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VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY.

The Second Department determined the defendant village's motion papers did not demonstrate entitlement to summary judgment dismissing the complaint alleging injury to plaintiff-driver caused by a tree falling in the roadway:

A municipality has a duty to maintain its roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers … . However, a municipality will not be held liable unless it had actual or constructive notice of the dangerous condition … . Here, the Village failed to establish its prima facie entitlement to judgment as a matter of law … by demonstrating that it owed no duty to maintain or inspect the tree which fell in the roadway on the date of the subject accident or that it lacked actual or constructive notice of the alleged dangerous condition of the tree … . Furthermore, the Village failed to establish its prima facie entitlement to judgment as a matter of law by demonstrating that the breach of any duty allegedly owed by it was not a proximate cause of the subject accident. Since the Village failed to establish its prima facie entitlement to judgment as a matter of law, we need not review the sufficiency of the opposition papers … . Connolly v Incorporated Vil. of Lloyd Harbor, 2016 NY Slip Op 03463, 2nd Dept, 5-4-16

NEGLIGENCE (VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY)/MUNICIPAL LAW (VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY)

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PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD.

The Second Department, reversing Supreme Court, determined infant plaintiff assumed the risk of stepping in a hole in a playing field on school grounds. The plaintiff was injured during a pick-up football game which was not organized by the defendant:

Under the doctrine of primary assumption of risk, a voluntary participant in a sporting activity “is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be” … .

Here, the hole was open, obvious, clearly visible, and known to the plaintiff … . Moreover, the plaintiff and his friends understood the risk presented by the hole and set the boundaries of the playing field in order to avoid it. Since the plaintiff voluntarily chose to play on a field on which there was a faulty condition that was open and obvious, he assumed the risk of injury from stepping into the hole … . Tinto v Yonkers Bd. of Educ., 2016 NY Slip Op 03496, 2nd Dept 5-4-16

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)/EDUCATION-SCHOOL LAW (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)/ASSUMPTION OF RISK (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)

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DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH THE MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant American Christmas did not owe a duty to plaintiff in this trip and fall case. American Christmas contracted with a shopping mall to install Christmas displays. After the installation contract was completed, plaintiff allegedly tripped over electrical wires taped to the floor. There was evidence American Christmas put up stanchions to prevent people from crossing over the cords. Plaintiff alleged American Christmas was liable in tort arising from the contract with the mall because it launched an instrument of harm. The court noted that because plaintiff only alleged one of the three possible criteria for liability to third persons arising from a contract, the defendant was only required to address that single theory in its motion for summary judgment:

Here, American Christmas demonstrated its prima facie entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to its holiday display contracts with the Mall Owner, and that it thus owed no duty of care to the plaintiff. American Christmas also established, prima facie, that the one Espinal exception alleged by the plaintiff that would give rise to a duty of care does not apply in this case (see Espinal v Melville Snow Contrs., 98 NY2d at 141-142). …

Inasmuch as the plaintiff did not allege facts that would establish the possible applicability of the second or third [Espinal] exception, American Christmas was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Parrinello v Walt Whitman Mall, LLC, 2016 NY Slip Op 03481, 2nd Dept 3-4-16

NEGLIGENCE (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)/ESPINAL EXCEPTIONS (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)

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TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983.

The Second Department, reversing Supreme Court, determined defendant members of a town board were absolutely immune from a lawsuit stemming from their legislative activities:

… [T]he defendants are entitled to dismissal of the complaint insofar as asserted against the defendants who are members of the Town Board … based on the principle of absolute immunity. Local legislators are “absolutely immune from suit under [42 U.S.C.] § 1983 for their legislative activities” … , and such immunity is applicable to all actions within the “sphere of legitimate legislative activity” … . The allegations asserted in the complaint against the Town Board defendants are based on actions that were legislative and within the sphere of legislative activity. Therefore, the Town Board defendants are entitled to absolute immunity … .

The defendants are also entitled to dismissal of the complaint insofar as asserted against the defendant Robert W. Fitzsimmons, an official with the Town … building department. The complaint does not allege that Fitzsimmons undertook any actions that violated “clearly established constitutional rights of which a reasonable person would have been aware” … . Therefore, the defendants are entitled to dismissal of the complaint insofar as asserted against Fitzsimmons, based on the principle of qualified immunity … . 24 Franklin Ave. R.E. Corp. v Cannella, 2016 NY Slip Op 03499, 2nd Dept 5-4-16

MUNICIPAL LAW (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/ABSOLUTE IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/QUALIFIED IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/42 USC 1983 (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)

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NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

The Second Department determined plaintiff insurance company's motion for summary judgment under the no-fault insurance law should have been denied. Plaintiff alleged defendant failed to comply with the requirement that defendant submit to an examination under oath (EUO). The Second Department determined plaintiff did not demonstrate the letters to defendant scheduling the EUO were timely and properly mailed:

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” … . ” The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” … . However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed … . “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” … .

As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs' counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed … . Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 2016 NY Slip Op 03485, 2nd Dept 5-4-16

INSURANCE LAW (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)/NO-FAULT INSURANCE (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)

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COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under Labor Law 740, the whistleblower statute:

Labor Law § 740 creates a cause of action in favor of an employee who has suffered a “retaliatory personnel action” as a consequence of, inter alia, “disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety,” or as a consequence of “object[ing] to, or refus[ing] to participate in any such activity, policy or practice in violation of a law, rule or regulation” … . …

The complaint alleged, among other things, that the plaintiff was offered a promotion … . The complaint also alleged that the terms of the promotion would have placed the plaintiff under the supervision of the defendant Tonya Parker, who was not among the class of persons authorized by law or regulation to supervise a registered nurse in clinical activities. The complaint also alleged that the plaintiff pointed out that Parker was not authorized to supervise her, but the terms of the promotion were not changed. The complaint further alleged that after the plaintiff declined to accept the promotion, she was discharged from her position as Head of Nursing, and another nurse was given the position that plaintiff had turned down, under Parker's supervision. Fough v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 2016 NY Slip Op 03469, 2nd Dept 5-4-16

EMPLOYMENT LAW (COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE)/LABOR LAW (COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE)/WHISTLEBLOWER STATUTE (COMPLAINT STATED A CAUSE OF ACTION UNDER LABOR LAW 740)

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EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Second Department determined the trial evidence supported defendant's request for a jury instruction of the justification defense. A new trial was ordered:

Here, based upon the testimony of the People's witnesses, there was a reasonable view of the evidence that would permit the jury to conclude that the defendant reasonably believed that the use of deadly force was necessary to prevent Jimmy [the victim] from using deadly force against the defendant or his friend, Ranjit … . There was testimony that, immediately before he was stabbed, Jimmy was belligerent and wielded a knife inside the defendant's home, and that he had threatened Ranjit's life. Significantly, Ranjit and another witness described Jimmy as the initial aggressor … . Moreover, this incident occurred in the defendant's dwelling and, thus, to the extent that he believed that Jimmy was about to use deadly physical force against him, he was under no duty to retreat … . People v Singh, 2016 NY Slip Op 03537, 2nd Dept 5-4-16

CRIMINAL LAW (EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

The Second Department determined providing the unredacted statement to the jury by mistake deprived defendant of a fair trial, without regard to whether the mistake contributed to defendant's conviction:

CPL 310.20(1) provides, “[u]pon retiring to deliberate, the jurors may take with them: . . . Any exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take.” Here, the defendant's written statement was admitted into evidence at trial, but the parties agreed to redact the statement so as to omit a portion of it indicating, in part, that the defendant's girlfriend “attempted to say I [the defendant] raped her [the defendant's girlfriend].” The parties further agreed that they would return to court before the jury received that exhibit. The redacted portion of the statement was unrelated to the robbery for which the defendant was standing trial. However, in violation of CPL 310.20(1) and the parties' express agreement, the defendant's statement was mistakenly provided to the jury, without the attorneys having been notified first, and without the statement having been fully redacted … . Instead of granting the defense attorney's motion for a mistrial, as it should have done in view of the highly prejudicial nature of the redacted portion of the statement, the Supreme Court gave an instruction regarding the statement that was ineffectual in curing the prejudice. “The right to a fair trial is self-standing,” and where error operates to deprive the defendant of a fair trial, an appellate court “must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction” … . People v Reid, 2016 NY Slip Op 03535, 2nd Dept 5-4-16

CRIMINAL LAW (PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)

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MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED.

The Second Department determined there was manifest necessity for a mistrial in this murder case. Defendant’s petition to prohibit a second trial was therefore properly denied:

In general, “double jeopardy will bar a retrial when a mistrial is granted over the defendant’s objection, unless the mistrial is granted as the product of manifest necessity'” … . “Manifest necessity for a mistrial has been found where the court concludes, after conducting a probing and tactful inquiry,’ that a juror is grossly unqualified to continue serving” and there are no alternates available … . Before declaring a mistrial, the court has “the duty to consider alternatives to a mistrial and to obtain enough information so that it is clear that a mistrial is actually necessary” … . A trial court’s determination that a mistrial is necessary is entitled to deference, as that court is in the best position to assess the circumstances … . Likewise, “the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” … .

Here, when the jury reconvened after the Sirois hearing, one juror (No. 10) had been excused, leaving 12 jurors, and the excusal of two more jurors (Nos. 7 and 9) was imminent, leaving only 10 jurors. Furthermore, although the mistrial was declared on the eighth business day after the presentation of evidence had commenced, only one partial day of evidence presentation had occurred, despite the Supreme Court’s initial estimate that the trial would take approximately two weeks (i.e., 10 business days). Matter of Whyte v Nassau County Dist. Attorney’s Off., 2016 NY Slip Op 03517, 2nd Dept 5-4-16

CRIMINAL LAW (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MISTRIAL (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MANIFEST NECESSITY (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/DOUBLE JEOPARDY (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)

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DENIAL OF TEACHER’S APPEAL OF UNSATISFACTORY RATING ANNULLED. 

The First Department, reversing Supreme Court, annulled a determination denying the petitioner-teacher's appeal of an unsatisfactory performance rating:

The record demonstrates deficiencies in the performance review process resulting in petitioner's unsatisfactory rating (U-Rating) for the 2012-2013 school year that were not merely technical but undermined the integrity and fairness of the process … . Petitioner was not given an adequate opportunity to improve her performance, and the observation reports did not suffice to alert her that her year-end rating was at risk.

Petitioner's account of the post-observation conference … , where the principal allegedly focused on the Annual Review, rather than perceived flaws in petitioner's lesson, was not refuted at the hearing and, when viewed alongside the other evidence presented, raises a factual issue as to whether the principal engineered the U-Rating to force petitioner from her job for refusing to go along with her policy of steering children into special education classes despite parental wishes to the contrary. Matter of Taylor v City of New York, 2016 NY Slip Op 03454, 1st Dept 5-3-16

EDUCATION-SCHOOL LAW (DENIAL OF APPEAL OF UNSATISFACTORY RATING OF TEACHER ANNULLED)/TEACHERS (DENIAL OF APPEAL OF UNSATISFACTORY RATING OF TEACHER ANNULLED)

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