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UNLIKE THE GENERAL OBLIGATIONS LAW (DRAM SHOP ACT) CAUSES OF ACTION AGAINST A BAR WHICH SERVES A VISIBLY INTOXICATED PERSON WHO IS LATER INVOLVED IN A TRAFFIC ACCIDENT, A COMMON LAW NEGLIGENCE CAUSE OF ACTION APPLIES ONLY TO INJURIES CAUSED BY AN INTOXICATED PERSON ON DEFENDANT’S PROPERTY OR IN AN AREA UNDER DEFENDANT’S CONTROL AND SUPERVISION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the common law negligence cause of action against the bar (Catch 22) which allegedly served alcohol to the minor driver should have been dismissed. The driver was involved in an accident and plaintiff’s decedent, a passenger, was killed. The General Obligations Law causes of action premised on defendant’s allegedly serving alcohol to a visibly intoxicated person properly survived summary judgment. But the common law negligence cause of action would only apply to injuries which occurred on defendant’s property (not in a traffic accident which occurred after leaving defendant’s property):

Under a theory of common-law negligence, a landowner may be responsible for injuries caused by an intoxicated guest … . However, liability may be imposed only for injuries that occurred on a defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control … . There is no dispute that the motor vehicle accident at issue occurred on a public roadway hours after the decedent and [the driver] had left the area that was under the supervision and control of Catch 22, and thus, Catch 22 established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against it … . Filc v 221 Someplace Else, Ltd., 2023 NY Slip Op 04751, Second Dept 9-27-23

Practice Point: A bar which serves a visibly intoxicated person may be liable in negligence (as opposed to pursuant to the Dram Shop Act) when the intoxicated person causes injury on the bar’s property or in an area under the bar’s supervision and control. The negligence theory does not apply to traffic accidents which occur off premises.

 

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PLAINTIFF, A PASSENGER ON A BUS WHICH VEERED OFF THE HIGHWAY IN SNOWY CONDITIONS, WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff, a passenger on a bus which veered of the highway in snowy conditions, was entitled to summary judgment:

“‘An innocent passenger . . . who, in support of [his or] her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation'” … . Here, the plaintiff’s affidavit and the bus driver’s admissions in a certified police accident report submitted in support of the motion … established that the bus driver lost control of the vehicle, and that the bus driver was aware of the snowy weather conditions, rendering the emergency doctrine inapplicable … . In his affidavit, the plaintiff stated that it was snowing when the bus left the bus station. Immediately before the accident, the plaintiff did not hear horns or the screeching of brakes, but did hear the bus driver state, “It’s bad.” The bus then swerved, left the roadway, and rolled over onto its passenger’s side in the center median of the highway. Additionally, the certified police accident report contains the bus driver’s statement that he lost control because of a slippery highway. Bing Kang Chen v S & F Travel, Inc., 2023 NY Slip Op 04746, Second Dept 9-27-23

Practice Point: A passenger on a bus which veers off the highway in snowy conditions is entitled to summary judgment in the absence of any evidence that something other than the snowy conditions caused the accident.

 

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A FALL OF 2O TO 25 FEET FROM A RAMP USED TO TRANSPORT MATERIALS IS COVERED BY LABOR LAW 240(1) (FIRST DEPT.)

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action based upon his falling off a ramp. The fact that the ramp was not a substitute for a ladder or a scaffold was not relevant:

That the ramp was not intended to be used as a substitute for a ladder or scaffold, but rather was used to transport materials, is of no moment. Whether an accident involving a ramp is encompassed by Labor Law § 240(1) turns on a number of factors, the primary one being whether the ramp covered a significant elevation differential … . Here … the height differential from the top of the ramp to the ground was 20 to 25 feet…. . Liu v Whitestar Consulting & Contr., Inc., 2023 NY Slip Op 04821, First Dept 9-28-23

Practice Point: Here plaintiff fell 20 to 25 feet from a ramp used to transport materials. The fact that the ramp was not a substitute for a ladder or a scaffold did not place the accident beyond the reach of Labor Law 240(1). The extent of the elevation of the ramp was determinative.

 

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PLAINTIFF’S PARKED VEHICLE WAS STRUCK FROM BEHIND BY DEFENDANT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY; THE FACT THAT PLAINTIFF MAY HAVE VIOLATED TRAFFIC RULES RE: PARKING SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT RELEVANT TO LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. Plaintiff’s car was parked when it was struck from behind by defendant. The fact that plaintiff may have parked in a manner which violated the NYC traffic rules speaks only to plaintiff’s comparative negligence, which is not relevant at the summary judgment stage:

… [P]laintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of her affidavit, in which she averred that her vehicle was struck in the rear by the defendants’ vehicle while the plaintiff’s vehicle was parked on the shoulder of the roadway (see Vehicle and Traffic Law § 1129[a] …). In opposition to the plaintiff’s prima facie showing, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . The defendants’ contention that the plaintiff proximately caused the accident by violating 34 RCNY 4-07(b)(1) and 4-08(e)(1) [NYC Traffic Rules re: parking] speaks to her comparative negligence, which was not the subject of this motion and is insufficient to defeat the plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of liability … . Whaley v Carvana N.Y. City, 2023 NY Slip Op 04794, Second Dept 9-27-23

Practice Point: Plaintiff’s parked car was struck from behind and defendant did not offer a nonnegligent explanation for the collision. Therefore plaintiff was entitled to summary judgment on liability. The fact that plaintiff may have violated parking rules speaks to comparative negligence and is not relevant to liability.

 

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THE REFEREE’S REPORT WAS BASED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED RENDERING THE AFFIDAVIT HEARSAY; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the relevant business records were produced to support the affidavit:

Here, the referee based her findings upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and amount due of the plaintiff’s employee, which listed the amounts due by month and the interest rate, as well as the taxes and insurance paid on the defendant’s account. However, as the defendant correctly contends, the affidavit “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [s]he purportedly relied upon in making [her] calculations” … . Moreover, while the referee’s report found that the mortgaged premises should be sold in one parcel, the referee failed to identify the documents or other sources upon which she based that finding … . Under the circumstances, the referee’s findings with respect to the total amount due and whether the subject property could be sold in one parcel were not substantially supported by the record … . Wells Fargo Bank, N.A. v Laronga, 2023 NY Slip Op 04793, Second Dept 9-27-23

Practice Point: If the referee’s report in a foreclosure action is based on business records, those records must be produced.

 

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ALTHOUGH PLAINTIFF WAS WORKING ON DEFENDANT’S PRIVATE RESIDENCE WHEN INJURED, THE HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) LIABILITY MAY NOT APPLY BECAUSE PLAINTIFF WAS EMPLOYED AS A CARPENTER BY DEFENDANT AND DEFENDANT MAY HAVE BEEN DIRECTING AND SUPERVISING THE WORK; SIMILARLY, DEFENDANT WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not eliminate questions of fact about whether the homeowner’s exemption applied to the Labor Law 241(6) cause of action and whether he was liable under the Labor Law 200 and common law negligence causes of action. Although the plaintiff was working on defendant’s private residence, plaintiff was employed as a carpenter by defendant:

Although the defendant demonstrated that the work being performed at his single-family home was directly related to its residential use … , the defendant failed to establish, prima facie, that he did not direct or control the plaintiff’s work. In support of his motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that, at the time of the accident, the defendant owned a business that employed the plaintiff to perform carpentry work on decks and that the defendant instructed the plaintiff on which boards to remove and replace at the defendant’s home. The plaintiff also testified that the defendant provided all of the materials and tools that the plaintiff used for the work at the defendant’s home. Thus, the defendant’s submissions failed to eliminate triable issues of fact as to whether he directed or controlled the plaintiff’s work … . * * *

… [T]he plaintiff’s accident arose from the means and methods of the work, not from a dangerous premises condition …. . [Defendant] failed to establish his prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, since he failed to eliminate triable issues of fact as to whether he had the authority to supervise or control the plaintiff’s work … . Walsh v Kenny, 2023 NY Slip Op 04791, Second Dept 9-27-23

Practice Point: Here plaintiff was working on his employer’s (the defendant’s) private residence when injured. The defendant provided the materials and there was evidence he supervised the work. Therefore questions of fact precluded summary judgment on the Labor Law 241(6) cause of action (pursuant to the homeowner’s exemption to the Labor Law 241(6) cause of action), as well as on the Labor Law 200 and common law negligence causes of action.

 

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IN THIS FORECLOSURE ACTION, THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The proof the notice of foreclosure was mailed in accordance with RPAPL 1304 was insufficient:

… [T]he testimony of the plaintiff’s sole witness at trial, Lawrence Nardi, a case manager for the plaintiff’s servicer, Select Portfolio Servicing (hereinafter SPS), was insufficient to establish a standard office mailing procedure designed to ensure that notices were properly addressed and mailed … . Moreover, while the plaintiff presented copies of 90-day notices containing a 20-digit bar code, those letters contained no language indicating that they were sent by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service … . In addition, the plaintiff failed to present any receipt or corresponding document issued by the U.S. Postal Service showing that the notice was actually sent by first-class or certified mail more than 90 days prior to commencement of the action … . Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 … . U.S. Bank N.A. v Kissi, 2023 NY Slip Op 04790, Second Dept 9-27-23

Practice Point: Here the bank did not prove the notice of foreclosure was mailed in accordance with RPAPL 1304. Therefore the referee’s report should not have been confirmed.

 

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A MOTION FOR LEAVE TO RENEW CAN BE BASED UPON A CLARIFICATION OF DECISIONAL LAW, BUT NOT, AS WAS THE CASE HERE, ON A DECISION APPLYING ESTABLISHED LAW TO THE FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion for leave to renew should not have been granted because it was not based upon a change in law. Rather it was based upon a case in which established law was applied to the facts:

“A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law,” including, a clarification of decisional law ( …see CPLR 2221[e][2]). Here, however, the defendant failed to demonstrate such a change in the law … . Instead, the defendant merely pointed to case law … , in which this Court applied established law … to the facts presented in the particular case before it. Sharan v Christiana Trust, 2023 NY Slip Op 04789, Second Dept 9-27-23

Practice Point: A motion for leave to renew can be based on a change in the law, even a clarification of decisional law. But here the motion was improperly based upon a decision which merely applied established law to the facts.

 

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THE MOTION SEEKING A CIVIL CONTEMPT DETERMINATION COULD NOT BE HEARD BECAUSE THE UNDERLYING SUIT HAD BEEN SETTLED BY STIPULATION WITH PREJUDICE, STRIPPING SUPREME COURT OF SUBJECT MATTER JURISDICTION; A SUBJECT-MATTER-JURISDICTION ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the civil contempt action should have been dismissed because the underlying lawsuit had been settled with prejudice by stipulation. Because the issue relates to a court’s subject matter jurisdiction it can be raised on appeal at any time. The underlying lawsuit was a property dispute and concerned the location of a fence. After the stipulation settling the suit, defendants refused to sign a fence location agreement. Because the underlying suit was discontinued with prejudice the plaintiffs only option is to commence a plenary action:

… [T]he defendants’ assertion, raised for the first time on appeal, that the Supreme Court lacked jurisdiction to entertain the plaintiffs’ motion, is properly before this Court, as a defect in subject matter jurisdiction may be raised at any time … .

“A motion must be addressed to a pending action” … , and a court lacks jurisdiction to entertain a motion after the action has been “‘unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance'” … , “or actual entry of judgment in accordance with the terms of the settlement” … .

Here, the Supreme Court lacked jurisdiction to entertain that branch of the plaintiffs’ motion which was to hold the defendants in civil contempt, since the action was unconditionally discontinued with prejudice by the parties’ stipulation, as memorialized in the settlement order … . Thus, the relief requested by the plaintiffs was not available by way of a motion, and could only be obtained by commencing a plenary action … . Riccio v Kukaj, 2023 NY Slip Op 04785, Second Dept 9-27-23

Practice Point: A stipulation settling a suit with prejudice strips the court of subject matter jurisdiction. Therefore a subsequent motion cannot be heard by the court and any further proceedings require a plenary action. A subject-matter-jurisdiction issue can be raised for the first time on appeal.

 

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THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT WAS INADEQUATE AND THE NOTICE DID NOT INCLUDE A STATEMENT REQUIRED BY RPAPL 1304; THEREFORE THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The Frist Department, reversing Supreme Court in this foreclosure action, determined compliance with the notice-of-foreclosure requirements in the mortgage as well land the notice requirements imposed the RPAPL 1304 was not demonstrated. Plaintiff should not have been awarded summary judgment:

… [N]either the affidavits nor the business records made the requisite demonstration of mailing as required by the mortgage agreement … . Although one of Serterus’s [the mortgage servicer’s] employees stated that Serterus followed the prior mortgage servicer’s procedures for mailing the default notice, she stated only that she had personal knowledge of Serterus’s recordkeeping practices and procedures, not that she had personal knowledge that the notice of default was actually mailed. Nor did the employee attest to her familiarity with the mailing procedures of either Chase, which the default notice identified as the sender, or its servicer … . Although the employee stated that records of the mailing were attached, the only record of mailing of the notice was the notice itself, which contained no information about whether and when it was mailed. Similarly, the affidavit by the other Serterus employee lacked any indication of how she concluded that the contractual default notice was, in fact, sent. In addition, defendant submitted an affidavit denying ever having received the notice … .

Further, service of the 90-day notice pre-foreclosure notice required by RPAPL 1304 did not comply with the requirement of service of the default notice required under the mortgage agreement. The mortgage agreement required that the default notice thereunder inform the defendant borrower that if the default was not cured by the date stated in the notice, the lender may require immediate payment in full. However, the RPAPL 1304 notice contains no such statement. Federal Natl. Mtge. Assn. v Adago, 2023 NY Slip Op 04717, First Dept 9-26-23

Practice Point: Proof of compliance with the notice-of-foreclosure requirements in the mortgage as well as the notice requirements imposed by RPAPL 1304 are prerequisites to foreclosure.

 

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