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Question of Fact Whether Licensed Driver Properly Supervised Young Driver with a Learner’s Permit

In an automobile collision case, the Second Department determined defendant’s motion for summary judgment was properly denied because a question of fact had been raised about whether defendant properly supervised the young driver who held a learner’s permit. The court explained the relevant law:

The learner-driver with a permit “may only operate a motor vehicle while under the immediate supervision and control of a duly licensed driver” (…see Vehicle and Traffic Law § 502[5][a][ii]). A licensed driver “is under a duty to use general or reasonable care in the instruction and supervision of the learner-driver” …, and also must “take necessary measures to prevent negligence on the part of the driver with the learner’s permit” … . Mejia v Kennedy, 2015 NY Slip Op 00504, 2nd Dept 1-21-15

 

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Custody and Visitation Can Only Be Determined by a Court—Custody and Visitation Arbitration-Award Invalid/However Child Support Can Be the Subject of Arbitration

The Second Department determined Supreme Court should not have confirmed the arbitration award to the extent the award dealt with custody and visitation.  Custody and visitation can be addressed only in the courts.  However, Supreme Court properly confirmed the arbitrator’s child support award, as there was no showing the award failed to comply with the Child Support Standards Act:

Although the parties consented to arbitration of custody and visitation matters, they had no power to do so. “Disputes concerning child custody and visitation are not subject to arbitration as the court’s role as parens patriae must not be usurped'” … . Accordingly, that branch of the petition which was to confirm the custody and visitation provisions of the arbitration award should have been denied, and the matter must be remitted to the Supreme Court, Kings County, for a hearing and determination as to the issues of custody and visitation … .

An arbitration award concerning child support may be vacated on public policy grounds if it fails to comply with the Child Support Standards Act (Domestic Relations Law § 240[1-b]; hereinafter the CSSA) and is not in the best interests of the children … . Here, the father failed to demonstrate that the award of child support was incompatible with the objectives of the CSSA and that it was not in the best interests of the children. Matter of Goldberg v Goldberg, 2015 NY Slip Op 00539, 2nd Dept 1-21-15

 

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Inference of Defendant’s Negligence Was Not “Inescapable”—Summary Judgment Should Not Have Been Granted to Plaintiff Pursuant to the Doctrine of Res Ipsa Loquitur

The Second Department reversed Supreme Court’s grant of summary judgment to the plaintiff based upon the doctrine of res ipsa loquitur.  Plaintiff was struck by a box which fell from a shelf in a retail store.  The evidence submitted by the plaintiff did not make the inference of defendant’s negligence “inescapable:”

“The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident” … . Since “the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent . . . res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment . . . even if the plaintiff’s circumstantial evidence is unrefuted” … . “[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment” … . “That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … .

Here, the plaintiffs’ submissions on the issue of res ipsa loquitur were insufficient to establish, prima facie, their entitlement to judgment as a matter of law on the issue of liability. The plaintiffs did not establish, by sufficiently convincing circumstantial proof, “that the inference of defendant’s negligence is inescapable” … . Hoeberlein v Bed Bath & Beyond, 2015 NY Slip Op 00497, 2nd Dept 1-21-15

 

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Criteria for Court Review of Disciplinary Actions Taken by a Private School

The Second Department determined Supreme Court properly dismissed the petition seeking reinstatement of a student who had been expelled from a private school (Adelphi) for academic dishonesty.  The Second Department explained the disciplinary procedures required of a private school and the courts’ power to review the disciplinary actions taken by a private school:

“[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline, suspension and expulsion of their students” … . Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously or whether it substantially complied with its own rules and regulations … .

Here, Adelphi substantially complied with its own rules and regulations as set forth in its Code of Ethics in suspending and expelling the infant for acts of academic dishonesty. Adelphi was not required to hold hearings before its Disciplinary Committee before imposing discipline, and the petitioner’s further challenges to the procedures taken are likewise without merit. Further, the determinations that the infant had committed acts of academic dishonesty which warranted suspension and expulsion were not arbitrary and capricious. “When a private school expels a student based on facts within its knowledge that justify the exercise of discretion’, then a court may not review this decision and substitute its own judgment” … . Matter of Khaykin v Adelphi Academy of Brooklyn, 2015 NY Slip Op 00540, 2nd Dept 1-21-15

 

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Defendants Not Liable for Assault by a Contractor-Security Guard—No Showing Defendants Were Aware of Security Guard’s Propensity for Violence—Security Guard’s Actions Were Outside the Scope of Employment

The Second Department reversed Supreme Court finding that summary judgment should have been granted to defendants (a residential facility for the elderly/disabled and a related management company) in an action stemming from an assault by a contractor/security guard.  The evidence did not demonstrate defendants knew or should have known of the contractor’s propensity for violence and the contractor had acted outside the scope of employment:

“[A] party may be held liable for a contractor’s negligence under theories of negligent hiring, negligent retention, and negligent supervision” … . To hold a party liable under theories of negligent retention and negligent supervision, “a plaintiff must establish that the party knew or should have known of the contractor’s propensity for the conduct which caused the injury” … . Here, the appellants demonstrated, prima facie, that they did not know or have reason to know of Lewis’s alleged propensity for violence… . The appellants also demonstrated, prima facie, that they were not vicariously liable for the conduct of Lewis under the doctrine of respondeat superior, since Lewis’s alleged acts were not part of his job and were not incidental to the furtherance of the appellants’ business … . Robert v BHAP Hous Dev Fund Co, 2015 NY Slip Op 00520, 2nd Dept 1-21-15

 

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Court Has the Discretion to Deny a Motion to Change Venue Where the Statutory Time-Limits for the Demand and Motion Are Not Met—Discretion Not Abused Here

The Second Department explained the rules associated with making a demand and motion for a change of venue.  If the demand and motion are not made within the statutory time-limits, granting the motion is a matter of discretion.  Denial of the motion was not an abuse of discretion here:

A demand to change venue based on the designation of an improper county (see CPLR 510[1]) “shall be served with the answer or before the answer is served” (CPLR 511[a]…). “Thereafter the defendant may move to change the place of trial within [15] days after service of the demand” (CPLR 511[b]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion for that relief within the statutory time period, they were not entitled to a change of venue as of right, and their motion became one addressed to the court’s discretion … . Giddings v Century 21 Dept Stores LLC, 2015 NY Slip Op 00493, 2nd Dept 1-21-15

 

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Criteria for a “Special Exception Permit” (Versus a “Variance”) Explained

The Second Department, in upholding the zoning board’s denial of a special exception permit and a variance, explained the criteria for a special exception permit:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance … . The owner must show compliance with legislatively imposed conditions pertaining to the intended use before a special exception permit may be granted … . The denial of a special exception permit must be supported by evidence in the record and may not be based solely upon community objection … . However, where such evidence exists, deference must be given to the discretion of the board authorized to rule upon the application. A court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record … .

Here, the Board’s determination that the petitioner failed to establish compliance with the legislatively imposed conditions for issuance of the requested special exceptions was supported by evidence in the record, and was not affected by an error of law, was not arbitrary and capricious, was not an abuse of discretion, and was not irrational… . Matter of M & V 99 Franklin Realty Corp v Weiss, 2015 NY Slip Op 00541, 2nd Dept 1-21-15

 

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Time-Limit for Serving a Complaint Was Never Triggered Because the Summons with Notice Was Filed But Not Yet Served at the Time Defendants Served a Notice of Appearance and Demand for a Complaint

The Second Department reversed Supreme Court finding that the time-limit associated with a notice of appearance and a demand for a complaint was never triggered because the notice of appearance and demand for a complaint were made before defendants were served with the summons with notice (the summons with notice was filed but never served here):

The plaintiffs commenced this action by filing a summons with notice. It is undisputed that the summons with notice was never served on the defendants… . * * *

An action may be commenced “by filing a . . . summons with notice” (CPLR 304[a]…). “Service of the . . . summons with notice . . . shall be made within one hundred twenty days after the commencement of the action or proceeding” (CPLR 306-b…). “If the complaint is not served with the summons, the defendant may serve a written demand for the complaint” (CPLR 3012[b]). “Service of the complaint shall be made within twenty days after service of the demand” (id.). “If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance” … . “The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision” … .

As this Court has previously recognized, “[n]o provision is made for an appearance or a demand for a complaint before the summons is served” … . A demand for a complaint pursuant to CPLR 3012(b) prior to service of the summons is premature and does not invoke the time limitations of CPLR 3012(b) … .

Here, since the summons with notice had never been served, the notice of appearance and demand for a complaint was a nullity and the 20-day period within which the complaint had to be served pursuant to CPLR 3012(b) had not begun to run … . Accordingly, the Supreme Court did not have the authority to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012(b) … . Ryan v High Rock Dev LLC, 2015 NY Slip Op 00519, 2nd Dept 1-21-15

 

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Marching Band Director Did Not Assume the Risk of Injury Caused by a Defect in the Roadway

The Second Department determined the doctrine of primary assumption of risk was not available where the plaintiff, the music director of a marching band, was injured by a defect in the roadway where the band was marching.  The court noted that extending the assumption of risk doctrine to persons using streets or sidewalks would constitute an unwarranted diminution of the duty to keep sidewalks and streets reasonably safe:

The doctrine of primary assumption of the risk is inapplicable in this case. It cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County … . “[E]xtension of the doctrine [of primary assumption of the risk] to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of landowners–—both public and private–—to maintain their premises in a reasonably safe condition” … . Behr v County of Nassau, 2015 NY Slip Op 00485, 2nd Dept 1-21-15

 

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“Transacting Business” Criteria for Long-Arm Jurisdiction Met

The Second Department determined Supreme Court should not have granted the Connecticut defendant’s motion to dismiss for lack of personal jurisdiction.  Defendant had transacted business in New York within the meaning of the long-arm statute:

Under New York’s long-arm statute, “a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state” (CPLR 302[a]), regardless of whether that non-domiciliary has actually entered New York State … . Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has “purposefully avail[ed] itself of the privilege of conducting activities within [New York]” … . “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege[s] of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … . Proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, as long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted … .

Here, the complaint asserts that the defendant, through its agent, solicited the plaintiff’s services while present in New York. The record indicates that the defendant’s agent traveled to New York for three meetings with the plaintiff before the parties finalized their agreement, and that the defendant’s agent subsequently traveled to New York in furtherance of the contract. Moreover, the parties engaged in numerous telephone and email communications regarding the contract. Under the totality of the circumstances, the defendant conducted sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail itself of the benefits and protections of New York’s laws … . Paradigm Mktg Consortium Inc v Yale New Haven Hospital Inc, 2015 NY Slip Op 00508, 2nd Dept 1-21-15

 

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