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Summary Judgment in Rear-End Collision Case

In a rear-end collision case, the Second Department affirmed summary judgment in favor of the plaintiff on liability.  The accident occurred when the weather was clear and the roads dry:

“A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … . A conclusory assertion by the operator of the following vehicle that the sudden stop of the vehicle caused the accident is insufficient, in and of itself, to provide a nonnegligent explanation … . The issue of comparative fault will be left for a jury to determine only where there is a triable issue of fact as to whether the frontmost driver also operated his or her vehicle in a negligent manner … . However, ” [v]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead’… . Gutierrez v Trillium USA, LLC, 2013 NY Slip Op 07450, 2nd Dept 11-13-13

 

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Defendant Failed to Demonstrate Lack of Constructive Notice of Condition; Did Not Present Evidence of Last Inspection of Area Where Slip and Fall Occurred

In a slip and fall case, the Second Department noted defendants’ failure to demonstrate when the area where the fall occurred had last been inspected:

By failing to demonstrate when the area where the plaintiff fell was last inspected in relation to the accident, the defendants failed to make a prima facie showing that they lacked constructive notice of the allegedly dangerous condition described by the plaintiff … . Further, the defendants, by merely pointing to gaps in the plaintiff’s proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden as movants seeking summary judgment on the issue of whether the condition complained of did in fact constitute a defect… . Griffin v JK Chopra Holding LLC, 2013 NY Slip Op 07448, 2nd Dept 11-13-13

 

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Article 81 Guardianship Hearing Should Not Have Been Held in the Absence of the Alleged Incapacitated Person; Counsel Should Have Been Appointed for the Alleged Incapacitated Person

The Second Department determined a hearing pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person should not have been held in the absence of the alleged incapacitated person.  The court further held counsel should have been appointed for the alleged incapacitated person:

The Supreme Court erred in conducting a hearing in the appellant’s absence. There was no evidence presented at the hearing that the appellant was unable to be present in court, that she was unable to participate in the hearing, or that no meaningful participation would result from her presence … . Furthermore, the court failed to set forth in the resulting order and judgment of appointment a sufficient factual basis for conducting the hearing without the appellant being present (see Mental Hygiene Law § 81.11[d]…).

Moreover, since there was no evidence that the appellant made an informed decision to refuse the assistance of counsel, the Supreme Court should have appointed counsel to represent her… Matter of Gulizar NO (Rudy O), 2013 NY Slip Op 07489, 2nd Dept 11-13-13

 

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Statutory Requirements for Recovery and Limits Imposed by Subrogation Explained; ”Law of the Case” Doctrine in Appellate Context Explained

In a full-fledged opinion by Justice Chambers, the Second Department determined plaintiff could not rely on the doctrine of the law of the case (a decision in a prior appeal) to prove the amount owed on its mechanic’s liens. The court used the opportunity to explain the “law of the case” doctrine (re: prior appellate decisions) and “review the statutory requirements for recovery under the Lien Law, and the limits on recovery imposed by the principle of subrogation:”

In addition to a lienor’s right to recover being limited by the contract price or reasonable value of the materials provided, it is further limited by the principle of subrogation (see 8-92 Warren’s Weed New York Real Property § 92.11[1], [4]; 34 New York Practice: Mechanics Liens in New York § 2:3. Lien Law § 4(1) provides, “If labor is performed for, or materials furnished to, a contractor or subcontractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the owner be liable to pay by reason of all liens created pursuant to this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notices of such liens, except as hereinafter provided.” In other words, no individual mechanic’s lien can exceed the amount owed by the owner to the general contractor at the time of filing the lien … . Money still due and owing from the owner to the contractor at the time of the filing of the lien, plus any sums subsequently earned thereon, is known as the “lien fund”… .  The subcontractor’s right to recover is derivative or subrogated to the right of the general contractor to recover. Thus, if the general contractor is not owed any amount under its contract with the owner, then the subcontractor may not recover… .  Peri Formwork Sys Inc v Lumbermens Mut Cas Co, 2013 NY Slip Op 07461, 2nd Dept 11-13-13

 

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Contractor Working for Tenant Could Not Impose Mechanic’s Lien on Property Owner; Owner Acquiesced In, But Did Not Affirmatively Consent to, Work

The Second Department determined that the contractor, Matell, who was hired by the tenant to construct a supermarket, could not impose a mechanic’s lien upon the property owner (Fleetwood Park) based on the tenant’s failure to pay.  In affirming the dismissal of two affirmative defenses, the court explained that the lien was timely filed and privity was not required for a valid mechanic’s lien. On the “affirmative consent of the property owner requirement,” the court wrote:

“A contractor who performs work for, or provides equipment to, a tenant may nonetheless impose a mechanic’s lien against the premises where the owner of the premises affirmatively gave consent for the work or equipment directly to the contractor, but not where the owner has merely approved or acquiesced in the undertaking of such work or the provision of such equipment” … . “To sustain the lien, the owner must either be an affirmative factor in procuring the improvement to be made, or having possession and control of the premises assent to the improvement in the expectation that he [or she] will reap the benefit of it'” … .

Here, while Matell presented evidence showing that Fleetwood Park had knowledge of, and acquiesced in, the work performed to convert the leased property into a supermarket for the tenant’s use, Matell failed to present any evidence showing that Fleetwood Park conveyed any affirmative consent directly to Matell for the work … . Therefore, Matell failed to make a prima facie showing that Fleetwood Park affirmatively consented to the subject work.  Matell Contr Co v Fleetwood Park Dev LLC, 2013 NY Slip Op 07456, 2nd Dept 11-13-13

 

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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

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Cause of Action for Breach of “Sharing Assets” Agreement Entered Into During an 18-Year “Committed Same-Sex Relationship” Reinstated

In a full-fledged opinion by Justice Austin, over a dissent, the Second Department determined plaintiff had stated a cause of action for breach of contract based upon an agreement made during an 18-year “committed, same-sex relationship.” The complaint alleged that the partners had entered an oral “joint venture/partnership” agreement involving sharing assets, including retirement contributions and earnings, in exchange for plaintiff’s leaving her full-time job to care for the partners’ children. Supreme Court had dismissed the complaint. The Second Department reinstated the breach of contract cause of action but affirmed the dismissal of the constructive trust, unjust enrichment and accounting causes of action.  With respect to breach of contract, the court wrote:

[The] factual allegations adequately set forth the existence of a contract pursuant to which the plaintiff would quit working full-time, thereby ceasing to earn money toward her own retirement plan, and pursue part-time work enabling her to stay home to care for the parties’ children, in exchange for a one-half share in the defendant’s retirement accounts accrued during those years that the plaintiff refrained from working at a job which provided retirement benefits.

The alleged contractual agreement between the parties was supported by consideration. “Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]” … . The consideration here for the alleged contract is the forbearance of the plaintiff’s  career, the inability to continue to save toward her retirement during that forbearance, and her maintenance of the household in return for a share in the defendant’s retirement benefits and other assets earned during the period of forbearance … . Since the plaintiff also alleged that the defendant breached the alleged agreement and that she has sustained damages as a result of that breach, at this pleading stage, the eighth cause of action must survive dismissal … .

The fact that the alleged agreement was made by an unmarried couple living together does not render it unenforceable. “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together, provided only that illicit sexual relations were not part of the consideration of the contract'” … . “[W]hile cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law” … . Dee v Rakower, 2013 NY Slip Op 07443, 2nd Dept 11-13-13

 

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Allegations of Economic Injury Not Sufficient to Establish Standing to Challenge Governmental Action Under State Environmental Quality Review Act

The Second Department affirmed Supreme Court’s dismissal of a petition brought by the National Oil Recyclers Association (NORA) challenging the NYC Department of Environmental Protection’s (DEP’s) finding that proposed amendment s to the NYC rules regarding emissions from use of grade numbers 4 and 6 fuel oils would lead to reduced emissions and would have no significant adverse impacts on the quality of the environment.  The court explained that NORA did not have standing to challenge the finding and the DEP’s failure to provide an explanation for not publishing the proposed rules in its yearly regulatory agenda did not invalidate the rules:

To establish standing to challenge governmental action under the State Environmental Quality Review Act (ECL art 8, hereinafter SEQRA), the petitioners must show (1) that they will suffer an environmental injury that is in some way different from that of the public at large, i.e., that there is an “injury in fact,” and (2) that the alleged injury falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken … .

Allegations of potential economic injury alone are insufficient to confer standing under SEQRA … . Here, the first and second causes of action allege the potential of economic harm, but they do not sufficiently allege that the petitioners will suffer an environmental injury that is in some way different from that of the public at large. Such allegations are insufficient to confer standing to assert the first and second causes of action … . Matter of County Oil Co Inc v NYC Dept Envtl Protection, 2013 NY Slip Op 07474, 2nd Dept 11-13-13

 

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State Pollutant Discharge Permit Properly Approved by DEP

The Second Department reversed Supreme Court and determined the NYS Department of Environmental Conservation properly approved the issuance of a state pollutant discharge elimination system general permit for stormwater discharges from municipal separate storm sewer systems.  Supreme Court held “the General Permit created an impermissible self-regulatory system that failed to ensure that small municipalities reduced their pollutant discharges to the “maximum extent practicable,” as required by 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c), that the General Permit failed to specify compliance schedules with respect to effluent limitations and water quality standards, as required by 6 NYCRR 750-1.14, and that the General Permit unlawfully failed to provide an opportunity for a public hearing on proposed notices of intent before they were submitted to the DEC, in violation of 33 USC § 1342(a)(1) and ECL 17-0805(1)(a)(ix).”  The Second Department disagreed, discussing its reasoning in detail:

…[T]he “[m]aximum extent practicable . . . is the statutory standard that establishes the level of pollutant reductions that operators of regulated MS4s must achieve” (64 FR 68722, 68754; see 40 CFR 122.34[a]). The “EPA has intentionally not provided a precise definition of [maximum extent practicable] to allow maximum flexibility in MS4 permitting” (64 FR 68722, 68754). It has determined that “MS4s need the flexibility to optimize reductions in storm water pollutants on a location-by-location basis” (id.). The “EPA envisions that this evaluative process will consider such factors as conditions of receiving waters, specific local concerns, . . . MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance”… . * * *

Contrary to the petitioners’ contention, the General Permit does include a variety of enforcement measures that are sufficient to comply with the maximum extent practicable standard, as described in state and federal statutes (see 33 USC § 1342[p][3][B][iii]; ECL 17-0808[3][c]). * * *

It was not arbitrary and capricious for the DEC to limit the opportunity for public hearings to those situations in which a new general permit is proposed or an existing general permit is renewed, since any modifications to a draft general permit resulting from public comment and hearings will extend to all covered entities … .  Matter of Natural Resources Defense Council Inc v NYS Dept of Envtl Conservation, 2013 NY Slip Op 07488, 2nd Dept 11-13-13

 

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Prosecutor’s Circumvention of the Bruton Rule Required Reversal

The Second Department reversed defendant’s conviction because of the misconduct of the prosecutor.  In spite of the pre-trial ruling redacting the confession of the co-defendant pursuant to the Bruton rule (prohibiting the use of a non-testifying codefendant’s confession), the prosecutor repeatedly indicated to the jury that the codefendant had implicated the defendant:

…[D]uring opening statements, the prosecutor told the jury that, after the nontestifying codefendant was arrested, the police learned of the involvement in the crime of someone called “Live,” i.e., the defendant. Thus, the prosecutor improperly implied that the codefendant implicated the defendant in the crime … . In denying the defendant’s mistrial motion based on this conduct, the court nonetheless admonished the prosecutor, … telling him that the court was “not happy with the remarks.”

Despite this admonishment, in summation, the prosecutor again implied that the codefendant had implicated the defendant. Specifically, he unequivocally suggested that the unnamed accomplice referred to in the “question and answer” portion of the statement, whom the codefendant stated had a 9 millimeter gun, was the defendant. Further, the prosecutor projected for the jury, on a video screen, a copy of the codefendant’s statement, with the word “we” highlighted in red, and directly suggested that the jury should draw the inference that “we” in the codefendant’s statement referred to the codefendant and the defendant. Under the circumstances of this case, this conduct constituted “an unjustifiable circumvention” of the Bruton rule …, and deliberate defiance of the pretrial order. People v Singleton, 2013 NY Slip Op 07509, 2nd Dept 11-13-13

 

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