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Question of Fact Re: Whether the “Continuous Representation Doctrine” Tolled the Three-Year Statute of Limitations in a Legal Malpractice Action

The Second Department determined plaintiff had raised a question of fact re: whether the three-year statute of limitations in a legal malpractice action was tolled by the continuous representation doctrine. The court explained the doctrine as follows:

The three-year limitations period applicable to causes of action to recover damages for legal malpractice “may be tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … . “For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . ” One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties'” … . Beroza v Sallah Law Firm, P.C., 2015 NY Slip Op 01913, 2nd Dept 3-11-15

 

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Police Were Not Justified In Entering the Curtilage of Defendant’s Home (By Climbing a Fence) After Defendant Ignored the Officers’ Command to “Stop”

The Second Department determined evidence seized after officers climbed a fence to gain access to defendant’s property was properly suppressed. The officers had enough information to approach the defendant, who was in his yard, to request information, but did not have sufficient information to justify entering defendant’s property after defendant dropped a bag and went into his house, ignoring the officers’ request to stop:

The curtilage of the home, defined as the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The Supreme Court properly determined that the defendant’s driveway and front yard, which were completely fenced-in and located in close proximity to his home, were within the curtilage of his home. The defendant manifested his expectation of privacy and that expectation is one that society recognizes as reasonable … . Further, while the officers had an objective, credible reason to approach the defendant to request information … , the defendant’s conduct of dropping the bag, which produced “a heavy thud or a clank,” and ignoring the officer’s request to stop did not escalate the encounter to justify pursuit … . People v Morris, 2015 NY Slip Op 01967, 2nd Dept 3-11-15

 

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Question of Fact Whether Plaintiff’s Negligence Was Sole Proximate Cause of Injuries in Labor Law 240(1) Action

The Second Department determined there were questions of fact precluding both plaintiffs’ and defendant’s motions for summary judgment in a Labor Law 240(1) action.  Although the ladder which tipped over was not defective and was appropriate to the task, there were questions whether the ladder was mispositioned and, if so, who mispositioned it.  The fact that plaintiff may have been negligent did not preclude recovery under Labor Law 240(1) as long a plaintiff’s negligence was not the sole proximate cause of his injury:

In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must prove that the statute was violated and that the violation was a proximate cause of the injuries … . Proof that the plaintiff’s own negligence was also a proximate cause will not defeat the claim … . When the evidence establishes, however, that the plaintiff’s own negligence was the sole proximate cause of the injuries, the defendant may not be held liable for those injuries … . The parties’ submissions demonstrated that the ladder itself was not defective and was appropriate to [plaintiff’s] task.

There are triable issues of fact … as to whether the ladder was mispositioned and, if so, who mispositioned it, and, if it was mispositioned by [plaintiff], whether his conduct was the sole proximate cause of the ladder’s tipping over … . Daley v 250 Park Ave., LLC. 2015 NY Slip Op 01917, 2nd Dept 3-11-15

 

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Complaint Should Not Have Been Dismissed Solely Upon the Determination an Arbitration Clause Was Valid and Applicable

The Second Department determined Supreme Court should not have dismissed an action bases solely on the fact the contract between the parties had an arbitration clause.  Dismissal pursuant to CPLR 3211(a)(1) lies only if there has been arbitration and award:

In its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, the defendant … contended that an arbitration clause contained in its contract with the plaintiff was valid and applicable, and, therefore, required dismissal of the complaint insofar as asserted against it. However, “[i]n the absence of arbitration and an award, CPLR 3211 furnishes no basis for a dismissal because of the presence in the contract of an arbitration provision” … . Accordingly, the Supreme Court erred in granting the motion of the defendant New Clients, Inc., pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it based solely upon its determination that the arbitration clause was valid and applicable. Hui v New Clients, Inc., 2015 NY Slip Op 01924, 2nd Dept 3-11-15

 

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3/4 Inch Depression Obscured by Puddle of Water Not Trivial As a Matter of Law

The Second Department determined Supreme Court should not have granted summary judgment to the defendant in a slip and fall case.  Plaintiff fell when she stepped in a depression which was filled with water.  Defendant argued the 3/4 inch depression was trivial and Supreme Court agreed.  The Second Department explained the “trivial defect” analytical criteria and noted that plaintiff had alleged the area was poorly lit:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “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” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” …, and “a mechanistic disposition of a case based exclusively on the dimension of the . . . defect is unacceptable” … . To determine whether a defect is trivial as a matter of law, a court must examine “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . Tesoriero v Brinckerhoff Park, LLC, 2015 NY Slip Op 01938, 2nd Dept 115 3-11-2015

 

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“Single Motion Rule” Barred Motions to Dismiss Pursuant to CPLR 3211(a)

The Second Department determined Supreme Court properly denied motions to dismiss pursuant to CPLR 3211(a) based upon the “single motion” rule.  The defendants had made motions to dismiss certain causes of action in the original complaint.  Therefore the defendants could not make those motions again with respect to an amended complaint:

CPLR 3211(e) provides, in relevant part, that at any time before service of a responsive pleading is required, a party may move to dismiss a pleading “on one or more grounds set forth” in CPLR 3211(a), and that “no more than one such motion shall be permitted.” Accordingly, this “single motion rule prohibits parties from making successive motions to dismiss a pleading” pursuant to CPLR 3211(a) … . The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) that are based on alternative grounds … . Here, the defendants previously moved pursuant to CPLR 3211(a) to dismiss the original complaint on the grounds that documentary evidence established a complete defense to the action (see CPLR 3211[a][1]), that the action was time-barred (see CPLR 3211[a][5]), and that the complaint failed to state a cause of action (see CPLR 3211[a][7]). * * * Accordingly, those branches of the defendants’ motion which were to dismiss … [substantially identical] causes of action in the amended complaint were procedurally barred by the single-motion rule, and were properly denied (see CPLR 3211[e]…). Bailey v Peerstate Equity Fund, L.P., 2015 NY Slip Op 01911, 2nd Dept 3-11-15

 

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Prior Written Notice Requirement Does Not Apply When It Is Alleged the Municipality Created the Dangerous Condition

The Second Department noted that the “written notice of a dangerous condition” pre-requisite for municipal liability does not apply when it is alleged the municipality created the dangerous condition:

A municipality that has enacted or is subject to a prior written notice statute, such as Village Law § 6-628 or CPLR 9804, may not be subjected to liability for injuries caused by a defective or dangerous condition that comes within the ambit of those laws, such as an alleged defective boardwalk …, unless it has received written notice of the defect, or an exception to the written notice requirement applies … . The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it … . Moreover, “the affirmative negligence exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition'” … .

Where, as here, the plaintiff expressly asserted in the complaint or a bill of particulars that the municipality created the defective condition by an affirmative act of negligence, the municipality, in order to make a prima facie showing in support of a motion for summary judgment, must demonstrate that it did not create the condition … . Joyce v Village of Saltaire, 2015 NY Slip Op 01925, 2nd Dept 3-11-15

 

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Sua Sponte Rulings Do Not Become the Law-of-the-Case and Do Not Bind an Appellate Court

The Second Department noted that a sua sponte determination does not become the law-of-the-case  and does not bind the appellate court:

Supreme Court determined that, pursuant to the law-of-the-case doctrine, it was bound by the prior Supreme Court order to hold that [a nonparty] was a bona fide purchaser of the subject property. On that ground, the Supreme Court concluded that, “[h]aving failed to obtain a stay pursuant to CPLR 5519 to prevent the property from being sold, [defendant] [was] relegated to an action for money damages, and would not be able to recover the real property” … . However, since the parties had not litigated the sua sponte determination as to [the nonparty’s] status, application of the doctrine of law of the case was improper … . In any event, this Court is not bound by the Supreme Court’s prior determination finding [the nonparty] to be a bona fide purchaser and may reach the merits of that issue … . Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 2015 NY Slip Op 01920, 2nd Dept 3-11-15

 

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Criteria for Amendment of Notice of Claim and Serving a Late Notice of Claim Explained (Not Met Here)

The Second Department determined plaintiff’s motion to amend his notice of claim and has motion to serve a late notice of claim were properly denied.  The criteria for both motions were explained:

A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim ,,, . The proposed amendments to the notice of claim added events that were not described in the original notice of claim and asserted a new claim relating to the operator of the bus … . Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . …

Among the factors to be considered in determining whether to extend the time to serve a notice of claim are (1), in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose or a reasonable time thereafter, (2) whether the claimant demonstrated a reasonable excuse for the delay in serving the notice of claim, (3) whether the claimant was an infant, or mentally or physically incapacitated, and (4) whether the delay substantially prejudiced the public corporation in defending on the merits … .

The plaintiff failed to submit evidence establishing that the Transit Authority had actual knowledge of the new facts within 90 days of the incident or a reasonable time thereafter. Priant v New York City Tr. Auth., 2015 NY Slip Op 01933, 2nd Dept 3-11-15

 

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Motion to Set Aside Verdict Properly Denied—The Jury Determined Defendant’s Negligence Was Not the Proximate Cause of the Accident—Analytical Criteria Explained

In finding the plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence was properly denied, the Second Department explained how to analyze the jury’s conclusion the defendant’s negligence was not the proximate cause of the accident:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . “A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . “[W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view” … . Moffett-Knox v Anthony’s Windows on the Lake, Inc., 2015 NY Slip Op 01929, 2nd Dept 3-11-15

 

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