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Inherent Smoothness of a Floor Is Not an Actionable Defect

In affirming the dismissal of the complaint in a slip and fall case alleging the presence of water on a vestibule floor, the Second Department noted the allegation that a floor was inherently slippery because of its smoothness is not an actionable defect:

While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … .

In support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create any dangerous condition in the vestibule area, or have actual or constructive notice of any such condition prior to the plaintiff’s accident … . In opposition to the defendant’s prima facie showing, the plaintiff relied almost exclusively on the affidavit of an expert, which failed to raise a triable issue of fact. To the extent that the expert opined that the vestibule floor was inherently slippery due to its smoothness, that is not an actionable defect … . Beceren v  Joan Realty LLC, 2014 NY Slip OP 00324, 2nd Dept 1-14-15

 

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Although Defendant Was Not Responsible for the Pedestrian Ramp, There Was a Question of Fact Whether Defendant’s Snow Removal (from the Ramp) Created the Dangerous Condition

The Second Department determined a question of fact had been raised about whether defendant is liable for a slip and fall on a pedestrian ramp.  Although, by virtue of a city regulation, defendant was not responsible for the ramp, there was a question whether defendant’s snow-removal created the dangerous condition (black ice):

…[T]he defendant established, prima facie, that the area in which the plaintiff alleged that she slipped and fell was part of a pedestrian ramp, for which it was not responsible (see Administrative Code of City of NY § 7-210). However, a property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Here, the defendant failed to eliminate all triable issues of fact as to whether the black ice condition upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts … . Herskovic v 515 Ave I Tenants Corp, 2015 NY Slip Op 00334, 2nd Dept 1-14-15

 

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Totality of the Evidence Established Accident Was “Staged”

The Second Department determined Supreme Court erred when it found a collision was a covered event under a driver’s (Trotman’s) policy because the totality of the evidence demonstrated the collision was “staged:”

A deliberate collision by an insured is not a covered event under an insurance policy … . Here, the strong circumstantial evidence at the framed-issue hearing established that Trotman intentionally caused the collision between his vehicle and Young’s vehicle. In finding otherwise, the Supreme Court focused entirely on whether Trotman’s vehicle suffered any damage, rather than on the totality of the evidence … . Accordingly, because the evidence at the hearing established that Trotman intentionally caused the collision with Young’s vehicle, the collision between the two vehicles was not a covered event under Trotman’s policy with GEICO. Matter of Liberty Mut Ins Co v Young, 2015 NY Slip Op 00377, 2nd Dept 1-14-15

 

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Criteria for Contractual Indemnification Explained

The Second Department determined plaintiff’s Labor Law 241(6) cause of action properly survived summary judgment and defendant was entitled to indemnification under the relevant contract.  The court explained the contractual indemnification criteria:

“While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their worksites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident” … . A party’s right to contractual indemnification depends upon the specific language of the relevant contract … . A promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances … . In addition, “a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (…see General Obligations Law § 5-322.1). Shea v Bloomberg LP, 2015 NY Slip OP 00353, 2015 NY Slip Op 00353, 2nd Dept 1-14-15

 

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Statute Prohibits Petition for Downward Modification of Support After Arrears Accrue/No Appeal Lies from an Order Entered by Consent

The Second Department determined father could not bring a petition for retroactive reduction of child support and a reduction of arrears after the arrears had accrued.  The court noted that father could not appeal an order he consented to:

Family Court Act § 451 provides that the court “shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section.” A court “ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation” … . Here, the father petitioned for a downward modification of his child support obligation after the arrears accrued. Thus, any modification was [*2]prohibited.

In any event, the Family Court properly concluded that the father was barred from relitigating the amount of arrears owed. The order dated July 11, 2012, which fixed the amount of arrears that the father owed, and provided the basis for the entry of the money judgment against him, was entered on his consent. On appeal, a party may not collaterally attack an order entered on his or her consent … . Matter of Cadwell v Cadwell, 2015 NY Slip Op 00369, 2nd Dept 1-14-15

 

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In an Employment Discrimination Case, Plaintiff Is a Member of a Protected Class By Virtue of His Wife’s Religion

The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined plaintiff had raised a question of fact whether he was the subject of employment discrimination in violation of the Executive Law (State Human Rights Law).  Plaintiff’s wife is Jewish and plaintiff is not. Plaintiff’s co-workers are alleged to have made anti-Semitic remarks and plaintiff alleged his firing was a manifestation of discrimination against members of the Jewish faith.  The question of first impression before the court was whether plaintiff is a member of a protected class by virtue of his wife’s religion.  The Second Department found that he is:

To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination … . * * *

The defendants assert that there is no authority to support a claim of discrimination based upon the religious belief of a spouse under the State Human Rights Law. While there is no authority addressing this issue under the State Human Rights Law, several federal courts have construed Title VII to protect individuals “who are the victims of discriminatory animus towards third persons with whom the individuals associate” … . * * *

While the plaintiffs’ allegations call to mind the infamous Nuremberg Laws enacted in 1935, which stripped German Jews of their civil rights and citizenship and prohibited persons of “German or related blood” from marrying or having sexual relations with German Jews, we are aware that the defendants’ alleged conduct is not akin to Town-initiated discrimination. State Human Rights Law claims under Executive Law § 296 are “analytically identical to claims brought under Title VII” …, and thus we see no reason to construe the State statute more restrictively than the federal statute. Accordingly, the plaintiff sufficiently demonstrated his membership in a protected class by virtue of the defendants’ alleged discriminatory conduct stemming from his marriage to a Jewish person. Indeed, we note that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual’s First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty (see Roberts v United States Jaycees, 468 US 609, 617-618 [“choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme”]; Matusick v Erie County Water Auth., 757 F3d 31 [2d Cir] [where plaintiff, a white male, alleged that he was discriminated against and terminated from his employment because of his engagement to an African-American female, the United States Court of Appeals for the Second Circuit recognized, for the first time, that a constitutionally protected right to intimate association based upon marriage engagement could be the predicate for a claim that the defendants, while acting under color of state law, deprived the plaintiff of his First and Fourteenth Amendment rights in violation of 42 USC § 1983]). Chiara v Town of New Castle, 2015 NY Slip Op 00326, 2nd Dept 1-14-15

 

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Potential Use of Condemned Property In Conjunction with Adjoining Land Properly Considered in the Valuation of the Taking/Statutory 6% Interest Applies in Condemnation Proceedings

The Second Department determined Supreme Court properly took into consideration the potential use of the condemned land in conjunction with adjacent parcels of land in assessing the value of the property.  The court further determined that the statutory 6% interest for condemnation proceedings (General Municipal Law 3-a(2)) applied:

The measure of damages in a condemnation proceeding ” 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” … . ” The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value'” … . “Thus, a claimant is entitled to the fair market value of its property for its highest and best available use even though that use is in connection with adjoining properties, provided there is a reasonable probability that the condemned property would be combined with other tracts in the reasonably near future”… . Matter of City of Long Beach v Sun NLF Ltd Partnership, 2015 NY Slip Op 00370, 2nd Dept 1-14-15

 

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Defendant Was Subjected to Custodial Interrogation Before Waiving His Right to Remain Silent—Oral Pre-Miranda and Written Post-Miranda Statements Should Have Been Suppressed—Error Deemed Harmless

The Second Department determined defendant’s pre-Miranda statements, as well as his post-Miranda written statement, should have been suppressed because the defendant was in custody and interrogated before he waived his right to remain silent.  Defendant had been stopped by two police cars, one of which cut off defendant’s lane of travel. Defendant then consented to going to the police station where he was placed in a locked room and subjected to accusatory questioning.  (The court ultimately determined the error was harmless, however):

Contrary to the suppression court’s determination, the statements made by the defendant at the police station should have been suppressed as the product of custodial interrogation conducted without the benefit of Miranda warnings. “Miranda warnings need not be given until both the elements of police custody’ and interrogation’ are present” … . The issue of whether a suspect is in custody is generally a question of fact … . In deciding whether a defendant was in custody before receiving Miranda warnings, “the subjective beliefs of the defendant are not to be the determinative factor” … . Nor does the determination turn on the subjective intent of the police officer … . Rather, the test is “what a reasonable man [or woman], innocent of any crime, would have thought had he [or she] been in the defendant’s position” … . “[T]he term interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” … .

Here, a reasonable, innocent person would not have believed that he or she was free to leave the police station at the time the defendant made his oral statements to the police … . Moreover, the questions by the police were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . Accordingly, the oral statements made by the defendant at the police station were the product of custodial interrogation without Miranda warnings and should have been suppressed. Furthermore, the written statement by the defendant, although created after Miranda warnings were issued, also should have been suppressed, as there was no attenuation between the statements that were obtained unlawfully and the written statement … . People v Reardon, 2015 NY Slip Op 00394, 2nd Dept 1-14-15

 

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Detective’s Testimony About a Non-Testifying Witness’ Description of the Perpetrator Properly Admitted to Explain Detective’s Subsequent Actions and Complete the Narrative

The Second Department, over an extensive dissent, determined a detective’s testimony about a non-testifying witness’ (Anderson’s) description of the perpetrator was admissible for the non-hearsay purpose of explaining the detective’s subsequent actions, and completing the narrative of events:

The jury was specifically instructed not to consider this description for its truth, and the description was properly admitted for the relevant, nonhearsay purpose of “establishing the reasons behind the detective’s actions, and to complete the narrative of events leading to the defendant’s arrest” … . Contrary to the view of our dissenting colleague, we find that the People sufficiently established a connection between Anderson’s description and subsequent police conduct. Anderson’s general description of the perpetrator, as distinct from a direct identification of the defendant, led to successive police investigatory conduct such as interviewing other witnesses, including a witness who identified the defendant at trial, and procuring the surveillance video of the defendant … . Thus, the Supreme Court did not err in admitting Anderson’s description of the perpetrator for a limited nonhearsay purpose … . People v Speaks, 2015 NY Slip Op 00396, 2nd Dept 1-14-15

 

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Father’s Recording of Defendant’s Berating and Threatening Father’s Child Admissible Under the “Vicarious Consent” Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error–No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment

The Second Department applied a “vicarious consent” theory to reject the defendant’s argument that the father’s recording of the defendant berating and threatening the father’s child violated the eavesdropping statutes, Penal Law 250.05 and CPLR 4506. Father had called mother’s cell phone which mother answered without speaking. Father could hear the defendant speaking to the child over the phone and recorded the defendant’s words.  In addition to the “vicarious consent” discussion, he Second Department noted that a variance between the jury instructions and the charges in the indictment was harmless error because there was no possibility the guilty verdict was based upon a theory not in the indictment.  With respect to the “vicarious consent” to the recording, the court wrote:

While … Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, “out of concern for the bests interests of their minor child, they record that child’s conversations” … . Given the similarity between the federal wiretap statute and New York’s eavesdropping statute, and recognizing that the “vicarious consent” exemption is rooted on a parent’s need to act in the best interests of his or her child …, we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.

Here, the People sufficiently demonstrated that the father had a “good faith, objectively reasonable basis to believe” that it was necessary for the welfare of the infant to record the conversation …, such that he could consent to the recording on the infant’s behalf … . Accordingly, the “vicarious consent” exemption applies, and admission of the subject recording was not barred by CPLR 4506. People v Badalamenti, 2015 NY Slip Op 00384, 2nd Dept 1-14-15

 

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