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DEFENDANTS IN THIS REAR-END COLLISION CASE WERE ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS’ STOPPED VEHICLE WAS HIT FROM BEHIND AND PUSHED INTO PLANTIFF’S VEHICLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Menegos defendants were entitled to summary judgment in this rear-end collision case. The Menegos defendants demonstrated their vehicle had come to a stop behind plaintiff’s vehicle before it was struck from behind and pushed into plaintiff’s vehicle:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “‘A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence'” … . “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 for the collision” … . Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle “may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Beltre v Menegos, 2024 NY Slip Op 05322, Second Dept 10-30-24

Practice Point: In a rear-end collision case, if a stopped car is hit from behind and pushed into the car in front, the driver of the stopped car is not negligent.

 

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:”

The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice … . Phillips’s opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent’s prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent’s cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent’s injuries and ultimate death … . Miller-Albert v EmblemHealth, 2024 NY Slip Op 05340, Second Dept 10-30-24

Practice Point: In medical malpractice cases, at the summary judgment stage, the action survives or fails based upon the quality of the expert affidavits. Conclusory or speculative assertions in expert affidavits have no probative value.

 

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INSTALLING ELECTRIC CABLES IS CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 241(6); PLAINTIFF, WHO WAS STRUCK IN THE EYE BY A CABLE, SUFFICIENTLY DEMONSTRATED THE EYE-PROTECTION-EQUIPMENT REGULATION IN THE INDUSTRIAL CODE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, Kamco, was not entitled to summary judgment dismissing plaintiff’s Labor Law 241(6) cause of action. Plaintiff (Lopez) alleged he was struck in the eye by an electrical cable as he was attempting to connect it. Plaintiff (Lopez) alleged Kamco violated the Industrial Code by failing to provide eye-protection equipment:

“‘[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures'” … . Construction work pursuant to 12 NYCRR 23-1.4(b)(13) may include “the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, . . . equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.”

… “In order to establish prima facie entitlement to summary judgment, a defendant must show that the plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that the defendant complied with the requirements of the identified provision” … .

Here, since Lopez was engaged in the installation and furnishing of electrical cables, Kamco failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to Lopez’s activities … . Kamco also failed to establish, prima facie, that 12 NYCRR 23-1.8(a) was inapplicable or that Lopez’s actions were the sole proximate cause of his alleged injuries, as Kamco failed to eliminate triable issues of fact as to whether Lopez was engaged in work that might endanger the eyes, whether approved eye protection was provided to Lopez on the date of the accident, and whether Kamco’s failure to require Lopez to wear safety goggles was a proximate cause of his alleged injuries … . Lopez v Kamco Servs., LLC, 2024 NY Slip Op 05338, Second Dept 10-30-24

Practice Point: Installing electric cables is construction work covered by Labor Law 241(6).

Practice Point: The Industrial Code provision requiring eye-protection-equipment may apply to plaintiff here who was struck in the eye by an electric cable.

 

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IN A CHILD VICTIMS ACT CASE AGAINST A TEACHER ALLEGED TO HAVE SEXUALLY ABUSED A STUDENT IN THE 60’S, THE BARE ALLEGATION IN THE COMPLAINT THAT THE EMPLOYER KNEW OR SHOULD HAVE KNOWN OF THE TEACHER’S PROPENSITY WAS NOT SUFFICIENT TO STATE A CAUSE OF ACTION; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint did not state a cause of action for negligent retention or negligent supervision of a teacher alleged to have sexually abused plaintiff in the 60’s. An allegation which merely states a bare legal conclusion is not entitled to consideration on a motion to dismiss. Here the complaint alleged defendant employer, YCQ,  “knew or should have known of the employee’s propensity for the conduct which caused the injury:”

… [T]o sustain the cause of action sounding in negligent supervision of a child, the plaintiff was required to allege that YCQ “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “[a]n employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the complaint failed to state a cause of action alleging negligent retention of the religious studies teacher by YCQ and a cause of action alleging negligent supervision based upon YCQ’s failure to adequately supervise the plaintiff and/or the religious studies teacher, as the complaint did not sufficiently plead that YCQ knew or should have known of the religious studies teacher’s propensity for the type of conduct at issue … . While it is true that such causes of action need not be pleaded with specificity … , the complaint merely asserted the bare legal conclusion that YCQ “knew or should have known of [the religious studies teacher’s] propensity to sexually abuse minor students,” without providing any factual allegations that the religious studies teacher’s sexual abuse of the plaintiff was foreseeable … . Kessler v Yeshiva of Cent. Queens, 2024 NY Slip Op 05337, Second Dept 10-30-24

Practice Point: In a Child Victims Act case alleging negligent retention and negligent retention of a teacher who allegedly sexually abused a student, the bare allegation that the teacher’s employer knew or should have known of the teacher’s propensity was not enough to survive a motion to dismiss for failure to state a cause of action. Allegations which amount to bare legal conclusions will not be considered on a motion to dismiss.

 

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A CONTRACT BETWEEN A LANDOWNER AND A TOWN THAT PURPORTS TO BIND TOWN BOARDS ELECTED IN THE FUTURE WITH RESPECT TO A PETITION FOR REZONING VIOLATES THE TERM LIMITS RULE; A CONTRACT WHICH PURPORTS TO LIMIT A TOWN’S REZONING REVIEW PROCESS VIOLATES THE PROHIBITION AGAINST CONTRACT ZONING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the contract entered into between plaintiff property owner and the town board and town planning board violated the term limits rule and the prohibition against contract zoning. The contract purported to prohibit the town from terminating its review of the petition to rezone the land (to allow construction of multi-family residences) until the final determination on the merits. The contract purported to bind town boards elected in the future, which violates the term limits rule. And the contract purported to commit the town board to a specific course of action for review of the zoning petition, which violates the prohibition of contract zoning:

The provision of the [contract] states in relevant part that the Town Board “shall not terminate its review of the [plaintiff’s] Zoning Petition, and the Project in general, until it reaches a final determination on the merits in its legislative judgment regarding the best interests of the Town based upon empirical data and other objective factual bases.” This provision, which attempts to constrain the Town Board’s decision-making process regarding its zoning responsibilities, implicates the Town Board’s governmental and legislative powers, as enacting zoning ordinances is a significant function of local government … . * * *

The plaintiff fails to acknowledge that while [the contract] may indicate that nothing … limits the Town Board in the exercise of its legislative power, that statement is qualified by the language that states “except as otherwise provided herein,” thus eviscerating the import of the preceding language. The fact that the [contract] may not mandate a particular outcome does not mean … that it fails to violate the term limits rule. * * *

… [T]he plain language of the [contract] commits the Town Board to a review of the plaintiff’s zoning petition, and purports to forbid termination of the review process until the Town Board reaches a final determination on the merits. Such determination must be based upon “empirical data and other objective factual bases.” Such language evidences that the [contract] was clearly meant to commit the Town Board to a specific course of action with respect to the review process of the zoning petition. Hudson View Park Co. v Town of Fishkill, 2024 NY Slip Op 05332, Second Dept 10-30-24

 

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY TO THE 2005 DISONTINUANCE OF THE FORECLOSURE ACTION RENDERING THE ACTION COMMENCED IN 2015 TIME-BARRED (SECOND DEPT).

The Second Department, in a complex decision addressing issues not summarized here, determined the Foreclosure Abuse Prevention Act (FAPA) (CPLR 3217) applied retroactively to the 2005 voluntary discontinuance. Therefore the instant action, which was commenced in 2015, was time-barred:

The Foreclosure Abuse Prevention Act … ; hereinafter FAPA) amended CPLR 3217, which governs the voluntary discontinuance of an action, to provide that “[i]n any action on an instrument described under [CPLR 213(4)], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute” … . Thus, applying FAPA, the voluntary discontinuance of the 2005 action did not serve to reset the statute of limitations … .

Wells Fargo’s contention that CPLR 3217(e), added under FAPA, was not intended to have retroactive effect is without merit. FAPA took effect “immediately,” applying “to all actions commenced on an instrument described under [CPLR 213(4)] in which a final judgment of foreclosure and sale has not been enforced” … . Thus, “[a]lthough the Legislature did not explicitly state that FAPA should apply retroactively, it clearly indicated that it should” … . Wells Fargo Bank, N.A. v Edwards, 2024 NY Slip Op 05368, Second Dept 10-30-24

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) was applied retroactively here to a 2005 voluntary discontinuance of the foreclosure action, rendering the action started in 2015 time-barred.​

 

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PLAINTIFF DID NOT DEMONSTRATE SANCTIONS FOR SPOLIATION OF EVIDENCE WERE WARRANTED; THE VIDEO FOOTAGE FOR THE DAY OF THE FALL HAD BEEN AUTOMATICALLY DELETED BEFORE THE PRESERVATION LETTER WAS RECEIVED; HOWEVER DEFENDANTS HAD PRESERVED 52 SECONDS OF VIDEO SHOWING JUST BEFORE THE FALL, THE FALL AND PLAINTIFF WALKING AWAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the restrictions placed on defendants’ presentation of evidence of liability relevant to plaintiff’s slip and fall constituted an abuse of discretion. Plaintiff fell on March 24, 2018, and defendants received a letter requesting that 12 hours of video footage be preserved on April 9, 2018. By April 9 the video had been automatically deleted. Defendants had preserved 52 seconds of the video which included just before the fall, the fall, and plaintiff walking away:

The plaintiff did not establish that the defendants were placed on notice that the video evidence might be needed for future litigation before the surveillance footage was automatically deleted … . Further, the defendants’ preservation of only a portion of the surveillance footage did not indicate a culpable state of mind, as the defendants’ representative averred in an affidavit that, on the date of the accident, she saved a 52-second clip of the incident. The representative testified at her deposition that to locate this clip, she had entered the date and time that the alleged accident occurred, and she averred that, by the time she received the preservation letter, the surveillance footage had been automatically deleted … . In addition, the plaintiff did not establish that the absence of the additional surveillance footage deprived her of the ability to prove her case … . De Abreu v Syed Rests. Enters., Inc., 2024 NY Slip Op 05326, Second Dept 10-30-24

Practice Point: The criteria for spoliation of evidence were not met by the facts here. The video footage for the day of the fall was automatically deleted before the preservation letter was received. Defendants preserved video footage of just before the fall, the fall and plaintiff walking away.​

 

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FATHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the denial of father’s petition for permission to relocate with the children was not supported by the evidence:

The father’s testimony demonstrated that he was unable to continue renting his grandmother’s house in New York, where he and the children had been residing, and that the mother provided only $25 per month in child support for both children … . The father’s testimony also demonstrated that, if permitted to relocate, he would be able to obtain employment in his field of experience with at least the same salary as he earned in New York and that his living expenses would be lower in South Carolina than they were in New York … . Additionally, the father would have support from extended family in South Carolina, including the paternal grandmother, a certified behavioral analyst and special education administrator who has assisted the father in addressing one of the children’s special needs … .

With respect to the mother’s relationship with the children, the hearing testimony demonstrated that the father has been the children’s primary caregiver since 2017 and that the mother was not involved in the children’s day-to-day lives, education, or healthcare … . Although the father’s relocation will have an impact upon the mother’s ability to spend time with the children, the Family Court can fashion an appropriate parental access schedule that will allow the mother to foster a relationship with the children … . Matter of Scotto v Alexander, 2024 NY Slip Op 05348, Second Dept 10-30-24

Practice Point: Consult this decision for insight into when a petition to relocate to another state with the children should be granted.

 

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THE OPTION TO PURCHASE THE CONDOMINIUM UNIT WHEN IT BECAME VACANT DID NOT VIOLATE THE RULE AGAINST PERPETUITIES; ALTHOUGH THE TENANT IN THE UNIT WAS NOT NAMED, REFERENCE TO THE TENANCY WAS SUFFICIENT TO SUPPLY A “LIFE IN BEING” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the contract giving plaintiff the option to purchase a condominium unit when the unit became vacant did not violate the rule against perpetuities (Estates, Powers and Trusts Law [EPTL] 9-1.1):

The court’s determination that there was no relevant life in being specifically named in the option, and therefore, the option was required to vest [*2]within 21 years, is too rigid an application of the rule. Rather, “[i]t is sufficient if a plain implication arises that a certain class or number of lives mentioned or referred to are selected for a limitation of the gift or trust” (61 Am Jur 2d, Perpetuities, Etc. § 16; see also Fitchie v Brown, 211 US 321, 333 [1908]).

Here, the … rider expressly stated:

“As Seller is unable to deliver vacant possession of Unit 5SR at the closing hereof, the Purchaser shall only purchase Unit 5SF . . . and the Purchaser shall have the option to purchase Unit 5SR at the time the Seller shall be able to deliver vacant possession thereof on all of the same terms and conditions as contained herein . . .”

Although the tenant is not expressly named in the option, the language of the option expressly makes the termination of his tenancy the relevant date upon which the option can be exercised … . Therefore, the court should not have determined that the reference to the tenant is too indefinite to serve as the relevant life in being. In addition, the interpretative canon set forth in EPTL 9-1.3(b), under which it is “presumed that the creator intended the estate to be valid,” applies. Protetch v Jocar Realty Co., Inc., 2024 NY Slip Op 05317, First Dept 10-29-24

Practice Point: This decision includes a rare discussion of the how the rule against perpetuities should be interpreted and applied.

 

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ALTHOUGH THERE WAS EVIDENCE THE VICTIM’S JAW WAS FRACTURED, THERE WAS INSUFFICIENT PROOF THE VICTIM SUFFERED “SERIOUS PHYSICAL INJURY” WITHIN THE MEANING OF PENAL LAW SECTION 10 (10); DEFENDANT’S ASSAULT SECOND CONVICTION WAS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department, finding that the proof the victim suffered “serious physical injury” in this assault case insufficient, reduced defendant’s conviction from assault second to assault third. There was evidence the victim suffered a fractured jaw which was wired shut for weeks. But the evidence did not establish a “protracted impairment of health or … function of any bodily organ:”

As to the victim’s injuries, an oral surgeon who examined the victim diagnosed him with a fracture to the left side of his mandible, consistent with facial trauma, and performed a surgical procedure to wire the victim’s jaw shut. The victim testified that his jaw was wired shut for several weeks and that he was unable to eat solid food for six weeks, causing him to lose approximately 25 pounds. At the trial, which was approximately 10 months after the incident, the victim continued to experience very occasional pain that he described as similar to arthritis. Although we do not minimize the trauma and pain suffered by the victim, the record is devoid of evidence about the injury’s effect on the victim’s daily living to support a finding that he sustained a “protracted impairment of health or . . . of the function of any bodily organ” (Penal Law § 10.00 [10] …). Consequently, we are constrained to find that the verdict convicting defendant of assault in the second degree is against the weight of the evidence, as the record does not establish that the victim suffered a “serious physical injury,” as that term is defined in Penal Law § 10.00 (10) … . People v Dillon, 2024 NY Slip Op 05246, Third Dept 10-24-24

Practice Point: Consult this decision to gain some insight into what “serious physical injury” means as an element of Assault 2nd.​

 

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