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Child’s Out-of-Court Statements Not Sufficiently Corroborated for Admission Into Evidence

The Second Department determined Family Court properly refused to admit evidence of the child’s out-of-court statements in an abuse and neglect proceeding because the statements were not corroborated:

A child’s prior out-of-court statements may provide the basis for a finding of abuse or neglect, provided that these hearsay statements are corroborated so as to ensure their reliability … . Any other evidence tending to support the reliability of the child’s previous statements shall be sufficient corroboration (see Family Ct Act § 1046[a][vi]…). There is a threshold of reliability that the evidence must meet … . The Family Court has considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated … . Here, the Family Court did not improvidently exercise its discretion in determining that the statements of the subject child Anthony W. were insufficient to corroborate the statements of the subject child Sally W. as to the alleged sexual abuse perpetrated upon her. Matter of Gerald W. (Anne R.), 2015 NY Slip Op 05198, 2nd Dept 6-17-15

 

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Best Interests of Child Justified Denial of Petition to Vacate Acknowledgment of Paternity (Equitable Estoppel)

The Second Department determined Family Court properly denied the petition to vacate an acknowledgment of paternity.  Petitioner demonstrated his signing of the acknowledgment was based upon a mistake of fact. Although petitioner was not the child’s biological father, the best interests of the child, with whom petitioner had lived from birth for six years, mandated denial of the petition. The court explained the relevant law:

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity … . * * *

The Family Court providently exercised its discretion in concluding that the petitioner should be equitably estopped from denying paternity. The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” … . Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity” … . “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” … . The paramount concern in such cases “has been and continues to be the best interests of the child” … .

Here, the hearing evidence demonstrated that the petitioner lived with the child from the time of her birth in March 2005, until 2011. After the parties separated in 2011, the petitioner continued to visit with the child approximately one to two times per week. According to the petitioner, the child is free to visit with him whenever she wants. Although the child knows that the petitioner is not her biological father, she does not refer to or think of anyone else as her father. The child has a strong relationship with the petitioner and wants to spend more time with him and his son, whom she regards as her brother. Accordingly, the evidence established that, up to the time of the hearing, there had been a recognized and operative parent-child relationship between the petitioner and the child in existence all of the child’s life … . Matter of Luis Hugo O. v Paola O., 2015 NY Slip Op 05195, 2nd Dept 6-17-15

 

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Defendant-Homeowner’s Providing Plaintiff With a Ladder With Allegedly Worn Rubber Feet Raised a Question of Fact About Defendant’s Liability for the Ladder’s Slipping and Plaintiff’s Fall—Cause of Accident Can Be Proven by Circumstantial Evidence

The Second Department determined Supreme Court should not have granted summary judgment to the defendant homeowner.  Plaintiff was using defendant’s ladder when the ladder slipped and plaintiff fell.  Plaintiff alleged the rubber feet on the ladder were totally destroyed. That allegation created a question of fact whether defendant provided dangerous or defective equipment to the plaintiff which caused plaintiff’s injury. In response to defendant’s argument that plaintiff could not explain the cause of the accident without resort to speculation, the court noted that the cause of an accident can be proven by circumstantial evidence (here the condition of the feet of the ladder and fact that the feet slipped):

“[W]hen a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” … . While lack of constructive notice can generally be established by evidence demonstrating when the area or condition was last inspected relative to the time of the accident …, the absence of rubber shoes on a ladder is a “visible and apparent defect,” evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice … . Here, the defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident. The defendant Billis Arniotis (hereinafter Billis) testified that, since purchasing the ladder 20 years before the accident, he had used it once per week and had inspected its rubber feet each time. Billis last inspected the ladder one or two weeks before the accident and did not observe any wear at that time. However, the plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were “totally eaten up, worn,” and “destroyed.” This conflicting evidence, coupled with Billis’s testimony that the ladder had not been used between the time of the accident and the plaintiff’s inspection, raised a triable issue of fact.

Contrary to the defendants’ contention, they failed to make a prima facie showing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff’s inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence … . Here, Billis’s testimony establishes that he was present at the time of the accident and that he watched the ladder slide down while the plaintiff was on it. Evidence that the ladder’s rubber feet were worn down also is sufficient to permit the inference that this defective condition caused the slippage … . Patrikis v Arniotis, 2015 NY Slip Op 05167, 2nd Dept 6-17-15

 

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“Assault and Battery” Exclusion from Coverage Applied Even Though Plaintiff Was Not the Intended Target of the Assault

The plaintiff was struck by a bar stool in a fight at the insured bar.  Plaintiff was not involved in the fight and the assailant apparently did not intend to strike her. The Second Department determined the “assault and battery” exclusion in the bar’s policy applied and the insurer (North Sea) was not obligated to defend and indemnify the insured bar.  The fact that the plaintiff was not the intended target of the assault did not preclude the application of the exclusion:

“The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage” … . “[A]n insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision” … . “An insurer may also disclaim coverage on the basis of a policy exclusion by demonstrating that the allegations of the complaint cast that pleading solely and entirely within the exclusion” … . “An exclusion for assault and/or battery applies if no cause of action would exist but for’ the assault and/or battery” … .

Here, North Sea demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the assault and battery exclusion is applicable to the claims asserted by the plaintiff against the pub defendants in the underlying action … . The claims asserted by the plaintiff in the underlying action arise out of the assault and, thus, fall within the exclusion under the subject policy … .

In opposition, the plaintiff failed to raise a triable issue of fact as to the exclusion’s applicability … . Contrary to the plaintiff’s contention, the fact that the bar stool made physical contact with her and not the intended target does not negate the conclusion that the act was done with the intention to commit an assault or a battery … . Parler v North Sea Ins. Co., 2015 NY Slip Op 05166, 2nd Dept 6-17-15

 

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Either Possession of the Note or an Assignment of the Note Confers Standing

The Second Department explained that standing to bring a foreclosure action is demonstrated either by possession of the note or an assignment of the note on the date the action is commenced:

In a foreclosure action, a plaintiff has standing if it is either the holder of, or the assignee of, the underlying note at the time that the action is commenced … . Either a written assignment of the underlying note or the physical delivery of the note to the plaintiff, prior to the commencement of the action, is sufficient to transfer the obligation … . Emigrant Bank v Larizza, 2015 NY Slip Op 05151, 2nd Dept 6-17-15

 

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Although It Was Proper to Consider the Motion to Dismiss Made After Issue Was Joined a Motion for Summary Judgment, Supreme Court Should Not Have Determined the Motion Without Giving Notice to the Parties So the Parties Could Lay Bare Their Proof

The Second Department determined Supreme Court should not have converted the motion to dismiss to a motion for summary judgment without notice to the parties.  Because the motion to dismiss was made after issue was joined, it should be treated as a motion for summary judgment. However, because none of the exceptions to the notice requirement applied, Supreme Court should not have determined the motion without giving the parties the opportunity to submit additional evidence.  The matter was remitted for that purpose:

Since the [defendants’] motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 … . However, the Supreme Court “was required to give adequate notice to the parties’ that the motion was being converted into one for summary judgment” …, unless one of the recognized exceptions to the notice requirement was applicable … . Here, no such notice was given, and none of the recognized exceptions to the notice requirement is applicable … . Neither the [defendants] nor the plaintiff made a specific request for summary judgment, nor did they “indicate that the case involved a purely legal question rather than any issues of fact” … . Further, the parties’ evidentiary submissions were not so extensive as to “make it unequivocally clear’ that they were laying bare their proof’ and deliberately charting a summary judgment course'” … . Accordingly, the Supreme Court erred by, in effect, converting the [defendants’] motion pursuant to CPLR 3211(a)(3) to dismiss the complaint into one for summary judgment, and should not have searched the record and awarded summary judgment to the plaintiff … . JP Morgan Chase Bank, N.A. v Johnson, 2015 NY Slip Op 05159, 2nd Dept 6-17-15

 

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Acceptance of Unsolicited Rent After Expiration of a Lease and After the Requisite Nonrenewal Notice Does not Waive the Intention Not to Renew or Vitiate the Notice

The Second Department, in a full-fledged opinion by Justice Cohen, determined the acceptance of unsolicited rent payments after the lease for a rent-stabilized apartment had expired, and after the tenant had received the requisite nonrenewal notice, did not constitute a waiver of the intention not to renew:

… [W]e are asked to determine whether a landlord’s acceptance of unsolicited rent in the “window period” between the expiration date of a lease and the commencement of a holdover proceeding nullifies a landlord’s previous service of a notice of intention not to renew the lease. We conclude that the acceptance of unsolicited rent in these circumstances does not, by itself, demonstrate an intentional waiver of a previously served notice of intention not to renew the lease and, thus, does not vitiate that notice. Matter of Georgetown Unsold Shares, LLC v Ledet, 2015 NY Slip Op 05185, 2nd Dept 6-17-15

 

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Question of Fact Whether Failure to Provide Personal Ropes to Firefighters Gave Rise to a Claim Under General Municipal Law 205-a and Labor Law 27-a

The First Department, recalling and vacating its decision and order dated March 3, 2015, determined the defendants’ motion for summary judgment dismissing the plaintiff-firefighter’s action based upon General Municipal Law 205-a and Labor Law 27-a was properly denied. The action alleged the city failed to provide firefighters with personal ropes and, as a result, firefighters were forced to jump from windows without ropes (resulting in injury and death). Labor Law 27-a requires employers to provide a place of employment free from recognized hazards. A question of fact was raised whether the failure to issue personal ropes resulted from the city’s discretionary decision-making, and therefore is not subject to government-function immunity:

The motion court properly declined to dismiss the portion of plaintiffs’ General Municipal Law (GML) § 205-a claims predicated on an alleged violation of Labor Law § 27-a(3)(a)(1). The City unavailingly contends that Labor Law § 27-a(3)(a)(1) cannot provide a valid predicate for any General Municipal Law § 205-a claim. However, the statute, known as the Public Employee Safety and Health Act (PESHA), which imposes a general duty on an employer to provide employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees” (Labor Law § 27-a[3][a][1]), is sufficient since it is “a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Moreover, the City failed to “show that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff’s injuries” … . There is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters. The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes “actually resulted from discretionary decision-making — i.e., the exercise of reasoned judgment which could typically produce different acceptable results” … . Stolowski v 234 E. 178th St. LLC, 2015 NY Slip Op 05099, 1st Dept 6-16-15

 

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CPLR 214-c, Which Starts the Statute of Limitations Upon Discovery of the Injury, Applies Only to Toxic Torts—The Statute Does Not Apply to an Action Seeking Damages for the Allegedly Negligent Approval (by the Town) of a Defective Septic System

Plaintiffs sought replacement-cost damages for a defective septic system, alleging the town negligently approved the system prior to plaintiffs’ purchase of the property. Although the three-year statute of limitations for negligence had passed, the plaintiffs argued that CPLR 214-c applied. CPLR 214-c applies to latent defects and the statute starts running upon discovery of the injury.  The Fourth Department determined CPLR 214-c did not apply, noting that the Court of Appeals has held the statute applies only to injury from “toxic torts:”

CPLR 214-c (1) provides that “the three-year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” … .

Here, plaintiffs do not seek “damages for personal injury or injury to property” (CPLR 214-c [1]); rather, they seek to be compensated for the cost of replacing an allegedly defective septic system. Thus, section 214-c is inapplicable to this action … . Moreover, the Court of Appeals, in interpreting section 214-c, has made clear that it applies only to toxic torts …, and plaintiffs’ claims have nothing do to with toxic substances. Instead, plaintiffs merely allege that the septic system was defective and that defendants failed to identify the defects during their inspections. We thus conclude that the court properly determined that the causes of action against the moving defendants are time-barred. Clendenin v Town of Milo, 2015 NY Slip Op 04976, 4th Dept 6-12-15

 

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The One-Year-and-Ninety-Day Time Limit for Bringing Suit Under the Public Authorities Law Is a Statute of Limitations, Not a Condition Precedent to Suit, and Is Therefore Subject to the Six-Month Extension for Recommencing a Suit Which Was Dismissed Without Prejudice Provided by CPLR 205(a)

The underlying medical malpractice action is against Erie County Medical Center Corporation, a public benefit corporation.  Pursuant to Public Authorities Law 3641, a notice of claim must be filed prior to the commencement of the lawsuit. Plaintiff had not filed a notice of claim. The action was dismissed without prejudice, subject to the terms of CPLR 205(a), which allows six months to recommence an action that has not been dismissed on the merits.  When the suit was recommenced, the defendant argued that the one-year-and-ninety-day time limit for bringing suit under the Public Authorities Law was not a statute of limitations subject to the CPLR 205(a) six-month extension, rather it was a condition precedent to suit and the (second) complaint must therefore be dismissed as untimely.  The Fourth Department determined the one-year-and-ninety-day time limit for suit under the Public Authorities Law was a statute of limitations, not a condition precedent, and the six-month extension provided by CPLR 205(a) applied:

It is well settled that CPLR 205 (a) does not apply when an act has to be performed within a statutory time requirement and is a condition precedent to suit (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378-379…). We recognize, by way of example, that the one-year statutory period for commencement of suit against the Port Authority Trans-Hudson Corporation set forth in McKinney’s Unconsolidated Laws of NY § 7107 has been held to be a condition precedent to suit not entitled to the tolling benefit of CPLR 205 (a) (see Yonkers Contr. Co., 93 NY2d at 378-379). As emphasized by the Court of Appeals in Yonkers, “Unconsolidated Laws § 7107 unambiguously allows an action against the Port Authority only upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year’ ” (id., 93 NY2d at 379). Here, Public Authorities Law § 3641 (1) (c) contains no similar express conditional language.

We note that CPLR 205 (a) has been held to apply to proceedings commenced under General Municipal Law § 50-i …, the language of which is identical to that of Public Authorities Law § 3641 (1) (c) at issue herein. We thus conclude that the express language of section 3641 (1) (c) does not support defendant’s contention that the one-year and 90-day period is a condition precedent and not a statute of limitations … . Benedetti v Erie County Med. Ctr. Corp., 2015 NY Slip Op 04964, 4th Dept 6-12-15

 

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