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ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK.

The Second Department, reversing Supreme Court, determined defendant property owner could not be held liable for the condition of a NYC-owned tree well within the abutting sidewalk:

Administrative Code of the City of New York § 7-210(a) places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells … . Thus, liability may be imposed on the abutting landowner in such instances only where she or he has “affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area” … . Gibbons v City of New York, 2016 NY Slip Op 04019, 2nd Dept 5-25-16

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/MUNICIPAL LAW (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SLIP AND FALL (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SIDEWALKS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/TREE WELLS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)

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INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs' motion for leave to file a late notice of claim against defendant school district should have been denied. Although infancy tolls the one-year-ninety-days statute of limitations, it does not toll the 90-day period for filing a notice of claim. The motion for leave to file a late notice was not made until more than four years after the expiration of the 90-day filing period:

Here, the plaintiffs failed to establish that the defendant had “acquired actual knowledge of the essential facts constituting the claim” within 90 days of the accident or a reasonable time thereafter (General Municipal Law § 50-e[5]). The school's principal prepared an accident claim form on the day of the accident, and the infant plaintiff's parents completed the medical claim portion of that form a couple of weeks after the accident. Contrary to the plaintiffs' contention, this form, which merely indicated that the infant plaintiff lost his left front tooth and part of his right front tooth when he hit his mouth on the gymnasium floor in an attempt to “duck from a ball” during physical education class, did not establish that the defendant had timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising the students, in failing to provide a safe play area, and in allowing the infant plaintiff to engage in an inappropriate activity … . Accordingly, the defendant had no reason to conduct a prompt investigation into the purported negligent supervision and alleged unsafe condition of the gymnasium floor … . Horn v Bellmore Union Free Sch. Dist., 2016 NY Slip Op 04021, 2nd Dept 5-25-16

NEGLIGENCE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)

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STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL.

The Second Department determined plaintiff-student assumed the risk of being struck by a baseball during his high-school team’s practice:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” … . “An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … . “Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . “[I]t is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results'” … . Kaminer v Jericho Union Free Sch. Dist., 2016 NY Slip Op 04024, 2nd Dept 5-25-16

 

NEGLIGENCE (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)/ASSUMPTION OF THE RISK (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)/EDUCATION-SCHOOL LAW (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE.

The Second Department determined plaintiff's motion for summary judgment in this rear-end collision case was properly granted, despite defendant's (McCrowell's) claim plaintiff stopped 150 feet from the car in front:

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting McCrowell's deposition testimony, the injured plaintiff's deposition testimony, and the injured plaintiff's affidavit, which demonstrated that the injured plaintiff's vehicle was stopped in heavy traffic when it was struck in the rear by the appellants' vehicle … .

In opposition, the appellants failed to raise a triable issue of fact. McCrowell's statement in his affidavit that the injured plaintiff brought his vehicle to a stop at least 150 feet behind the stopped vehicle in front of him did not adequately rebut the inference of negligence given McCrowell's deposition testimony that he was able to bring his vehicle to a stop behind the injured plaintiff's vehicle on two occasions prior to the accident in heavy stop-and-go traffic without incident during the one minute that the injured plaintiff was traveling in front of McCrowell's vehicle … . Even if the injured plaintiff's vehicle came to a sudden stop, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Melendez v McCrowell, 2016 NY Slip Op 04028, 2nd Dept 5-25-16

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE)/REAR-END COLLISION (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE)

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PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1).

The Second Department determined plaintiff's motion for summary judgment on a Labor Law 240(1) cause of action was properly denied. Plaintiff was struck by a falling piece of wood, but did not know what caused the wood to fall:

To prevail on a motion for summary judgment in a section 240(1) “falling object” case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking … . In addition, the plaintiff “must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .

… The evidence submitted by the plaintiff was insufficient to establish that the wood fell because of the absence or inadequacy of a safety device. The plaintiff's mere belief that the wood that struck him was a part of the hoist mechanism is insufficient to establish that it was a component of the safety device itself … . Moreover, under the circumstances, including that the plaintiff did not see where the wood fell from, the plaintiff did not establish, prima facie, that his injuries were proximately caused by the absence or inadequacy of a safety device or other violation of the statute … . Pazmino v 41-50 78th St. Corp., 2016 NY Slip Op 04032, 2nd Dept 5-25-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1))/FALLING OBJECTS (LABOR LAW, PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1))

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PLAINTIFF’S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to defendant on a Labor Law 200 cause of action alleging a dangerous condition. Plaintiff was locked inside the work site (a stadium) and was injured when climbing over a six-foot fence. Supreme Court erred when it determined, as a matter of law, that plaintiff's act of climbing the fence was the sole proximate cause of the injury:

“Defendants are liable for all normal and foreseeable consequences of their acts,” and the plaintiffs “need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable” … . “An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'” … . However, when the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist … . Whether an act is foreseeable is generally for the trier of fact … . Summary judgment is appropriate “where only one conclusion may be drawn from the established facts” … . Here, viewing the evidence in the light most favorable to the plaintiffs … we find that there is a triable issue of fact as to whether [plaintiff's] act in scaling the fence was a natural and foreseeable response to a condition allegedly created by the defendant's negligence … . Niewojt v Nikko Constr. Corp., 2016 NY Slip Op 04030, 2nd Dept 5-25-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE)/NEGLIGENCE (LABOR LAW 200, PLAINTIFF'S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE)

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REQUEST FOR STATEMENTS OF NON-TESTIFYING WITNESSES IN A CRIMINAL MATTER PROPERLY DENIED.

The Second Department determined the request for statements made by non-testifying witnesses in a criminal matter was properly denied:

… [T]he respondents met their burden of demonstrating that the statements and other documents containing information provided to law enforcement officials during the criminal investigation by witnesses who did not testify at trial were exempt from disclosure under Public Officers Law § 87(2)(e)(iii). Thus, the documents sought by the petitioner, which contain statements of nontestifying witnesses, are not disclosable under FOIL. Matter of Brown v DiFiore, 2016 NY Slip Op 04045, 2nd Dept 5-25-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR STATEMENTS OF NON-TESTIFYING WITNESSES IN A CRIMINAL MATTER PROPERLY DENIED)

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LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY.

The Second Department determined the liquidated damages clause in a separation agreement constituted an unenforceable penalty. The clause provided that, upon a breach of any of the terms, child support would increase from $1500 per month to over $5000:

“[P]arties to an agreement may provide for the payment of liquidated damages upon its breach, and such damages will be upheld if (1) the amount fixed is a reasonable measure of the probable actual loss in the event of breach, and (2) the actual loss suffered is difficult to determine precisely. However, if the liquidated damages do not bear a reasonable proportion to the loss actually sustained by a breach, they will constitute an unenforceable penalty” … .

Here, the parties entered into a separation agreement … which was incorporated but not merged into the judgment of divorce. In relevant part, the agreement provided that … the defendant would pay $1,500 per month in child support until the date of the sale of the marital residence, and $5,076.29 per month thereafter. However, if at any time prior to the sale of the marital residence, the defendant was not in compliance with “all of the terms” of the agreement, then his child support obligation would be increased to $5,076.29 per month.

Contrary to the plaintiff's contention, the Supreme Court correctly determined that the subject provision, as drafted, constituted an unenforceable penalty clause … . Fitzpatrick v Fitzpatrick, 2016 NY Slip Op 04018, 2nd Dept 5-25-16

FAMILY LAW (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)/CONTRACT LAW (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)/DAMAGES  (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)

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FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department, reversing Family Court, determined the petition for guardianship of the child should have been granted, and Family Court should have made the findings necessary for the child to petition for Special Immigrant Juvenile Status (SIJS):

Here, the child is under the age of 21 and unmarried, and since we have appointed Daniel J. K. as the child's guardian, the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . We further find that the record fully supports the child's contention that his reunification with the father is not a viable option due to parental neglect … . Lastly, the record reflects that it would not be in the child's best interests to be returned to El Salvador. Matter of Axel S.D.C. v Elena A.C., 2016 NY Slip Op 04046, 2nd Dept 5-25-16

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

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DOG-BITE COMPLAINT PROPERLY DISMISSED.

The Second Department determined plaintiffs’ complaint in this dog-bite case was properly dismissed. There was no showing the dog had ever exhibited any vicious propensities:

The evidence submitted in support of [defendants’ motion for summary judgment], including the deposition transcripts of the testimony of each plaintiff and each defendant, established that the defendants were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior or vicious propensities. The deposition testimony demonstrated that prior to the subject incident, the dog at most merely barked at guests when they first came to the house. The dog did not snap its teeth. It did not chase people. The dog generally stayed in the kitchen, but was not kept away for the safety of others. The infant plaintiff had been a guest on multiple occasions at the defendants’ home without concern about any vicious propensities of the dog. There was no evidence that the dog was trained to guard the home … . Ioveno v Schwartz, 2016 NY Slip Op 04023, 2nd Dept 5-25-16

 

DOG-BITE (COMPLAINT PROPERLY DISMISSED)/STRICT LIABILITY IN TORT (DOG-BITE COMPLAINT PROPERLY DISMISSED)

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