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FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff firefighter’s General Municipal Law 205-a cause of action should not have been dismissed. It was alleged that the fire which caused plaintiff’s injury was started by a warming plate that was left on when defendant left her apartment in violation of the NYC Fire Code. Although the defendant’s act was not the proximate cause of plaintiff’s injury, the General Municipal Law 205-a cause of action requires only a connection between the injury and a code violation:

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Plaintiff firefighter was injured while attempting to fight a fire that had originated in defendant’s apartment. Issues of fact exist as to whether defendant was negligent in leaving a warming tray/hot plate plugged into a timer, in the “on” position, when she left her apartment to go to a friend’s home for dinner. The Fire Marshall concluded that the fire originated in the area of the warming tray/hot plate and timer. Although the motion court correctly concluded that defendant’s alleged negligence was not a proximate cause of plaintiff’s injuries, General Municipal Law § 205-a imposes liability where there is a practical or reasonable connection between a statutory or code violation and the firefighter’s injury or death … . Plaintiff’s expert fire investigator opined that, by leaving the apartment with the electrical heating devices on, defendant delayed the discovery of the fire and allowed it to grow and spread. Accordingly, there is a sufficient connection between defendant’s alleged negligence and plaintiff’s injury … . The court also improperly found that the New York City Fire Code (Administrative Code of City of NY tit 29, ch 2) § FC 305.4 was inapplicable to the facts of this case. That section is not limited to “combustible waste,” but expressly includes “combustible material.” Moreover, while combustible waste that has economic value to a premises is considered combustible material … , combustible material is not so limited, but is any material capable of combustion. The materials in defendant’s kitchen were clearly combustible. Walsh v Michelson, 2017 NY Slip Op 08616, First Dept 12-7-17

 

MUNICIPAL LAW (FIREFIGHTERS, GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/GENERAL MUNICIPAL LAW 205-a FIREFIGHTERS (FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/FIREFIGHTERS (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/NEGLIGENCE (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))

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TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT).

The Third Department determined plaintiff lessee’s lawsuit against the lessor’s insurance carrier for denial of a claim for water damage was properly dismissed. Under New York law plaintiff could not sue the landlord’s carrier directly unless plaintiff first procured a judgment against the landlord which was not satisfied:

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… [I]t was well-established under the common law that an injured party has no direct cause of action against the insurer of a tortfeasor … . That is, an injured party, as a stranger to the policy between the insured tortfeasor and its insurer, could not, at common law, bring a claim against the tortfeasor’s insurer due to the lack of privity between the injured party and the insurer, even where the injured party had obtained a judgment against the insured … . As a result of the hardships and inequities this rule created, the Legislature created a “limited statutory cause of action on behalf of injured parties directly against insurers,” which is applicable where the injured party has obtained a judgment against an insured and the judgment has gone unsatisfied for 30 days … . It is undisputed that plaintiff has not obtained a judgment against [the landlord], which is “a condition precedent to a direct action” against [the landlord’s] insurer and, thus, plaintiff cannot avail itself of this limited statutory cause of action … . Thus, even liberally construing the complaint, accepting the facts as alleged as true and affording plaintiff the benefit of every inference, plaintiff has not stated a statutory cause of action against [the insurer]. … . As plaintiff is not a named insured under the policy and did not obtain a judgment against [the landlord], Supreme Court properly granted Cincinnati’s motion dismissing the complaint due to plaintiff’s lack of standing and failure to state a cause of action … . GM Broadcasting, Inc. v Cornelius Enters., LLC, 2017 NY Slip Op 08593, Third Dept 12-7-17

 

INSURANCE LAW (LANDLORD-TENANT, CONTRACT LAW, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/LANDLORD-TENANT (INSURANCE LAW, CONTRACT LAW,  TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, LANDLORD-TENANT, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))

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PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT).

The Third Department determined petitioner-inmate’s release on parole was properly rescinded based upon his behavior at the rescission hearing and victim impact statements. The victim’s family had not be notified of the initial parole hearing and therefore had not submitted victim impact statement prior to petitioner’s release:

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In October 1995, petitioner approached a vehicle at the end of his driveway that contained his friend Steven Sedore and petitioner’s ex-wife, who were there to pick up the daughter of petitioner and his ex-wife. Petitioner shot and killed Sedore as he sat in the vehicle, and viciously attacked his ex-wife, causing serious injuries. Petitioner ultimately pleaded guilty to manslaughter in the first degree and attempted manslaughter in the first degree and was sentenced to an aggregate prison term of 20 to 40 years. …

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… [W]e disagree with Supreme Court’s finding that respondent improperly relied upon these statements solely because they were submitted after his open release date had been set. The court based this determination upon the Court of Appeals’ decision in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002 [2014]), in which the Court concluded that respondent improperly rescinded a parole release based upon information in victim impact statements that had been submitted after it had set an open release date … . … [W]e do not interpret the Court’s decision as precluding respondent from ever considering victim impact statements submitted after an open release date has been granted in determining whether parole should be rescinded … .

The victim impact statements at issue were submitted by three of Sedore’s sisters and a brother-in-law. One of the sisters had already provided an impact statement at petitioner’s sentencing hearing, but the other family members had not done so. The statements submitted by the other sisters referenced specific threats that petitioner had made to them — including during sentencing where he allegedly pointed his finger at one sister and mouthed the words “you are dead,” and also ran his finger across his throat while looking at the family. One of the sisters also stated that petitioner sent her letters and a get well card from prison when she was in the hospital, which made her feel uncomfortable knowing that “he knew everything that was going on in my life.” These incidents, which had not previously been disclosed, constitute “significant information” and provide substantial evidence supporting respondent’s rescission of parole … . Matter of Thorn v New York State Bd. of Parole, 2017 NY Slip Op 08566, Third Dept 12-7-17

 

CRIMINAL LAW (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/PAROLE (RESCISSION, PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/VICTIM IMPACT STATEMENTS (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))

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PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, upheld for the most part a preliminary injunction placing restrictions on protests by animal rights advocates against Central Park Sightseeing which operates horse-drawn carriages in New York City’s Central Park. The court found that Central Park Sightseeing was likely to prevail on its public nuisance and tortious interference with contract causes of action. The First Department modified the injunction’s “floating buffer zone” provision, paragraph 3, however:

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The court granted plaintiff’s motion for a preliminary injunction to the extent of enjoining and restraining defendants “and/or anyone else who becomes aware of this Decision and Order” from

“1. physically blocking, impeding, or obstructing any persons from seeking or taking, or providing … a lawful horse-carriage ride disembarking from Central Park South …;

“2. physically touching, pushing, shoving, or grabbing any such persons or horses;

“3. yelling or shouting at, or aggressively accosting, any such persons, or any carriage horses, from a distance of less than nine feet (… three yards…);

“4. physically blocking, impeding, or obstructing the progress of any such horse-carriage ride;

“5. handing literature to persons situated within a horse carriage; and

“6. counseling, facilitating, aiding, or abetting any other person from doing such things.”

The court made it clear that “[b]oth sides agree that defendants can protest, including picket, hold signs, hand out literature, bear witness, and raise their voices,” noting that “the content of the speech is not at issue here; the manner of delivery is.” …

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We … modify paragraph 3 of the injunction to prohibit any person from knowingly approaching within nine feet of another person in the loading/unloading zone, without that person’s consent, for the purpose of handing a leaflet or bill or displaying a sign or engaging in oral protest or education of such other person … . * * *

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The nine-foot zone represents a “conversational distance,” allowing normal communication … . Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 2017 NY Slip Op 08619, First Dept 12-7-17

 

CONSTITUTIONAL LAW (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/ANIMAL LAW (ANIMAL RIGHTS, PUBLIC PROTESTS, FIRST AMENDMENT, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FREE SPEECH (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/INJUNCTION  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/BUFFER ZONE  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))

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PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s (Department of Education’s, DOE’s) motion for summary judgment in this negligent supervision action should not have been granted. Plaintiff, after a confrontation in the school cafeteria, was later beaten up by the same students involved in the cafeteria confrontation. At least one of the attackers had assaulted a student before and the attackers were known to be in a gang. The Second Department determined the DOE’s proof did not sufficiently demonstrate a lack of notice or the provision of adequate security:

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Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students’ potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred… .. The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff’s assailants. Moreover, given the witnesses’ testimony regarding the disciplinary history of one of the infant plaintiff’s assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student’s dangerous propensities … . The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.

Contrary to the defendants’ contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff’s injuries… . In determining whether an incident occurs “in so short a span of time that even the most intense supervision could not have prevented it” … , “[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding” the incident… .. According to the infant plaintiff’s section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell … . “Proximate cause is a question of fact for the jury where varying inferences are possible,” and “[p]roper supervision depends largely on the circumstances surrounding the event” … . Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault. K.J. v City of New York, 2017 NY Slip Op 08508, Second Dept 12-6-17

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION,   PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENCE PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should have been to the driver of the middle car in this three-car rear-end collision case. The middle driver demonstrated the driver of the last car struck the middle car and propelled the middle car into the first car, driven by plaintiff:

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“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” … .

Here, [the driver of the middle car] established his entitlement to judgment as a matter of law by demonstrating, prima facie, that his vehicle was slowing down in response to a traffic condition ahead, and that his vehicle was then propelled forward into the plaintiff’s vehicle after his vehicle was struck in the rear by [the car behind]. Pomerantsev v Vladimir Kodinsky, 2017 NY Slip Op 08545, Second Dept 12-6-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAR-END COLLISIONS (NEGLIGENCE, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).

The Second Department determined the complaint against the village was properly dismissed because the village did not have written notice of the defect which caused injury. Apparently the village had abandoned a manhole in the street and the state had paved over it. An explosion beneath the manhole lifted up plaintiff’s car which came down on the opposite side of the street:

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Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies … . “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it”… .

Here, the Village established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from the Village Clerk, demonstrating that it did not receive prior written notice of the condition alleged. The Village further established, prima facie, that it did not create the alleged condition through an affirmative act of negligence, which was the only exception alleged in the plaintiff’s pleadings …  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village had prior written notice or whether an exception to that requirement applied … . Dibble v Village of Sleepy Hollow, 2017 NY Slip Op 08503, Second Dept 12-6-17

 

MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE,  EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, NEGLIGENCE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))

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BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure proceeding and therefore the bank’s motion for summary judgment should not have been granted:

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… [T]he plaintiff failed to meet its prima facie burden of establishing its standing … . In support of its motion, the plaintiff submitted the affidavit of Dara Foye, a document coordinator for Bayview Loan Servicing, LLC … , the loan servicer. Foye averred, based on her review of Bayview’s business records, that the original, endorsed consolidated note was delivered to the plaintiff on January 24, 2007, and that the plaintiff “maintained possession of the original note since that date up until and including the date the action was commenced on May 24, 2010.” However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Foye under the business records exception to the hearsay rule (see CPLR 4518[a]), since Foye did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . The plaintiff also failed to establish its standing based on the purported assignment of the note and mortgage to it by MERS [Mortgage Electronic Registration Systems, Inc.], as it failed to submit any evidence establishing delivery or assignment of the note to MERS prior to its execution of the assignment to the plaintiff … . Bank of N.Y. Mellon v Alli, 2017 NY Slip Op 08501, Second Dept 12-6-17

 

FORECLOSURE (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, EVIDENCE, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4518 [a] (FORECLOSURE, EVIDENCE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT).

The Second Department determined the board of commissioners of a fire district (a municipal corporation) did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) made by the town planning board regarding a residential development. Among other things, the fire district argued that the increased number of residents would burden the fire district with increased service calls. The Second Department noted that the increase burden was an economic concern, not an environmental concern:

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“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature Although raising economic concerns does not foreclose standing to also raise environmental injury … , economic injury is not by itself within the zone of interests which SEQRA seeks to protect … . Here, the petitioner’s concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature … . Matter of Board of Fire Commr. of the Fairview Fire Dist. v Town of Poughkeepsie Planning Bd., 2017 NY Slip Op 08514, Second Dept 12-6-17

 

ENVIRONMENTAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STANDING (ENVIRONMENTAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}

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THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the trial judge should have granted the People’s application to relieve defense counsel. Defense counsel had interviewed a prosecution witness alone. During the interview the witness had recanted his identification of the defendant as the shooter. Defendant wanted defense counsel to continue representing him but did not waive the conflict:

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… [D]efense counsel’s actions of interviewing the prosecution’s main witness alone and being the only person who could testify to the witness’s recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement … . Under the circumstances, especially in light of the defendant’s refusal to waive any conflict, the County Court erred in denying the People’s application to relieve defense counsel. People v Lawrence, 2017 NY Slip Op 08538, Second Dept 12-6-17

 

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT OF INTEREST. THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, , THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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