONSTRATING WHY THE RESTORATION COULD NOT BE COMPLETED WITHIN THE TWO-YEAR LIMITATION PERIOD REQUIRED DISMISSAL OF THE COMPLAINT; THREE-JUDGE DISSENT (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive three-judge dissent, determined plaintiff’s complaint in this fire-damage case was properly dismissed because the contractual two-year limitation period was exceeded and plaintiff made only conclusory allegations that the repairs could not be made within that two-year period:
On this motion to dismiss, the Tower/AmTrust defendants met their burden of establishing, by reference to the contract’s two-year suit limitation provision, that the action was time-barred because plaintiff did not commence it within two years of the fire, utterly refuting plaintiff’s factual allegations … . Nothing in plaintiff’s response raised any issue as to whether the provision should bar her claims. Plaintiff’s allegation that “[g]iven the massive structural damage wrought by the fire, the restoration of [plaintiff’s] property would have been [a] multi-year process under even the best of circumstances” is a conclusory statement that the suit limitation provision was unreasonable and is not logically inconsistent with the replacement of the property within the two-year limitation period. Here, plaintiff failed to allege actions that she took to complete the repairs within two years; she did not provide any details regarding the extent of the damage, other than that the damage was “massive” and the fire set off four alarms, or why complete restoration within two years was an impossibility. This bare-bones allegation stands in stark contrast to the plaintiff’s factual assertions in [Executive Plaza, LLC v Peerless Ins. Co. (22 NY3d 511)]. There, the plaintiff pleaded the specific remedial actions taken to restore the property, including retaining an architect and construction company, submitting a variance application, and seeking and obtaining building permits, which were not issued until 20 months after the property damage … . Most importantly, that plaintiff provided that these remedial actions were taken within the limitation period. All of this information is notably absent from plaintiff’s pleadings and motion response here. Farage v Associated Ins. Mgt. Corp., 2024 NY Slip Op 05875, CtApp 11-26-24
Practice Point: Here the insurance contract imposed a two-year limitation on claims for the cost of fire-damage repair. Plaintiff did not bring the action until six years after the fire. The complaint was properly dismissed because it did not provide any details explaining why the repairs could not have been made during the two-year limitation period.
THE CRITERIA FOR ALLOWING EXPERT TESTIMONY ON WITNESS-IDENTIFICATION OF A DEFENDANT CLARIFIED; WHETHER TO ALLOW SUCH EVIDENCE DOES NOT TURN ON THE EXISTENCE OR THE STRENGTH OF CORROBORATING EVIDENCE; HERE EXPERT TESTIMONY ON CROSS-RACIAL IDENTIFICATION WAS PROPERLY ALLOWED (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissent, affirming defendant’s conviction, clarified the criteria for admitting expert testimony on witness identification of a defendant. Here limited expert testimony was allowed on cross-racial identification:
Questions of the admissibility and scope of expert testimony concerning the factors that affect the reliability of eyewitness identifications in a particular case are addressed to the trial court’s sound discretion … . Courts deciding those questions apply traditional evidentiary principles … , which require the courts to weigh the testimony’s probative value against its prospect of causing undue prejudice to the opposing party, confusing the issues, misleading the jury, or unduly delaying trial … .
On an application to admit expert testimony of this sort, the trial court may need to determine whether the expert testimony is beyond the ken of the average juror or generally accepted in the scientific community … . Indeed, in Abney, we reversed and ordered a new trial where the trial court abused its discretion in denying an application to present expert testimony on several factors, concluding that the court should have held a Frye hearing to resolve the issue of general acceptance … . While general acceptance may be established at a Frye hearing, a hearing is not necessary in all cases … . General acceptance may be established through legal precedent … . Where the defendant fails to demonstrate that a topic of the proffered expert testimony is generally accepted in the relevant scientific community, the trial court should exclude or limit the testimony as appropriate … .
Courts must not decide whether evidence is admissible based solely on the existence or strength of corroborating evidence … . Nor should courts require adequate corroborating evidence as a prerequisite to weighing other considerations pertinent to admissibility … . Rather, courts should be guided by “whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’ ” … . People v Vaughn, 2024 NY Slip Op 05874, CtApp 111-26-24
Practice Point: Whether to allow expert testimony on witness-identification of a defendant does not turn on the existence or strength of corroborating evidence.
MISDEMEANOR CONVICTIONS WHICH DID NOT INVOLVE VIOLENCE OR SEXUAL CONDUCT WERE PROPERLY CONSIDERED BY COUNTY COURT IN DENYING DEFENDANT’S REQUEST FOR A SORA RISK-LEVEL REDUCTION TO LEVEL ONE, DESPITE THE BOARD OF EXAMINERS OF SEX OFFENDERS’ STATEMENT IT “WOULD NOT OPPOSE” A LEVEL ONE RISK ASSESSMENT (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive three-judge dissent, determined County Court properly reduced defendant’s SORA risk-level from three to two, and properly refused to reduce the risk-level to one. The Court of Appeals concluded the 2003 misdemeanor convictions, which did not involve violence or sexual conduct, were properly considered by County Court in denying the level one assessment:
Defendant served 21 years in prison. At first, he denied responsibility for his criminal conduct and refused to participate in sex offender treatment, but he eventually took responsibility and enrolled in treatment, which he completed. Defendant was released to parole in 1998, and the sentencing court determined him to be a level three risk pursuant to SORA. … In 2003, while still on parole, defendant was convicted of two misdemeanors: attempted auto stripping and attempted possession of burglary tools. He has no other convictions since his 1998 release.
In 2021, defendant petitioned under Correction Law § 168-o (2) to modify his risk level classification to level one. Defendant argued that he posed a low risk of reoffense based on his engagement in one-on-one outpatient sex offender treatment from 1998 to 2008; his steady full-time employment, including his current job, which he had held for 17 years; his stable and loving relationship with his wife, whom he met in 2008; his role as stepfather to his wife’s daughter; and his age of 66 years. Defendant also noted that he had fully complied with his SORA obligations since his release 23 years earlier and, aside from his 2003 misdemeanor conviction, had not reoffended. He submitted letters of support from his counselor, wife, and stepdaughter. In addition, he submitted the report of an expert psychologist who examined him and concluded that his risk of reoffense was low, and that requiring him to register at risk level three was no longer necessary for purposes of public safety. At the court’s request … , the Board submitted an “updated recommendation” stating that it “would not oppose” defendant’s request for a modification to level one. * * *
[The] evidence included the nature of the underlying offense, which defendant committed while on parole for a prior sex crime, defendant’s prior offenses, and defendant’s 2003 misdemeanor conviction of crimes committed while on parole for the underlying offense, for which he received a parole violation. Although the misdemeanors appear to have involved no violence or sexual component, we cannot conclude that the court’s consideration of that factor, along with all the other factors, constitutes an abuse of discretion as a matter of law. * * *
… [T]he question is whether his more recent criminal conduct bears on the risk of his committing future sex offenses. Under the dissent’s proposed rule, the SORA court would be prohibited from considering that defendant violated the law and his parole [in 2003] when he was caught with burglary tools after being convicted of raping a young woman during the course of a burglary also committed while defendant was on parole … . We decline to endorse that untenable result. People v Shader, 2024 NY Slip Op 05873, CtApp 11-26-24
Practice Point: Here the Board of Examiners of Sex Offenders (Board) did not oppose a defendant’s request for a risk-level reduction to level one. The Court of Appeals upheld County Court’s level-two designation, which was based in part of two misdemeanor convictions of nonviolent offenses which did not involve sexual conduct. There was an extensive dissent.
THE “MINISTERIAL EXCEPTION” IS GROUNDED IN THE FIRST AMEMDMENT AND MAY RESTRICT A STATE AGENCY’S REVIEW OF EMPLOYMENT DECISIONS MADE BY RELIGIOUS INSTITUTIONS; THE EXCEPTION IS AN AFFIRMATIVE DEFENSE, NOT A JURISDICTIONAL BAR, TO A HOSTILE WORK ENVIRONMENT ACTION UNDER THE NYS HUMAN RIGHTS LAW (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the New York State Division of Human Rights (DHR) and the Appellate Division, determined the so-called “ministerial exception” was not a jurisdictional bar to the Nigerian priest’s, Ibhawa’s, hostile work environment claim under the NYS Human Rights Law. The “ministerial exception” is grounded in the First Amendment and may restrict state interference with employment decisions made by religious institutions.. The Court of Appeals clarified that the ministerial exception is an affirmative defense in an employment discrimination action against a religious institution, not a jurisdictional bar to bringing the case:
Ibhawa filed an employment complaint with the New York State Division of Human Rights (DHR) in November 2020, claiming that the Diocese had engaged in discriminatory employment practices in violation of the New York Human Rights Law (see Executive Law art 15). Ibhawa alleged that he had experienced racial discrimination at the Diocese, including from an employee who directed a racial slur at him and a parishioner who made xenophobic remarks to him. He further alleged that the Diocesan officials to whom he reported the incidents declined to investigate them, questioned his decision to terminate the employee who had used a racial slur, and made “highly insulting and offensive” remarks about “foreign priests.” At a subsequent meeting, two Diocesan officials offered to buy Ibhawa a plane ticket to Nigeria and told him that the “Bishop could remove [his] faculties.” Shortly afterwards, the Diocese informed Ibhawa that his employment had been terminated and his priestly faculties removed, which meant that that he could not apply for a position as a priest in the Diocese. The Diocese eventually hired a white priest to replace him. Based on these assertions, Ibhawa alleged claims of hostile work environment and unlawful termination on the basis of race and national origin. He sought, among other remedies, compensatory and punitive damages. * * *
DHR’s order dismissing Ibhawa’s hostile work environment claim was affected by an error of law. After noting the parties’ agreement that Ibhawa was “a priest serving as the pastor (Parish Administrator) of a church,” DHR found that his complaint “comes under the ministerial exception (relative to the first amendment of the U.S. Constitution).” On that basis, DHR concluded that it lacked jurisdiction over Ibhawa’s claims. This determination was contrary to the U.S. Supreme Court’s express holding that the “exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar” … . Matter of Ibhawa v New York State Div. of Human Rights, 2024 NY Slip Op 05872, CtApp 11-26-24
Practice Point: The “ministerial exception” is grounded in the First Amendment and may restrict a state agency’s review of employment decisions made by religious institutions. The exception is an affirmative defense, not a jurisdictional bar, to a hostile work environment action brought by a priest against his employer.
IN A SIDEWALK SLIP AND FALL CASE, COMMUNICATION WITH THE CITY BY PHONE DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT, EVEN IF THE COMMUNICATION WAS REDUCED TO WRITING; PLAINTIFF DID NOT DEMONSTRATE AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT APPLIED (FIRST DEPT).
The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined the “written notice” requirement for municipal liability was not met and plaintiff did not demonstrate an exception to the written notice requirement was applicable:
While walking down a sidewalk on West 26th Street in Manhattan, plaintiff tried to navigate around other pedestrians and tripped and fell on a metal fence surrounding a tree well, known as a tree guard, where there was no longer a tree. Plaintiff seeks to hold the City of New York and New York City Parks Department and Recreation liable for his fall on the theory that defendants created a hazard by leaving the tree guard after they removed the tree. Defendants’ motion for summary judgment should have been granted.
The City sustained its initial burden of demonstrating that it did not receive prior written notice of the condition that caused plaintiff’s accident. A search of Department of Transportation and Department of Parks and Recreation records revealed only two 311 calls for the accident site. The calls resulted in service reports reflecting removal of dead trees and a direction for a City employee to investigate whether replacement of the trees was appropriate. No party disputes that the trees were not replaced before the accident. However, verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy the prior written notice requirement, even if the writing includes a service report, as it does here … … .
As a result, the burden shifted to plaintiff to demonstrate that one of the exceptions to the prior written notice requirement applied … . Plaintiff failed to raise a triable issue of fact concerning whether the City affirmatively created the defective condition through an act of negligence or that a special use resulted in a special benefit to it … . Plaintiff’s theory was that his accident was the result of a combination of inadequate lighting, the height and color of the tree well guard, and the removal of the tree without replacement. However, his expert failed to cite relevant industry-wide standards and practices regarding the construction or design of a tree well border from which the City may have deviated. Moreover, plaintiff did not show that the City’s failure to replace the trees was an affirmative act of negligence, rather than a negligent omission, that created an immediately apparent dangerous condition … . Carney v City of New York, 2024 NY Slip Op 05884, First Dept 11-26-24
Practice Point: Re: municipal liability for a sidewalk slip and fall, phone communications about the defect do not satisfy the written notice requirement even if the communications are reduced to writing.
A COMBINED MOTION TO REARGUE AND MOTION TO RENEW IS PROPER; HERE SUPREME COURT CORRECTLY DENIED THE MOTION TO REARGUE BUT SHOULD HAVE CONSIDERED THE MOTION TO RENEW; MATTER REMANDED (FIRST DEPT).
The First Department, remanding the matter to Supreme Court, determined the combined motion to reargue and motion to renew was properly brought. The motion to reargue was properly denied, but the motion could should have considered the motion to renew:
A combined motion for leave to reargue and renew is permitted so long as each branch of the motion is separately identified and supported (CPLR 2221 [f]). Here, the motion court considered plaintiff’s combined motion to be “couched” as one for reargument and improvidently failed to address or analyze plaintiff’s application for renewal.
Plaintiff in this case submitted a medical expert’s affidavit as new or additional facts not included on the motion to vacate, which this Court in the past has deemed to be sufficient to support a motion to renew … . As plaintiff properly submitted a combined motion for reargument and renewal, CPLR 2221 (f) required the court to “decide each part of the motion as if it were separately made.” Pellerano v New York City Health & Hosps. Corp., 2024 NY Slip Op 05899, First Department 11-26-24
Practice Point: It is proper to combine a motion to reargue and a motion to renew. The motions should be considered separately. Here the denial of the motion to reargue was proper but the motion to renew should also have been considered. The matter was remanded.
BY CLICKING ON CONTRACT TERMS ON HER SMART PHONE, PLAINTIFF AGREED TO ARBITRATE HER PERSONAL INJURY CLAIM AGAINST UBER; PLAINTIFF ALLEGED INJURY AFTER AN UBER DRIVER LEFT HER OFF IN TRAFFIC (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined that plaintiff, by clicking on notifications of contract terms from Uber on her smart phone, agreed to submit her personal injury action against Uber to arbitration. Plaintiff alleged the Uber driver left her off in traffic and she was injured as a result. The opinion is too detailed to fairly summarize here. The precise language of the notifications from Uber are laid out:
On this appeal, we apply centuries-old principles of contract law to a web-based “terms of use” update containing an arbitration agreement. The parties dispute the validity of that agreement and its applicability to this personal injury action, which plaintiff commenced two months before she indicated her assent to the updated terms of use by means of a series of clicks on her smartphone.
We conclude that the “clickwrap” process Uber used to solicit plaintiff’s assent resulted in the formation of an agreement to arbitrate. Moreover, a key term of that agreement expressly delegates to an arbitrator the exclusive authority to resolve all disputes as to the applicability and enforceability of the agreement. Because plaintiff has not established that the delegation provision is invalid, her challenges to the portions of the agreement that purportedly apply to pending legal claims were properly directed to the arbitrator. Wu v Uber Tech., Inc., 2024 NY Slip Op 05869, CtApp 11-25-24
Practice Point: Here plaintiff was notified by Uber of updated contract terms in a message sent to her smart phone. By “clicking” agreement to the terms on her phone’s screen, plaintiff agreed to arbitrate her personal injury action against Uber.
PETITIONER NOT ENTITLED TO COUNSEL IN A STATEWIDE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT (SCR) PROCEEDING; THE STATUTE REQURING EXPUNGEMENT OF AN SCR CHILD MALTREATMENT REPORT IF THE RELATED FAMILY COURT CASE IS DISMISSED DOES NOT APPLY RETROACTIVELY; THE MALTREATMENT REPORT WAS SUPPORTED BY THE EVIDENCE (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined (1) petitioner was not entitled to counsel at the Statewide Central Register of Child Abuse and Maltreatment (SCR) administrative hearing, (2) the amendment to the Social Services Law [Social Services Law § 422 [8] [a] [ii]] requiring expungement of a child maltreatment report after a related dismissal in Family Court did not apply retroactively, and (3) the report was supported by the evidence:
ACS [New York City Administration for Children’s Services] commenced a Family Court article 10 neglect proceeding against petitioner and her husband, who had custody of T. and her younger sisters. Family Court authorized an adjournment in contemplation of dismissal (ACD), which allows the court to adjourn the proceedings for a period not exceeding one year “with a view to ultimate dismissal of the petition in furtherance of justice” (Family Court Act § 1039 [b]). In February of 2020, Family Court dismissed the article 10 proceeding upon the expiration of the adjournment period based on petitioner’s satisfactory compliance with Family Court’s conditions, including completion of parenting and anger management classes.
Meanwhile, the police officer who interviewed T. made a report to the Statewide Central Register of Child Abuse and Maltreatment (SCR). One of the SCR’s primary purposes is to inform child care providers and agencies that a person has a substantiated report of child abuse or maltreatment “for the purpose of regulating their future employment or licensure” … . In July of 2019, ACS determined that the report against petitioner was indicated … and petitioner challenged that determination … . After an internal administrative review, the New York State Office of Children and Family Services (OCFS) concluded that a fair preponderance of the evidence supported a determination that petitioner had maltreated T. and that the maltreatment was relevant and reasonably related to employment, licensure, or certification in the child care field … . Matter of Jeter v Poole, 2024 NY Slip Op 05868, CtApp 11-25-24
Practice Point: Petitioner was not entitled to counsel in a SCR child maltreatment proceeding.
Practice Point: The Social Services Law statute which requires expungement of a maltreatment report if the related Family Court proceeding is dismissed does not apply retroactively.
NEW JERSEY TRANSIT CORPORATION CANNOT ASSERT THE SOVEREIGN IMMUNITY DEFENSE IN THIS TRAFFIC ACCIDENT CASE; THE ACCIDENT INVOLVED A NEW JERSEY TRANSIT CORPORATION BUS AND OCCURRED IN NEW YORK CITY (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Singas, over two concurrences and a dissent, determined the New Jersey Transit Corporation could not assert the sovereign immunity defense in this traffic-accident case:
In Franchise Tax Bd. of Cal. v Hyatt, the United States Supreme Court recognized that the text and structure of the Federal Constitution not only preserved States’ pre-ratification sovereign immunity, but compelled absolute recognition of that immunity in other States’ courts as a matter of “equal dignity and sovereignty” … . However, the Court did not address how to determine whether a state-created entity is entitled to this immunity. We glean from the Court’s analysis that the relevant inquiry is whether subjecting a state-created entity to suit in New York would offend that State’s dignity as a sovereign. We hold that, to answer this question, courts must analyze how the State defines the entity and its functions, its power to direct the entity’s conduct, and the effect on the State of a judgment against the entity. Considering these factors, we conclude that maintaining this action against defendant New Jersey Transit Corporation (NJT) in our courts would not offend New Jersey’s sovereign dignity and accordingly hold that defendants are not entitled to invoke a sovereign immunity defense. On February 9, 2017, a bus owned and operated by NJT allegedly struck and injured plaintiff Jeffrey Colt as he traversed a crosswalk on 40th Street in Manhattan. The bus was driven by defendant Ana Hernandez, an employee of NJT. Colt and his wife, plaintiff Betsy Tsai, commenced this action on September 18, 2017, asserting causes of action for negligence, negligent hiring, and loss of consortium. Defendants answered the complaint and denied many of plaintiffs’ factual allegations. Defendants asserted—as part of an exhaustive list including many boilerplate defenses—that plaintiffs’ recovery was “barred by lack of jurisdiction over NJT” and “barred as this Court lacks jurisdiction,” and that defendants were “immune from suit.” Colt v New Jersey Tr. Corp., 2024 NY Slip Op 05867, CtApp 11-25-24
Practice Point: Here the New Jersey Transit Corporation could not invoke the sovereign immunity defense to a New York City traffic accident involving a New Jersey Transit Corporation bus.
30-DAY COURT-OF-APPEALS “APPEAL CLOCK” EXPLAINED IN THE CONTEXT OF ELECTRONIC FILING (CT APP).
The Court of Appeals, in determining one of the party’s appeal to the Court of Appeals was untimely, explained how the 30-day appeal clock works with electronic filing:
To be effective to start CPLR 5513 (b)’s 30-day clock, service must comply with CPLR 2103. CPLR 2103 (b) (7), in turn, empowers the Chief Administrative Judge to authorize electronic service. The Chief Administrative Judge has exercised this authority by promulgating Uniform Rules for Trial Courts (22 NYCRR) § 202.5-b (h) (2), which provides that in actions—such as this one—that are subject to electronic filing, parties may serve “notice of entry of an order” by filing “a copy of the order . . . and written notice of its entry” on its New York State Courts Electronic Filing System (NYSCEF) site, thus causing that site to transmit “notification of receipt of the documents, which shall constitute service thereof by the filer” (see also 22 NYCRR 202.5-bb [a] [1] [making section 202.5-b applicable to all electronic filing cases]). The relevant rules are not limited to service of trial court orders; and they neither prohibit nor render ineffective service of an intermediate appellate court order with notice of its entry by filing on the trial court’s NYSCEF docket—as opposed to the NYSCEF docket of the intermediate appellate court (see generally CPLR 2103 [b] [7]; 5513 [b]; 22 NYCRR 202.5-b—202.5-bb). Thus, in an electronic filing case, service via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)’s 30-day clock.
Here, plaintiffs moved for leave to appeal before this Court 31 days after defendant Structure Tone Inc. (Structure Tone) served plaintiffs by filing on the trial court’s NYSCEF docket. Plaintiffs’ motion to this Court was therefore untimely as to Structure Tone and, consequently, the portion of the motion to dismiss the appeal as against Structure Tone should be granted … . However, as to defendants 200 Park, LP (200 Park), Tishman Speyer Properties, L.P. (Tishman), and CBRE, Inc. (CBRE), the motion was timely. Ruisech v Structure Tone Inc., 2024 NY Slip Op 05866, CtApp 11-25-24
Practice Point: Here the 30-day period for taking an appeal to the Court of Appeals, in the context of electronic filing, is explained.
THE PARTY SEEKING TO ENFORCE A VENUE CONTRACT PROVISION HAS THE BURDEN OF DEMONSTRATING THE AUTHENTICITY OF THE SIGNATURE IN THE FACE OF AN ALLEGATION OF FORGERY; HERE DEFENDANT DEMONSTRATED THE SIGNATURE WAS AUTHENTIC AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT RE: THE FORGERY ALLEGATION (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the defendant demonstrated the contract which included a venue provision was signed by the decedent and the plaintiff failed to raise a triable question of fact about whether the signature was forged. The court noted that contractual choice of venue provisions are generally enforceable and provided some insight into how a forgery question-of-fact can be raised:
Forum selection clauses may designate a jurisdiction, such as the federal or state court system, or the clause may designate a venue within the State, as was done here by specifying Nassau County as the proper venue … .* * *
… [T]he party moving for a change of venue under CPLR 501 is in effect seeking to enforce a contractual provision. For that reason, … the proponent of the motion bears the initial burden to establish the authenticity of the writing for purposes of a motion to enforce a contractual venue provision … . This may be done through any of the recognized methods of authentication, including, but not limited to, the testimony of a witness who was present at the time of the signing, an admission of authenticity, proof of handwriting, and, as particularly relevant here, through circumstantial evidence … . * * *
Although an expert opinion is not required to raise an issue of fact as to forgery , the movant must nevertheless offer “[s]omething more than a bald assertion,” and in this regard conclusory or self-serving affidavits are inadequate … . Plaintiff offered only an affidavit in which he claimed to be “familiar” with decedent’s handwriting. Based on a summary of certain perceived inconsistencies in the signatures and initials on the agreements, plaintiff asserted that “whoever the person or people who signed and initialed these pages may have been, it was not my mother.” Attached to the affirmation is an undated “exemplar” of what is purportedly decedent’s signature, but no effort is made to establish that the exemplar represents decedent’s signature at the relevant time. Furthermore, the exemplar is purportedly decedent’s handwritten signature, and … electronic signatures may naturally differ from handwritten one … . Knight v New York & Presbyt. Hosp, 2024 NY Slip Op 05870, CtApp
Practice Point: Contractual provisions designating venue are enforceable.
Practice Point: To enforce a contractual venue provision, in the face of a forgery allegation, the moving party must demonstrate the signature is authentic.
Practice Point: Bald assertions of forgery unsupported by any evidence will not raise a triable question of fact on the forgery issue.
THE CASEWORKER WAS PART OF THE CRIMINAL INVESTIGATION IN THIS “COURSE OF SEXUAL CONDUCT WITH A CHILD” PROSECUTION; THE PEOPLE WERE THEREFORE DEEMED TO HAVE HAD CONTROL OVER OR TO HAVE BEEN IN POSSESSION OF THE CASWORKER’S NOTES; THE NOTES INCLUDED BRADY MATERIAL WHICH SHOULD HAVE BEEN TURNED OVER TO THE DEFENSE BEFORE TRIAL; NEW TRIAL ORDERED (THIRD DEPT).
The Third Department, reversing defendant’s “course of sexual conduct with a child” conviction and ordering a new trial, determined that the caseworker’s notes taken during an interview of the child constituted Brady material which should have been turned over to the defendant before trial. The caseworker was part of the criminal investigation. Therefore the notes were deemed to have been under the People’s control or in the People’s possession. There was a notation by the caseworker to the effect the victim “was acting normal and as if nothing happened…”.:
“[W]hether knowledge of a government official or employee may be imputed to the People . . . turn[s] on whether participation in the criminal probe was an ancillary law enforcement task” and, thus, “while social workers are generally not agents of the police, in situations where they engage in a joint venture with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a cooperative working arrangement with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People” … . * * *
The People’s provision of this material after the close of all proof deprived defendant of “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case” … . People v Baez, 2024 NY Slip Op 05844, Third Dept 11-21-24
Practice Point: When a caseworker is part of a criminal investigation, the caseworker’s notes taken when interviewing a child victim are deemed to be under the control of or possessed by the People, such that any Brady material in the notes must be turned over to the defense prior to trial.
THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE PRESENCE OF COUNSEL; GUILTY PLEA VACATED AND SUPERIOR COURT INFORMATION DISMISSED (THIRD DEPT).
The Third Department, vacating the guilty plea and dismissing the superior court information, determined the record did not demonstrate the defendant signed the waiver of appeal in open court in the presence of counsel:
… [T]he plea minutes are silent as to when the undated waiver was executed by defendant, and during the colloquy County Court referred to defendant as having “signed” the waiver in the past tense … . Neither the waiver nor the plea colloquy confirms that defendant signed the written waiver in the presence of counsel. Further, although County Court indicated in the undated order approving the waiver that it was generally satisfied that the requirements of CPL 195.10 and 195.20 had been met, nothing in the order explicitly confirms “that the waiver was signed in open court” in the presence of counsel . Thus, … the record does not reflect that defendant’s waiver of indictment passes constitutional and statutory muster, and it follows that defendant’s guilty plea must be vacated and the underlying SCI dismissed … . People v Trapani, 2024 NY Slip Op 05846, Third Dept 11-21-24
Practice Point: When a defendant waives his right to an indictment and agrees to plead to a superior court information, the record must reflect the waiver was made in open court and in the presence of counsel. Absent proof of those statutory and constitutional requirements the waiver is invalid.
Similar issue and result in People v Rupp, 2024 NY Slip Op 05845, Third Dept 11-21-24.
THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).
The Third Department, remitting the matter for a restitution hearing despite defendant’s failure to preserve the error, determined the record was insufficient to support the ordered restitution. The judge merely accepted the People’s restitution order, thereby improperly delegating the court’s role to the prosecutor:
… [I]t appears County Court impermissibly delegated its authority to the People to determine the amount of restitution owed and that said amount has no factual predicate in the record before us. “Whenever the court requires restitution . . . to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim[s] caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue” (Penal Law § 60.27 [2] …). At the time of sentencing, the People noted that they had submitted a restitution order for the court to sign[*2]. Seemingly reading from that order, the court ordered defendant to pay restitution in the amount of $773, plus a five percent surcharge in the amount of $38.65, for a total sum of $811.65. The restitution order provided to this Court is not accompanied by any documentation, and neither the presentence report nor the victims’ impact statements at sentencing addressed pecuniary losses. Although defendant’s failure to object at the time of sentencing renders his restitution arguments unpreserved … , as the record before us does not include any proof to substantiate the amount of restitution ordered, we find it appropriate to exercise our discretion in the interest of justice and remit for the sole purpose of a restitution hearing … . People v Lester, 2024 NY Slip Op 05848, Third Dept 11-21-24
Practice Point: It is the judge, not the prosecutor, who makes a restitution determination, which must be supported by the record.
THE PEOPLE’S FAILURE TO FILE A SECOND FELONY OFFENDER STATEMENT RENDERED THE SENTENCE INVALID AS A MATTER OF LAW (THIRD DEPT).
The Third Department, vacating defendant’s sentence, noted that, absent defendant’s consent, the People’s failure to file a second felony offender statement rendered the sentence invalid as a matter of law:
… [D]efendant first argues that Supreme Court sentenced him illegally as a second felony offender. Although the People note that defendant’s argument is unpreserved, they concede that they neglected to file a second felony offender statement prior to sentencing (see CPL 400.21 [2]). “While we have previously held that substantial compliance with this statute is adequate when the defendant admits the prior felony and that errors or omissions in the statement may be waived by an admission by the defendant, we have also held that compliance with the statute is mandatory and that complete failure to file a second felony offender statement prior to sentencing renders the sentence invalid as a matter of law” … . Accordingly, we vacate the sentence imposed and remit the matter to Supreme Court for the filing of a predicate felony offender statement and resentencing in accordance with the law. People v Kane, 2024 NY Slip Op 05850, Third Dept 11-21-24
Practice Point: Where a defendant does not admit the prior felony, the People’s failure to file a second felony offender statement invalidates the sentence.
THERE WAS NO EVIDENCE TO CORROBORATE THE OLDER CHILD’S OUT-OF-COURT ALLEGATIONS OF ABUSE BY FATHER; THE ABUSE AND DERIVATIVE ABUSE PETITION WAS DISMISSED (THIRD DEPT).
The Third Department, reversing Family Court, determined there was no evidence to corroborate the older child’s out-of-court statements. Therefore, the petition alleging abuse of the older child and derivative abuse of the younger siblings was dismissed:
At the hearing, petitioner offered the testimony of the children’s mother, two caseworkers, and the video recording of the oldest child’s interview with the Orange County Department of Social Services caseworker and a State Police investigator. The mother testified that when the oldest child was 17 years of age, she first disclosed the allegations of sexual contact to her. Thereafter, each caseworker testified that the oldest child told them that her father had sexual contact with her from approximately two years of age until she was eight. The caseworkers further testified that the oldest child explained that her memory of the abuse was triggered when she overheard her youngest sister make reference to a secret that she held with her father. The record also reveals that there was no additional evidence of any kind presented by petitioner that corroborated the oldest child’s out-of-court statements. For example, there was no medical evidence of any sort, nor did the mother or anyone else point to any change in the oldest child’s behavior, or indications of inappropriate sexual knowledge or behavior, nor was there any expert testimony to validate the oldest child’s account of sexual abuse, or to explain the nine-year gap between the cessation of the sexual contact and the allegations of same. While there was some testimony by the mother that the child has had nightmares since she was very young and has been diagnosed with anxiety, there was no testimony, expert or otherwise, linking the nightmares or diagnosis to the alleged sexual contact. While Family Court correctly noted that a child’s out-of-court allegations of sexual abuse — as testified to by the caseworkers — can be sufficiently corroborated by the child’s detailed in-court testimony … , petitioner did not present the oldest child as a sworn witness. Finally, there was no cross-corroboration of the oldest child’s statements by her siblings as the two younger children did not disclose any sexual abuse to their mother or during the initial interview. The younger two children did not give sworn testimony at the fact-finding hearing nor were the video recordings of their interviews with the caseworker admitted into evidence. Matter of Gabriella X. (Erick Y.), 2024 NY Slip Op 05856, Third Dept 11-21-24
Practice Point: Although out-of-court allegations of sexual abuse (made to caseworkers and police investigators) may support an abuse finding, the out-of-court statements must be corroborated.
FAMILY COURT SHOULD NOT HAVE DELEGATED TO MOTHER THE AUTHORITY TO DETERMINE FATHER’S PARENTING TIME (THIRD DEPT).
The Third Department, reversing (modifying) Family Court, determined mother should not have been given the authority over father’s parenting time:
… Family Court improperly delegated its authority to the mother over the father’s in-person parenting time and telephone and electronic contact with the daughter … . With respect to the father’s telephone and electronic contact with the daughter, inasmuch as the mother agrees that the father should have telephone and electronic contact three times per week, we modify that portion of the order accordingly. With respect to the father’s in-person parenting time, although we are empowered to independently review the record and decide parenting time issues, given the father’s instability, the fact that the mother has relocated to Mississippi and the passage of time, we cannot make that determination here. As such, we remit the matter to Family Court for a hearing for the purpose of fashioning a schedule of supervised in-person parenting time … . Matter of Leslie QQ. v Daniel RR., 2024 NY Slip Op 05857, Third Dept 11-21-24
Practice Point: A Family Court cannot delegate authority over parenting time schedules to mother or father.
ALTHOUGH THE JUVENILE DELINQUENCY PETITION WAS PROPERLY DISMISSED BECAUSE THERE WAS NO NONHEARSAY EVIDENCE OF THE IDENTITY OF THE ASSAILANT, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE PETITION WITH PREJUDICE (THIRD DEPT).
The Third Department, reversing (modifying) Family Court, agreed the hearsay evidence identifying respondent as the assailant was not sufficient to support the juvenile delinquency petition, the petition should not have been dismissed with prejudice:
… Family Court abused its discretion in dismissing the petition with prejudice. “Where a petition is dismissed as jurisdictionally defective, dismissal is generally without prejudice, and the presentment agency’s proper recourse is to refile the petition” … . The court indicated that the error here was “egregious” because there were no nonhearsay allegations identifying respondent as the individual who committed the charged crime, and that this error could not be remedied by allowing for petitioner to refile. Although this error could not have been remedied by amendment of the petition (see Family Ct Act § 311.5 [2] [b]), it could have been remedied by refiling. Specifically, upon refiling there could be clarification from the deputy as to the specifics of the investigation including, as is relevant here, how the video of the incident was acquired and what that video depicted, based upon the deputy’s personal knowledge after review of the video. This is not a case where the presenting agency will necessarily be unable to establish respondent’s identity … and, therefore, the petition should have been dismissed without prejudice to allow for refiling … . Matter of Savannah F., 2024 NY Slip Op 05860, Third Dept 11-21-24
Practice Point: There was no nonhearsay proof the respondent was the assailant in this juvenile delinquency proceeding. But the petition should not have been dismissed with prejudice because the presenting agency may be able to provide sufficient proof of the identity of the assailant upon refiling.
PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment:
Plaintiff’s proof showed that the support beam was a load that required securing for the purposes of the undertaking … .Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff … .
While plaintiff and his coworker did not actually witness where the beam came from, plaintiff “is not required to show the exact circumstances under which the object fell,” provided he can demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his injuries … A plaintiff’s prima facie case is “not dependent on whether he had observed what had hit him, or whether the object in question was dropped or fell in some other manner ” … . Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24
Practice Point: Being struck by an unsecured falling object, and the failure to provide protection from falling objects, may warrant summary judgment on a Labor law 240(1) cause of action.
DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).
The Court of Appeals, reversing the Fourth Department, in a full-fledged opinion by Judge Garcia, determined the Fourth Department should not have concluded the failure to suppress defendant’s statement was harmless error. Defendant pled guilty with the intention of appealing the denial of his suppression motion:
… [T]he Appellate Division held that defendant’s statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant’s decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. * * *
The record here is ambiguous at best as to defendant’s motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was “pleading guilty because it’s a good deal,” he may only have believed that “in the face of all the evidence” admissible at the time, including his highly incriminating post-arrest statement “you saw what I had on me” … . Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling …. . The People’s argument that defendant may only have been concerned with the court’s suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant’s independent motivation for the plea. On this record, we cannot say that defendant’s decision to plead guilty was unaffected by the court’s erroneous suppression ruling, and therefore his guilty plea must be vacated. People v Robles, 2024 NY Slip Op 05819, CtApp 11-21-24
Practice Point: Consult this opinion for insight into the difficulty in applying a harmless-error analysis to a guilty plea.
THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP).
The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was justified the “intent to use the weapon unlawfully” element of criminal possession of a weapon may not have been proven:
Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person … . The model Criminal Jury Instruction provides that “a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another” … . But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge … . In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully.
To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully … . But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as proof of the unlawful intent element of the possession charge. For example, the jury’s intent determination may rest on defendant’s conduct “during the continuum of time that he possessed it prior to the shooting” … . People v Castillo, 2024 NY Slip Op 05817, CtApp 11-21-24
Practice Point: If a defendant is charged with murder and criminal possession of a weapon and is entitled to a jury instruction on the the justification defense, the jury should be instructed that it cannot find the defendant possessed the weapon with the intent to use it unlawfully solely on the basis of the shooting, if the shooting is deemed justified.
DEFENDANT DOCTOR’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILL OF PARTICULARS, RENDERING IT CONCLUSORY AND SPECULATIVE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant doctor’s (Buono’s) motion for summary judgment in this medical malpractice action should not have been granted: Buono’s expert’s affidavit did not address all the allegations in the bill of particulars, rendering it conclusory and speculative:
“To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries” … . “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars” … . Here, Buono failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against him. The plaintiff specifically alleged in his bill of particulars, inter alia, that Buono was negligent in abandoning the plaintiff in the operating room before the procedure was completed. In support of his motion, Buono submitted an affirmation of an expert who opined that Buono did not depart from good and accepted medical practice because, “as an assistant, DR. BUONO was entitled to leave the operating room as soon as his services were no longer required.” That opinion, however, failed to address certain evidence, including medical records and deposition testimony of Brady and Buono, that raised a triable issue of fact as to whether Buono was the assistant or the surgeon performing the procedure. As such, the expert’s opinion is conclusory, speculative, and wholly insufficient to establish Buono’s prima facie entitlement to judgment as a matter of law … . The expert also failed to establish that Buono’s alleged negligence was not a proximate cause of the plaintiff’s injuries. Woehrle v Buono, 2024 NY Slip Op 05815, Second Dept 11-20-24
Practice Point: In a medical malpractice action an expert affidavit in support of a defendant’s motion for summary judgment must address all the allegations in the pleadings or it will be deemed conclusory and speculative.
Similar issue and result in Bonocore v Ravindranath, 2024 NY Slip Op 05824, First Dept 11-21-24.
PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE NOTE WAS NOT PROPERLY ENDORSED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not establish standing to foreclose. Although the plaintiff proved it had possession of the note at the time the proceeding was brought, it did not demonstrate the note was properly endorsed:
Although the plaintiff established, prima facie, that it had possession of the original “wet ink” note prior to commencing the instant action …, the plaintiff failed to demonstrate that the note was properly endorsed. “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a[n] . . . action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … . Here, the instant note bore no endorsements and had no allonges attached. Deutsche Bank Natl. Trust Co. v PJK Holdings, LLC, 2024 NY Slip Op 05787, Second Dept 11-20-24
Practice Point: If standing to foreclose is contested, a plaintiff must show (1) it was in possession of the note at the time the proceeding was brought and (2) the note was properly endorsed in blank or specifically to the plaintiff.
DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not make out a prima facie case that the sidewalk defect was trivial as a matter of law. Therefore defendants’ summary judgment motion should not have been granted:
… [T]he evidence submitted by the defendants, including, inter alia, a transcript of the plaintiff’s deposition testimony, as well as photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically the height of the allegedly misleveled sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or to reasonably infer the extent of the defect from the photographs submitted … .
Therefore, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint on the ground that the defect was trivial and not actionable. Abreu v Pursuit Realty Group, LLC, 2024 NY Slip Op 05781, Second Dept 11-20-24
Practice Point: Here the photos of the sidewalk defect were not supplemented with objective measurements. The proof did not establish the defect was trivial as a matter of law.
ALTHOUGH PLAINTIFF’S EXPERT IN THIS ELEVATOR ACCIDENT CASE WAS NOT A PROFESSIONAL ENGINEER, HE HAD BEEN QUALIFIED AS AN EXPERT IN 120 CASES; THE JUDGE SHOULD NOT HAVE SUMMARILY DISQUALIFIED HIM (FIRST DEPT).
The First Department, reversing Supreme Court, determined the trial judge should not have disqualified plaintiff’s expert in this elevator accident case. Although the expert was not a professional engineer, he had been qualified as an expert in over 120 state and federal cases:
Supreme Court erred in summarily disqualifying the opinion of Patrick A. Carrajat as an expert. Although Carrajat was not a professional engineer, he nonetheless had the requisite knowledge and experience to render an opinion on the cause of the accident, as he averred that he had been qualified as an elevator expert and testified as an expert witness 120 times in state and federal courts throughout the country … . Furthermore, challenges regarding an expert witness’ qualifications affect the weight to be accorded the expert’s views, not their admissibility … .
Plaintiff’s expert’s affidavit creates issues of fact as to both the nature of the incident, and the cause of the incident. While defendants’ experts opined that the elevator could not have malfunctioned as plaintiff described, and that the elevator descended to the lobby at regular speed, Carrajat disputed this and posited ways in which the elevator could have malfunctioned that were consistent with plaintiff’s account of the accident. Given the conflicting expert affidavits, the building defendants have not established their entitlement to summary judgment … . Escolastico v Rigs Mgt. Co., LLC, 2024 NY Slip Op 05769, First Dept 11-19-24
Practice Point: Here in this elevator-accident case plaintiff’s expert was not a professional engineer but had been qualified as an expert in over 120 cases. It was reversible error to summarily disqualify him.
PLAINTIFF’S BRINGING MULTIPLE MERITLESS LAWSUITS AGAINST DEFENDANT AND HER ATTORNEYS OVER THE COURSE OF TEN YEARS WARRANTED SANCTIONS (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined plaintiff’s bringing several meritless lawsuits against defendant and her attorneys over the course of ten years warranted sanctions:
Supreme Court improvidently exercised its discretion in denying defendant an award of sanctions despite noting that plaintiff’s “conduct was entirely frivolous,” “abusive,” and “fabricated.” The record firmly established that plaintiff engaged in a persistent pattern of extended and largely meritless litigation against defendant … , rendering his conduct frivolous within the meaning of 22 NYCRR 130-1.1(c) and thereby warranting sanctions. Plaintiff’s numerous lawsuits initiated against both defendant and her attorneys—six separate suits between 2010 and 2020, all dismissed at the pleading stage—strongly suggests that those lawsuits, along with the present action, were brought primarily to harass defendant … . Our prior decision holding that sanctions for frivolous conduct were not warranted does not affect our decision to grant the motion for sanctions here, as the result in our prior decision (Ray v Ray, 180 AD3d 472, 474 [1st Dept 2020]) was not based on these particular facts. Ray v Ray, 2024 NY Slip Op 05777, First Dept 11-19-24
Practice Point: Here plaintiff’s multiple meritless lawsuits against defendant and her attorneys warranted sanctions for “frivolous conduct.”