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Defendant Shoveled Sidewalk and Snow Piled on Either Side Melted/Question of Fact Whether Defendant Created the Dangerous Condition Resulting from Subsequent Freezing of Melted Snow

The Second Department determined a question of fact existed about whether defendant created the hazardous condition (ice on a sidewalk) which caused plaintiff to fall.  Defendant testified she shoveled the sidewalk which left one-foot high piles of snow on either side of the sidewalk.  She also testified that she observed the piles of snow melting.  The temperature subsequently fell below freezing and was below freezing at the time of the accident:

The defendant, as the property owner, failed to establish as a matter of law that her snow removal activities did not create the allegedly hazardous icy condition which resulted in the plaintiff’s injuries … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the ice upon which the plaintiff slipped was formed when snow piles created by the defendant’s snow removal efforts melted and refroze … . Viera v Rymdzionek, 2013 NY Slip Op 08615, 2nd Dept 12-26-13

 

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Rear-End Collision: No Rational Process By Which Jury Could Have Found Plaintiff Negligent

The Second Department determined there was no rational process by which the jury could have found the plaintiff negligent in a rear-end collision case.  Plaintiff’s CPLR 4401 motion for judgment as a matter of law should have been granted. The plaintiff was stopped to allow a pedestrian, who had run in front of the vehicle, to cross.  The defendant acknowledged that he took his eyes off the road briefly to look at the pedestrians and then struck the rear of plaintiff’s car:

” 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'” … . Moreover, although the issue of comparative fault generally presents a question of fact …, that issue should be submitted to a jury “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” … .

Here, viewing the evidence in the light most favorable to the defendant, there is no rational process by which the jury could find that the defendant had a nonnegligent explanation for the accident, or that the plaintiff was, to any extent, at fault in the happening of the accident. Clarke v Phillps, 2013 NY Slip Op 08585, 2nd Dept 12-26-13

 

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“Wheel Stop” in Parking Lot Does Not Present an Unreasonable Risk of Harm

In this slip and fall case, the Second Department determined that a “wheel stop” or concrete divider in a parking lot is an open and obvious condition that does not present an unreasonable risk of harm:

While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons …, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … . Bellini v Gypsy Magic Enters Inc, 2013 NY Slip Op 08581, 2nd Dept 12-26-13

 

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Labor Law 241(6) Action Should Not Have Been Dismissed/Power Washing Was Integral to the Painting Process and Was Not “Routine Maintenance”

The Second Department determined the Labor Law 241(6) action should not have been dismissed because the work plaintiff was doing, power-washing a building in preparation for painting, was not “routine maintenance,” but rather was an integral part of the painting process:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision …, and the power washing performed here … was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing did not constitute “routine maintenance” excluded from the ambit of Labor Law § 241(6), but rather, constituted surface preparation, an integral part of the painting process contemplated by the parties.  Dixson v Waterways at Bay Pointe Home Owners Assn Inc, 2013 NY Slip Op 08591, 2nd Dept 12-26-13

 

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Imprisonment and Prosecution Based Upon the Violation of an Administratively Imposed Period of Post Release Supervision Gave Rise to Valid False Imprisonment and Malicious Prosecution Causes of Action Against the State

In a lengthy and thorough opinion by Justice Spain, the Third Department determined that the claimant, who was imprisoned and prosecuted based upon an administratively imposed “post release supervision” (PRS) violation, was entitled to summary judgment on his false imprisonment cause of action and had stated a cause of action for malicious prosecution.  The claimant was held in custody and prosecuted after the Court of Appeals had ruled that only the sentencing court can impose a term of post release supervision (Garner v NYS Dept of Correctional Services, 10 NY3d 358 [2008]):

…[C]aimant sufficiently alleged that his confinement was not privileged and it was defendant’s burden to establish that its confinement of claimant after Garner was privileged; defendant failed in the Court of Claims to produce a Division of Parole arrest warrant or a court order so as to demonstrate their validity or that the arrest or confinement of claimant was privileged … .   Further, to clarify, claimant does not challenge his arrest prior to Garner but, rather, premises his claims on his continued detention and reincarceration – after Garner – for a parole violation based upon an administrativelyimposed PRS term that Garner clearly held was invalid, i.e., he raises a claim for false imprisonment and not for false arrest. * * *

…[D]efendant does not have immunity for the actions of its parole officials.  To be sure, inherently discretionary parole decisions of government officials have been recognized to be quasi-judicial decisions entitled to absolute immunity … .  “Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” … .  That is, “[t]here is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter.  The former is privileged, the latter is not”… . * * *

We similarly conclude that claimant stated a cause of action for malicious prosecution.  To make out a claim for malicious prosecution, claimant must establish: “(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” …. .  … On the second prong, claimant need not “demonstrate innocence” of the parole violation in order to satisfy that favorable termination prong; rather, claimant can satisfy it by showing that “there can be no further prosecution of the [alleged parole violation]” … .  We believe it self evident, under the facts here and despite the lack of state law on point, that defendant could not, after Sparber and Garner, ever lawfully prosecute claimant on a parole violation that occurred before those decisions, where the PRS in effect at the time of the alleged violation was imposed by DOCS and was, as such, a nullity… Moulton v State of New York, 515096, 3rd Dept 12-26-13

 

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“Concerted Action Liability” Causes of Action Dismissed/No Evidence Media Defendants Conspired with the Police to Use Excessive Force During Filmed Execution of Search Warrant

The Second Department affirmed the dismissal of causes of action against media defendants who filmed the execution of a search warrant by the police.  Plaintiff was shot during the incident.  Plaintiff alleged that the media defendants (including Yates and HBO) had conspired with the police to use excessive force to maximize the entertainment value:

A theory of “[c]oncerted action liability rests upon the principle that [a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him [or her]'” … . As stated in our prior decision in this action, the liability of HBO and Yates under a concerted action theory “cannot stem from the mere act of filming the NYPD’s use of excessive force” … . Such liability must be predicated on proof that HBO and Yates “formed a common plan with the NYPD to use excessive force in the execution of the warrant, and that such plan created an unreasonable danger to persons such as the plaintiff and was a proximate cause of her injuries” … .

Here, Yates and HBO established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not participate, either directly or indirectly, in a common plan or design to commit the allegedly tortious act that caused the plaintiff’s injuries… . Rodriguez v City of New York, 2013 NY Slip Op 08609, 2nd Dept 12-26-13

 

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Insurance Company’s Failure to Submit Second Request for Verification of No-Fault Claim Precluded Tolling of 30-Day Payment Period

The Second Department determined that defendant insurance company’s failure to issue a second request for verification to the hospital which had submitted a no-fault claim precluded the insurance company from asserting the hospital’s failure to reply to the request for verification as a basis for not paying the claim within 30 days:

Upon the hospital’s failure to timely comply with the defendant’s initial request for verification within “30 calendar days after the original request [for verification]” (11 NYCRR 65-3.6[b]), the defendant was under a regulatory duty to issue a second request for verification within 10 days after the expiration of that 30-day period (see 11 NYCRR 65-3.6[b]…). In the absence of any such second request for verification, there is no merit to the defendant’s contention that the 30-day period within which it had to pay, deny, or request verification of the claim had been extended. The defendant “failed to submit any evidence that it mailed a second or follow-up request for verification at the end of the 30-day period subsequent to [its] mailing [of] the initial request for verification”… . Westchester Med Ctr v Allstate Ins Co, 2013 NY Slip Op 08616, 2nd Dept 12-26-13

 

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In a Neglect Proceeding, the Review of Sealed Documents by the Evaluating Psychologist Required that His Testimony Be Entirely Discounted

In a neglect proceeding, the Third Department, in the full-fledged opinion by Justice Spain noted the evaluating psychologist’s testimony must be entirely discounted because the psychologist reviewed sealed documents to which he should not have had access:

…Steven Silverman, [the evaluating psychologist] reviewed not only the subject reports, but also many of the other juvenile delinquency records that were properly – and undeniably – sealed under Family Ct Act § 375.1.  Although it is unclear how Silverman came into possession of the sealed materials, his review of such documents plainly was error – as was his review of the subject reports, the latter of which Family Court and counsel expressly agreed would not be made available to him.  As Silverman clearly reviewed a multitude of documents to which he should not have had access, and as there is no meaningful way to gauge the impact of those materials upon the opinion he ultimately rendered, we agree with respondent that Silverman’s testimony should be discounted in its entirety.  Matter of Dashawn Q…, 2013 NY Slip Op 08565 [114 AD3d 149], 3rd Dept 12-26-13

 

 

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Family Court Erred in Allowing Court Appointed Special Advocates Access to Confidential Records and Proceedings

The Third Department, in a full-fledged opinion by Justice Spain, determined Family Court had improperly allowed Court Appointed Special Advocates (CASA) to have access to confidential records and proceedings concerning children who were in foster care.  The court first noted that CASA was not a party and therefore did not have the right or capacity to seek relief from the court.  After finding that the petitioner (Social Services) did not have the power to direct the foster parents not to speak with CASA volunteers, the Third Department held that Family Court had erred in allowing CASA access to certain confidential records and proceedings:

With regard to Family Court’s unqualified directive that a CASA volunteer be permitted to attend all family service plan review meetings, and requiring petitioner to provide notice thereof, we find that the court exceeded its authority.  Service plan reviews, which are aimed at ultimately achieving permanent discharge of children in foster care, require petitioner “to review progress made through implementation of the previous service plan, identify issues of concern and suggest modifications that impact on and inform the development of a new service plan for the case” (18 NYCRR 430.12 [c] [2] [i]; see 18 NYCRR 428.9).  The reviews will often entail in-depth sharing, discussion and consideration of confidential information, such as medical and mental health information of the children or parents and reports of abuse and maltreatment… . * * *

Family Court lacked the authority to direct petitioner to “provide [the] CASA [volunteer] with the names of individuals and agencies providing mental health services to the children” subject only to the “providers, using their own professional judgment,” determining “what if any information regarding the children may be shared with [the] CASA [volunteer].”  Mental Hygiene Law § 33.13 (c) prohibits the release of mental health records contained in foster care records except in limited circumstances, including “pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13 [c] [1]). The court here expressly declined to make such a finding, and petitioner is statutorily bound to keep such information confidential… .  Matter of Evan E…, 516055, 3rd Dept 12-26-13

 

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Petitioner Met Burden of Establishing His Acknowledgment of Paternity Was Signed by Reason of a Mistake of Fact/Petitioner Not Estopped from Denying Paternity

The Second Department, over a dissent, determined petitioner met his burden of proof in establishing his acknowledgment of paternity (AOP) was signed by reason of mistake of fact and sent the matter back for a determination of paternity:

Here, the petitioner testified that he signed the AOP because, during the relevant time period, he and the respondent were having sexual relations and the respondent represented that he was the biological father. He also testified that it was only after he executed the AOP that he learned from coworkers that another man may be the child’s actual biological father, causing him to question his paternity. The petitioner’s testimony was sufficient pursuant to Family Court Act § 516-a(b)(ii) to establish a material mistake of fact … .

Further, in light of the Family Court’s finding that the petitioner did not meet his initial burden of proof, no hearing was held on the matter of the child’s best interests. However, since it is undisputed that the parties were never married to each other and did not live together at any time during the child’s life, the petitioner had only visited with the child approximately five or six times before visitation ceased altogether when the child was less than eight months old, and the respondent testified that the petitioner had no relationship with the child, it would not be appropriate to apply the doctrine of equitable estoppel to preclude the ordering of genetic marker or DNA tests for determination of the child’s paternity. Under these circumstances, there is no evidence that the child “would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward”… . Matter of Sidney W v Chanta J, 2013 NY Slip Op 08645, 2nd Dept 12-26-13

 

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