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Fact Deed Not Recorded Did Not Rebut Presumption of Delivery and Acceptance of Deed​

In reversing Supreme Court, the Second Department determined the proof in this action to quiet title demonstrated that plaintiff’s decedent was the rightful owner of the subject property.  The Second Department noted the fact that the deed was not recorded did not overcome the presumption of delivery and acceptance of the deed:

Although the presumption of delivery and acceptance of a deed as of its date “must yield to opposing evidence…, here, no admissible evidence which would have overcome the presumption was presented in opposition to the evidence showing that the 1996 deed was executed in the presence of and delivered to the parties’ mutual attorney …. The fact that the deed was not recorded was not sufficient evidence to overcome the presumption of delivery of the deed to the attorney, the mutual agent of both parties, since recording is not required in order to transfer title to real property (see Real Property Law § 291). No evidence was presented that the delivery of the deed on the date of its execution was conditional.  Saline v Saline, 2012 NY Slip Op 03827, 2nd Dept, 5-29-13

 

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Erroneous Boundary Line Agreement Presents Triable Issue of Fact Re: Liability of Title Insurance Company

In reversing Supreme Court, the Second Department determined there was a triable issue of fact about whether the defendant title insurance company was liable for a defect in title (boundary line agreement) which resulted in plaintiffs owning half the property they thought they were purchasing:

…Chicago Title established, prima facie, that the defect in title fell within exclusion 3(c) of the policy, which excludes from coverage defects “resulting in no loss or damage to the insured claimant.” Chicago Title presented an affidavit from a certified real estate appraiser opining that the plaintiffs have not sustained any loss in property value as a result of the boundary line agreement. Indeed, Chicago Title’s appraiser opined that the boundary line agreement resulted in a benefit to the plaintiffs and added significant value to their property due to the government’s maintenance and nourishment of the beach. In opposition, however, the plaintiffs raised a triable issue of fact as to whether they suffered a loss or damages as a result of the defect in title. The plaintiffs submitted an affidavit of their certified real estate appraiser, who opined that the total loss to the plaintiffs of all title to the portion of their purchased premises lying to the south of the 188-foot line constituted a measurable diminution in the value of the plaintiffs’ purchase. In light of these conflicting expert opinions, there is a triable issue of fact as to whether the plaintiffs sustained a loss or damages as a result of the defect in title …. Nastasi v County of Suffolk, 2013 NY Slip Op 03824, 2nd Dept, 5-29-13

 

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Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding​

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13

 

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Emergency Doctrine Did Not Apply to Police Officer’s Striking Plaintiff with Patrol Car​

In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied:

In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct – the failure to see that which was there to be seen – was not conduct specified in Vehicle and Traffic Law § 1104(b) as exempt from the rules of the road …. Accordingly, his conduct was governed by the principles of ordinary negligence …. In any event, since Officer DeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was “not aware of any emergency situation that needed to be addressed,” the common-law emergency doctrine is not applicable to this case. Accordingly, the fifth affirmative defense, which is based upon Vehicle and Traffic Law § 1104, and the sixth affirmative defense, which is based upon the common-law emergency doctrine, must be dismissed.

Under the principles of ordinary negligence, Officer DeMarco’s failure to see what was there to be seen established the plaintiff’s entitlement to judgment as a matter of law on the issue of liability… . Starkman v City of Long Beach, 2013 NY Slip Op 03829, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Injury Not Connected to Accident; Motion to Set Aside Should Have Been Granted

In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue:

Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff’s alleged serious injury was causally related to the subject automobile accident. Given the evidence of the plaintiff’s previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff’s expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff’s injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury. McDonald v Kohanfars, 2013 NY Slip Op 03821, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action

In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault:

“There can be more than one proximate cause of an accident”…. A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an intersection…. Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative…. Here, the transcripts of the deposition testimony of the plaintiff and the defendant, which were submitted in support of the defendant’s motion, raised a triable issue of fact as to what actions the defendant took in order to avoid the collision. Therefore, the defendant failed to establish her prima facie entitlement to judgment as a matter of law … .  Jones v Vialva-Duke, 2013 NY Slip Op 03816, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Question of Fact Raised—Tennis Player Injured Stepping on Plastic Bottle at Edge of Court​

In playing tennis on defendant’s court, plaintiff, when back-pedaling to reach the ball, was injured when he stepped on a plastic water bottle which was behind a curtain separating the court from an adjacent wall.  In reversing Supreme Court’s grant of summary judgment to the defendant [Lifeplex], the Second Department determined Lifeplex had not demonstrated (1) it did not create the defective condition, (2) it did not have constructive notice of the condition, (3) plaintiff was injured in the playing area, and (4) whether the condition was concealed:

Here, Lifeplex failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff’s injury was within the playing area of the tennis court, and whether the condition was concealed. Thus, Lifeplex failed to make a prima facie showing that the plaintiff assumed a risk inherent in the sport of tennis ….  Moreover, in moving for summary judgment dismissing the complaint, Lifeplex had the initial burden of establishing “that it neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident”…. . “To meet its initial burden on the issue of . . . constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell”…. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice… .  Herman v Lifeplex, LLC, 2013 NY slip Op 03815, 2nd Dept, 5-29-13

ASSUMPTION OF THE RISK

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Town Failed to Demonstrate It Conducted a Sufficient Search for Written Notice of Defect in Slip and Fall Case

The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice:

Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot…. In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff’s opposition papers ….  Betz v Town of Huntington, 2013 NY Slip Op 03809, 2nd Dept, 5-29-13

 

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Intentional Infliction of Emotional Distress Action Against Governmental Entity Barred by Public Policy

In affirming the dismissal of plaintiff’s complaint for false arrest, malicious prosecution, assault and battery, etc., the Second Department noted:  “ [p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity’”… .  Rodgers v City of New York, 2013 NY Slip Op 03926, 2nd Dept, 5-29-13

 

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Submission of Affidavit of Merit in Reply Improper​

In reversing the vacation of the dismissal of a medical malpractice action, the Second Department noted that it was improper to submit an affidavit of merit from a medical expert in reply papers:

The assertion of the plaintiff’s counsel that he incorrectly calendared the date on which the note of issue was due amounted to a reasonable excuse of law office failure…. However, the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice…. It was improper for the plaintiff to submit an affidavit of merit from a medical expert for the first time in her reply papers….  King v Dobriner, 2013 NY Slip Op 03817, 2nd Dept., 5-29-13

 

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