Page 1076 – New York Appellate Digest

/ Municipal Law, Negligence

PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed, fact-based decision, determined plaintiff had raised a question of fact in this medical malpractice action alleging the failure to timely diagnose the presence of cancer. The court noted that the proximate cause element can be satisfied by evidence early detection could have extended plaintiff’s decedent’s life, even if a total cure was not possible:

“In a medical malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant” … . “As to causation, the plaintiff’s evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased his injury” * * * To raise a triable issue of fact, a plaintiff need not establish that, but for a defendant doctor’s failure to diagnose, the patient would have been cured. “Curing cancer, while an ultimate and worthy aspiration, is not the only positive treatment outcome. Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury” … . Neyman v Doshi Diagnostic Imaging Servs., P.C., 2017 NY Slip Op 05962, Second Dept 8-2-17

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/MEDICAL MALPRACTICE (CAUSATION, CANCER, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/CANCER (MEDICAL MALPRACTICE, CAUSATION, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))

August 02, 2017

/ Employment Law, Negligence

EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined that plaintiff motorcyclist was not entitled to summary judgment in this rear-end collision case. Although defendant did move into the plaintiff’s lane ahead of plaintiff in violation of the Vehicle and Traffic Law, conflicting deposition testimony about whether plaintiff was comparatively negligent (i.e., whether plaintiff had time to react) raised a question of fact. Defendant’s employer was entitled to summary judgment because defendant was driving to work in his own vehicle, and was not acting within the scope of his employment at the time of the accident:

A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield … . However, a driver with the right-of-way also has a duty to use reasonable care to avoid a collision … , and “[t]here can be more than one proximate cause of an accident” … . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, a plaintiff moving for summary judgment has the burden of establishing freedom from comparative fault … . …

The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment'” … . ” An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment'”… . Generally, “[a]n employee driving to and from work is not acting within the scope of his employment because the element of control is lacking” … .

[Defendant’s] deposition testimony demonstrated that, at the time of the accident, he was commuting to work from his home in his personal vehicle, he was not required to drive to work as part of his job, and he was not acting in furtherance of his employer’s business at the time …. . Beres v Terranera, 2017 NY Slip Op 05929, Second Dept 8-2-17

NEGLIGENCE (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/REAR-END COLLISIONS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, VICARIOUS LIABILITY, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

August 02, 2017

/ Education-School Law, Negligence

SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the assumption of the risk doctrine supported summary judgment in favor of the school. Plaintiff, a volunteer assisting the baseball coaching staff of his son’s team, slipped and fell on a tile covering a grate on the field while attempting to retrieve a ball. The baseball field is on school grounds:

According to the doctrine of primary assumption of the risk, “when an individual voluntarily participates in a sport or recreational activity, he or she consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein” … . “This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it”… . “If the risks are known by or perfectly obvious to the participant, 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”… .. ” It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results'” … . Moreover, “[t]he participant’s awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … .

Here, the school defendants … established their prima facie entitlement to judgment as a matter of law. The plaintiff’s deposition testimony established that, on the date of his accident, he volunteered to assist the coaching staff at his son’s baseball practice. Not only had he visited this particular baseball field at least three prior times, he had also sat along the third-base foul line, which was close to the area where his accident occurred. The plaintiff had also served as an assistant baseball coach for his son’s baseball teams for five or six years. Although the plaintiff testified at his deposition that he had never observed the tile before slipping on it, the photographs that he took the day following his accident, which he contended accurately depicted the tile and the field the way they had looked on the day at issue, demonstrate that the approximately 12-inch by 12-inch white or creamish color tile, which contrasted starkly with the color of the grass, was an open and obvious condition. There was no evidence that the tile was defective … . Siegel v Albertus Magnus High Sch., 2017 NY Slip Op 05991, Second Depty 8-2-17

NEGLIGENCE (ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/ASSUMPTION OF RISK (BASEBALL, EDUCATION-SCHOOL LAW, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/BASEBALL (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))

August 02, 2017

/ Education-School Law, Negligence

QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the school’s motion for summary judgment in this parking lot slip and fall case was properly denied. Although the school alleged the parking lot had been sanded and salted, plaintiff testified the area near her car was a sheet of ice and she saw no evidence the area had been sanded or salted:

Contrary to the School District’s contention, it failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that the plaintiff could not identify the cause of her fall…. A fair reading of the transcripts of the plaintiff’s testimony at a hearing pursuant to General Municipal Law § 50-h and at her deposition, both of which were submitted in support of the School District’s motion, showed that she slipped on a sheet of ice just outside her vehicle in the subject parking lot.

The plaintiff testified at the § 50-h hearing and at her deposition that there was no evidence of any salt or sand in the parking lot when she fell, while a representative for the School District averred in his affidavit in support of the motion that the School District salted and sanded the subject parking lot around 6:00 a.m. on the morning of the accident. Since the plaintiff testified that there was no evidence of any salt or sand in the parking lot when she fell, the School District failed to eliminate triable issues of fact as to whether it created or exacerbated a hazardous condition in the parking lot or whether it lacked constructive notice of the condition. Scott v North Bellmore Pub. Sch. Dist., 2017 NY Slip Op 05989, Second Dept 8-2-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT)

August 02, 2017

/ Municipal Law, Negligence, Nuisance, Private Nuisance

MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s action for negligent maintenance of a drainage system, causing flooding, properly survived summary judgment. The court noted that no cause of action lies against a municipality for negligent design of a drainage system. The court further noted that a nuisance cause of action should have been dismissed as duplicative of the negligent maintenance cause of action:

To the extent the plaintiff contends that the Village was negligent in failing to improve or renovate the drainage system, dismissal of that cause of action was properly directed. Evidence as to the Village’s alleged failure to undertake improvements or renovations to the facilities related only to the design of the system, for which the Village may not be held liable … .

However, the Village failed to satisfy its prima facie burden of eliminating all triable issues of fact as to whether it negligently maintained the culvert and drainage system. * * *

A defendant is subject to liability for a private nuisance if the defendant’s conduct is a legal cause of the invasion of an interest in the private use and enjoyment of land, and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities … . … A nuisance based on negligence is but a single wrong, whether characterized as negligence or nuisance … , and the plaintiff may recover only once for harm suffered, regardless of how the causes of action are denominated … . Since the complaint alleges a cause of action for negligent maintenance, the Supreme Court should have granted that branch of the Village’s motion which was for summary judgment dismissing the cause of action alleging nuisance as duplicative of the cause of action alleging negligent maintenance … . Trulio v Village of Ossining, 2017 NY Slip Op 05993, Second Dept 8-2-17

MUNICIPAL LAW (DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NEGLIGENCE (MUNICIPALITY, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NUISANCE (MUNICIPAL LAW, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))

August 02, 2017

/ Employment Law, Municipal Law

MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT).

The Second Department determined a 1983 municipal resolution health insurance for non-union town employees did not create a vested contractual right for continued benefits. Therefore the 2012 reduction of the town’s contributions to the retirees health insurance was valid, although the contributions could not be reduced below the levels mandated by the Civil Service Law:

“A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, does not create any vested contractual rights” … . Nothing in the language of the October 13, 1983, resolution indicates that the Town intended to create a contractual or vested right … . Moreover, the appellants failed to submit any evidence, beyond the resolution, of a right to retirement health insurance benefits … .

Additionally, the Supreme Court properly found that the Town was not barred by the doctrine of promissory estoppel from reducing the appellants’ retirement health insurance benefits … . To establish promissory estoppel, a party must prove a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise … . Here, even assuming the appellants proved a clear and unambiguous promise, they failed to establish reliance thereon … .

However, the Supreme Court erred in determining that the Town was not required to contribute any amount for the retirement health insurance benefits of former Board members who retired prior to July 1, 2012. Civil Service Law § 167(2) provides, in relevant part, that participating employers, such as the Town, are required to contribute 50% of the cost of premiums for retired employees, and 35% of the cost of coverage for their dependents. … [T]he Town may not reduce its contribution rates below the legally mandated minimums … . Matter of Weaver v Town of N. Castle, 2017 NY Slip Op 05960, Second Dept 8-2-17

MUNICIPAL LAW (HEALTH INSURANCE, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, HEALTH INSURANCE, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))/HEALTH INSURANCE (MUNICIPAL LAW, EMPLOYMENT LAW, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))

August 02, 2017

/ Labor Law-Construction Law

ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the defendants’ motion for summary judgment in this Labor Law 240(1), 241 (6) and 200 action should have been granted. The defendants are husband (Joel Mendlovits) and wife (Malka Mendloits). Malka owns the house where plaintiff was injured and was entitled to the homeowner’s exemption from liability under the Labor Law. Joel, who did not own the house, hired the company for which the injured plaintiff worked. Joel was entitled to summary judgment because he was not a contractor or agent within the meaning of the Labor Law, nor did he exercise and control over plaintiff’s work:

Joel established that he did not possess the requisite authority to supervise or control the work being done to support liability under Labor Law §§ 240(1) and 241(6). He hired All Care to perform stucco work on the home, but did not instruct All Care or the plaintiff how or when to do the work and did not provide them with any tools, materials, or safety equipment. The plaintiff received instructions on when, where, and how to perform the work from All Care and never spoke to Joel, who supervised the progress of the work only to the extent of making sure it was getting done. Such general supervision is insufficient to impose liability under Labor Law §§ 240(1) or 241(6) … . …

To be held liable pursuant to Labor Law § 200 or for common-law negligence where, as here, the plaintiff’s claim arises out of the methods or means of the work, “recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” … . Rodriguez v Mendlovits, 2017 NY Slip Op 05988, Second Dept 8-2-17

LABOR LAW-CONSTRUCTION LAW (ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/HOMEOWNER’S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

August 02, 2017

/ Attorneys, Civil Procedure, Insurance Law

PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT).

The Second Department determined the file for a pre-litigation investigation of a fire insurance claim done by a law firm hired by the insurer was discoverable. The court further found the attorney who conducted the investigation was properly disqualified because she may be a fact witness in the underlying litigation, but her law firm should not have been disqualified because her testimony would not be prejudicial to the client’s case:

CPLR 3101(a) entitles parties to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Discovery determinations should be evaluated on a case-by-case basis “with due regard for the strong policy supporting open disclosure” … .

“[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding [whether to pay or reject a claim] are made in the regular course of its business” … . Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured … .

Here, the Supreme Court properly compelled disclosure, as the material … was prepared by [the law firm] as part of [the insurer’s] investigation into the claim, and was not primarily and predominantly of a legal character … . …

The Supreme Court providently exercised its discretion in disqualifying … the attorney who conducted the investigation … since she was likely to be a witness on a significant issue of fact … . However, it improvidently exercised its discretion in disqualifying [the law firm] itself …. Pursuant to Rule 3.7(b)(1) of the Rules of Professional Conduct, “[a] lawyer may not act as [an] advocate before a tribunal in a matter if . . . another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client”… . Here, there was no showing that [the attorney’s] testimony may be prejudicial to [the client’s] case … . Advanced Chimney, Inc. v Graziano, 2017 NY Slip Op 05927, Second Dept 8-2-17

INSURANCE LAW (DISCOVERY, ATTORNEYS, PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))/CIVIL PROCEDURE (INSURANCE LAW, ATTORNEYS, PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))/ATTORNEYS (INSURANCE LAW, PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))

August 02, 2017

/ Evidence, Foreclosure

PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to foreclose because the criteria for the business records exception to the hearsay rule were not met. The court noted that the bank’s failure to demonstrate standing did not require granting defendant’s motion for summary judgment on that ground. Defendant failed to affirmatively demonstrate plaintiff did not have standing:

… [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 Selena Mitcherson, a vice president of the plaintiff’s loan servicer. Mitcherson averred, based upon her review of the loan servicer’s business records, that “prior [to] commencement and at all times thereafter,” the plaintiff remained in possession of the original promissory note, which bears an indorsement payable to the plaintiff’s order and was “delivered to it, or its agent, on or about March 31, 2010.” However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Mitcherson under the business records exception to the hearsay rule (see CPLR 4518[a]), since Mitcherson did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . The plaintiff also failed to establish standing based upon the purported assignment of the note and mortgage … . …

Nevertheless, the Supreme Court properly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against him for lack of standing. “[T]he burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, on his cross motion, the defendant failed to make a prima facie showing that the plaintiff lacked standing … . Wells Fargo Bank, N.A. v Talley, 2017 NY Slip Op 05996, Second Dept 8-2-17

FORECLOSURE (PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/HEARSAY (BUSINESS RECORDS, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))

August 02, 2017

/ Evidence, Foreclosure

PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff, a mortgage loan servicer for Wilmington (bank), did not demonstrate standing to foreclose and did not demonstrate it had been delegated the authority to foreclose by Wilmington. Therefore, plaintiff’s motion for summary judgment was properly denied:

… [I]n support of its motion, the plaintiff relied on the affidavit of Jessica Lancaster, its “Legal Coordinator.” Lancaster averred that the subject “loan” was part of a portfolio of assets purchased by Berkshire Hathaway, Inc., and deposited into Wilmington. Lancaster further averred that on February 1, 2013, “the notes and mortgages relating to the Purchased Assets were physically delivered to the offices of [the plaintiff].” The affidavit, which was based upon Lancaster’s review of and familiarity with the plaintiff’s records, was sufficient to establish, prima facie, that “the notes and mortgages relating to the Purchased Assets” were physically delivered to the plaintiff. However, Lancaster’s averment that the subject “loan” was among those purchased assets was hearsay for which she failed to lay a proper foundation under the business records exception to the hearsay rule (see CPLR 4518[a]…). Moreover, no further evidence was submitted to establish that the subject note and mortgage were among the purchased assets. Accordingly, the plaintiff failed to establish, prima facie, its standing to commence this action.

In addition, the plaintiff failed to establish, prima facie, its capacity to commence this action. In that respect, the plaintiff did not demonstrate, prima facie, that it had been delegated the authority by Wilmington to act on its behalf with respect to the subject mortgage since it failed to submit any agreement, power of attorney, or similar documentation of such alleged authority … . 21st Mtge. Corp. v Adames, 2017 NY Slip Op 05925, Second Dept 8-2-17

FORECLOSURE (PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BUSINESS RECORDS, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, STANDING, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, STANDING, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

August 02, 2017

Search Results

PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT).

SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT).

QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT).

ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

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