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Children’s Out-of-Court Statements Sufficiently Corroborated

In upholding a finding of neglect, the Second Department determined the out-of-court statements of the children were sufficiently corroborated to be admissible:

In a child protective proceeding, “[u]nsworn out-of-court statements of the [subject child] may be received and, if properly corroborated, will support a finding of abuse or neglect …  * * *

Here, the out-of-court statements of siblings Alysa and Joseph to the caseworker were corroborated by the caseworker’s personal observations, the two children’s own cross-corroborating statements, confirmation of certain events by their older sister Selena and brother Mateo, and certain statements by the mother, and were properly considered by the Family Court (see Family Ct Act § 1046[a][vi]; …).  Matter of Mateo S. 2014 MY Slip Op 04497, 2nd Dept 6-18-14

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MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).
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).
HERE PLAINTIFF CORPORATION, RC, DID NOT EXIST WHEN THE REAL ESTATE CONTRACT WAS ENTERED AND WAS NOT FORMED FOR SEVERAL YEARS UNTIL JUST BEFORE THE INSTANT LITIGATION; BECAUSE DEFENDANT DEALT WITH RC AS A CORPORATION FOR YEARS AND RECEIVED SOME BENEFIT FROM THE CONTRACT, THE DOCTRINE OF “CORPORATION BY ESTOPPEL” PROHIBITED DEFENDANT FROM AVOIDING ITS OBLIGATIONS UNDER THE CONTRACT BY ARGUING A NONEXISTENT CORPORATION CANNOT ENTER A CONTRACT (SECOND DEPT).
ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
QUESTIONS OF FACT WHETHER DEFENDANT WAS AN OUT-OF-POSSESSION LANDLORD PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD IN THIS SLIP AND FALL CASE (SECOND DEPT). ​
DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE BANK POSSESSED THE CORRECT VERSION OF THE NOTE, AND, THEREFORE, WHETHER THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT). ​
DEFENDANT’S HEALTH AT THE TIME OF THE TRAFFIC ACCIDENT WAS NEVER PLACED IN CONTROVERSY AND THE PHYSICIAN-PATIENT PRIVILEGE WAS NOT WAIVED BY A LETTER TO PLAINTIFF’S ATTORNEY INDICATING DEFENDANT SUFFERED FROM DEMENTIA, ANXIETY AND DEPRESSION (SECOND DEPT).

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