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APPELLANT COULD NOT PURSUE COUNTERCLAIMS AND CROSS-CLAIMS WHICH WERE NOT LISTED AS ASSETS IN APPELLANT’S BANKRUPTCY PETITION; THE CAUSES OF ACTION REMAIN VESTED IN THE BANKRUPTCY ESTATE.

The Third Department determined appellant was precluded from raising counterclaims and cross-claims in a matter which was stayed when appellant filed for bankruptcy. The causes of action were not listed as assets and therefore became the property of the bankruptcy estate:

 

It is fundamental that, “[u]pon the filing of a voluntary bankruptcy petition, all property which a debtor owns . . ., including a cause of action, vests in the bankruptcy estate” … . Such a cause of action “can only revert to the debtor to be pursued in his or her individual capacity if the claim is 'dealt with' in the bankruptcy, which necessitates it being listed as an asset [in the schedule of assets] and either abandoned by the bankruptcy trustee or administered by the bankruptcy court for the benefit of the creditors” … . Accordingly, “a debtor's failure to list a legal claim as an asset in his or her bankruptcy proceeding causes the claim to remain the property of the bankruptcy estate and precludes the debtor from pursuing the claim on his or her own behalf” … . Central Natl. Bank, Canajoharie v Scotty's Auto Sales, Inc., 2016 NY Slip Op 02876, 3rd Dept 4-14-16


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CONSTRUCTION CONTRACT PROVISION MAKING LITIGATION THE SOLE METHOD FOR RESOLVING A DISPUTE RENDERED VOID BY GENERAL BUSINESS LAW. 

The Third Department determined the General Business Law rendered void a provision in a construction subcontract mandating litigation as the sole method for resolving a dispute:

… General Business Law § 757 (3) … unambiguously voids and renders unenforceable any contractual provision that makes expedited arbitration unavailable to one or both parties. … [T]he obvious function of section 6.2 of the subcontract is to establish litigation as the sole legal option for the resolution of disputes under the subcontract, which, in turn, denies both parties the opportunity to arbitrate such claims. Inasmuch as General Business Law § 757 (3) clearly operates to void and render unenforceable the subcontract's dispute resolution provision, we find that Supreme Court properly denied petitioner's application to stay arbitration. Matter of Capital Siding & Constr., LLC (Alltek Energy Sys., Inc.), 2016 NY Slip Op 02878, 3rd Dept 4-14-16


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EXTENSIONS OF NONCONFORMING USE SHOULD NOT HAVE BEEN ALLOWED.

The Second Department determined the extension of a nonconforming use by the construction of decks, a gazebo, awning and detached shed should not have been permitted by the board of zoning appeals (BZA):

… [T]he Surf Club's erection of the decks, the awning, the gazebo, and the detached shed on its premises, and the completion of certain alterations to its clubhouse, constituted an impermissible extension of that nonconforming use, not a mere increase in volume or intensity of the same nonconforming use … . As such, the BZA's determination to grant the Surf Club's application for an extension of nonconforming use violated Code of Town of Brookhaven § 85-883(A)(2), which prohibits the extension of nonconforming uses. Accordingly, the portion of the BZA's determination which granted the Surf Club's application for an extension of nonconforming use was arbitrary and capricious and should have been annulled by the Supreme Court. Matter of Martinos v Board of Zoning Appeals of Town of Brookhaven, 2016 NY Slip Op 02828, 2nd Dept 4-13-16


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THE CITY (NYC) HAD ENTERED A SPECIAL RELATIONSHIP WITH DEFENDANT PROPERTY OWNERS CONCERNING THE REPAIR OF A DEFECTIVE SIDEWALK, DEFENDANTS WERE ENTITLED TO CONTRIBUTION FROM THE CITY IN THIS SLIP AND FALL CASE.

The Second Department determined defendant property owners, the Bilellos, were entitled to contribution from the city (NYC), based upon a special relationship with the city, in a sidewalk slip and fall case. Tree roots had raised the sidewalk in front of the Bilellos property. The city issued a notice of violation to the Bilellos and the Bilellos were told by the city not to touch the sidewalk until a plan for repair was developed by the city. The Department of Forestry never got in touch with the Bilellos and plaintiff tripped and fell over the defect 11 months after the Bilellos' last communication from the city:

Here, it is undisputed that the City did not owe a direct duty of care to the plaintiff, because the 2003 enactment of Administrative Code of City New York 7-210 shifted liability for injuries arising from sidewalk defects from the City to the abutting property owner … . However, if the City owed an independent, special duty to the Bilellos, it may be held liable “for the portion of the damage attributable to [its] negligence, despite the fact that the duty violated was not one owing directly to the injured person” … . “Such a duty is found when a special relationship exists between the municipality and an individual or class of persons warranting the imposition of a duty to use reasonable care for those persons' benefit” … . To establish the existence of a special relationship based on a municipality's voluntary assumption of a duty, the party asserting the relationship has a heavy burden to prove the following elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the party; and (4) the party's justifiable reliance on the municipality's affirmative undertaking … . Stanciu v Bilello, 2016 NY Slip Op 02802, 2nd Dept 4-13-16


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RADIOLOGIST WAS NOT QUALIFIED TO EXPRESS AN OPINION ON THE PROXIMATE CAUSE OF THE DEFORMITY WHICH WAS ALLEGED TO HAVE RESULTED FROM A FAILURE TO DIAGNOSE A FRACTURE. 

The Second Department, reversing Supreme Court, determined the defendants in a medical malpractice action were entitled to summary judgment dismissing the complaint as against them. The complaint alleged defendant radiologist failed to diagnose a fractured finger, which was the proximate cause of a deformity. In opposition to defendants' motion for summary judgment, the plaintiff offered an affidavit from a radiologist, Dr. Tantleff, who was qualified to evaluate the alleged failed diagnosis, but was not qualified to find the failed diagnosis was the proximate cause of the deformity (an orthopedic matter). Therefore the defendants were entitled to summary judgment:

Here, Dr. Tantleff's opinion as to proximate cause was related to the specialty of orthopedics, but Dr. Tantleff failed to state any basis on which he could be found competent to opine in that area. Therefore he was not qualified to render an opinion that Fong's failure to diagnose the plaintiff's nondisplaced fracture proximately caused the alleged orthopedic injuries … . Moreover, his assertion was speculative, as he cited to no record evidence to support his opinion that the plaintiff's alleged injuries were due to the undiagnosed fracture … . Martinez v Quintana, 2016 NY Slip Op 02782, 2nd Dept 4-13-16


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FACT THAT PLAINTIFF WAS RIDING HIS BICYCLE THE WRONG WAY ON A ONE-WAY STREET WHEN HE WAS STRUCK DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT, THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF AN ACCIDENT.

The Second Department, reversing Supreme Court, determined plaintiff's complaint should not have been dismissed. Plaintiff was injured when he was struck by a forklift as he was riding his bicycle the wrong way on a one-way street. Although plaintiff was negligent, the defendant failed to affirmatively demonstrate the forklift operator was free from negligence:

While the plaintiff was negligent in traveling the wrong way on a one-way street (see Vehicle and Traffic Law §§ 1127[a]; 1231, 1234[a]), there can be more than one proximate cause of an accident … . A defendant moving for summary judgment has the burden of establishing freedom from fault in the happening of the accident … . Thus, the fact that the plaintiff was riding his bicycle in the wrong direction on a one-way street would not preclude a finding that negligence by the defendant's employee contributed to the accident … .

Here, the defendant failed to meet its prima facie burden of establishing the forklift operator's freedom from fault in the happening of this accident as a matter of law … . The papers the defendant submitted in support of its motion demonstrated the existence of triable issues of fact as to whether the forklift operator failed to exercise due care before proceeding from the driveway onto the street (see Vehicle and Traffic Law §§ 1143, 1146[a]; 1173…). Nunez v Olympic Fence & Railing Co., Inc., 2016 NY Slip Op 02791, 2nd Dept 4-13-16


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DEPRESSED DRAIN NEAR CONDOMINIUM ENTRANCE WAS A NON-ACTIONABLE TRIVIAL DEFECT.

The Second Department determined that a depressed drain near the entrance to a condominium was a non-actionable trivial defect:

 

“Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law” … . “[I]njuries resulting from trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip are not actionable” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury” … .

“[T]here is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . “[G]ranting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable'” … . Thus, “a holding of triviality [is] to be based on all the specific facts and circumstances of the case, not size alone” … .

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . Only once the defendant meets its burden, will the burden shift to the plaintiff to establish an issue of fact … . Maldonado v 2121 Shore Condominium, 2016 NY Slip Op 02780, 2nd Dept 4-13-16


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SIDEWALK RISE OF A LITTLE OVER AN INCH WAS A NON-ACTIONABLE TRIVIAL DEFECT.

 

The Second Department determined a sidewalk rise of slightly more than an inch was a non-actionable trivial defect:

Here, the owners and the lessees submitted … evidence to establish that the defect at issue was, at most, a rise of slightly more than one inch in a portion of the sidewalk and that neither the alleged defect nor the surrounding circumstances increased the risk to her … . [Plaintiff] testified at her deposition that she had traversed the sidewalk on numerous previous occasions without incident before the incident at issue. She testified that it was a sunny day and there were no crowds, construction, or other obstructions to block her view of the sidewalk as she traversed it. Thus, through her testimony, the owners and the lessees established that the alleged defect was not only small in size, but was also in a well-illuminated location that [plaintiff] had previously traversed on numerous occasions and that nothing in the area obstructed her view of the location and the alleged defect. Chee v DiPaolo, 2016 NY Slip Op 02777, 2nd Dept 4-13-16


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FAMILY COURT SHOULD HAVE GRANTED MOTHER’S APPLICATION FOR FINDINGS ALLOWING HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department, reversing Family Court, determined Family Court should have made the requisite declaration and findings allowing mother's children to apply for special immigrant juvenile status (SIJS):

… [T]he record supports the Family Court's findings that the children are under the age of 21 and unmarried, and that the children are dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . The court erred, however, with respect to its recital of the element of “reunification.” The law does not require a finding that reunification with one or both of a child's parents is viable, but that reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101[a][27][J][i]…). We have the authority to make that finding, and upon our independent factual review of the record, we find that reunification of the children with their father is not a viable option due to abandonment … . Matter of Marlene G. H. (Pedro H. P.), 2016 NY Slip Op 02817, 2nd Dept 4-13-16


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AWARDING WIFE A DISTRIBUTIVE SHARE OF HUSBAND’S MEDICAL PRACTICE AND DETERMINING HUSBAND’S MAINTENANCE OBLIGATION BASED UPON INCOME FROM THE PRACTICE DID NOT CONSTITUTE DOUBLE-COUNTING.

The Second Department, reversing Supreme Court, determined that distributing part of the value of defendant-husband's medical practice to the wife, and figuring the amount of maintenance defendant was to pay based upon his income from the medical practice, did not constitute double counting:

… [T]he defendant's medical practices, which employ other individuals including several doctors, and his interest in an ambulatory surgical center, are not intangible assets which are “totally indistinguishable” from the income stream upon which his maintenance obligation was based … , and the valuation method used by the plaintiff's expert to determine the fair market value of these assets does not change their essential nature. Accordingly, the Supreme Court erred in concluding that it had no discretion to award the plaintiff any distributive share of the value of these assets because the parties considered the defendant's entire 2010 income in reaching a stipulation as to his maintenance obligation. Palydowycz v Palydowycz, 2016 NY Slip Op 02793, 2nd Dept 4-13-16


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