You are here: / Failure to Affirmatively Demonstrate When the Area Where the Slip and Fall...

Search Results

/

Failure to Affirmatively Demonstrate When the Area Where the Slip and Fall Occurred Was Last Inspected and Failure to Affirmatively Demonstrate the Condition Was a “Latent Defect” Precluded Summary Judgment—Defendants Failed to Affirmatively Demonstrate the Absence of Constructive Notice of the Condition

The Second Department determined Supreme Court properly denied defendants’ motion for summary judgment in a slip and fall case, in another illustration of the need to eliminate every possible theory of recovery in order to be awarded summary judgment.  Here it was alleged plaintiff slipped and fell on a loose piece of slate. Defendants demonstrated the absence of actual notice, but did not present evidence of when the area was last inspected prior to the fall and did not demonstrate the defect was “latent” (which would have demonstrated the absence of constructive notice):

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendants] to discover and remedy it” … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … . In demonstrating that it lacked constructive notice of a visible and apparent defect, “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” slipped and fell … .

Here, the deposition testimony … established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall … . However, in the absence of any evidence as to when the defendants last inspected the landing before the accident …, or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection … , the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing … . Bergin v Golshani, 2015 NY Slip Op 06103, 2nd Dept 7-15-15

 

/ , ,

Constructive Trust Cause of Action Did Not Accrue When Defendant Acquired the Subject Property (In 1995 or 1996), But Rather When Defendant , Who Had Properly Acquired the Property, Breached Her Promise to Transfer an Interest in the Property to Plaintiff (In 2012)

In finding the constructive trust cause of action should not have been dismissed as time-barred, the Second Department explained that a cause of action for a constructive trust accrues (1) when the constructive trustee acquires the property wrongfully, or (2) when the constructive trustee wrongfully withholds property which was lawfully acquired but was to be transferred:

A cause of action “for the imposition of a constructive trust is governed by the six-year Statute of Limitations of CPLR 213(1), which starts to run upon the occurrence of the wrongful act giving rise to a duty of restitution” … . “A determination of when the wrongful act triggering the running of the Statute of Limitations occurs depends upon whether the constructive trustee acquired the property wrongfully, in which case the property would be held adversely from the date of acquisition, or whether the constructive trustee wrongfully withholds property acquired lawfully from the beneficiary, in which case the property would be held adversely from the date the trustee breaches or repudiates the agreement to transfer the property” … .

Here, the gravamen of the plaintiff’s cause of action for the imposition of a constructive trust is not … that the defendants wrongfully acquired the subject properties in or around 1995, or 1996, but rather that subsequent thereto, sometime in 2012, the defendant… breached her promise to the plaintiff that they would be equal partners with respect to those properties … . Barone v Barone, 2015 NY Slip Op 06102, 2nd Dept 7-15-15

 

/ ,

Questions of Fact Whether Infant-Plaintiff’s Injury at the Hands of Other Students Was Proximately Caused by Negligent Supervision and/or Negligent Hiring and/or Retention

The Second Department determined the defendant-school’s motion for summary judgment was properly denied.  There were questions of fact concerning whether the school had notice of a student’s prior altercations with infant plaintiff and whether a teacher took appropriate steps to intervene to prevent injury to infant plaintiff. Infant plaintiff alleged he was injured when assaulted other students:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Here, in support of their motion, the appellants failed to establish, prima facie, that they lacked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff’s injuries … . The appellants’ moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student’s dangerous propensities arising from his involvement in other altercations with the infant plaintiff … . The appellants’ moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take “energetic steps to intervene” to prevent the infant plaintiff’s injuries at the hands of a group of his classmates … . Amandola v Roman Catholic Diocese of Rockville Ctr., 2015 NY Slip Op 06099, 2nd Dept 7-15-15

 

/

Cooperative Board’s Denial of Plaintiff’s Application to Sell His Shares in the Cooperative Was Not Tainted by Discriminatory Considerations—Denial Protected by the Business Judgment Rule

The Second Department determined the board of a cooperative dwelling acted within the scope of its authority (pursuant to the business judgment rule) when it denied plaintiff’s application to sell his shares in the cooperative to a specific buyer.  Although the board’s action would not be protected by the business judgment rule if it were tainted by discriminatory considerations, the court concluded there was no evidence discriminatory considerations played a role in the denial:

“In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination [s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'” … . ” [D]ecision making tainted by discriminatory considerations is not protected by the business judgment rule'” … .

Here, the cooperative demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that its denial of the resale application was protected by the business judgment rule … . In particular, the cooperative demonstrated that its denial of the resale application was authorized, and done in good faith and in furtherance of the legitimate interests of the cooperative, in light of significant debt the prospective buyer held relating to a separate property. The evidence the plaintiff submitted in opposition to this showing was insufficient to raise a triable issue of fact as to whether the resale application was actually denied for a discriminatory reason, or any other reason not protected by the business judgment rule. Griffin v Sherwood Vil., Co-op “C”, Inc., 2015 NY Slip Op 06112, 2nd Dept 7-15-15

 

/ , ,

Specific Disclaimers Indicating No Information Extrinsic to the Written Contract Was Relied Upon Precluded Fraud in the Inducement Cause of Action/Summary Judgment on Promissory Note Precluded—Breach of Contract Cause of Action Was Intertwined with Promissory Note

In a decision addressing many other issues, the Second Department determined specific disclaimers in the contract indicating nothing extrinsic to the contract was relied upon by the parties precluded any claim alleging fraudulent inducement.  The court also noted that plaintiff was not entitled to summary judgment on a promissory note because the note was intertwined with the breach of contract cause of action:

“While a general merger clause is ineffective to exclude parol evidence of fraud in the inducement, a specific disclaimer destroys the allegations in [a] plaintiff’s complaint that the agreement was executed in reliance upon . . . contrary oral [mis]representations'” … . In support of this branch of their motion, [defendant] relied upon the contract, which provides that [defendant] made no representation or warranty, either express or implied, as to the assets sold, [defendant’s] business, or “any matter or thing affecting or relating to this agreement, except as specifically set forth in this agreement.” The contract also indicates that it contains all of the terms agreed upon between the parties and that it was entered into after full investigation. Such clauses are sufficiently specific to bar the [plaintiffs] from claiming that they were fraudulently induced into entering the contract because of certain oral misrepresentations … . * * *

Although the breach of a related contract generally cannot defeat a motion for summary judgment on an instrument for money only, that rule does not apply where the contract and instrument are intertwined … . Here, the action to recover damages for breach of contract is sufficiently intertwined with the action to recover on the promissory note, such that denial of summary judgment to enforce the promissory note and personal guaranty was proper … . Oseff v Scotti, 2015 NY Slip Op 06123, 2nd Dept 7-15-15

/ ,

Failure to Instruct the Jury on the Justification Defense Required Reversal and a New Trial/Referring to the Defendant as a Liar, Vouching for the People’s Case, and Asking the Jury to Draw Inferences Not Based Upon the Evidence Constitutes Prosecutorial Misconduct

The Second Department determined defendant was entitled to a new trial because his request for a jury instruction on the justification defense should not have been denied.  There was evidence the victim was in defendant’s home and was attempting to beat and rob the defendant at the time the victim was stabbed. That evidence was sufficient to require submission of the justification defense to the jury. Although the error was not preserved for appeal, the Second Department also noted that the prosecutor improperly characterized the defendant as a liar, vouched for the strength of the People’s case, and asked the jury to draw inferences which were not based upon evidence. With respect to the justification defense, the court explained:

” A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified'” … . Here, there was a reasonable view of the evidence to support the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). Viewing the evidence in the light most favorable to the defendant, the jury reasonably could have concluded that the defendant reasonably believed that the use of deadly force was necessary to prevent the victim from robbing him (see Penal Law § 35.15[2][b]…). Contrary to the People’s contention, it would not have been irrational for the jury to credit the defendant’s account of the incident … . Accordingly, the Supreme Court erred in denying the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). The error in failing to give the requested justification charge was not harmless, as it cannot be said that there was no significant probability that the verdict would have been different absent this error … . People v Irving, 2015 NY Slip Op 06167, 2nd Dept 7-15-15

 

/ , ,

Failure to Pay Wages In Violation of Labor Law 191 (1)(a) is a Class A Misdemeanor—Therefore Defendant Was Properly Sentenced to a Period of Incarceration Followed by a Period of Probation—The Statute Authorizes Incarceration or a Fine—Because the Defendant Was Incarcerated, the Fine Must Be Vacated

The Second Department determined defendant was properly incarcerated for 60 days and sentenced to a period of probation for failure to pay wages in violation of Labor Law 191(1)(a), which in a Class A misdemeanor.  However, the statute allows for incarceration or a fine.  Because defendant had served 60 days, the imposition of the $5000 fine was vacated:

Contrary to the defendant’s contention, the County Court was permitted to sentence him to a period of probation. A conviction of failure to pay wages in violation of Labor Law § 191(1)(a), which is defined as a misdemeanor punishable by a fine or imprisonment, is a class A misdemeanor (Labor Law § 198-a[1]; see Penal Law § 55.10[2][b]) and, therefore, a crime (see Penal Law § 10.00[6]). Thus, a court may sentence a defendant to a period of probation for the crime of failure to pay wages (see Penal Law § 65.00[1][a]), and the imposition of a period of probation in addition to a 60-day term of incarceration was authorized here (see Penal Law § 60.01[2][d]…).

However, the County Court improperly imposed a $5,000 fine on the defendant. By its terms, Labor Law § 198-a(1) provides for punishment by a fine or imprisonment, but not both a fine and imprisonment, for a first conviction. As the defendant has already served his 60-day term of incarceration, the provision of the sentence imposing a $5,000 fine on the defendant must be vacated. People v DiSalvo, 2015 NY Slip Op 06164, 2nd Dept 7-15-15

 

/ ,

Criteria for Valuation of a Partial Taking of Vacant Land Explained

The Second Department determined the valuation of a partial taking of vacant land (the value before minus the value after the taking based on the highest and best use of the land)  was flawed and remitted the matter for a new valuation.  The decision is detailed and fact-specific and therefore is not fully summarized here.  The court explained some of the most significant valuation criteria, noting that any comparable sales considered in the valuation must be similar in character to the subject land (not so here):

When private property is taken for public use, the condemning authority must “compensate the owner so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred'” … . Where, as here, there is a partial taking of real property, “the measure of damages is the difference between the value of the whole before the taking and the value of the remainder after the taking” … . “The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time”… . The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future … . Matter of County of Orange v Monroe Bakertown Rd. Realty, Inc., 2015 NY Slip Op 06143, 2nd Dept 7-15-15

 

/ , ,

Service of an Unverified Petition in Violation of the Court of Claims Act Did Not Constitute a Jurisdictional Defect

Reversing the Court of Claims, the Second Department determined that service of a petition which was not verified was not a jurisdictional defect in a proceeding to recover money placed in escrow by the NYS Comptroller pending claims for the state’s appropriation and use of easements.

In accordance with the Eminent Domain Procedure Law, after the Attorney General determined that there was or might be a conflict with regard to the money allegedly owed as a result of the extended use of these temporary easements, the funds were deposited by the New York State Comptroller into a special interest-bearing eminent domain account (see EDPL 304[E][1]). Upon receiving notice of this deposit, the petitioner commenced this special proceeding for the distribution of the money pursuant to EDPL 304(E)(1) and Court of Claims Act § 23. The State promptly rejected the petition, noting that it was served without a proper verification. Within days, the petitioner provided the missing verification. The Court of Claims, however, dismissed the petition, concluding, inter alia, that the failure to comply with the statutory provisions requiring verification constituted a jurisdictional defect that mandated dismissal, without consideration of the merits. The petitioner appeals, and we reverse.

While the time limitations and service requirements set forth in Court of Claims Act §§ 10 and 11 have been referred to as “jurisdictional” … , the instant matter concerns a special proceeding pursuant to EDPL 304(E) for the distribution of money that had been deposited (see Court of Claims Act § 9[12]), and service of the petition without a verification did not constitute an incurable “jurisdictional” defect … . In this regard, the petitioner, upon notice from the State, cured the omission within a matter of days (see CPLR 3022, 3025[a]…). Moreover, considering that no substantive right of the State was prejudiced by the missing verification, even if the omitted material had not been supplied, the Court of Claims, under the circumstances presented to it, should have disregarded the technical infirmity pursuant to CPLR 2001 and 3026 … . Matter of Mazur Bros. Realty, LLC v State of New York, 2015 NY Slip Op 06149, 2nd Dept 7-15-15

 

/ , ,

“Special Facts Doctrine” as Applied to Fraud Allegations Explained

In an action stemming from the alleged breach of an Asset Purchase Agreement (APA), the First Department explained the applicability of the “special facts doctrine” to the related fraud allegations. There was a defense verdict. The issue was raised on appeal by the plaintiffs because the trial judge refused to instruct the jury on the special facts doctrine, an error the First Department deemed harmless. The court offered a clear description of the doctrine:

… [P]laintiffs claimed that defendants had a duty to disclose certain documents concerning alleged adverse contract information. The “special facts” doctrine holds that “absent a fiduciary relationship between parties, there is nonetheless a duty to disclose when one party’s superior knowledge of essential facts renders a transaction without disclosure inherently unfair” … . As a threshold matter, the doctrine requires satisfaction of a two-prong test: that the material fact was information peculiarly within the knowledge of one party and that the information was not such that could have been discovered by the other party through the exercise of ordinary intelligence … . Greenman-Pedersen, Inc. v Berryman & Henigar, Inc., 2015 NY Slip Op 06091, 1st Dept 7-14-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy