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EASEMENT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT).

The Third Department determined an easement which originally allowed access to a garage and woodshed had been extinguished because the garage and woodshed longer existed, and had not existed for some 50 years:

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An easement appurtenant, such as the one at issue on this appeal, is created through a written conveyance, subscribed by the grantors, that burdens the servient estate for the benefit of the dominant estate … . An easement expressly created for, or limited to, a specific purpose may be extinguished by the abandonment of that purpose … , which must be demonstrated through “unequivocal” acts establishing that the owner of the dominant estate intended to “permanently relinquish all rights to the easement” … . In determining the nature and extent of an express easement, the easement must be construed “to give effect to the [conveyors’] intent, as manifested by the language of the grant” … . Stone v Donlon, 2017 NY Slip Op 09225, Third Dept 12-28-17

 

REAL PROPERTY (EASEMENTS, EASEMENT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT))/EASEMENTS (EASEMENT APPURTENANT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT))/EASEMENT APPURTENANT (EASEMENT APPURTENANT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT))

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STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the single eight inch step which allegedly caused plaintiff to fall was open and obvious and, therefore, not actionable:

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Defendants established prima facie entitlement to summary judgment based on evidence that the single 8″ step onto the furniture display platform in defendants’ showroom — on which plaintiff wife tripped — was an illuminated, open and obvious condition which was readily observable by reasonable use of one’s senses … .Plaintiff wife, together with her family, had navigated the single step onto the furniture display platforms earlier that shopping day, and also during an uneventful visit to the same showroom just a few weeks prior to the date of her accident. There was no evidence to indicate that the single step, in its design, placement and maintenance, was inherently dangerous, and the defendants’ use of warning signs to give notice of the step’s presence did not, standing alone, render the steps unsafe.

Plaintiffs have not presented any proof that negligence on the part of defendants in the design, construction or maintenance of the subject step contributed to her fall, or that alleged showroom distractions support grounds to find liability on defendants’ part under the circumstances presented … . Faber v Place Furniture, Inc., 2017 NY Slip Op 09265, First Dept 12-28-17

 

NEGLIGENCE (SLIP AND FALL, STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))/OPEN AND OBVIOUS (STEP, SLIP AND FALL,  STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))/STEPS (SLIP AND FALL,  STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT))

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PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 241 (6) cause of action because the presence of loose material on a roof which cause plaintiff to slip to his knees violated an industrial code provision:

 

The record demonstrates that the loose granules on the roof surface that caused plaintiff to slip were not integral to the structure or the work … , but were an accumulation of debris from which § 23-1.7(e)(2) requires work areas to be kept free … .. Thus, plaintiff is entitled to summary judgment as to liability on the Labor Law § 241(6) cause of action insofar as it is predicated upon § 23-1.7(e)(2). Lester v JD Carlisle Dev. Corp., 2017 NY Slip Op 09259, First Dept 12-28-17

 

LABOR LAW-CONSTRUCTION LAW (PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/INDUSTRIAL CODE (LABOR LAW-CONSTRUCTION LAW, PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT).

The Third Department, dismissing the juvenile delinquency petition, determined the juvenile’s admission to endangering the welfare of a child did not meet the criteria required by the Family Court Act:

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Family Court “shall not consent to the entry of an admission unless it advises the respondent of his or her right to a fact-finding hearing and, further, ascertains through allocution of the respondent and his or her parent that the respondent committed the acts underlying the admission, is voluntarily waiving a fact-finding hearing and is aware of the possible specific dispositional orders” … . Even though Family Court partially complied with Family Ct Act § 321.3, we agree with respondent that the allocution was insufficient overall … .

At the hearing, Family Court merely asked respondent whether he “engaged in conduct that was likely to pose a risk of injury to a child.” Although Family Court specified the date and the location of the alleged crime, the court did not mention any other specific underlying fact forming the basis of the alleged crime… .. As such, Family Court did not “elicit a sufficient factual basis to support respondent’s admission” … . Furthermore, while Family Court advised respondent of his right to a hearing and his right to remain silent, the record does not indicate that respondent was advised of his right to present witnesses on his behalf, his right to confront witnesses and that the presentment agency had to prove beyond a reasonable doubt that he committed the alleged act, which if committed by an adult, would constitute a crime … . Nor do we find that merely asking respondent’s mother as to whether respondent’s admission to the charge of endangering the welfare of the child was done with her approval constituted a sufficient allocution of respondent’s parent as required by Family Ct § 321.3 (1) … . Matter of Kameron Vv., 2017 NY Slip Op 09215, Third Dept 12-28-17

FAMILY LAW (JUVENILE DELINQUENCY, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/JUVENILE DELINQUENCY (FAMILY LAW, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/CRIMINAL LAW (JUVENILE DELINQUENCY, FAMILY LAW, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/ADMISSION (JUVENILE DELINQUENCY, FAMILY LAW, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/ALLOCUTION (JUVENILE DELINQUENCY, FAMILY LAW,  ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))

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MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined mother was properly stripped of joint legal custody:

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The evidence reveals the parties’ inability to communicate effectively regarding the child. Notwithstanding their numerous discussions, occurring both in court and out of court, the mother continued to undermine the father and to act contrary to his express wishes. The mother testified that she “knew [the father] was not in agreement” with allowing the child’s continued contact with the boy and that she did not make a “joint decision[].” Nonetheless, she unilaterally decided to permit the child to have physical contact with the boy, and to attend the church where he served as her youth leader and his baseball game. She further acknowledged that a message that she had sent to the father “threaten[ed] to file court papers if he didn’t allow [the child] to do what she wanted on his time.” In sum, although the parties are able to communicate, there is scant evidence that the mother is willing to accept or act upon that communication; instead, after speaking with the father, she disregards his requests and opinion regarding essential parenting issues, and fails to acknowledge that it is important to do so.

Upon this record, a sound and substantial basis supports the determination awarding the parents equal shared physical custody and the father sole legal custody, while directing him to “solicit and reasonably consider” the mother’s input regarding any major decisions … . Similarly, the record supports Family Court’s finding that the mother willfully violated the 2011 order by her admitted failure to bring the child to visitation and by her discussion of court proceedings with the child, as well as the court’s bench order by permitting the child to have further contact with the boy and returning her cell phone … .

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From the Dissent:

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As the majority recognizes, the mother and the father were not on the same page regarding the issue of the child’s relationship with the 15-year-old boy and the extent and manner in which she should be disciplined for her alleged transgressions. Nevertheless, this is not a situation where the parties’ joint decision making has so broken down that joint legal custody is no longer feasible … . Indeed, the record established that, despite their significantly different parenting styles, the parties had been successfully following the previous order, communicating in the best interests of the child for several years and operating “in harmony” under the concept of “[my] house, [my] rules, [your] house, [your] rules” — a concept that was, notably, introduced by the father. Matter of Thompson v Wood, 2017 NY Slip Op 09219, Third Dept 12-28-17

 

FAMILY LAW (CUSTODY, MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT))/CUSTODY (FAMILY LAW, LEGAL CUSTODY, MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT))/LEGAL CUSTODY (FAMILY LAW,  MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT))

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PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined a prior burglary should not have been allowed as Molineux and Sandoval evidence in this robbery prosecution. The error was deemed harmless however:

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“The Molineux rule requires that evidence of a defendant’s prior bad acts or crimes be excluded unless it is probative of a material issue other than criminal propensity and its probative value outweighs the risk of prejudice to the defendant”… . Although defendant’s intent was at issue, given his defense that he was an innocent bystander who had no knowledge that the codefendants planned to rob [the victim] when he drove them to her residence, the prior conviction was of limited probative value with respect to defendant’s intent because the prior conviction arose from an incident that was not similar to the charged conduct. The prior burglary did not involve a robbery, but, rather, arose from an incident during which defendant entered the residence of another with the intent to assault an occupant. Moreover, [a co-defendant’s] testimony, if believed, was sufficient to permit the jury to find that defendant had the requisite intent to the commit burglary and robbery. Accordingly, the evidence that defendant had committed a prior burglary would serve only to demonstrate that defendant had a propensity to commit burglary and, therefore, the court should have determined that the prior conviction was inadmissible as proof of defendant’s intent … .

County Court also erred in its Sandoval ruling. Although the crime was not too remote to be relevant and the nature of the conviction was probative of defendant’s credibility, allowing the prior crime to be identified as burglary improperly suggested that defendant had a propensity to commit one of the crimes with which he was charged … . People v Williams, 2017 NY Slip Op 09196, Third Dept 12-28-17

CRIMINAL LAW (EVIDENCE, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, RIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/MOLINEUX EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/SANDOVAL EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))

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DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s motion to vacate his conviction (by guilty plea) should not have been denied without a hearing. The pro se papers were deemed sufficient to raise the issues of ineffective assistance (failure to accurately inform defendant of the deportation consequences of the plea) and prejudice should defendant be deported after he had successfully sought asylum. The court found that the absence of an attorney affidavit from the motion to vacate papers was explained and should have been excused. Although defendant pled to endangering the welfare of a child, his attorney allowed an allocution on the elements of sexual abuse in the first degree:

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Here, the absence of an affidavit by defendant’s counsel does not support the summary denial of defendant’s motion for three reasons.

First, defendant’s allegations are corroborated by other parts of the record … . They are corroborated by defendant’s application to naturalize, postplea, which exposed him to detection by Immigration and Customs Enforcement (ICE), since he certainly would not have made the application if he had known that he was in any danger of deportation. In addition, counsel’s failure to object to the court’s unnecessary allocution on the elements of sexual abuse in the first degree … suggests that counsel may not have accurately understood the consequences of the plea.

Second, where, as here, defendant’s application is adverse and hostile to his trial attorney, “[r]equir[ing] the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary” … .

Third, in any event, defendant explained the absence of an affidavit by his counsel … . People v Mebuin, 2017 NY Slip Op 09276, First Dept 12-28-17

 

CRIMINAL LAW (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))

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IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT).

The Third Department explained the concept of a design-build “turnkey” project, noting that the property owner is generally not a third-party beneficiary of the contracts entered into by the entity in charge of the design-build “turnkey” project (here RBG):

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It is undisputed that neither plaintiff entered into a contract with RZA nor RDI. Rather, RBG entered into contracts with each of those entities, as would be expected in a turnkey project. “In turnkey or design-build construction projects, an owner contracts with one entity to both design and build the project and the turnkey builder is responsible for every phase of the construction from final design through subcontracting, construction, finishing, and testing. The design-builder generally cannot shift liability and is the single point of responsibility under a design-build contract, because” the design-builder is responsible for all phases of construction, including “the responsibility for holding the contracts with its trade contractors” … .

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Generally, a party may not assert a cause of action for breach of contract against a person or entity with whom it is not in privity … . Without a contractual relationship and the resulting privity, plaintiffs could proceed against RZA or RDI only if plaintiffs were third-party beneficiaries of RBG’s contract with those entities or had the functional equivalent of privity… .”[O]rdinarily, construction contracts are not construed as conferring third-party beneficiary enforcement rights” … . Luckow v RBG Design-Build, Inc., 2017 NY Slip Op 09221, Third Dept 12-28-17

 

CONTRACT LAW (CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/THIRD PARTY BENEFICIARY (CONTRACT LAW, CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/CONSTRUCTION (CONTRACT LAW, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/DESIGN-BUILD (CONTRACT LAW, CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/TURNKEY PROJECT (CONTRACT LAW, CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))

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COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT).

The Third Department determined Supreme Court should not have dismissed causes of action for failure to name necessary parties, but rather should have ordered the parties joined:

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Supreme Court erred, however, by determining that petitioners’ failure to name Negron, Zell, Lowe, Robertson and Burkert as necessary parties required dismissal of the first three causes of action in the petition/complaint … . CPLR 1001 (b) provides that where a party or parties who should be joined have “not been made a party and [are] subject to the jurisdiction of the court, the court shall order [them] summoned” … . Because Negron, Zell, Lowe, Robertson and Burkert are necessary parties and are subject to Supreme Court’s jurisdiction insofar as they were employees of the City of Kingston Police Department at the time of commencement of this proceeding, the court should have ordered them joined… . Accordingly, we find that this matter must be remitted to Supreme Court to order Negron, Zell, Lowe, Robertson and Burkert to be joined as necessary parties … . Matter of Farrell v City of Kingston, 2017 NY Slip Op 09214, Third Dept 12-28-17

CIVIL PROCEDURE (NECESSARY PARTIES, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))/NECESSARY PARTIES (CIVIL PROCEDURE, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))/CPLR 1001 (NECESSARY PARTIES, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))

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ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s separate cause of action for punitive damages should have been dismissed. However, the demand for punitive damages in the ad damnum clause was proper. Plaintiff was a passenger in the car driven by defendant, who was drunk and lost control of the car:

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The plaintiff erroneously denominated her request for punitive damages as a separate cause of action. “New York does not recognize an independent cause of action for punitive damages”… . Accordingly, the Supreme Court erred in denying that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the separately pleaded sixth cause of action insofar as asserted against him.

However, the plaintiff’s request for punitive damages in the ad damnum clause of the complaint was proper. Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . With regard to the availability of punitive damages in personal injury cases involving drunk drivers, while this Court has held that “[e]vidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages”… , this Court has also held that “driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in wanton and reckless’ conduct evincing heedlessness and an utter disregard for the safety of others”… . Indeed, punitive damages were properly imposed where the driver was excessively drunk …  or was a repeat offender… . Accordingly, a request for punitive damages can be stated in a case arising from drinking and driving. Furthermore, at this stage it would be premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages … Thus, to the extent the plaintiff sought punitive damages in her ad damnum clause, she stated a request for such damages, and that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss that request for punitive damages insofar as asserted against him was properly denied … . Gershman v Ahmad, 2017 NY Slip Op 09117, Second Dept 12-27-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DAMAGES, DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CIVIL PROCEDURE (PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CRIMINAL LAW (DRUNK DRIVING, NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, DRUNK DRIVING, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/PUNITIVE DAMAGES (DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/DRIVING WHILE INTOXICATED (NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))

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