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Failure to Take Evasive Action Did Not Constitute Contributory Negligence

The Second Department explained that a driver faced with making a quick decision because another driver has failed to yield the right-of-way is not comparatively negligent:

[The driver of the car in which plaintiff was a passenger] entered the intersection where the collision occurred against a red traffic light, in violation of Vehicle and Traffic Law § 1110(a) …, and that this was the sole proximate cause of the accident. A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … .

* * * [The other driver’s] deposition testimony that she did not take evasive action in the seconds before impact did not raise a triable issue of fact. “[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” …, and ” was entitled to anticipate that the [other driver] would obey the traffic law requiring [her] to yield'” … . Joaquin v Franco, 2014 NY Slip Op 02904, 2nd Dept 4-30-14

 

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Application to File Late Notice of Claim (One Month Late) on Behalf of Infant Claimant Injured at School Should Not Have Been Granted

The Second Department determined Supreme Court should not have granted claimants’ application to file a late notice of claim against a school district.  Claimant alleged infant claimant (Zachary) was injured playing touch football and the school did not provide adequate supervision.  In finding the criteria for allowing the filing of a late notice were not met, the court wrote:

The key factors to be considered in determining whether to grant leave to serve a late notice of claim are (1) whether the claimant or claimants demonstrated a reasonable excuse for the failure to timely serve a notice of claim, (2) whether one or more of the claimants was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the delay in service of a notice of claim, (3) whether the school district acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, and (4) whether the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits

Here, Zachary and his mother did not proffer sufficient proof to establish a reasonable excuse for their failure to serve a timely notice of claim upon the appellant … . Furthermore, Zachary’s infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . In addition, while a school official prepared an accident claim form the day of the incident and a school medical claim form was filled out the day following the incident, those reports, which merely indicated that Zachary hurt his right knee playing two-hand touch football during physical education class, did not establish that the appellant had actual knowledge within 90 days of the incident or a reasonable time thereafter, of the essential facts underlying the claims of negligent supervision and that the school field constituted a defective and dangerous condition … . Accordingly, the appellant had no reason to conduct a prompt investigation into the purported negligent supervision and the alleged dangerous condition of the field … . Finally, Zachary and his mother failed to establish that the approximately one-month delay after the expiration of the 90-day statutory period would not substantially prejudice the appellant in maintaining a defense on the merits … . Matter of Manuel v Riverhead Cent Sch Dist, 2014 NY Slip Op 02939, 2nd Dept 4-30-14

Same result in claim against a fire district alleging medical malpractice and negligence in response to an accident.  Matter of Snyder v County of Suffolk, 2014 NY Slip Op 02942, 2nd Dept 4-30-14

 

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Criteria for Prohbition and Mandamus Actions Explained

The Second Department, in finding Supreme Court properly denied the petition against a judge, explained the criteria for prohibition and mandamus actions:

“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court —in cases where judicial authority is challenged —acts or threatens to act either without jurisdiction or in excess of its authorized powers” … . “Prohibition will not lie, however, simply to correct trial errors” … and may not be employed as a means of seeking collateral review of mere trial errors of substantive law or procedure, no matter how egregious the error might be … .

“The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought” … . Mandamus will not lie if the action sought to be compelled involves an exercise of discretion or reasoned judgment … . Matter of Jordan v Levine, 2014 NY Slip Op 02934, 2nd Dept 4-30-14

 

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Criteria for Review of Rulings on Variances Explained

The Second Department explained the general critieria for reviewing a variance-ruling by a town zoning board of appeals (ZBA):

In reaching its determination, the ZBA engaged in the balancing test prescribed by Town Law § 267-b(3)(b), and properly found, inter alia, that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood * * * Since the determination under review was not illegal, arbitrary and capricious, or an abuse of discretion, and was supported by a rational basis …, it must be sustained. Matter of Harbor Park Realty, LLC v Modelewski, 2014 NY Slip Op 02931, 2nd Dept 4-30-14

 

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Email Acknowledging Debt Raised Question of Fact About Whether Period of Limitations Was Restarted by the Email

The Second Department determined an e-mail acknowledging plaintiff’s entitlement to a commission raised a triable issue of fact about whether the statute of limitations was restarted:

The defendants made a prima facie showing that the applicable six-year statute of limitations expired before the plaintiff commenced this action (see CPLR 213…). In opposition, however, the plaintiff raised a triable issue of fact as to whether an email message, purportedly sent by the defendant …, acknowledged the plaintiff’s entitlement to a brokerage commission and demonstrated the defendants’ intent to pay it, thus restarting the statute of limitations (see General Obligations Law § 17-101…). ” Whether a purported acknowledgment is sufficient to restart the running of a period of limitations depends on the circumstances of the individual case'” … . Here, a trial is necessary to resolve this issue. Georg Tsunis Real Estate Inc v Benedict, 2014 NY Slip Op 02899, 2nd Dept 4-30-14

 

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Court May Not Deny a Dispositive Motion on a Ground Not Raised by the Parties/Assumption of Risk Precluded Suit Based Upon Falling Off an Exercise Ball

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court improperly denied defendant’s [Eastern Athletic’s] motion for summary judgment.  The plaintiff had fallen off an exercise ball during an exercise class.  The Second Department found plaintiff’s lawsuit was precluded by the doctrine of assumption of the risk. In denying defendant’s motion for summary judgment, Supreme Court ruled the deposition transcripts submitted by the defendant were inadmissible because they were not certified, a ground that had not been raised by the parties.  The Second Department held that a dispositive motion can not be denied on a ground that was not raised by the parties:

Here, the Supreme Court denied the subject motion for summary judgment on a ground that the parties did not litigate. The parties did not have an opportunity to address the issue relating to the certification of the plaintiff’s deposition transcript, relied upon by the Supreme Court in denying that dispositive motion. The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. It is significant that, in Misicki v Caradonna (12 NY3d 511, 519), the Court of Appeals cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (id. at 519).

The Supreme Court erred in denying Eastern Athletic’s motion for summary judgment by deciding that the plaintiff’s deposition transcript was uncertified and, therefore, inadmissible, where that ground of admissibility was not raised by the plaintiff herself. Notably, the plaintiff’s deposition transcript recites that the plaintiff was duly sworn. Moreover, in civil cases, “inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” … .

Had the plaintiff argued in opposition to Eastern Athletic’s motion that her deposition transcript was inadmissible because it was uncertified, Eastern Athletic could have submitted a certification in its reply papers and, if the plaintiff were not prejudiced, the Supreme Court may have considered it … . Eastern Athletic’s failure to submit to the Supreme Court a certified copy of the plaintiff’s deposition was an irregularity and, as no substantial right of a party was prejudiced, the court should have ignored the defect (see CPLR 2001). Rosenblatt v St George Health & Racqetball Assoc LLC, 2014 NY Slip Op 02917, 2nd Dept 4-30-14

 

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Defense Counsel’s Denial of Defendant’s Assertion He Was Forced to Plead Guilty Required Assignment of New Counsel

The Second Department determined defense counsel’s denial of defendant’s claim he was forced to plead quilty by defense counsel’s telling him a rejection of the plea offer would result in a much greater sentence effectively made defense counsel a witness against her client.  A new attorney should have been assigned at that point to protect defendant’s right to counsel.  People v Barr, 2014 NY Slip Op 02949, 2nd Dept 4-30-14

 

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Judge’s Statement Defense Counsel Should Confine Her Opening to What She Intended to Prove, Under the Facts, Did Not Shift Burden of Proof

The Second Department determined the trial judge’s admonition to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof:

Contrary to the defendant’s contention, the Supreme Court’s admonitions to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof. The court thoroughly instructed the jury that the defense did not have to make an opening statement, that the burden of proof remained with the People, and that the defendant had no burden … . Furthermore, the court’s comments did not prevent defense counsel from completing her opening statement, or overly restrict her opening statement … . Under the circumstances of this case, there is no realistic view that the court’s remarks could be interpreted so as to skew the burden of proof .. . The court’s remarks were brief, isolated, and innocuous in context … . People v Robles, 2014 NY Slip Op 02960, 2nd Dept 4-30-14

 

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Shortened Statute of Limitations in Policy Enforced

The Second Department reversed Supreme Court and held that the shortened statute of limitations in the insurance policy was enforceable:

“The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … . “Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentation in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to” … .

* * * The plaintiff did not offer evidence that the defendant’s conduct lulled him into inactivity based on a belief that his claim would ultimately be processed, or that he was “induced by fraud, misrepresentation or deception to refrain from commencing a timely action” … .  John v State Farm Mut Auto Ins Co, 2014 NY Slip Op 02905, 2nd Dept 4-30-14

 

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