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PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY.

The Second Department determined the Court of Claims properly dismissed claimant’s cause of action alleging a state watershed regulation prohibiting septic systems within 300 feet of a lake amounted to an unconstitutional taking of the property (because it could not be developed):

The Takings Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment … , provides that private property shall not “be taken for public use, without just compensation” (US Constitution Amendment V). The Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking” … . In addition to physical takings, the United States Supreme Court has recognized that “government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster— and that such regulatory takings’ may be compensable under the Fifth Amendment” … .

The United States Supreme Court has “generally eschewed” any set formula for identifying regulatory takings, choosing instead to engage in ” essentially ad hoc, factual inquiries'” considering a number of factors … . However, it has recognized two categories of regulatory action that will be deemed per se takings for Fifth Amendment purposes, without the need to engage in case-specific inquiries: (1) regulations that compel the property owner to suffer a permanent physical invasion of the property, and (2) regulations that completely deprive an owner of “all economically beneficial us[e]” of the property … .

Here, in support of its motion for summary judgment, the claimant failed to establish, prima facie, that the subject property has suffered a complete elimination of value as a result of the watershed regulations… . Monroe Equities, LLC v State of New York, 2016 NY Slip Op 08206, 2nd Dept 12-7-16

 

REAL PROPERTY (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)/EMINENT DOMAIN (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)/REGULATORY TAKING (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)

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CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing Supreme Court in this traffic accident case, determined the causes of action against abutting property owners (the Herlichs) and the county alleging obstruction of sight at an intersection should not have been dismissed:

“A homeowner has no duty under the common law to prevent vegetation from creating a visual obstruction to users of a public roadway, but a duty to such users may be created by statute or ordinance” … . “[W]here a specific regulatory provision . . . imposes upon property owners a duty to prevent vegetation from visually obstructing the roadway, proof of noncompliance with the regulatory provision may give rise to tort liability for any damages proximately caused thereby” … . Here, the Herlich defendants failed to establish their prima facie entitlement to judgment as a matter of law, as they failed to demonstrate that the hedge on their property did not constitute a visual obstruction in violation of Code of the Town of Oyster Bay chapter 246 § 246-4.4.4, and Code of the Village of Massapequa Park chapter 298, article I, § … . …

“It has long been established that a governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty” … . Here, the County, which concedes that the section of Park Boulevard where the accident occurred was within its jurisdiction, failed to demonstrate, prima facie, that Park Boulevard was maintained in a reasonably safe condition with unobstructed sight lines. Dutka v Odierno, 2016 NY Slip Op 08196, 2nd Dept 12-7-16

 

NEGLIGENCE (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/TRAFFIC ACCIDENTS (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/OBSTRUCTION OF SIGHT (TRAFFIC ACCIDENTS, CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/HIGHWAYS AND ROADS (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/INTERSECTIONS (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)

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ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT.

The Second Department determined plaintiff’s motion for summary judgment in this traffic accident case was properly denied. Plaintiff did not demonstrate freedom from comparative fault. Plaintiff had the right-of-way at the time of the collision:

While an operator of a motor vehicle traveling with the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield … , the driver with the right-of-way nonetheless also has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles … . There can be more than one proximate cause of a motor vehicle accident and, thus, “a plaintiff moving for summary judgment on the issue of liability in an action alleging negligence must establish, prima facie, not only that the defendant was negligent but that the plaintiff was free from comparative fault” … . The issue of comparative fault is generally a question for the trier of fact … .

Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, as her submissions were insufficient to eliminate all triable issues of fact as to whether she contributed to the happening of the accident … . Taylor v Brat Auto Sales, Ltd., 2016 NY Slip Op 08220, 2nd Dept. 12-7-16

 

NEGLIGENCE (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/INTERSECTIONS (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/SUMMARY JUDGMENT (COMPARATIVE FAULT, TRAFFIC ACCIDENTS, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)

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ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE.

The Second Department determined the abutting property owner was entitled to summary judgment in this sidewalk slip and fall case. No statute or ordinance imposed a duty to maintain the sidewalk on the property. And the property owner demonstrated it did not create the icy condition:

An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law … , by establishing that no statute or ordinance imposed upon it tort liability for failure to maintain the adjoining sidewalk, and that it did not create the alleged icy condition. Escobar v Lowe Props., LLC, 2016 NY Slip Op 08197, 2nd Dept 12-7-16

NEGLIGENCE (ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE)/SLIP AND FALL (ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE)/SIDEWALKS (ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE)

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DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE.

The Second Department determined defendant, which owned property abutting a sidewalk, was entitled to summary judgment in this slip and fall case under the storm in progress doctrine. The court laid out all of the applicable law:

“Under the so-called storm in progress rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . However, “if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied” … .

If a property owner has elected to clear a sidewalk during a storm in progress, the owner is required to act with reasonable care and may be liable if its efforts create a hazardous condition or exacerbate a natural hazard created by the storm … . The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm … . Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc., 2016 NY Slip Op 08190, 2nd Dept 12-7-16

 

NEGLIGENCE (DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)/SLIP AND FALL  (DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)/SIDEWALKS (SLIP AND FALL,  DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)/STORM IN PROGRESS (DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)

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PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS.

The Second Department, in affirming the verdict requiring the civil confinement of appellant as a dangerous sex offender, determined the records of appellant’s sex offender treatment in prison were properly released to the attorney general and properly used by the state’s psychiatric experts:

Supreme Court did not err in permitting the petitioner’s experts to testify regarding certain communications made by the appellant in the context of sex offender treatment he received in prison. The appellant correctly argues that the language of a limited waiver of confidentiality he signed before receiving sex offender treatment did not permit disclosure of his treatment records to the Attorney General for a trial under Mental Hygiene Law article 10. However, the appellant concedes that his sex offender treatment records were properly disclosed to the Attorney General and the Attorney General’s experts pursuant to Mental Hygiene Law § 10.08(b) and (c). By granting the Attorney General access to a sex offender’s relevant treatment records “notwithstanding any other provision of law,” and by specifying that the psychiatric examiners chosen by the Attorney General be given access to such records, the Legislature expressed its intent that otherwise privileged sex offender treatment records could be used by these parties in the adversarial stage of an article 10 proceeding … . Matter of State of New York v Justin D., 2016 NY Slip Op 08241, 2nd Dept 12-7-16

MENTAL HYGIENE LAW (PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)/EVIDENCE (MENTAL HYGIENE LAW, PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)/SEX OFFENDERS MENTAL HYGIENE LAW, ​PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)

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LABOR LAW CLAIMS PROPERLY DISMISSED, DEFENDANT WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR, DID NOT CONTROL THE MANNER OF WORK, DID NOT CREATE THE DANGEROUS CONDITION, AND DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION.

The Second Department determined plaintiff’s Labor Law 240(1), 241(6) and 200 causes of action against Dynatec were properly dismissed. Dynatec demonstrated it was not an agent of the owner or contractor, did not control the manner of the work, did not create the dangerous condition, and did not have notice of the dangerous condition. Apparently plaintiff was injured twice, once falling from a ladder and a second time falling down stairs:

Labor Law §§ 240(1) and 241(6) insofar as asserted against it. “Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents” … . ” A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured'” … . “It is not a defendant’s title that is determinative, but the amount of control or supervision exercised” … .

Here, Dynatec established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against it by demonstrating that it lacked the authority to supervise or control the plaintiff’s work … . Specifically, Dynatec offered evidence indicating that its role at the worksite was to ensure compliance with design plans through weekly visits lasting no more than three hours. In opposition, the plaintiff failed to raise a triable issue of fact … . …

Dynatec established its prima facie entitlement to judgment as a matter of law dismissing the common-law negligence and Labor Law § 200 causes of actions insofar as asserted against it by submitting evidence demonstrating that it did not control the methods or materials of the plaintiff’s work, did not create the dangerous conditions that allegedly caused the accidents, and did not have actual or constructive notice of the dangerous conditions … . Vazquez v Humboldt Seigle Lofts, LLC, 2016 NY Slip Op 08225, 2nd Dept 12-7-16

 

LABOR LAW-CONSTRUCTION LAW (LABOR LAW CLAIMS PROPERLY DISMISSED, DEFENDANT WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR, DID NOT CONTROL THE MANNER OF WORK, DID NOT CREATE THE DANGEROUS CONDITION, AND DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION)

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SPECIFICITY REQUIRED FOR A FRAUD CAUSE OF ACTION IS TEMPERED WHEN THE DETAILS ARE EXCLUSIVELY WITHIN THE KNOWLEDGE OF THE DEFENDANT.

The Second Department, in affirming the denial of a motion to dismiss a cause of action for fraud, noted that the specificity required for a fraud complaint is tempered when the details are exclusively within the knowledge of the defendant:

A plaintiff asserting a cause of action alleging fraud is required to plead with particularity (see CPLR 3016[b]…). When, however, the operative facts are “peculiarly within the knowledge of the party” alleged to have committed the fraud, it may be impossible at the early stages of the proceeding for the plaintiff to detail all the circumstances constituting the fraud … . Thus, as the Court of Appeals has held, the pleading requirement of CPLR 3016(b) “should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud'” … . Instead, the pleading requirement will be deemed to have been met “when the facts are sufficient to permit a reasonable inference of the alleged conduct” … . Bibbo v Arvanitakis, 2016 NY Slip Op 08194, 2nd Dept 12-7-16

FRAUD (SPECIFICITY REQUIRED FOR A FRAUD CAUSE OF ACTION IS TEMPERED WHEN THE DETAILS ARE EXCLUSIVELY WITHIN THE KNOWLEDGE OF THE DEFENDANT)/CIVIL PROCEDURE (MOTION TO DISMISS, FRAUD, SPECIFICITY REQUIRED FOR A FRAUD CAUSE OF ACTION IS TEMPERED WHEN THE DETAILS ARE EXCLUSIVELY WITHIN THE KNOWLEDGE OF THE DEFENDANT).DISMISS, MOTION TO (CIVIL, FRAUD, SPECIFICITY REQUIRED FOR A FRAUD CAUSE OF ACTION IS TEMPERED WHEN THE DETAILS ARE EXCLUSIVELY WITHIN THE KNOWLEDGE OF THE DEFENDANT)

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MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED.

The Second Department, reversing Supreme Court, determined the defendant’s right to make a motion to dismiss the foreclosure cause of action as abandoned was not waived by defendant’s motion to vacate the default and file a late answer:

Contrary to the plaintiff’s contention, the defendant did not waive the right to seek dismissal of the complaint pursuant to CPLR 3215(c) by moving to vacate her default and for leave to serve a late answer. “The mere fact that the legislative intent underlying CPLR 3215(c) was to prevent the plaintiffs from unreasonably delaying the determination of an action, does not foreclose the possibility that a defendant may waive the right to seek a dismissal pursuant to the section by his or her conduct” … . A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking “any other steps which may be viewed as a formal or informal appearance” … . However, a motion pursuant to CPLR 3012(d) for leave to serve an untimely answer does not constitute either a formal (see CPLR 320) or informal appearance … . HSBC Bank USA, N.A. v Grella, 2016 NY Slip Op 08199, 2nd Dept 12-7-16

FORECLOSURE (MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)/DISMISS, MOTION TO (CIVIL, MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)/DEFAULT, MOTION TO VACATE (MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)/ABANDONMENT OF ACTION (MOTION TO VACATE DEFAULT DID NOT WAIVE RIGHT TO MOVE TO DISMISS THE FORECLOSURE ACTION AS ABANDONED)

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GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY.

The Second Department determined Family Court erred by ordering genetic marker testing before resolving the issue of equitable estoppel:

Family Court Act § 532 provides that, in a proceeding to establish paternity, “on the court’s own motion or the motion of any party, [the court] shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests” (Family Ct Act § 532[a]…). However, “[n]o paternity test shall be ordered upon a written finding by the court that it is not in the best interests of the child on the basis of, inter alia, equitable estoppel” … . “Where a party to a paternity proceeding raises an issue of equitable estoppel, that issue must be resolved before any biological testing is ordered” … . Matter of Tralisa R. v Max S., 2016 NY Slip Op 08236, 2nd Dept 12-7-16

FAMILY LAW (GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)/PATERNITY (GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)/GENETIC MARKER TESTING (PATERNITY, GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)/EQUITABLE ESTOPPEL (PATERNITY, GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)

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