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DEFENDANT’S FAILURE TO DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED AND CLEANED REQUIRED DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.

Reversing Supreme Court, the Second Department determined defendant transit authority did not demonstrate a lack of constructive notice of a slip and fall hazard because it did not present evidence of when the area was last cleaned and inspected or what the area looked like prior to the slip and fall:

A defendant property owner who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence … . ” To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'” … .

Here, viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendant failed to establish its prima facie entitlement to judgment as a matter of law … . The defendant failed to set forth when the subject platform was last inspected or what it looked like prior to the accident, and it failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition … . Roman v New York City Tr. Auth., 2015 NY Slip Op 08820,  2nd Dept 12-2-15

NEGLIGENCE (LACK OF NOTICE OF SLIP AND FALL HAZARD, FAILURE TO DEMONSTRATE)//SLIP AND FALL (FAILURE TO DEMONSTRATE LACK OF NOTICE)/NOTICE OF SLIP AND FALL HAZARD (FAILURE TO DEMONSTRATE LACK OF)

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FIREFIGHTER RULE DID NOT PRECLUDE ACTION BY POLICE OFFICER STEMMING FROM A FALL AT THE OFFICE; GENERAL MUNICIPAL LAW 205-e ACTION PROPERLY BASED ON ALLEGED VIOLATION OF LABOR LAW 27-a.

The Second Department determined a police officer’s common law negligence and General Municipal Law 205-e actions should not have been dismissed.  The officer tripped over an electric cord at the office.  The firefighter rule did not bar the suit because the injury was not the result of the heightened risk associated with police work. The General Municipal Law 205-e cause of action was correctly based upon an alleged violation of Labor Law 27-a:

Here, the defendants failed to establish, prima facie, that the firefighter rule barred the plaintiffs’ cause of action alleging common-law negligence. The injured plaintiff’s injury did not occur during an act in furtherance of a police function which exposed her to a heightened risk of sustaining that injury. The performance of her duties merely furnished the occasion for the injury. Furthermore, the defendants failed to establish, prima facie, that they did not have constructive notice of the condition complained of … . Therefore, the Supreme Court erred in directing dismissal of the plaintiffs’ common-law negligence cause of action.

The Supreme Court also erred in dismissing the plaintiffs’ cause of action pursuant to General Municipal Law § 205-e. General Municipal Law § 205-e permits a police officer to assert a tort claim against a fellow officer or an employer. To establish a cause of action under General Municipal Law § 205-e, a police officer plaintiff must (1) identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which the police officer was injured, and (3) set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm … . As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Here, the plaintiffs predicate their General Municipal Law § 205-e cause of action on Labor Law § 27-a(3)(a)(1). The Supreme Court correctly determined that Labor Law § 27-a(3)(a)(1) may appropriately serve as a statutory predicate for a section 205-e cause of action, and does so here … . Kelly v City of New York, 2015 NY Slip Op 08808, 2nd Dept 12-2-15

NEGLIGENCE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/MUNICIPAL LAW ([POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK, FIREFIGHTER RULE)/FIREFIGHTER RULE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/GENERAL MUNICIPAL LAW 205-e (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/LABOR LAW 27-a(3)(a)(1) (VIOLATION AS PREDICATE FOR GENERAL MUNICIPAL LAW 205-e ACTION)

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ALLEGATION THAT PLAINTIFF’S LEAD VEHICLE STOPPED FOR NO APPARENT REASON RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF’S NEGLIGENCE CAUSED OR CONTRIBUTED TO THE REAR-END COLLISION.

The Second Department determined that defendant’s (Balenescu’s) allegation that plaintiff (Galuten, who was in the lead vehicle) suddenly stopped for no apparent reason raised a question of fact about whether plaintiff’s negligence caused or contributed to the accident:

Mere evidence of a sudden stop, without more, is not enough to raise a triable issue of fact as to whether the operator of the stopped vehicle was partly at fault, so as to defeat summary judgment … . However, while vehicle stops under prevailing traffic conditions are forseeable and must be anticipated by the following driver, where the sudden stop is unexplained by the existing circumstances and conditions, an issue of fact as to liability is raised … .

Here, Balenescu averred, inter alia, that when he was “25 yards from the Galuten vehicle, still traveling at 15 miles per hour, the light turned green, and the Galuten vehicle . . . accelerated safely through the intersection into the next block.” Then about 10 yards past the intersection of West 23rd Street and 12th Avenue, the Galuten vehicle suddenly stopped short “for no apparent reason,” as there was no traffic “for fifty yards in front of the Galuten vehicle,” and the Galuten vehicle showed no signs, nor made any signals, to signify that it was stopping. This evidence was sufficient to raise a triable issue of fact as to whether Galuten’s alleged negligence caused or contributed to the accident … . Etingof v Metropolitan Laundry Mach. Sales, Inc., 2015 NY Slip Op 08803, 2nd Dept 12-2-15

NEGLIGENCE (REAR-END COLLISION, UNEXPLAINED STOP)/REAR-END COLLISION (UNEXPLAINED STOP)

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REMAINDER INTERESTS WHICH CAN ONLY BE DIVESTED BY A POWER OF APPOINTMENT ARE VESTED REMAINDER INTERESTS.

The Second Department determined the five individuals who were to take remainder interests in the event a power of appointment was not exercised had vested remainder interests:

In Article Third of the will, the testator created a trust for the benefit of Sydelle [his wife] during her lifetime. Upon the death of Sydelle, the remainder was to be distributed to or for the benefit of such one or more persons within a class composed of the testator’s then living issue or Sydelle’s living issue, “in such estates, interests and proportions as [Sydelle] may appoint by specific reference to this power of appointment in her last will and testament, admitted to probate.” The will provided that if Sydelle failed to exercise or did not fully or effectually exercise her power of appointment, all property not effectually appointed, was to be paid and distributed to five other named individuals. * * *

“It is a well-established rule, both of the common law and by statute, in this State that estates in remainder which are limited to take effect upon default in the exercise of a power of appointment are not prevented from vesting by the existence of the power, but take effect in the same manner as if no power existed, subject, however, to be divested by an exercise of the power” … . Where the power of appointment has not been exercised and cannot be until the death of the person with the power of appointment, it may be eliminated from consideration and the next limitation considered … . Thus, the five individuals named in Article Third … have a vested remainder interest which can be divested if Sydelle exercises her power of appointment by will … . Matter of Levitan, 2015 NY Slip Op 08838, 2nd Dept 12-2-15

TRUSTS AND ESTATES (WILL CONSTRUCTION, EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)/POWER OF APPOINTMENT (WILL CONSTRUCTION, EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)/WILL CONSTRUCTION (EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)/REMAINDER INTERESTS (WILL CONSTRUCTION, EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)

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DEFAULT JUDGMENT GIVEN RES JUDICATA EFFECT.

The Second Department, in affirming a cross-motion for summary judgment, explained that plaintiffs’ action was precluded by the doctrine of res judicata based upon a default judgment taken against them. Plaintiffs did not move to vacate the default judgment. Therefore the judgment precluded plaintiffs’ action as to any matters actually litigated and any matters that might have been litigated in the prior action:

“[R]es judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was” … . “The doctrine is applicable to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding” … . Here, an order was issued in a declaratory judgment action granting the unopposed motion of the plaintiffs therein for leave to enter a default judgment against, inter alia, the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. That order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and precludes the appellants from maintaining this action … . Albanez v Charles, 2015 NY Slip Op 08795,  2nd Dept 12-2-15

CIVIL PROCEDURE (DEFAULT JUDGMENT HAS RES JUDICATA EFFECT)/RES JUDICATA (DEFAULT JUDGMENT HAS RES JUDICATA EFFECT)/DEFAULT JUDGMENT (GIVEN RES JUDICATA EFFECT)

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MOTION TO DISMISS BREACH OF WARRANTY ACTION PROPERLY DENIED; THE WARRANTY CONCERNED THE QUALITY OF MORTGAGES POOLED INTO RESIDENTIAL MORTGAGE-BACKED SECURITIES.

The First Department, in a full-fledged opinion by Justice Moskowitz, determined the motion to dismiss the breach of warranty action against JP Morgan Mortgage Acquisition Corporation (JPMMAC) was properly denied. The warranty required JPMMAC to buy back any defective mortgages which were pooled into residential mortgage-backed securities. The lawsuit was commenced because JPMMAC refused to do so when notified of the problem mortgages. JPMMAC argued that the language of the warranty narrowly restricted the time to which it applied (constituting a so-called “gap” or “bring-down” warranty). Under standard principles of contract interpretation, however, the First Department held that the warranty applied no matter when the material misstatements occurred during the warranty period:

A contractual provision that is clear on its face “must be enforced according to the plain meaning of its terms” … . This rule applies “with even greater force in commercial contracts negotiated at arm’s length by sophisticated, counseled businesspeople” … . In addition, “courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” … .

Plaintiff’s claim … states that “[w]ith respect to the period from [the] Whole Loan Sale Date to and including the Closing Date,” JPMMAC warrants that the representations in the Mortgage Loan Schedule and loan tape are correct. There is simply no language in this warranty addressing when the defects in the loans must arise for JPMMAC to be held liable for a misrepresentation on the Mortgage Loan Schedule or loan tape. Rather, the language … is straightforward: if false information — for example, information about a borrower’s income or the loan-to-value ratio of a mortgage — was on the Mortgage Loan Schedule and loan tape before October 30, 2006, it constitutes a breach of JPMMAC’s warranties as long as it remained on the Mortgage Loan Schedule or loan tape during the warranty period (that is, October 30, 2006 to December 20, 2006). Stated another way, JPMMAC warranted against the existence of any material misstatement during the warranty period, no matter when the misstatements first appeared on the Mortgage Loan Schedule or loan tape. Bank of N.Y. Mellon v WMC Mtge., LLC, 2015 NY Slip Op 08794, 1st Dept 12-1-15

CONTRACT LAW (BREACH OF WARRANTY, RESIDENTIAL MORTGAGE-BACKED SECURITIES)/WARRANTY, BREACH OF (RESIDENTIAL MORTGAGE-BACKED SECURITIES)/RESIDENTIAL MORTGAGE-BACKED SECURITIES (BREACH OF WARRANTY)

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O’RAMA-PROCEDURE ERRORS WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR REVIEW BY OBJECTIONS.

The First Department determined that the O’Rama-procedure errors made by the trial judge did not rise to the level of “mode of proceedings” errors and were not preserved for appeal by objection. The note was read essentially verbatim in open court, but the judge did not give counsel advance notice of the contents of the note and did not give the parties the chance for input re: the response:

The trial court’s handling of the note sent out by the jury during deliberations did not constitute a mode of proceedings error … . The note contained two questions and two requests for exhibits. While the court initially read only the first substantive question into the record in the presence of counsel before the jury was brought into the courtroom, once the jury was brought in, the court read the remainder of the note aloud, essentially verbatim, stopping at the end of each of the four parts to provide its response. Although the court did not inform counsel in advance about the entirety of the note or give the parties any opportunity for input into the court’s proposed responses, by reading the full contents of the note in the presence of the parties and the jury, the court satisfied its core responsibility … . People v Ramirez, 2015 NY Slip Op 08772, 1st Dept 12-1-15

CRIMINAL LAW (JURY NOTES, O’RAMA ERROR NOT PRESERVED)/JURY NOTES (O’RAMA ERROR NOT PRESERVED)

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MODE OF PROCEEDINGS ERROR TO PARAPHRASE SUBSTANTIVE JURY NOTE.

The First Department determined the trial judge’s paraphrasing a substantive jury note, rather than reading it into the record verbatim, was a mode of proceedings error requiring reversal:

By only paraphrasing some of the content of the third note, and failing to read the precise content of the that note into the record verbatim at any time, the court violated the procedures set forth in People v O’Rama (78 NY2d 270, 277-278 [1991]), more recently reiterated in People v Nealon ( __ NY3d __ , 2015 NY Slip Op 07781 [2015]) … ). A court does not satisfy its responsibility to provide counsel with meaningful notice of a jury’s substantive inquiry by summarizing the substance of the jurors’ note … . The … note, which was a substantive jury inquiry, should not have been paraphrased, but read in its entirety so that counsel had meaningful notice of its contents and, therefore, an opportunity to formulate a proposed response. Although counsel did not object to how the court handled the … note, the court’s failure to read this substantive note into the record verbatim, is a “mode of proceedings error,” and given this departure, counsel was not required to object to it in order to preserve any claim of error for appellate review … . People v Lane, 2015 NY Slip Op 08771, 1st Dept 12-1-15

CRIMINAL LAW (JURY NOTES, PARAPHRASING  JURY NOTE WAS A MODE OF PROCEEDINGS ERROR)/JURY NOTES (PARAPHRASING NOTE WAS A MODE OF PROCEEDINGS ERROR)/MODE OF PROCEEDINGS ERROR (PARAPHRASING JURY NOTE)

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CONVICTION IN VIOLATION OF CATU CAN NOT BE USED AS PREDICATE FOR SENTENCING

The First Department determined the failure to mention the imposition of a period of postrelease supervision (PRS) in connection with a 2000 conviction precluded using that conviction as a predicate felony for sentencing purposes. The court noted that the 2005 Catu decision, which held defendants must be informed of PRS, applied retroactively:

CPL 400.15(7)(b) provides: “A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate violent felony conviction.” The People’s argument that a Catu error does not violate the United States Constitution is improperly raised for the first time in their reply brief, and is without merit in any event.

“[A] conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution” … . Furthermore, although the Catu error in this case occurred in 2000, prior to the 2005 Catu decision, Catu applies retroactively … . People v Fagan, 2015 NY Slip Op 08782, 1st Dept 12-1-15

CRIMINAL LAW (SENTENCING, CATU ERROR PRECLUDES USE OF CONVICTION AS PREDICATE)/SENTENCING (CATU ERROR PRECLUDES USE OF CONVICTION AS PREDICATE)

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New Relicensing Regulations Can Be Applied Retroactively (Re: Alcohol-Related Driving Convictions)

The Fourth Department, reversing Supreme Court, determined the Commissioner of Motor Vehicles had the power to retroactively apply regulations re: the relicensing of persons with three or more alcohol-related driving convictions:

… [T]here is no merit to petitioner’s contention that the Commissioner erred in retroactively applying the amended regulations to his application … . “[P]etitioner’s driver’s license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by [the Commissioner] under her discretionary powers . . . Thus, [the Commissioner] remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner’s application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing— i.e., persons with three or more alcohol-related driving convictions” … . Matter of Underwood v Fiala, 2015 NY Slip Op 08545, 4th Dept 11-20-15

 

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