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Exceptions to “Exhaustion of Administrative Remedies” Requirement Not Applicable—“Futility” and “Irreparable Harm” Not Demonstrated

The Third Department determined that petitioner (a nursing home) could not, via an Article 78 proceeding, involve the courts to contest the Department of Health’s (DOH’s) calculation of Medicaid reimbursement rates because petitioner did not first exhaust every available administrative remedy.  The exceptions to the exhaustion requirement, futility and irreparable harm, did not apply:

It is well settled that an administrative agency’s determination must be challenged through every available administrative remedy before it can be challenged in the courts … . The narrow exceptions to this requirement include, as relevant here, where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm … . Neither exception has been demonstrated. Matter of Schenectady Nursing & Rehabilitation Ctr LLC, v Shah, 2015 NY Slip Op 00425, 3rd Dept 1-15-15

 

 

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Remainderman Was Entitled to the Tax and Insurance Payments Made on Behalf of the Holder of the Life Estate/Life Estate Should Have Been Extinguished as a Matter of Equity

Plaintiff is the remainderman of defendant’s life estate in real property.  Defendant refused to pay the real estate taxes and insurance for the property.  Plaintiff paid the taxes and insurance and sued for those payments and to have the life estate extinguished. The Second Department determined Supreme Court should have granted summary judgment to the plaintiff:

 

“The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .

The plaintiffs established their prima facie entitlement to judgment as a matter of law on their first cause of action, which alleged unjust enrichment and sought restitution, and their second cause of action, which alleged waste and sought to extinguish the defendant’s life estate. As life tenant, the defendant was obligated to pay the property taxes and hazard insurance on the subject property, and the intentional failure to do so constitutes waste … . It is undisputed that the defendant intentionally failed to pay the property taxes and hazard insurance on the subject property, and he has clearly expressed his intention not to do so in the future. Under these circumstances, the remainder interest in the subject property is in constant danger of forfeiture in a tax lien sale, unless the plaintiffs continue paying the property taxes and hazard insurance premiums the defendant is otherwise obligated to pay. The plaintiffs therefore demonstrated, prima facie, that the defendant was unjustly enriched by the plaintiffs’ payment of these expenses for the defendant, and that equity warrants extinguishing his life estate in the subject property. In opposition, the defendant failed to raise a triable issue of fact … . Main Omni Realty Corp v Matus, 2015 NY Slip OP 00341, 2nd Dept 1-14-15

 

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The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned by Persons Not Legally Married, But Who Are Described as Married in the Deed, Own the Property as Tenants In Common with Right of Survivorship Pursuant to the Estates, Powers and Trusts Law (EPTL)

The Second Department determined plaintiff’s complaint was properly dismissed.  Decedent was plaintiff’s mother by her mother’s first marriage (in Haiti).  Plaintiff alleged that her mother’s subsequent marriage to defendant (in the US) was void because her mother never divorced plaintiff’s father. On that basis, plaintiff alleged that her mother and defendant owned real property as tenants in common, not tenants by the entirety, and therefore half of the property passed to her upon her mother’s death.  The Second Department held that the second marriage was presumed valid and plaintiff did not rebut the presumption.  The court further noted that, even if decedent and defendant were not legally married, the property would have been owned as a joint tenants with right of survivorship, by virtue of Estates Powers and Trusts Law (EPTL) 6-2.2(d):

Where as here, there are two ceremonial marriages at issue, the second marriage is presumed valid, requiring proof from the challenger that the first marriage was not terminated … .

The existence of a rebuttable presumption in favor of the defendant established his entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, even if [plaintiff’s mother] were not legally married to the defendant, the deed to the subject property nevertheless created a joint tenancy, with the right of survivorship … . The deed to the subject property was executed in 1980. Accordingly, EPTL 6-2.2(d), as amended in 1975, governs … . Pursuant to EPTL 6-2.2(d) “[a] disposition of real property . . . to persons who are not legally married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common.” Joseph v Dieudonne, 2015 NY Slip OP 00338, 2nd Dept 1-14-15

 

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Photographs Demonstrated Defect Was “Trivial” and Not Actionable

In a slip and fall case, the Second Department reversed Supreme Court and dismissed the complaint, finding the defect “trivial:”

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, 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” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” .. .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the “clump” that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable … . Adler v QPI-VIII. LLC, 2015 NY Slip OP 00320, 2nd Dept 1-14-15

 

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Even Though the Landlords Maintained Offices Adjacent to the Leased Property (a Restaurant), the Plaintiff Was Not Able to Raise a Question of Fact About Whether the Landlords Retained Control Over the Leased Premises Such that the Landlords Would Be Liable for an Assault by Employees and Patrons of the Tenant-Restaurant

The Second Department determined that out-of-possession landlords (AYT and 6010) could not be held liable for an assault by employees and patrons of the tenant restaurant, even though the landlords maintained offices adjacent to the rented property:

An owner is obligated to take reasonable precautionary measures to minimize the risk of criminal acts and make the premises safe for visitors when the owner is aware, or should be aware, that there is a likelihood of conduct on the part of third parties that would endanger visitors (…see generally Restatement [Second] of Torts: Negligence § 344). To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

However, an out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security … .   Here, the defendants … established, prima facie, that they were out-of-possession landlords, and that they did not retain control over the premises and were not contractually obligated to provide security. The mere fact that Sam Fridman, the principal of AYT, had an office “right next door” to the subject premises for approximately 15 years prior the incident, and Abraham Sprei, the principal of 6010, maintained a plumbing business adjacent to the premises, was not sufficient to create a triable issue of fact as to whether AYT and 6010 retained control of the premises  Tambriz v PGK Luncheonette Inc, 2015 NY Slip Op 00356, 2nd Dept 1-14-15

 

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Negligent Supervision Cause of Action Properly Survived Summary Judgment—Question of Fact Raised Whether Criminal Act by Defendant’s Employee Was Foreseeable

Plaintiff’s child was injured when assaulted by an employee of defendant New York City Transit Authority (NYCTA) during the course of a NYCTA community service program.  The Second Department determined defendant could not be held liable under the doctrine of respondeat superior because the actions of the employee were outside the scope of employment.  However, the cause of action for negligent supervision properly survived the motion for summary judgment because there was a question of fact whether the criminal act of the employee was foreseeable:

“Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the evidence submitted by the NYCTA demonstrated that Clay’s conduct clearly was not in furtherance of the NYCTA’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . * * *

The Supreme Court properly denied that branch of the NYCTA’s motion which was for summary judgment dismissing so much of the complaint as alleged that it negligently supervised the plaintiff’s child. The standard for determining whether a duty to supervise a minor was breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision” … . “Where third-party criminal acts intervene between defendant’s negligence and plaintiff’s injuries, the causal connection may be severed, precluding liability. The criminal intervention of third parties may, however, be a reasonably foreseeable’ consequence of circumstances created by the defendant” … . Mayo v New York City Tr Auth, 2015 NY Slip OP 00342, 2nd Dept 1-14-15

 

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Question of Fact Whether Defendant’s Snow Removal Efforts Created Dangerous Condition (Black Ice)

The Second Department determined there was a question of fact whether the defendant had created the dangerous condition (black ice) on its property by its snow removal efforts:

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it … . Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition … .

In support of its motion, the defendant failed to eliminate all triable issues of fact as to whether the patch of black ice upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts in the days prior to the accident … . Smith v New York City Hous Auth, 2015 NY Slip Op 00355, 2nd Dept 1-14-15

 

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Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised

The Second Department determined the school district’s motion for summary judgment was properly denied because plaintiff had raised triable questions of fact about whether infant plaintiff assumed the risk of injury in a self-defense tournament and whether the school was negligent in supervising the self-defense tournament:

The infant plaintiff allegedly was injured while competing in her high school’s “self-defense tournament,” a voluntary competition open to female students who were enrolled in a self-defense class taught by Joseph Biddy, a physical education teacher. The self-defense class was one of several electives that female students could take to satisfy the district’s physical education requirement. The plaintiffs allege, inter alia, that, since the self-defense class was in actuality a mixed martial arts class, the defendant breached its duty of care to the infant plaintiff by allowing the class to be instructed by a person with little martial arts training, and allowing that person to referee the tournament. The plaintiffs contend that the infant plaintiff and the other students in the class were not properly or sufficiently trained and that Biddy did not have the requisite knowledge and experience to recognize the dangers posed by the moves being performed in the tournament. * * *

“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” … . “[T]he plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist” … . However, the doctrine of primary assumption of risk does not apply to bar a cause of action where the risks at issue were unassumed, concealed, or unreasonably increased … .

On its motion for summary judgment, the defendant failed to establish, prima facie, that by voluntarily participating in the self-defense tournament, the infant plaintiff consented to the risks associated with the move that ultimately caused her injuries. Rather, the defendant’s submissions demonstrated that the risks of the move that ultimately caused the infant plaintiff’s injuries were concealed and unreasonably increased. Pierre v Ramapo Cent Sch Dist, 2015 NY Slip Op 00348, 2nd Dept 1-14-15

 

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Owners/Occupiers of a Single Family Residence Not Responsible for Maintaining Abutting Sidewalk Pursuant to the NYC Administrative Code

The Second Department exercised its discretion to hear an appeal which had been dismissed for failure to perfect and affirmed the dismissal of the complaint.  Defendants owned and occupied a single-family residence.  Therefore, pursuant to the Administrative Code of the City of New York, defendants were not responsible for maintaining the sidewalk abutting the property:

On February 20, 2008, the injured plaintiff allegedly tripped and fell on a sidewalk abutting the defendants’ property. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of NY § 7-210[b]), thus exempting them from liability pursuant to Administrative Code of the City of New York § 7-210(b) for the alleged failure to maintain the sidewalk abutting their property … . Saunders v Tarsia, 2015 NY Slip Op 00352, 2nd Dept 1-14-15

 

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Plaintiff Was Unable to Pinpoint the Cause of Her Fall—“Feigned Issue” Raised In an Affidavit Could Not Stave Off Summary Judgment

The Second Department determined plaintiff’s inability to identify the cause of her fall was fatal to the lawsuit:

“A plaintiff’s inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion, in which she identified the cause of her fall as “water or cleaning liquid that was on the floor,” merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . Trapani v Yonkers Racing Corp, 2015 NY Slip Op 00357, 2nd Dept 1-14-15

 

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