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INDEMNIFICATION IS ONLY AVAILABLE IF THE PARTY SEEKING IT IS NOT NEGLIGENT (VICARIOUS LIABILITY); A PARTY WHO IS PARTIALLY NEGLIGENT MAY ONLY SEEK CONTRIBUTION, NOT INDEMNIFICATION, FROM OTHER TORT-FEASORS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the third-party complaint against defendant seeking indemnification should have been dismissed because the third-party plaintiff could not be vicariously liable for the negligence of the defendant. Where a party is partially liable based on its own negligence, only contribution from other tort-feasors, not indemnification, is available:

“The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, that is, the defendant’s role in causing the plaintiff’s injury is solely passive, and thus its liability is purely vicarious” … . However, “where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy” … . De Heras v Avant Gardner, LLC, 2024 NY Slip Op 00999, Second Dept 2-28-24

Practice Point: Indemnification is only available to a party who is vicariously liable for the negligence of another. A party who is partially negligence can only seek contribution, not indemnification, from other tort-feasors.

 

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PLAINTIFF DID NOT MAKE A SUFFICIENTLY STRONG SHOWING TO SUPPORT DISCOVERY OF DEFENDANT’S PERSONAL TAX RETURNS; PLAINTIFF’S ATTORNEY’S FAILURE TO SUBMIT A GOOD FAITH AFFIRMATION WARRANTS DENIAL OF THE DISCOVERY MOTION; THE IMPOSITION OF SANCTIONS WAS NOT SUPPORTED BY EVIIDENCE OF DEFENDANT’S WILLFUL AND CONTUMACIOUS FAILURE TO COMPLY WITH A DISCOVERY ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) plaintiff did not make an adequate showing to warrant discovery of defendant’s personal tax returns; (2) plaintiff’s attorney’s affirmation did not meet the requirements of the “good faith” affirmation required by 22 NYCRR 202.7 (a), and (3) plaintiff did not make a showing sufficient to warrant discovery sanctions:

“Tax returns generally are not discoverable ‘in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources'” … . Here, [defendant] admitted that she deposited some of the rent money she collected into a personal account, which she claimed that she then used to pay expenses on the properties, whereas the plaintiff claimed that [she] used the money to pay her own personal expenses. The plaintiff failed to make a “strong showing” that [defendant’s] personal tax returns are indispensable to proving his claims and that evidence cannot be obtained from other sources, such as bank records … .

Pursuant to 22 NYCRR 202.7(a), all motions relating to disclosure must include “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion” … . * * * “Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7(c) warrants denial of the motion” … . …

“Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the plaintiff failed to make a clear showing of a willful and contumacious failure to comply with discovery demands. Cyngiel v Krigsman, 2024 NY Slip Op 00996, Second Dept 2-28-24

Practice Point. Before a court will order discovery of personal tax returns, the moving party must make a strong showing the information cannot be provided by other sources (not the case here).

 

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IN THIS CHILD VICTIM’S ACT (CVA) ACTION, THE COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR NEGLIGENT SUPERVISION, NEGLIGENT RECRUITMENT AND NEGLIGENT FAILURE TO WARN AGAINST BIG BROTHERS BIG SISTERS OF AMERICA (BBBS) AND FAMILY SERVICES OF WESTCHESTER (FSW) BASED ON THE ALLEGED SEXUAL CONDUCT BY A VOLUNTEER MENTOR (SECOND DEPT). ​

The Second Department determined defendant Big Brothers Big Sisters of America (BBBS)’s and defendant Family Services of Westchester (FSW)’s motions to dismiss the negligent supervision, negligent recruitment and negligent failure to warn causes of action were properly denied in this Child Victims Act (CVA) lawsuit. Plaintiff alleged he was sexually abused by a mentor associated with defendants:

… [T]he amended complaint adequately alleged that the defendants owed a duty of care to the plaintiff and that the sexual abuse by the mentor was foreseeable. Specifically, the amended complaint alleged that the mentor groomed and sexually abused the plaintiff “in connection with [the mentor’s] position as a volunteer with BBBS and FSW” and “in connection with BBBS and FSW sponsored activities.” During all relevant times, BBBS and FSW had allegedly assumed custody and control over the plaintiff “as a minor child in their care.” The amended complaint alleged that the defendants had a duty to “take reasonable measures to guard against child sexual abuse by volunteers” and that the defendants failed to ensure that there were reasonable screening or recruitment measures in place to prevent such abuse. The amended complaint further alleged that BBBS published two reports demonstrating that, while the plaintiff’s abuse was ongoing, BBBS was aware that the services it offered “attract[ed] child sexual abusers,” that the clients of BBBS were at “high risk” for potential abuse, and that the selection process used to match mentors with mentees did not appropriately incorporate child sexual abuse prevention training (internal quotation marks omitted). Moreover, the amended complaint alleged that the mentor had “dangerous propensities,” that the defendants “should have known” that the mentor had a propensity to sexually abuse children, and that oversight and monitoring of the mentor’s interactions with his prior mentees “would have revealed [the mentor’s] pattern of predatory behavior.” At the pleading stage of the litigation, where the plaintiff’s allegations are accepted as true and are accorded the benefit of every possible favorable inference, the plaintiff adequately alleged that the defendants owed the plaintiff a duty of care and that the sexual abuse by the mentor was foreseeable … . Brophy v Big Bros. Big Sisters of Am., Inc., 2024 NY Slip Op 00993, Second Dept 2-28-24

Practice Point: Here in this Child Victims Act (CVA) case, the complaint adequately alleged negligent supervision, negligent recruitment and negligent failure to warn.

 

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THE FAILURE TO SUBMIT THE RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED RENDERED THE REPORT INADMISSBILE HEARSAY IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing the confirmation of the referee’s report in this foreclosure action, determined the absence of the records relied upon for the referee’s computations rendered the report inadmissible hearsay:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

… [T]he referee’s report was improperly premised upon unproduced business records. In support of its motion, the plaintiff submitted an affidavit from an employee of the plaintiff, An Dang, which the referee relied upon in computing the amount due to the plaintiff. However, the record does not reflect that the plaintiff submitted the business records upon which An Dang or the referee relied in computing the total amount due on the mortgage, as well as payments for taxes, insurance, and other advances. Therefore, the referee’s findings were not substantially supported by the record … . U.S. Bank N.A. v Jong Shin, 2024 NY Slip Op 01029, Second Dept 2-28-24

Practice Point: In a foreclosure action, a referee’s report based upon records which were not submitted to the court is inadmissible hearsay.

 

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THE CONTRACTOR WHICH UNDERTOOK THE DUTY TO INSTALL FLOORING WAS REQUIRED TO PERFORM THAT DUTY WITH REASONABLE CARE; THE OWNER OF THE PROPERTY HAD A SEPARATE NONDELEGABLE DUTY TO KEEP THE PROPERTY SAFE WHICH MAY ALLOW THE CONTRACTOR’S NEGLIGENCE TO BE IMPUTED TO THE OWNER; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) defendant contractor (AW&S) undertook the duty to install flooring and was therefore required to perform that duty with reasonable care, and (2) the owner of the property (UJA) had a separate, nondelegable duty to keep the premises safe. There was evidence AW&S failed to secure portions of the flooring it installed and that failure was the proximate cause of plaintiff’s trip and fall. Defendants did not present any evidence of when the floor was last inspected prior to the fall and therefore did not demonstrate the absence of constructive notice of the defect:

Defendants failed to establish prima facie that they were not negligent in the installation and maintenance of the Masonite flooring on which plaintiff tripped and fell … . Although defendants claim that they neither created nor had actual or constructive notice of the condition that caused plaintiff’s injuries, the record establishes that defendant owner … (UJA) requested that defendant … (AW&S) protect the floors during a renovation project in its building for which AW&S served as general contractor. … AW&S specifically undertook responsibility for the installation, maintenance, and inspection of the protective Masonite flooring while it was on site, and the project superintendent noted that there were sections of Masonite that lacked duct tape securing it to the floor in the area where plaintiff tripped and fell. Based on this testimony, there are questions of fact as to whether AW&S’s failure to secure the Masonite, or to note that it was not secured upon inspection, was the proximate cause of plaintiff’s injuries … . … [W]here a defendant has undertaken a specific duty, it is obligated to perform that duty with reasonable care or be liable for any hazards it creates … . UJA, as owner, has a separate, nondelegable duty to maintain its premises, and AW&S’s negligent maintenance of the Masonite, if established, could be imputed to UJA …

Defendants also failed to make a prima facie showing that they lacked constructive notice of the condition. Neither defendant offered evidence of maintenance and inspection records despite testimony that the duct tape on the Masonite required routine replacement when it became curled or wet … .  …[P]laintiff was not required to establish how long the condition existed … . Bolson v UJA-FED Props. Inc., Ltd., 2024 NY Slip Op 00966, First Dept 2-27-24

Practice Point: A contractor which assumes the duty to do work, here floor-installation, is required to do so with reasonable care.

Practice Point: The property owner which hires a contractor to do work has a separate nondelegable duty to keep the premises safe such that a contractor’s negligence may be imputed to the owner.

 

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THE ALLEGATIONS OF DEFENDANTS’ CONDUCT DURING PHOTO SHOOTS OF PLAINTIFF-MODEL WHEN SHE WAS 16 AND 17 YEARS OLD MET THE “SEXUAL CONDUCT” CRITERIA FOR THE EXTENDED STATUTE OF LIMITATIONS UNDER THE CHILD VICTIMS ACT (CVA), THE COMPLAINT STATED CAUSES OF ACTION FOR INVASION OF PRIVACY PURSUANT TO CIVIL RIGHTS LAW SECTION 50 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, modifying Supreme Court in this Child Victims Act (CVA) action, determined: (1) the conduct alleged to have been committed by defendant modeling agency (Wilhelmina) and defendant-seller of sun tan products (Cal Tan) during photo shoots of plaintiff-model when she was 16 and 17 years old met the criteria for “sexual conduct” within the meaning of the extended statute of limitations under the CVA (CPLR  214-g); (2) New York has jurisdiction over the case against Cal Tan, even though the Cal Tan photo shoot took place in Mexico (plaintiff was a New York resident); (3) the negligent supervision and breach of fiduciary causes of action against Cal Tan were properly dismissed because no allegations supported a duty to supervise; (4) the negligent supervision and breach of fiduciary duty causes of action against Wilhelmina should not have been dismissed because no arguments in opposition were interposed; and (5) the invasion of privacy causes of action (Civil Rights Law section 50) against both defendants survived the motions to dismiss. The following allegations were deemed sufficient to meet the “sexual conduct” criteria for the applicability of the CVA’s extended statute of limitations:

Plaintiff’s allegations as to Cal Tan include that she was “instructed . . . to arch her back and look at the camera ‘sexy,’ ‘like a lover,’ and think about doing ‘naughty things with your boyfriend,'” and that the photographs generated from the photoshoot “included ones in which Doe was depicted topless with her back arched in a sexually suggestive pose; looking out to the sea in a sultry manner; in which she was completely topless and ‘naked in the water’; where she is posed suggesting a willingness to engage in sexual activity; and where Doe is standing on a roof, semi- or totally naked.”

As to Wilhelmina, plaintiff alleged that at one photoshoot, “[s]he was photographed in [see-through lingerie] with another girl, also wearing see-through lingerie, together in bed. Doe and the other underage model wore coy expressions, as if together they had been doing something naughty, or sexual;” at another photoshoot, where plaintiff was unclothed, she was “instructed . . . to look ‘innocent, but sexy’ for some photos, and like a ‘bad girl’ for others”; and that at a third photoshoot she “was made to sit nude on a bed with a white sheet covering part, but not all, of her breast and buttocks.” Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 00969, First Dept 2-27-24\

Practice Point: This comprehensive opinion lays out the criteria for “sexual conduct” within the meaning of the extended statute of limitations under the Child Victims Act (CVA). Here allegations of defendants’ conduct during  photo shoots of plaintiff-model when she was 16 and 17 years old met the CVA sexual-conduct criteria.

 

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THE PURPORTED ORAL ASSIGNMENT OF A SUBLEASE FOR MORE THAN A YEAR VIOLATED THE STATUTE OF FRAUDS; THE CRITERIA FOR AN ASSIGNMENT “BY OPERATION OF LAW” WERE NOT MET (FIRST DEPARTMENT). ​

The First Department, reversing (modifying) Supreme Court, determined the oral assignment of a sublease was invalid under the statute of frauds and there was no assignment “by operation of law:”

An oral assignment of the sublease here would have to satisfy the statute of frauds, which requires the assignment of such a sublease (for more than one year) to be in writing (see General Obligations Law § 5-703[2] …). Although, in the absence of a written assignment, a presumption of “assignment by operation of law” sufficient to satisfy the statute of frauds may be created by a “tenant in possession” paying rent … , such as where a tenant pays the full rent for some extended period of time … , no such presumption applies in the circumstances here. The terms of the sublease allowed for a sublease/occupation but expressly forbade oral assignments and included a “no waiver” clause, and the occupancy and payments by [defendant]  here was not conduct “unequivocally referrable” to any purported agreement by the parties to orally modify the no oral assignment term … . Innerworkings, Inc. v Arik Eshel CPA & Assoc. P.C., 2024 NY Slip Op 00972, First Dept 2-27-24

Practice Point: An oral assignment of a sublease for more than a year violates the statute of frauds.

Practice Point: Payment of rent for an extended period of time may satisfy the statute of frauds “by operation of law” (not the case here).

 

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FAMILY COURT’S RELIGION-BASED DIRECTIVES IN THIS CUSTODY CASE WERE NOT WITHIN THE “BEST INTERESTS OF A CHILD” CATEGORIES OUTLINED IN THE SEMINAL CASE, ALDOUS V ALDOUS, AND WERE THEREFORE VACATED (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, in a full-fledged opinion by Justice Reynolds Fitzgerald, over a partial concurrence and partial dissent, determined Family Court’s directives with respect to religion in this custody case should be vacated:

While a court may consider religion as a factor in determining the best interests of a child in custody disputes, “it alone may not be the determinative factor” (Aldous v Aldous, 99 AD2d 197 …). Additionally, cases that do consider religion as a factor generally fall into three separate categories: (1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being … . This standard, enunciated in 1984, continues to be followed … .

None of the three categories outlined in Aldous are applicable to the case before us. The July 2020 consent order granted the parties joint legal custody with equal parenting time. Notably, no reference is made to religion in the custody order. At the time the petitions were filed, the child was not quite two years old and, as such, not of an age so as to allow him to have developed actual religious ties to a specific religion. Nor does the record reveal that the father’s religious beliefs violated a state statute or threatened the child’s well-being. As a result, Family Court improperly intervened in the parties’ religious dispute … . Thus, the court’s directives to the parties that neither parent shall permit the child to attend religious services or instruction until an agreement between the parties is reached on this issue, to address the issue of religion while participating in court-ordered coparenting counseling, and that a failure to reach an agreement with regard to religion will — after completing the court-ordered number of coparenting sessions — constitute a change in circumstances for purposes of modification, were issued in error and should be vacated. Matter of Joseph XX. v Jah-Rai YY., 2024 NY Slip Op 00950, Third Dept 2-22-24

Practice Point: The religious directives issued by Family Court in this custody case were outside the three “best interests of a child” categories outlined in the controlling case, Aldous v Aldous, i.e., “(1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being.”

 

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THE ROLLING LADDER LEFT IN THE AISLE OF DEFENDANT’S STORE WAS READILY OBVERSABLE, WHICH SPEAKS ONLY TO DEFENDANT’S DUTY TO WARN, NOT TO THE DUTY TO KEEP THE PREMISES SAFE; THE PROTRUDING BAR ON THE LADDER CREATED A POTENTIAL TRIPPING HAZARD; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant store’s motion for summary judgment in this trip and fall case should not have been granted. A rolling ladder had been left in an aisle of the store. The was a stabilizer bar which protruded out several inches on each side of the ladder. Plaintiff picked up something from the shelf, took one step back and tripped over the stabilizer bar as she turned. Supreme Court held the bar was readily observable and not inherently dangerous. The Third Department noted that the “readily observable” aspect of a condition goes to the duty to warn, but the duty to keep the area safe remains:

That the ladder was readily observable obviates defendants’ duty to warn of the ladder’s presence but not defendants’ continuing obligation to maintain the property in a reasonably safe condition … . For her part, plaintiff acknowledged seeing the ladder, but was unaware of the protruding stabilizer bar prior to her fall. Given the circumstances surrounding the incident, we cannot agree with Supreme Court’s assessment that the ladder was not inherently dangerous … . The record includes a photograph of the ladder which shows that the stabilizer bar protruded out several inches on each side. This feature, coupled with the placement of the ladder into the center of the aisle, presented a potential tripping hazard. Viewing the evidence in the light most favorable to plaintiff as the nonmoving party … , a question of fact remains as to whether defendants’ premises were maintained in a reasonably safe condition. Wolfe v Staples, Inc., 2024 NY Slip Op 00957, Third Dept 2-22-24

Practice Point: The fact that an object over which plaintiff tripped was readily observable goes to defendant’s duty to warn, but not to the duty to keep the premises safer. Here a protruding bar on a readily observable rolling ladder created a potential tripping hazard and raised a question of fact about defendant’s duty to keep the premises safe.

 

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ALTHOUGH THE SANITARY CODE DID NOT REQUIRE DEFENDANT SUMMER CAMP TO HAVE A LIFEGUARD, THE CODE DID REQUIRE THE CAMP TO OFFER SOME SUPERVISION OF PERSONS USING THE SWIMMING POOL; THEREFORE THE SUMMER CAMP OWED PLAINTIFF’S DECEDENT, WHO SUFFERED A MEDICAL EMERGENCY IN THE POOL, A DUTY OF CARE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant summer-camp-owners’ motion to dismiss the complaint in this swimming-pool-incident case should not have been granted. Plaintiff’s decedent suffered some sort of “medical emergency” in defendants’ swimming pool. Supreme Court dismissed the complaint, finding that the Sanitary Code did not require the camp to have a lifeguard and therefore defendants owed no duty to the plaintiff’s decedent. The Third Department held that, although the Sanitary Code did not require a lifeguard, it did require some level of supervision of persons using the pool:

While the CPR [lifeguard] requirement is specifically exempted for temporary residences [like defendants’ summer camp], the aquatic supervisor for a supervision level III [defendants had chosen to offer supervision level III] at a temporary residence must still possess the other enumerated qualifications (see 10 NYCRR 6-1.31 [c]). To find otherwise would render meaningless 10 NYCRR 6-1.23 (a) (3), which provides that if supervision level III is chosen then the temporary residence must adhere to the supervision level III requirements … . While it is true that 10 NYCRR 6-1.23 (a) (1) (i) exempts CPR certified staff [lifeguards] from a temporary residence that selects supervision level III, it plainly does not exempt these facilities from providing any supervision. As such, we find that Supreme Court erred in determining that defendants did not owe any duty to decedent and granting defendants summary judgment on this basis. Matter of Tamrazyan v Solway Props. LLC, 2024 NY Slip Op 00960, Third Dept 2-22-24

Practice Point: Here the duty owed by defendant summer camp to persons using the swimmer pool was spelled out in the Sanitary Code. Although the defendant summer camp, pursuant to the Code, was not required to provide a lifeguard, it was required to offer some supervision of persons using the swimming pool. Therefore the complaint should not have been dismissed on the ground that defendant did not owe a duty to plaintiff’s decedent, who suffered a medical emergency in the pool.

 

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