You are here: / City Was “United in Interest” with Non-Profit Corporation Which...

Search Results

/ , , ,

City Was “United in Interest” with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City—Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run—However the Extent to Which the City Was “United in Interest” Was Dictated by the Terms of the Contract

The First Department determined that the Conservancy, a non-profit corporation which maintains Central Park under a contract with the City of New York, was “united in interest” with the City.  Therefore, plaintiff, who allegedly had been injured by a maintenance truck owned by the Conservancy, could amend his complaint to include the Conservancy, even though the statute of limitations had run.  The ‘unity of interest” was defined by the terms of the contract.  Because the contract did not call for the City to indemnify the Conservancy for gross negligence, the complaint against the Conservancy could not include the gross negligence claim:

… [P]laintiff relied on the 2006 Central Park Agreement, a contract between the City and the Conservancy, a nonprofit organization, in which they acknowledged that they had formed an effective “public/private partnership.” Under the Agreement, the Conservancy is required to provide specified maintenance services in Central Park to the “reasonable satisfaction” of the City, and the City is broadly required to indemnify the Conservancy “from and against any and all liabilities . . . arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park.” The City’s indemnification obligation, among other things, expressly excludes claims arising from gross negligence or intentional acts of the Conservancy or its agents or volunteers. As a result of the Agreement, the Conservancy acts, in effect, as an independent contractor fulfilling the City’s nondelegable obligation to maintain the City parks in reasonably safe condition … .

The City is vicariously liable for the Conservancy’s negligence in the course of providing maintenance in Central Park by virtue of the contractual indemnification provision, and the parties are thus united in interest … . Further, since the City has a nondelegable duty to maintain Central Park, it is vicariously liable for negligence committed by the contractor in the course of fulfilling that duty … . However, the City is correct that its interests are not united with those of the Conservancy with respect to the proposed gross negligence claim, and leave to assert that claim against the Conservancy is therefore denied. Brunero v City of New York Dept of Parks & Recreation, 2014 NY Slip Op 07444, 1st Dept 10-30-14

 

/

Summary Judgment Admitting Will to Probate Appropriate Where Objections to the Will (“Testamentary Capacity” and “Undue Influence”) Not Supported

The Third Department determined summary judgment admitting the will to probate was appropriately granted where the “testamentary capacity” and “undue influence” objections were not supported by evidence:

“Whether to dismiss a party’s objections and admit the challenged will to probate is a matter committed to the sound discretion of Surrogate’s Court and, absent an abuse of that discretion, the court’s decision will not be disturbed” … . While rare, summary judgment in a contested probate proceeding is appropriate where a petitioner establishes a prima facie case for probate and the objectant does not raise any factual issues regarding testamentary capacity, execution of the will, undue influence or fraud … . Upon our review of the record, we find that respondent has raised no such issues and we, therefore, conclude that Surrogate’s Court properly awarded summary judgment to petitioner.

As to testamentary capacity, petitioner bore the initial burden of establishing that decedent understood the nature and consequences of making the will, the nature and extent of her property, and the natural objects of her bounty … . Notably, it was only necessary to demonstrate that decedent had “a general, rather than a precise, knowledge of the assets in . . . her estate” … .  * * *

…[T]he fact that a decedent was subject to undue influence is established when he or she “‘was actually constrained to act against [his or her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred'” … . Here, notwithstanding the confidential relationship between decedent and petitioner …, the record is bereft of any direct or circumstantial evidence indicating that petitioner exercised undue influence over decedent … . “On the contrary, [the evidence] indicate[s] that the will was the product of the free and unfettered act of [decedent]” … . Matter of Vosilla, 2014 NY Slip Op 07417, 3rd Dept 10-30-14

 

/ ,

Encroaching Structure Built to Prevent Excavation-Related Damage to Adjoining Property Is a Trespass

The First Department determined the fact that a property owner [Madison] is strictly liable for damage to an adjoining property [17 East] caused by excavation did not allow the construction of encroaching structures to prevent excavation-related damage to the adjoining property:

The imposition of absolute liability on parties whose excavation work damages an adjoining property places the burden of protecting adjoining property onto those undertaking the excavation work, and the risks thereof, rather than those whose interest in adjoining property is harmed by the work … . It should not be inferred, however, that the transfer of risk to the owner/excavator carries with it a corresponding unfettered right to excavate more than 10 feet below curb level, or that the adjoining property owner must allow underpinning of its property simply because the neighboring property owner undertaking such excavation bears absolute liability for any damage it may cause to the adjoining property … . * * *

Madison did not have the right, in the absence of an agreement with 17 East Owners, to erect permanent structures extending beyond the property line, either above or below the surface, and thus encroaching on 17 East Owners’ property.  Madison 96th Assoc LLC v 17 E 96th Owners Corp, 2014 NY Slip Op 07422, 1st Dept 10-30-14

 

/ ,

Sole Eyewitness’ Testimony at Trial Indicating She Could Not Identify the Shooter (Because of the Passage of Time and the Effects of Alcoholism and Depression) Did Not Allow the Prosecutor to Impeach Her with Her Grand Jury Testimony and Prior Identification of the Shooter

In reversing defendant’s conviction, the Second Department explained that the prosecution should not have been allowed to impeach its own witness when the witness failed to identify the shooter in her trial testimony.  In addition, it was error to allow a detective to testify that the witness previously identified the defendant:

…[T]he Supreme Court erred in permitting the prosecutor to impeach the sole eyewitness with her grand jury testimony and photo array identification of the shooter. A party may impeach its own witness with prior inconsistent statements only when the testimony of that witness on a material issue tends to disprove the party’s position or affirmatively damages the party’s case (see CPL 60.35…). “Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case” … . Here, the testimony of the eyewitness that she did not remember the face of the shooter and could not identify the shooter because of the passage of time between the shooting and the trial, and because of her struggles with alcohol and depression, did not tend to disprove or affirmatively damage the People’s case … . Accordingly, it was error to permit the prosecutor to impeach the testimony of the eyewitness with her grand jury testimony and photo array identification. People v Ayala, 2014 NY Slip Op 07362, 2nd Dept 10-29-14

 

/ ,

Choice of Law Analysis Re: Liability Insurance Contracts [Extraordinarily Complex Lawsuit Stemming from Mold Rendering a Newly-Constructed Apartment Complex Uninhabitable]

The Second Department sorted out an extraordinary number of coverage, defense and indemnification issues in declaratory judgment actions stemming from mold which made an apartment complex uninhabitable.  The decision deals with too many specific questions to allow summarization.  With respect to a choice of law issue, the court wrote:

Under Pennsylvania law, not only are damages to the work product itself not considered an occurrence, but “damages that are a reasonably foreseeable result of the faulty workmanship are also not covered under a commercial general liability policy” … . The Pennsylvania courts have emphasized fortuity in determining whether a claim constitutes an occurrence … . Mold growth and resulting sickness and property damage would likely be considered by the Pennsylvania courts not to be fortuitous, but, rather, to be, from an objective standpoint, a reasonably foreseeable, natural consequence of faulty workmanship which allowed water to infiltrate the buildings … . Accordingly, because a conflict exists between Pennsylvania and New York law, New York’s choice-of-law rules must be applied to determine which state’s law governs … .

“In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties’ will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk'” … . However, ” where it is necessary to determine the law governing a liability insurance policy covering risks in multiple states, the state of the insured’s domicile should be regarded as a proxy for the principal location of the insured risk'” … . Because the subject policy covered risks in multiple states, and because Erie’s and Penn National’s named insured was domiciled in Pennsylvania, it is appropriate to apply that state’s law. QBE Ins Corp v Adjo Contr Corp, 2014 NY Slip Op 07342, 2nd Dept 10-29-14

 

/ ,

Re: a Slip and Fall in a McDonald’s Restaurant, the McDonald’s Defendants Were Not Liable as an Out-of-Possession Landlord, a Franchisor, or a Property Owner—Summary Judgment Properly Granted

In dismissing a slip and fall complaint against the McDonald’s (restaurant) defendants, the Second Department explained that the defendants could not be held liable as an out-of-possession landlord, a franchisor, or as an entity responsible for a dangerous condition on the property:

The McDonald’s defendants established, prima facie, that McDonald’s Corporation was an out-of-possession landlord on the date of the subject accident, and that it had no duty to maintain or repair the leased premises where the accident occurred. Therefore, the McDonald’s defendants met their initial burden of establishing that McDonald’s Corporation owed no duty to the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, McDonald’s Corporation was not liable based upon its status as a franchisor. In determining whether a defendant, as a franchisor, may be held vicariously liable for the acts of its franchisee, the most significant factor is the degree of control that the franchisor maintains over the daily operations of the franchisee or, more specifically, the manner of performing the very work in the course of which the accident occurred … . Here, the McDonald’s defendants tendered sufficient evidence in support of their motion to establish, prima facie, that McDonald’s Corporation lacked the requisite control over the alleged causes of the plaintiff’s injuries. The plaintiff failed to raise a triable issue of fact in opposition.

In addition, the Supreme Court correctly granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant McDonald’s Restaurants of New York, Inc. Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property … . The McDonald’s defendants established, prima facie, that McDonald’s Restaurants of New York, Inc., did not own, occupy, control, or have a special use of the subject property at the time of the accident and, thus, could not be held liable for injuries caused by the allegedly dangerous conditions … . Khanimov v McDonald’s Corp, 2014 NY Slip Op 07332, 2nd Dept 10-29-14

 

/ ,

Hospital Not Vicariously Liable for Acts of Non-Employee Midwife/Hospital May Be Liable for Staff’s Failure to Summon Obstetrician When Problems with the Birth Developed/Midwife’s Assistant, Who Worked Under the Supervision of the Midwife and Did Not Exercise Independent Judgment, Not Liable

The Second Department determined: (1) the hospital (Phelps) defendants were not vicariously liable for the actions of a midwife who was not an employee; (2) there was a question of fact whether the hospital staff was negligent in failing to summon an obstetrician when problems with the birth developed; and (3) the action against the midwife’s assistant (Milligan) was properly dismissed because the assistant worked under the supervision of the midwife and did not exercise independent judgment:

In general, “a hospital may not be held [liable] for the acts of [a physician] who was not an employee of the hospital, but one of a group of independent contractors” … . However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice … . “When supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene”  * * *

The Supreme Court erred in granting that branch of the Phelps defendants’ motion which was for summary judgment dismissing so much of the complaint as alleged they were concurrently liable with Mahoney for the alleged independent negligence of their nursing staff. In opposition to the Phelps defendants’ prima facie showing of their entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether the Phelps defendants’ nursing staff departed from good and acceptable medical practice by failing to summon an obstetrician when the infant plaintiff’s fetal heart rate dropped below normal… . …

Milligan met her prima facie burden of demonstrating that, during the infant plaintiff’s birth, she did not exercise any independent medical judgment, but was under the direct supervision of Mahoney, the attending nurse-midwife, whose directions did not so greatly deviate from normal medical practice that she should be held liable for failing to intervene. Zhuzhingo v Milligan, 2014 NY Slip Op 07350, 2nd Dept 10-29-14 

 

/ ,

Personal Injury Suit by Student Against School District Alleging Negligent Supervision Properly Survived Summary Judgment

The Second Department determined a personal injury suit by a student alleging negligent supervision properly survived summary judgment.  The student was injured when she was pushed by those behind her into a door which should not have been locked:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . While schools are not insurers of student safety, they have a duty to exercise the same degree of care toward their students as would a reasonably prudent parent under comparable circumstances … . Here, the evidence submitted by the defendants, which included the deposition testimony of the infant plaintiff and Breen, was insufficient to establish, prima facie, that they properly supervised the infant plaintiff and her physical education class or that their alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . In addition, the defendants’ evidence was insufficient to establish that the locked door of the girls’ locker room was open and obvious and not inherently dangerous under the circumstances … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances,” as the condition may be rendered a trap where it is obscured or the plaintiff is distracted … . Maneri v Patchogue-Medford Union Free Sch Dist, 2014 NY Slip Op 07336, 2nd Dept 10-29-14

 

/

Insufficient Proof Plaintiff Was Defendant’s Special Employee

The Second Department determined the defendant did not demonstrate plaintiff was its special employee.  Therefore summary judgment dismissing plaintiff’s personal injury suit based upon plaintiff’s receiving Workers’ Compensation benefits from his general employer should not have been granted:

“The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … . In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge … . “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'” … .

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work … . Nolan v Irwin Contr Inc, 2014 NY Slip Op 07339, 2nd Dept 10-29-14

 

/ ,

Although Not the Case Here, the Court Explained How a Collision Between a Vehicle Entering the Roadway and a Vehicle Which Is In the Roadway (and Has the Right-of-Way) Can Possibly Have Two Proximate Causes

The Second Department determined the defendant, who apparently struck plaintiff’s car as plaintiff pulled into traffic from a parking lot, was entitled to summary judgment.  Plaintiff was negligent as a matter of law based on a violation of Vehicle and Traffic law 1143, which requires a driver entering a roadway to yield to drivers within the right-of-way.  And there was no showing defendant was negligent.  The decision has a good explanation of how there can be two proximate causes of an accident under such facts (not the case here):

There can be more than one proximate cause of an accident …, because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident … . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” … . Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … . However, “[a] driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision” … . Desio v Cerebral Palsy Transp Inc, 2014 NY Slip Op 07322, 2nd Dept 10-29-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy