Page 1055 – New York Appellate Digest

/ Criminal Law

ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, over a dissent, determined the motion to suppress physical evidence (stolen property and a handgun) and subsequent statements made at the police station should have been granted. All charges except the traffic violations which led to the vehicle stop were dismissed. The arresting officer observed the defendant make an illegal turn and run a red light. Shortly after the vehicle stop, before the officers had any reason to suspect defendant’s involvement in a recent robbery, the arresting officer asked defendant whether he had anything illegal in the car. The Second Department held that question was not justified by a suspicion of criminal activity:

The evidence established that the officer did not have a “founded suspicion that criminality [was] afoot” that would justify his question as to whether the defendant had anything illegal in the vehicle … . Although the stop was justified by the traffic violations, the intrusiveness of the officer’s conduct exceeded that which is permissible during a normal traffic stop … . …

“[A] request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination. . . . Once [an] officer asks more pointed questions . . . the officer is no longer merely seeking information . . . [and the inquiry] must be supported by a founded suspicion that criminality is afoot”… .

Thus, the … handbag, the cell phone, and the camera should have been suppressed as fruit of an illegal search, as well as the gun that was subsequently found upon an inventory of the vehicle … .

…[T]he suppression record did not demonstrate that the causal connection between the illegal search and the defendant’s statements was sufficiently attenuated to purge the taint of the illegal search… . People v Newson, 2017 NY Slip Op 07752, Second Dept, 11-8-17

CRIMINAL LAW (ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/TRAFFIC STOPS (ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, TRAFFIC STOPS, ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE (SUPPRESSION, TRAFFIC STOPS, ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STATEMENTS (CRIMINAL LAW, SUPPRESSION, ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

November 08, 2017

/ Civil Procedure, Judges, Trusts and Estates

SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court exceeded its authority when it, sua sponte, awarded a money judgment against defendant personally. Defendant was only a party to the action in his representative capacity (trustee):

“[A] court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the Supreme Court not only strayed from this principle … , but did so by purporting to impose liability on an individual who was not even a party to the action. ” It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued'” … . Magid v Sunrise Holdings Group, LLC, 2017 NY Slip Op 07718, Second Dept 11-8-17

CIVIL PROCEDURE (PARTIES, SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, PARTIES, SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT))/TRUSTEES (CIVIL PROCEDURE, PARTIES, SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT))

November 08, 2017

/ Attorneys, Civil Procedure, Evidence, Fraud

ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT).

The Second Department noted that an action alleging attorneys adduced false testimony in a prior court proceeding must be brought as a motion to vacate the judgment in the prior case, not as a new action:

Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff’s remedy lies exclusively in moving to vacate the judgment … . Under an exception to that rule, a separate action may be commenced where the alleged perjury or fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … which was “greater in scope than the issues determined in the prior proceeding” … .

Here, the moving defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging fraud, aiding and abetting fraud, violation of Judiciary Law § 487, and prima facie tort insofar as asserted against them by demonstrating that the plaintiffs are merely attempting to collaterally attack an order issued in the underlying action. In opposition, the plaintiffs only raised conclusory and unsubstantiated allegations that the moving defendants’ fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … . DeMartino v Lomonaco, 2017 NY Slip Op 07706, Second Dept 11-8-17

CIVIL PROCEDURE (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FRAUD (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/ATTORNEYS (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FALSE TESTIMONY (ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))EVIDENCE (FALSE TESTIMONY, FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))

November 08, 2017

/ Civil Procedure, Foreclosure

BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department determined Supreme Court should not have dismissed this foreclosure action as abandoned because the bank moved for an order of reference within one year of the default:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” However, “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … . Rather, it is enough that the plaintiff timely takes “the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference” to establish that it “initiated proceedings for entry of a judgment within one year of the default” for the purpose of satisfying CPLR 3215(c) … . “[A]s long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . This is so even where, as here, a timely motion for an order of reference is subsequently withdrawn … .

Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) … within one year of the defendant’s default. Accordingly, the plaintiff did not abandon the action … . Wells Fargo Bank, N.A. v Mayen, 2017 NY Slip Op 07768, Second Dept 11-8-17

CIVIL PROCEDURE (ABANDONMENT, BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT))/ABANDONMENT (CIVIL PROCEDURE, BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, (ABANDONMENT, BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT))/CPLR 3215 (c) (ABANDONMENT, BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT))/DEFAULT JUDGMENT (ABANDONMENT, BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT))

November 08, 2017

/ Civil Procedure

DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET (SECOND DEPT).

The Second Department determined Supreme Court should not have dismissed the complaint in this foreclosure action on the ground that efforts to serve the defendant were inadequate pursuant to CPLR 308 (4). The Second Department found the efforts to serve defendant met the due diligence standard:

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner’s residence, each on different days and at different times of the day. The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner, including interviewing a neighbor. Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied … . U.S. Bank, N.A. v Cepeda, 2017 NY Slip Op 07767, Second Dept 11-8-17

CIVIL PROCEDURE (DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET (SECOND DEPT))/SERVICE OF PROCESS (DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET (SECOND DEPT))/CPLR 308 (4) (DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET (SECOND DEPT))/DUE DILIGENCE (SERVICE OF PROCESS, DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET (SECOND DEPT))

November 08, 2017

/ Civil Procedure

AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT).

The Second Department determined an affirmative defense was not time-barred. Plaintiffs alleged a local law was not properly enacted and was therefore invalid. Defendants asserted in their answer that the law was properly enacted a valid as an affirmative defense:

… [T]he Supreme Court erred when it, in effect, dismissed the defendants’ affirmative defense. “[T]he statute of limitations governs the commencement of an action, not the assertion of a defense” (… see CPLR 201, 217). If a defense “arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed” (CPLR 203[d] …) . * * *

… [T]he defendants’ answer does not seek any affirmative relief. Rather, it raises a defense that is “predicated on [an] act or fact growing out of the matter constituting the cause or ground of the action brought” by the plaintiffs … . In other words, the assertion that the Local Law was not validly enacted in accordance with the applicable referendum procedures specified in state and local law “arises from, and directly relates to” the plaintiffs’ claim that the Local Law was, in fact, enacted in accordance with the applicable referendum procedures and that they were therefore entitled to a declaration that the Local Law was valid … . Accordingly, the court erred when it, in effect, dismissed the affirmative defense contained in the defendants’ answer alleging that the Local Law was not validly enacted on the ground that the affirmative defense was time-barred (see CPLR 203[d]). Since the merits of the defendants’ affirmative defense were not reached by the court, it should not have awarded judgment in favor of the plaintiffs. Matter of Jenkins v Astorino, 2017 NY Slip Op 07730, Second Dept 11-8-17

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))/AFFIRMATIVE DEFENSES (STATUTE OF LIMITATIONS, AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))/STATUTE OF LIMITATIONS (AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))/CPLR 203 (d) (STATUTE OF LIMITATIONS, AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))

November 08, 2017

/ Civil Procedure

SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT (SECOND DEPT).

The Second Department, in a “summary judgment in lieu of complaint” action on a note, determined Supreme Court should not have stayed the enforcement of a judgment because defendants had asserted counterclaims. The counterclaims could proceed despite enforcement of the judgment:

The Supreme Court erred in, upon renewal and reargument, staying enforcement of a judgment in favor of the plaintiffs. Pursuant to CPLR 5240, a court may, on its own initiative or on motion, stay the enforcement of a judgment. The purpose of this “broad discretionary power” is to permit the trial court to ” prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court'” … . Here, that the defendants remain free to assert their counterclaims against the plaintiffs in a separate action does not preclude enforcement of the judgment in favor of the plaintiffs and against the defendants. The defendants proffered no evidence that permitting the plaintiffs to enforce the judgment would cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 2017 NY Slip Op 07703, Second Dept 11-8-17

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT (SECOND DEPT))/JUDGMENT, STAY OF ENFORCEMENT (SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT (SECOND DEPT))/CPLR 5240 (STAY OF ENFORCEMENT OF JUDGMENT, SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT (SECOND DEPT))/STAY OF ENFORCEMENT OF JUDGMENT (SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT (SECOND DEPT))

November 08, 2017

/ Trusts and Estates

EXECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the executor’s informal accounting and disclosures to beneficiaries were sufficient, therefore the release signed by a beneficiary could not be set aside:

“[A] fiduciary, as an executor or trustee, is obligated to account for his or her decisions and actions in administering an estate or trust” … . “While formal accountings of an estate are done in the context of a judicial proceeding, [a] fiduciary may also account informally by obtaining receipts and releases from interested parties regarding the handling of the estate or trust'” … . ” [S]uch an informal accounting is as effectual for all purposes as a settlement pursuant to a judicial decree'” … . ” [I]f a fiduciary gives full disclosure in his [or her] accounting, to which the beneficiaries are parties . . . they should have to object at that time or be barred from doing so after the settlement of the account'” … . “Where the validity of a release is challenged, the fiduciary must affirmatively demonstrate that the beneficiaries were made aware of the nature and legal effect of the transaction in all its particulars'” … .

Here, the documents provided by [the executor] to … the … beneficiaries along with the release made the beneficiaries aware of all the distributions that would be made from the estate. The tax return showed that [the executor] would receive a greater share of the estate as a result of bank accounts she held jointly with the decedent. Thus, the Surrogate’s Court correctly denied [the beneficiary’s] motion to set aside the release. Matter of Spacek, 2017 NY Slip Op 07737, Second Dept 11-8-17

TRUSTS AND ESTATES (EXECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT))/ACCOUNTING (TRUSTS AND ESTATES, XECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT))/EXECUTORS (ACCOUNTING, EXECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT))/RELEASES (TRUSTS AND ESTATES, INFORMAL ACCOUNTING, EXECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT))/INFORMAL ACCOUNTINGS (TRUSTS AND ESTATES, EXECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT))

November 08, 2017

/ Education-School Law, Negligence

PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT).

The Second Department determined plaintiff’s negligence cause of action against the school district and another student were properly dismissed under the doctrine of primary assumption of risk. Plaintiff, a student, was injured in a basketball game during gym class when he was allegedly kicked by the student defendant. Plaintiff chose to play basketball among other possible activities. Therefore he could not take advantage of the “inherent compulsion” doctrine. Plaintiff’s assertion at the 50-h hearing that he was intentionally kicked did not raise a question of fact because the pleadings did not include an intentional tort or any mention of intentional conduct:

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty… . However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … .

Here, the defendants established, prima facie, that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants… …

Also contrary to the plaintiff’s contention, he did not raise a triable issue of fact as to the application of the inherent compulsion doctrine, which “provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior” … . The plaintiff testified at his deposition that he chose to play basketball from a number of options. Consequently, the inherent compulsion doctrine is inapplicable … . Hanson v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 07711, Second Dept 11-8-17

NEGLIGENCE (PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/EDUCATION-SCHOOL LAW (PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/ASSUMPTION OF RISK (EDUCATION-SCHOOL LAW, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/INHERENT COMPULSION DOCTRINE (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/GYM CLASS EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))

November 08, 2017

/ Civil Procedure, Negligence

PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for judgment as a matter of law should have been granted. An employee of defendant moving company (Fisher) left a desk that was upright (on its side) on a dolly unattended. The desk fell over, injuring plaintiff:

“A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” … . In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party “every inference which may properly be drawn from the facts presented” … . …

The defendants do not dispute that they, through their employee, created the condition that the plaintiff alleges existed. There was no evidence, and the defendants did not assert, that Fisher exercised reasonable care when he left the desk unattended on the dolly. The defendants’ contention that an issue of fact existed as to whether the accident happened at all is unsupported by the record and based upon speculation … . Based on this record, the Supreme Court should have granted the plaintiff’s motion for judgment as a matter of law pursuant to CPLR 4401, made at the close of the evidence … . Canale v L & M Assoc. of N.Y., Inc., 2017 NY Slip Op 07701, Second Dept 11-8-17

NEGLIGENCE (PLAINTIFF’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT))/CPLR 4401 (PLAINTIFF’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT))

November 08, 2017

Search Results

ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT).

ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT).

BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET (SECOND DEPT).

AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT).

SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT (SECOND DEPT).

EXECUTOR’S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY’S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED (SECOND DEPT).

PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT).

PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT).

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