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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN DOG-BITE CASE.

The Second Department determined defendants motion for summary judgment in a dog bite case was properly granted. The court explained the relevant law:

Aside from a limited exception for straying farm animals …, which has no application here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . …

To recover in strict liability for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities … . “Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by showing that they were not aware, and should not have been aware, of any vicious propensity … . The defendants' submissions * * * established that, prior to the encounter with the plaintiff and her dog, there had never been any reported incident of aggression or viciousness … . Cosgrove v Trump Natl. Golf Club, 2015 NY Slip Op 09246, 2nd Dept 12-16-15

ANIMAL LAW (DOG BITE PROOF REQUIREMENTS EXPLAINED)/DOG BITE (PROOF REQUIREMENTS)

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NO EQUITABLE DISTRIBUTION FUND TO WHICH ATTORNEY’S CHARGING LIEN COULD ATTACH.

The Second Department explained when an attorney’s charging lien can be imposed in divorce proceedings:

“A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client’s cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client” (… see Judiciary Law § 475). In a matrimonial action, a charging lien will be available “to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client” … . However, “[w]here the attorney’s services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest” … .

In this case, the plaintiff and the defendant already owned the marital residence jointly as tenants by the entirety. Thus, the parties’ settlement agreement merely permitted the plaintiff to retain her existing interest in the marital residence. “Although the nature of the property was converted from realty into dollars, her interest remained the same. Thus, no equitable distribution fund to which a charging lien can attach was created by the efforts of the [plaintiff’s] attorney” … . Charnow v Charnow, 2015 NY Slip Op 09241, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (CHARGING LIEN IN MATRIMONIAL ACTIONS)/FAMILY LAW (ATTORNEY’S CHARGING LIEN IN MATRIMONIAL ACTIONS)/CHARGING LIEN (MATRIMONIAL ACTIONS)

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DEFENDANTS’ MOTION TO DISQUALIFY PLAINTFF’S ATTORNEY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants’ motion to disqualify plaintiff’s attorney on conflict of interest grounds should have been granted. Plaintiff’s attorney had previously represented the defendant involving issues substantially related to those in the current action:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse'” … . ” A party’s entitlement to be represented in ongoing litigation by counsel of [his or her] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'” … . However, the right to be represented by counsel of one’s own choosing “will not supercede a clear showing that disqualification is warranted” … . Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety … . “Due to the significant competing interests in attorney disqualification cases,’ however, the Court of Appeals has advised against mechanical application of blanket rules,’ in favor of a careful appraisal of the interests involved'” … . Gjoni v Swan Club, Inc., 2015 NY Slip Op 09252, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (MOTION TO DISQUALIFY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED)/DISQUALIFICATION OF ATTORNEY (MOTION TO DISQUALIFY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED)/CONFLICT OF INTEREST (MOTION TO DISQUALIFY ATTORNEY SHOULD HAVE BEEN GRANTED)

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DEFENDANT’S UNEQUIVOCAL REQUEST FOR COUNSEL NOT HONORED; CONVICTION REVERSED.

The Second Department determined defendant’s statements, made after an unequivocal request for counsel, should have been suppressed. Defendant’s conviction was reversed and a new trial ordered:

The issue is whether ” a reasonable police officer in the circumstances would understand the statement to be a request for an attorney'” … . Any indication by a police officer that he understood a defendant’s statement to be a request for counsel is a factor to be considered in evaluating whether there was an unequivocal request for counsel … .

Once a suspect in police custody unequivocally requests the assistance of counsel, the suspect may not be asked any more questions in the absence of counsel … . “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . * * *

… [T]he defendant’s second statement, made approximately 25 minutes after his first mention of an attorney, stating that he “need[ed] to see private counsel” and that he “need[ed] an attorney,” was an unequivocal invocation of his right to counsel … . Shortly thereafter, the investigator evidenced his understanding that the defendant had requested counsel by querying the defendant about “the attorney thing.” People v Carrino, 2015 NY Slip Op 09295, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (UNEQUIVOCAL REQUEST FOR COUNSEL)/SUPPRESSION (STATEMENTS, UNEQUIVOCAL REQUEST FOR COUNSEL)/COUNSEL (UNEQUIVOCAL REQUEST FOR)

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DEFENSE COUNSEL’S OBLIGATIONS RE: HAVING A PERJURIOUS DEFENDANT TESTIFY IN NARRATIVE FORM.

The Second Department explained the rules associated with defense counsel’s decision to have a perjurious defendant testify in narrative form:

… [W]here defense counsel indicates an intention to present the defendant’s testimony in narrative form, due process does not require that a record be made of either defense counsel’s reasons for believing the defendant will commit perjury or of defense counsel’s advice to the defendant regarding the intention to commit perjury or the consequences of that course of action. “A lawyer with a perjurious client must contend with competing considerations—duties of zealous advocacy, confidentiality and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other” … . Requiring counsel to put on the record his or her reasons for anticipating perjured testimony and the advice proffered to the defendant related to his or her testimony would not strike the appropriate balance between these competing considerations but rather, would present too great a risk that defense counsel would be forced to reveal client confidences … . A defendant who seeks to challenge counsel’s judgment to elicit testimony in narrative form or counsel’s advice in that regard may raise those issues in a motion pursuant to CPL 440.10. People v Wesley, 2015 NY Slip Op 09310, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (PERJURIOUS DEFENDANT TESTIFYING IN NARRATIVE FORM)/EVIDENCE (CRIMINAL LAW, PERJURIOUS DEFENDANT TESTIFYING IN NARRATIVE FORM)/NARRATIVE FORM (TESTIMONY OF PERJURIOUS DEFENDANT)

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NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.

The Second Department determined Family Court should not have concluded it did not have subject matter jurisdiction over a custody matter without conducting a hearing. It was alleged father was wrongfully preventing the children from returning to New York from Bangladesh. If father prevented the children from returning to New York in the six month period before the petition was filed, New York, pursuant to the controlling statutes, would be the “home state:”

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the “state is the home state of the child” (Domestic Relations Law § 76[1][a]…). A “[h]ome [s]tate” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]). The definition of a “[h]ome [s]tate” also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency (Domestic Relations Law § 75-a[7]…). In addition, it is established that a parent “may not wrongfully remove or withhold a child from the other parent for the purpose of establishing a home state’ for that child” … .

Here, there are disputed allegations as to the circumstances of the continued presence of the children in Bangladesh. Thus, under the circumstances of this case, the Family Court erred in dismissing the petition based on lack of subject matter jurisdiction without conducting a hearing as to whether the children were wrongfully prevented from returning to New York during the six-month period preceding the petition. If that is the case, New York remained the “home state” of the children in light of such wrongdoing … . Matter of Padmo v Kayef, 2015 NY Slip Op 09289, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

FAMILY LAW (JURISDICTION OVER CUSTODY, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/CUSTODY (JURISDICTION OVER CUSTODY MATTER, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/JURISDICTION (FAMILY COURT, JURISDICTION OVER CUSTODY MATTER WHERE PARENT PREVENTS RETURN OF CHILDREN TO NEW YORK)

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INJURY WHILE DOING ROUTINE MAINTENANCE DID NOT GIVE RISE TO LABOR LAW CAUSES OF ACTION.

The Second Department determined plaintiff was doing routine maintenance (checking light fixtures) when he was injured by a loose electric cable and his Labor Law causes of action were properly dismissed:

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by offering proof that the plaintiff was involved in routine maintenance rather than repair and, therefore, the plaintiff’s activity did not fall within the protection of that provision of the Labor Law … . …

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6). The plaintiff was not involved in the activity of construction, excavation, or demolition, and the statute does not protect workers involved in maintenance or replacement of parts … . …

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. The defendants demonstrated, prima facie, that they neither created nor had notice of the loose cable that allegedly caused the plaintiff’s electric shock … . Guevera v Simon Prop. Group, Inc., 2015 NY Slip Op 09254, 2nd Dept 12-16-15

MPNTHLY COMPILATION INDEX ENTRIES:

LABOR LAW (INJURY WHILE DOING ROUTINE MAINTENANCE NOT COVERED)/ROUTINE MAINTENANCE (INJURY NOT COVERED BY LABOR LAW)

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FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to defendants in a slip and fall case. The plaintiff alleged she slipped on a patch of oil in a parking lot. The defendants failed to demonstrate when the area had last been inspected or cleaned:

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident … . “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” … .

In support of their motion, the defendants failed to demonstrate, prima facie, a lack of constructive notice of the allegedly hazardous condition that caused the subject accident, as they failed to submit any evidence as to when, prior to the accident, the area of the parking lot where the alleged slip and fall occurred, was last inspected or cleaned relative to the accident … . Bruni v Macy’s Corporate Servs., Inc., 2015 NY Slip Op 09238, 2nd Dept 12-16-15

NEGLIGENCE (SLIP AND FALL, FAILURE TO DEMONSTRATE WHEN AREA LAST CLEANED OR INSPECTED)/SLIP AND FALL (FAILURE TO DEMONSTRATE WHEN AREA LAST CLEANED OR INSPECTED)

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DEFENDANTS’ FAILURE TO DEMONSTRATE THE NORMAL RISKS ASSOCIATED WITH HORSEBACK RIDING WERE NOT UNREASONABLY INCREASED BY THE RIDING INSTRUCTOR REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

The Second Department determined defendants’ motion for summary judgment should not have been granted. Plaintiff was injured when she fell off a horse during riding instruction. The instructor had plaintiff execute a maneuver with her feet outside the stirrups. The plaintiff had told the instructor she could not do the maneuver and she fell when attempting it:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ” consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . The doctrine operates to limit the scope of the defendant’s duty, and “it has been described [as] a principle of no duty’ rather than an absolute defense based upon a plaintiff’s culpable conduct” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . “The risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding” … .

The primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased … . “[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'” … .

Here, the defendants failed to establish [their] prima facie entitlement to judgment as a matter of law. The defendants failed to establish, prima facie, that the conduct of [the instructor] did not unreasonably increase [plaintiff’s] exposure to the risk of falling. Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 2015 NY Slip Op 09249, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (ASSUMPTION OF RISK, UNREASONABLE INCREASE OF RISK)/ASSUMPTION OF RISK (UNREASONABLE INCREASE)

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FAILURE TO INSTRUCT JURY ON EFFECT OF STATUTORY AND REGULATORY VIOLATIONS REQUIRED REVERSAL AND A NEW TRIAL IN THIS SLIP AND FALL CASE.

The Second Department determined the trial judge’s failure to instruct the jury on the effect of the defendant’s violation of a statute and/or a regulation required reversal of the defense verdict in this slip and fall case. The New York State Building Code and the Americans with Disabilities Act require eight-foot wide aisles for access to handicapped parking spots.  Plaintiff, who had a handicapped parking permit, slipped on a grassy slope after getting out of his car. The plaintiff’s expert testified the parking spot where plaintiff fell did not comply with the statutory/regulatory requirements for handicapped parking. The plaintiff requested the jury be instructed on the effect of a statutory violation (negligence per se) and the defendant requested the jury be instructed on the effect of a regulatory violation (some evidence of negligence). The judge denied both requests. The Second Department ordered a new trial:

Jury instructions should adequately convey “the sum and substance of the applicable law to be charged” … . A new trial is warranted when an error is “so significant that the jury was prevented from fairly considering the issues at trial” … .

“The general rule is that the violation of a statute that establishes a specific safety duty constitutes negligence per se” … . When evidence is presented that a defendant violated such a statute, the jury’s role is to determine whether the violation of that statute proximately caused the plaintiff’s injury (… PJI 2:25). Moreover, if proven, a violation of the Building Code of New York State can be considered by a jury as some evidence of negligence (… PJI 2:29…). * * *

Based on the evidence, the trial court should have charged the jury as to the language of the applicable sections of the Americans with Disabilities Act along with PJI 2:25 and the applicable sections of the Building Code of New York State and the Property Maintenance Code of New York State, in conjunction with PJI 2:29. The failure to do so cannot be considered harmless error since these provisions are applicable to the subject parking lot … . DiLallo v Katsan LP, 2015 NY Slip Op 09248, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (EFFECT OF STATUTORY AND REGULATORY VIOLATIONS)/EVIDENCE (EFFECT OF STATUTORY AND REGULATORY VIOLATIONS IN NEGLIGENCE CASE)/STATUTORY VIOLATION (NEGLIGENCE PER SE)/REGULATORY VIOLATIONS (SOME EVIDENCE OF NEGLIGENCE)

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