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ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION.

The Second Department determined the absence of a comma from a code provision could not be the sole basis for an interpretation of its meaning. The code provision listed a number of activities that required a license:

That Code section provides, “No person shall . . . engage in . . . a home service business after January first two thousand thirteen . . . unless he [or she] is licensed therefore pursuant to this title.” Section 21-25.1(3) of the Code defines the term “home service.” It states, in part, that ” [h]ome service’ shall include, but not be limited to, repair, carpet and floor cleaning, installation of decorative goods, upholstery including repair and cleaning, . . . gutter cleaning, window cleaning, general cleaning, . . . roof and/or house washing, other than power washing and junk/debris/rubbish/estate cleanouts.” * * *

“[P]unctuation . . . is subordinate to the text and is never allowed to control its plain meaning, but when the meaning is not plain, resort may be had to those marks . . . in order to make the author’s meaning clear” … . “Punctuation may perhaps be resorted to when no other means can be found of solving an ambiguity, but not in cases where no real ambiguity exists except what punctuation itself creates” … . Contrary to the petitioners’ contention, the plain meaning of section 21-25.1(3) is that those who are engaged in “junk/debris/rubbish/estate cleanouts” must be licensed, at least to the extent that they are currently engaged, or have been engaged in such business since January 1, 2013, in Nassau County.  Matter of Elenson v Nassau County, 2017 NY Slip Op 04116, 2nd Dept 5-24-17

 

STATUTES (ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION)/PUNCTUATION (STATUTORY INTERPRETATION, ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION)

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CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT.

The Second Department determined the last occupant of a campsite (Reinoso), as well as the county which owned the campgrounds, were not entitled to summary judgment in and action brought by an eight-year-old boy who was burned when he stepped into a pit of hot coals:

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… [T]he plaintiffs raised a triable issue of fact as to whether Reinoso was the party who left the hot embers on the ground … .

Further, it has long been the rule in New York that “[l]andowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control”… . Here, the evidence submitted by the County defendants in support of their motion for summary judgment failed to eliminate all triable issues of fact as to whether they exercised “ordinary and reasonable care in maintaining the campgrounds in a reasonably safe condition so as to prevent foreseeable injury” … . Holohan v County of Suffolk, 2017 NY Slip Op 04104, 2nd Dept 5-24-17

 

NEGLIGENCE (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/MUNICIPAL LAW (COUNTY-OWNED CAMPGROUNDS, CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/CAMPGROUNDS (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)

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PROOF OF GENERAL CLEANING PRACTICES NOT SUFFICIENT TO DEMONSTRATE A LACK OF NOTICE OF THE WET AREA WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff slipped on a wet area of a carpeted stairwell. Defendants’ evidence of general cleaning practices was not enough to demonstrate a lack of constructive notice of the condition:

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Among other things, deposition testimony submitted by the defendants demonstrated that, although the building superintendent and property manager inspected the building on a regular basis, there was no specific schedule for the inspections and there were no records of inspections. Further, there was no cleaning schedule for the stairways and, if someone made a complaint about a dangerous condition on a stairway, the superintendent would not write that down. “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Perez v Wendell Terrace Owners Corp., 2017 NY Slip Op 04156, 2nd Dept 5-24-17

NEGLIGENCE (PROOF OF GENERAL CLEANING PRACTICES NOT SUFFICIENT TO DEMONSTRATE A LACK OF NOTICE OF THE WET AREA WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (PROOF OF GENERAL CLEANING PRACTICES NOT SUFFICIENT TO DEMONSTRATE A LACK OF NOTICE OF THE WET AREA WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY.

The Third Department, reversing Supreme Court, over a two-justice partial dissent, determined plaintiff was entitled to summary judgment on liability in this traffic accident case and plaintiff had raised questions of fact whether he suffered serious physical and psychological injury within the meaning of the no-fault law.  Plaintiff alleged defendant’s car struck his after crossing the double yellow line and defendant had pled guilty to crossing the double yellow line. The dissent argued plaintiff did not demonstrate psychological injury and did not meet the 90/180 day no-fault criteria:

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This evidence, viewed in the light most favorable to plaintiff … , raised a triable issue of fact as to whether plaintiff’s alleged neck, back and left shoulder injuries constitute a serious injury under the significant limitation of use category  … . …

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As for plaintiff’s alleged psychological injuries, “[i]t has been established ‘that a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'” … .  * * *

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… [P]laintiff proffered the affirmed narrative report of Barry Goldman, his primary care physician. Goldman stated that plaintiff visited his primary care practice more than a dozen times between August 2014 and November 2015 — three of which predated the second motor vehicle accident in September 2014 — for treatment relating to anxiety, stress, insomnia, nightmares, irritability, temperament changes and reliving and experiencing flashbacks of the June 2014 accident. Based on his review of the medical records generated from these visits, as well as his own examinations of plaintiff, Goldman concluded that plaintiff’s diagnosis of posttraumatic stress disorder was causally related to the June 2014 motor vehicle accident. He stated that, although the death of plaintiff’s wife and the second motor vehicle accident “may have added to his symptoms, the trauma of his first accident was the cause and directly related to his complaints.” This evidence was sufficient to raise a question of fact as to whether the June 2014 motor vehicle accident caused plaintiff to suffer psychological injuries constituting a significant limitation of use of a body function or system … .  Fillette v Lundberg, 2017 NY Slip Op 04180, 3rd Dept 5-24-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, NO-FAULT,PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/INSURANCE LAW (NO-FAULT, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/PSYCHOLOGICAL INJURY (NO-FAULT, TRAFFIC ACCIDENTS, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/SERIOUS INJURY (TRAFFIC ACCIDENTS, NO-FAULT, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)

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DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined defendant store was not entitled to summary judgment in this tracked-in-water slip and fall case. The slip and fall was in the “card isle” of the store, not at the entrance. The court explained that proof of general cleaning practices, as opposed to when the area was last cleaned or inspected, will not support summary judgment:

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While a defendant is not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in rain … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … . …

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“To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the evidence submitted by the defendants in support of their motion, including transcripts of the deposition testimony of the plaintiff and of the manager of the store at the time of the accident, was insufficient to establish, prima facie, that they did not have constructive notice of the alleged condition that allegedly caused the plaintiff to fall. The store manager stated that the store, which was open 24 hours a day, did not have set times when inspections were conducted, and that he did not know the last time that the card aisle had been inspected prior to the incident or what it looked like within a reasonable time prior to the incident. Under the circumstances, viewing the evidence in the light most favorable to the plaintiff, the defendants failed to establish, prima facie, that the condition that allegedly caused the plaintiff to fall was not visible and apparent and that it had not been there for a sufficient period of time for the defendants to have discovered and remedied it … . Hickson v Walgreen Co., 2017 NY Slip Op 04103, 2nd Dept 5-24-17

 

NEGLIGENCE (DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE)/SLIP AND FALL (DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE)/WATER, TRACKED IN (SLIP AND FALL, DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE)

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The First Department, over a two-justice dissent, determined Supreme Court should not have granted leave to file a late notice of claim. “Petitioner was injured on July 15, 2015, while working as a bricklayer … at a job site located at an intermediate school in the Bronx. Petitioner alleges that while lifting 60 to 70 pound buckets, he tripped and fell due to an uneven floor on a makeshift scaffold. He filed a workers’ compensation claim on July 29, 2015, but did not file a notice of claim until July 15, 2016, a year later. In the intervening year, he underwent a shoulder and a hip surgery:”

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The motion court improvidently exercised its discretion in granting the motion. Petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim … . Petitioner’s alleged failure to realize the severity of his injuries within 90 days after his accident did not constitute a reasonable excuse for his delay in serving a notice of claim, especially since petitioner filed a workers’ compensation claim just weeks after the accident… . Nor did petitioner show that respondents acquired actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter (see General Municipal Law § 50-e[5]). There is no evidence that respondents received petitioner’s workers’ compensation claim form, which, in any event, makes no mention of the allegations against respondents … . Absent any knowledge of even a potential Labor Law claim, respondents certainly had no basis to conduct their own investigations … .

* * * … [T]here is no evidence respondents were aware of an accident even occurring. Petitioner … does no more than refer to numerous construction records that purportedly could be examined, yet provides no names of actual witnesses nor any reference to specific information in those records. Matter of Grajko v City of New York, 2017 NY Slip Op 04203, 1st Dept 5-24-17

 

MUNICIPAL LAW (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION.

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240(1) cause of action irrespective of whether the plywood which struck him fell when it was being hoisted or when workers were about to install it:

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The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential … . “[F]alling object” liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured …  but also where the plaintiff demonstrates that, at the time the object fell, it “required securing for the purposes of the undertaking” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant failed to provide an adequate safety device to protect him and that this failure was a proximate cause of his injuries. This is so whether the sheet of plywood fell as it was being hoisted because it was not properly secured while it was being pulled up to the roof, as testified to by the plaintiff … , or whether the sheet of plywood fell from the hands of the plaintiff’s coworkers on the roof as it was being installed or about to be installed due to a failure to secure it, a theory advanced by the defendant … . Escobar v Safi, 2017 NY Slip Op 04099, 2nd Dept 5-24-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)

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INSURED’S FAILURE TO TIMELY NOTIFY INSURER OF THE ACTION AGAINST THE INSURED RELIEVED THE INSURER OF ANY OBLIGATION TO SATISFY THE JUDGMENT AGAINST THE INSURED.

The Second Department determined the insured’s delay in notifying the insurer of the action against the insured relieved the insurer of the obligation to satisfy the judgment against the insured. The Second Department further noted that the delay in disclaiming coverage was justified by the insurer’s need to investigate:

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Where an insurance policy requires that notice of an occurrence be given “as soon as practicable,” notice must be given within a reasonable time in view of all of the circumstances … . “The insured’s failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract'” …. “However, circumstances may exist that will excuse or explain the insured’s delay in giving notice, such as a reasonable belief in nonliability” … . It is the insured’s burden to demonstrate the reasonableness of the excuse … .

Here, the defendant Scottsdale Insurance Comp any (hereinafter Scottsdale) established its prima facie entitlement to judgment as a matter of law. Scottsdale demonstrated that its insured knew of the occurrence immediately and received a letter of representation from the plaintiff’s attorney in June 2008, but waited until September 25, 2009, to notify Scottsdale … . Since the subject policy was issued prior to the amendment to Insurance Law § 3420, Scottsdale was not required to show that it was prejudiced by the failure to give timely notice in order to satisfy its prima facie burden … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the insured’s delay in notifying Scottsdale was reasonable based upon its good faith belief in nonliability … . Ramlochan v Scottsdale Ins. Co., 2017 NY Slip Op 04159, 2nd Dept 5-24-17

 

INSURANCE LAW (INSURED’S FAILURE TO NOTIFY INSURER OF THE ACTION AGAINST THE INSURED RELIEVED THE INSURER OF ANY OBLIGATION TO SATISFY THE JUDGMENT AGAINST THE INSURED)

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ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED.

The Second Department determined that the insurer’s (Merchant’s) disclaimer letter did not identify the basis for the disclaimer relied upon in this declaratory judgment action. Therefore the defense ultimately relied upon was waived:

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When an insurer disclaims coverage for death or bodily injury arising out of an accident, “the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” … . “An insurer’s justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer” … . “Thus, an insurer waives any ground for denying coverage that is not specifically asserted in its notice of disclaimer, even if that ground would otherwise have merit” … .

In its disclaimer letter, Merchants stated, in relevant part, that Ability was not named as an additional insured under the insurance policy, a statement that was factually incorrect. Contrary to Merchants’ contention, the exclusion upon which Merchants now relies was not mentioned in its disclaimer letter and, therefore, any argument based on that exclusion has been waived … . Ability Transmission, Inc. v John’s Transmission, Inc., 2017 NY Slip Op 04087, 2nd Dept 5-24-17

 

INSURANCE LAW (ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED)/DISCLAIMER (INSURANCE LAW, ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED)

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SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD.

The Second Department determined the second risk assessment hearing should not have been held. Defendant had pled guilty to offenses in two counties and was given concurrent sentences. Using the same risk assessment instrument (RAI) one court (New York County) assessed defendant at level two and the second court (Rockland County) subsequently assessed defendant at level three. The Rockland County proceeding was dismissed:

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… [T]he result reached by the County Court in the Rockland County SORA proceeding conflicted with the result reached by the Supreme Court in the New York County SORA proceeding even though the same RAI was utilized in both proceedings. Recently, the Court of Appeals instructed that in order to prevent conflicting conclusions based upon the same RAI, “one—and only one—sentencing court should render a risk level determination based on all conduct contained in the RAI” … . Accordingly, the Rockland County SORA proceeding must be dismissed … . People v Katz, 2017 NY Slip Op 04154, 2nd Dept 5-24-17

CRIMINAL LAW (SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD)/SEX OFFENDER REGISTRATION ACT (SORA) (SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD)

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