Page 1002 – New York Appellate Digest

/ Negligence

QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE THE EMPLOYEE’S GARBAGE CART COLLIDED WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact raised by the defendant housing authority’s evidence precluded summary judgment. Plaintiff was injured when a custodian pushing a cart collided with plaintiff’s scooter as plaintiff backed out of an elevator. The custodian’s claim that he could see clearly in front of him raised a credibility issue:

Here the evidence the Housing Authority submitted in support of the motion was insufficient to establish its prima facie entitlement to judgment as a matter of law. The evidence did not eliminate any material issue of fact as to whether its employee was negligent in handling the garbage cart at the time of the incident. The employee testified at his deposition that he was told to watch for people in the hallways and to never fill the cart too high so as to block his vision at the front of the cart. He never loaded the cart higher than chest height, at the time of the accident there was nothing obstructing his view, and he always looked in front of him when pushing the cart to make sure no one was in front of him. At the time of the incident he could see clearly in front of him, he was not walking fast, and he was cautiously pushing the cart with his usual force. The employee further testified at his deposition that he first saw the plaintiff only after he felt the impact of his cart striking the plaintiff, and he stopped to see what had occurred. It is undisputed that the plaintiff had been on his scooter backing out of the elevator before the impact, which raises a question as to the credibility of the employee’s testimony that he could see clearly in front of him as he was pushing the cart, when he did not see or hear the elevator open or the plaintiff backing out of the elevator. Further, there is a question of fact as to whether the employee was negligent in failing to “see what should be seen” … . Since the Housing Authority failed to eliminate all questions of fact as to the happening of the accident, the Supreme Court should have denied its motion without regard to the sufficiency of the plaintiff’s opposition papers … . Richardson v County of Nassau, 2017 NY Slip Op 09187, Second Dept 12-27-17

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE COLLIDING WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT))

December 27, 2017

/ Negligence

PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the benches near the field where plaintiff was playing football were open and obvious and plaintiff had assumed the risk of tripping over them:

Under the doctrine of primary assumption of risk, “[i]f the risks of [a sporting] activity are fully comprehended or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” … . “This includes risks associated with the construction of the playing surface and any open and obvious condition on it” … “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

Here, according to the infant plaintiff’s deposition testimony, which the defendants submitted in support of their motion, there was nothing marking the area where the benches were located as the end zone, but if the ball was caught in the vicinity of the bench, the campers would consider that a touchdown. The infant plaintiff also testified that he flipped over one of the benches as he was running for a pass and that, prior to turning to catch the ball, he had run the full length of the field looking ahead toward the benches, which were situated alongside the volleyball courts. Consequently, the bench was open, obvious, clearly visible, and known to the infant plaintiff … . Since the infant plaintiff, who had been playing football on this field for more than an hour when the accident occurred, was aware of that condition and voluntarily chose to play on the field, he assumed the risk of injury of colliding into one of the benches when attempting to score … . E.B. v Achim, 2017 NY Slip Op 09115, Second Dept 12-27-17

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/SLIP AND FALL (SPORTS, PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/SPORTS (SLIP AND FALL, PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))

December 27, 2017

/ Negligence

DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-cemetery had demonstrated it did not have notice of the depression or hole plaintiff stepped in. The area was covered with grass and appeared to be level:

As alleged by the plaintiff, she was visiting the graves of her family members and was walking behind her father when she took a step near one of the headstones and her left foot began to sink into the ground. The spot where her foot sank into the ground was covered with grass, and it appeared to be level. According to the plaintiff, her father had stepped in the exact spot seconds before her accident without incident. The plaintiff, and her husband suing derivatively, commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appeal.

In a premises liability case, a defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence… . To constitute constructive notice, a dangerous condition “must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create or have actual or constructive notice of the subject dangerous condition before the incident occurred … . Carriero v St. Charles/ Resurrection Cemetery, 2017 NY Slip Op 09112, Second Dept 12-27-17

NEGLIGENCE (DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

December 27, 2017

/ Negligence

BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ summary judgment motion in this traffic accident case should have been granted. Defendant bus driver was aware of an upcoming sharp curve and was aware the road was slippery due to rain. The bus crossed into the on-coming lane, striking plaintiffs’ vehicle. There was no question of fact about whether the bus driver had reacted to an emergency:

“A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic” … . “Crossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver’s own making”… .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant driver’s negligence in crossing over the double yellow line and entering the opposite lane of traffic, in which the plaintiffs’ vehicle had been traveling, was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s deposition testimony indicated that she knew that there was a sharp curve in the road where she lost control of her vehicle and that rain, which had been falling for some time prior to the accident, had made the roadway slippery. Contrary to the defendants’ contention, the defendant driver merely speculated that there was oil on the ground. Thus, the defendants failed to raise a triable issue of fact as to whether the defendant driver was faced with an emergency situation not of her own making which contributed to the happening of the accident … . Browne v Logan Bus Co., Inc., 2017 NY Slip Op 09111, Second Dept 12-27-17

NEGLIGENCE (TRAFFIC ACCIDENTS, BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))/TRAFFIC ACCIDENTS (BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT))

December 27, 2017

/ Evidence, Family Law

FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s visitation rights should not have been suspended indefinitely without a hearing. Family Court had relied on untested evidence presented at conferences:

Generally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody and visitation order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard … . A decision regarding child custody and visitation should be based on admissible evidence … . Here, the Family Court relied on information provided at the court conferences, and the hearsay statements and conclusions of mental health providers whose opinions and credibility were untested by either party … .

Under the circumstances of this case, the Family Court erred when it, without a hearing, in effect, denied the father’s petition for increased visitation and indefinitely suspended his visitation with the child … . Matter of Edmunds v Fortune, 2017 NY Slip Op 09126, Second Dept 12-27-17

FAMILY LAW (FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT))/EVIDENCE (FAMILY LAW, FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT))/VISITATION (FAMILY LAW, FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT))

December 27, 2017

/ Family Law

FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court did not have the authority to order mother to be fingerprinted in this special immigrant juvenile status (SIJS) proceeding:

… [T]he mother commenced this proceeding to be appointed guardian of the subject child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the mother moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. The Family Court denied the motion without a hearing and dismissed the guardianship petition for “failure to prosecute” based on the mother’s failure to obtain fingerprinting. The mother appeals.

Since there is no express statutory fingerprinting requirement in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant” … , the Family Court erred in denying the mother’s motion based on her failure to comply with the court’s directive to obtain fingerprinting … . Further, under the circumstances of this case, the court erred in dismissing the petition for “failure to prosecute” based on the mother’s failure to obtain fingerprinting … . Matter of Fermina B. v Rene P., 2017 NY Slip Op 09125, Second Dept 12-27-17

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATE (SIJS) (FAMILY LAW, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))/FINGERPRINTING (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))/IMMIGRATION (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))

December 27, 2017

/ Criminal Law, Sex Offender Registration Act (SORA)

DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Eng, determined Supreme Court properly denied defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding. Defendant submitted two psychological risk assessments, the Static-99R and the Vermont Assessment, in support of the request for downward departure:

To recognize a low or moderate-low score on the Static-99R and/or the Vermont Assessment as a mitigating factor would, in essence, permit SORA courts to rely on those instruments in lieu of the RAI [New York’s Risk Assessment Instrument} promulgated by the Board [of examiners of sex offenders] and designed to account for the specific factors prescribed by the Legislature. This would amount to a rejection of the RAI in favor of assessment instruments that serve the more limited function of attempting to measure risk of reoffense alone, in clear contravention of the legislative intent to require consideration of both risk of reoffense and the danger of harm posed by reoffense … . …

Even were we to accept the proposition that the fact that a sex offender received a more favorable assessment on the Static-99R or Vermont Assessment could constitute an appropriate mitigating factor, we would find that the defendant failed to sustain his burden of proof in support of his request for a downward departure on this basis. …

Our conclusion that an offender’s lower risk score on an alternate risk assessment instrument is not itself a mitigating factor that can support a downward departure does not necessarily mean that an offender cannot rely upon one or more of the individual risk factors included on such instruments to demonstrate that he or she is at a lower risk of reoffense or poses less of a danger to the community. While some of the risk factors included on the Static-99R and Vermont Assessment are also taken into account by the RAI, other risk factors are unique to those instruments. Here, however, the defendant has not identified any specific, unique risk factors on the Static-99R or Vermont Assessment that could qualify as a mitigating factor. People v Curry, 2017 NY Slip Op 09184, Second Dept 12-27-17

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/MITIGATING FACTORS (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/

December 27, 2017

/ Criminal Law, Municipal Law

THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s assault conviction, determined the jury should not have been instructed that the paramedic defendant was accused of assaulting was a peace officer (thereby negating the justification defense). The paramedic (Cohn) was a member of the NYC Fire Department, and was not authorized to arrest:

Penal Law § 35.27 provides that “[a] person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.” CPL 2.10 sets forth the “[p]ersons designated as peace officers,” including, as relevant here, “[a]ll officers and members of the uniformed force of the New York city fire department as set forth and subject to the limitations contained in section 487a-15.0 of the administrative code of the city of New York” (CPL 2.10[28]). The relevant section of the New York City Administrative Code provides, with limited exceptions not applicable here, that “[i]n the performance of their duties, all officers and members of the uniformed force [of the FDNY] . . . shall have the powers and perform the duties of peace officers, but their power to make arrests and to serve process in criminal actions shall be restricted to cases arising under laws relating to fires and the extinguishment thereof, and to fire perils” … .

… EMS personnel are not members of the uniformed force of the FDNY … . Accordingly, Paramedic Cohn was not acting as a peace officer within the meaning of CPL 2.10(28) at the time that the defendant allegedly assaulted him, and the Supreme Court erred when it instructed the jury that Penal Law § 35.27 applied with respect to the charge of assault in the second degree related to Paramedic Cohn. Since the court’s charge effectively removed from the jury’s consideration the defendant’s justification defense, under the circumstances, the defendant is entitled to a new trial on count one of the indictment charging her with assault in the second degree relating to Paramedic Cohn … . People v Thomas, 2017 NY Slip Op 09178, Second Dept 12-27-17

CRIMINAL LAW (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/MUNICIPAL LAW (NYC) (CRIMINAL LAW, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/PARAMEDICS (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/RESISTING ARREST (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))

December 27, 2017

/ Civil Procedure, Evidence, Foreclosure

IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, explained an aspect of the rigid proof requirements for summary judgment. Here plaintiff bank moved for summary judgment in a foreclosure action. Defendant, in opposition, raised plaintiff’s failure to demonstrate compliance with a condition precedent in the note. Plaintiff submitted reply papers with proof the condition precedent had been met. The Second Department determined the reply could not be considered and therefore the plaintiff had not made out a prima facie case in its papers:

As part of her affirmative defenses and counterclaim, the defendant asserted, inter alia, that the plaintiff l… failed to show that it complied with the condition precedent contained in paragraph 7, subsection C, of the note. * * *

… [T]he plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in paragraph 7, subsection C, of the note… “[A] party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply, and generally, evidence submitted for the first time in reply papers should be disregarded by the court”… . Here, since the defendant raised the issue of compliance with paragraph 7, subsection C, of the note in her affirmative defenses and counterclaim, the plaintiff’s submission for the first time of a copy of the requisite default notice with its reply to the defendant’s opposition to the summary judgment motion was not sufficient to establish its prima facie compliance … . Since the plaintiff failed to meet its prima facie burden on the motion, we need not consider the sufficiency of the defendant’s opposition papers … . Wells Fargo Bank, N.A. v Osias, 2017 NY Slip Op 09195, Second Dept 12-27-17

CIVIL PROCEDURE (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/REPLY (SUMMARY JUDGMENT, EVIDENCE, N MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))

December 27, 2017

/ Civil Procedure, Evidence

ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly denied in this fraudulent conveyance action. The court offered a particularly clear description of how summary judgment motions are analyzed by the appellate courts. Although plaintiff bears the burden of proof at trial, a defendant bringing a motion for summary judgment bears the burden of proof. Gaps in a defendant’s proof require that the motion be denied, without considering the plaintiff’s opposing papers. Therefore a defendant cannot point to gaps in the plaintiff’s proof as a ground for summary judgment in favor of defendant:

It is the movant’s burden on a motion for summary judgment to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact”… . Only if the movant succeeds in meeting its burden will the burden shift to the opponent to demonstrate through evidence in admissible form that there exists a triable issue of fact. While the ultimate burden of proof at trial will be borne by the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form … . On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense… . Vumbico v Estate of Rose H. Wiltse, 2017 NY Slip Op 09194, Second Dept 12-27-17

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))

December 27, 2017

Search Results

QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE SEEN BEFORE THE EMPLOYEE’S GARBAGE CART COLLIDED WITH PLAINTIFF’S SCOOTER AS PLAINTIFF BACKED OUT OF AN ELEVATOR (SECOND DEPT).

PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT).

DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO, AREA WAS COVERED WITH GRASS AND APPEARED TO BE LEVEL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

BUS DRIVER WAS LIABLE AS A MATTER OF LAW, BUS CROSSED THE YELLOW LINE INTO PLAINTIFF’S ON-COMING LANE, NO EMERGENCY (SECOND DEPT).

FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT).

FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT).

DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).

THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT).

IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

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