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AN OPEN MANHOLE IS NOT AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240(1) (SECOND DEPT).

The Second Department, affirming Supreme Court, determined falling down an open manhole is not an elevation-related hazard covered by Labor Law 240(1):

Labor Law § 240(1) “imposes upon owners and general contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” … . The statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … . “Not every gravity-related injury is within the ambit of Labor Law § 240(1)” … . “‘Whether a plaintiff is entitled to recovery under Labor Law § 240(1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies'” … .

… [T]he plaintiff’s injuries, though the result of a fall, did not result from an elevation-relation hazard encompassed by Labor Law § 240(1) … . Bonkoski v Condos Bros. Constr. Corp., 2023 NY Slip Op 02296, Second Dept 5-3-23

Practice Point: An open manhole is not an elevated-related hazard covered by Labor Law 240(1).

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A REASONABLE EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT WITHIN THE ONE-YEAR ALLOWED BY STATUTE; IT WAS AN ABUSE OF DISCRETION TO GRANT THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not have a reasonable excuse for failing to move for a default judgment within and year and the motion should not have been granted:

… [T]he one-year period within which the plaintiff had to take proceedings for the entry of a default judgment expired in March 2016 (see CPLR 3215[c]). The plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference in September 2016, 18 months after this matter was released from the foreclosure settlement conference part. Thus, the plaintiff’s motion … for leave to enter a default judgment against the defendant was made beyond the one-year deadline imposed by CPLR 3215(c).

One exception to the mandatory language of CPLR 3215(c) is when “sufficient cause is shown why the complaint should not be dismissed.” “This requires a showing of a reasonable excuse for the delay in moving for leave to enter a default judgment, and a showing that the cause of action is potentially meritorious” … . The determination as to whether an excuse is reasonable is committed to the sound discretion of the court, but reversal is warranted if that discretion is improvidently exercised … .

… [T]he plaintiff’s vague, conclusory, and unsubstantiated assertions that the delay in making its motion was attributable to the time spent in the mandatory foreclosure settlement conference part, and its need to comply with certain administrative orders, were insufficient to excuse the lengthy 18-month delay in moving for leave to enter a default judgment … .

“Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action” … . Bank of N.Y. Mellon v Toscano, 2023 NY Slip Op 02294, Second Dept 5-3-23

Practice Point: If plaintiff does not have a reasonable excuse for failing to move for a default judgment within the one year allowed by statute, it is an abuse of discretion to grant the motion and whether there is a meritorious cause of action is irrelevant.

 

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THERE WAS EVIDENCE DEFENDANTS’ EMPLOYEES DIRECTED TRUCKS TO DRIVE OVER THE DEFECTIVE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, RAISING A QUESTION OF FACT WHETHER DEFENDANTS CREATED THE SIDEWALK DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff raised a question of fact about whether defendants, whose businesses were across the street from the cracked sidewalk where plaintiff fell, created the defect. There was evidence that truck servicing defendants’ businesses drove over the sidewalk to back in to defendants’ loading dock:

… [T]he plaintiff raised a triable issue of fact as to whether the defendants committed an affirmative act of negligence that resulted in the creation of the dangerous condition on the sidewalk … . In opposition to the defendants’ motion, the plaintiff submitted the deposition testimony of an individual who had resided next door to the defendants’ premises for nearly 56 years. The neighbor testified that the street on which he lived was a dead-end street that was mostly residential, and that the drivers of 18-wheel tractor-trailers that made deliveries to the defendants’ business, while maneuvering into the driveway of the premises, frequently drove onto the sidewalk across the street, thereby creating the condition that caused the plaintiff to trip and fall. The neighbor had, on numerous occasions, observed [defendants’ employees] directing truck drivers onto the sidewalk while assisting them in backing up to the loading dock. This evidence was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident … . Abramson v Janowski’s Hamburgers, Inc., 2023 NY Slip Op 02293, Second Dept 5-3-23

Practice Point: Here there was evidence the sidewalk where plaintiff fell, which was across the street from defendants’ businesses, was driven over by trucks making deliveries to defendants’ businesses, creating the defect.

 

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THE JUDGE DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS THE FORECLOSURE COMPLAINT FOR PLAINTIFF’S ALLEGED FAILURE TO APPEAR AT A STATUS CONFERENCE AND COMPLY WITH THE DIRECTIVE TO MOVE FOR AN ORDER OF REFERENCE BY A SPECIFIED DATE; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, rejecting its own precedent in this foreclosure action, determined the judge did not have the authority to, sua sponte, dismiss the complaint for plaintiff’s failure to comply with the directive to appear at a status conference and move for an order of reference by a specified date:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . The plaintiff’s failure to comply with the directive in the order dated September 13, 2017, was not a sufficient ground upon which to direct dismissal of the complaint … . Moreover, the court was without authority to, sua sponte, direct dismissal of the complaint based upon the plaintiff’s failure to comply with its directive to proceed by motion where, as here, the plaintiff was entitled to proceed either by motion or trial … . …

… 22 NYCRR 202.27 was not a proper basis for directing dismissal of the complaint … . Where a party appears as scheduled, 22 NYCRR 202.27 “provides no basis for the court to summarily dismiss the action for failure to prosecute” … . Nothing in the record establishes that the plaintiff did not appear or was not ready to proceed at the final status conference … . To the extent our cases have held that a failure to comply with a directive in a prior status conference order amounts to a nonappearance at the status conference or a failure to announce readiness to proceed “immediately or subject to the engagement of counsel” within the meaning of 22 NYCRR 202.27 … , such cases should no longer be followed … . “In general, [t]he procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay” … where, as here, the statutory preconditions to dismissal under CPLR 3216, which is the statutory provision addressing “[w]ant of prosecution,” have not been met…. . U.S. Bank N.A. v Bhagwandeen, 2023 NY Slip Op 02349, Second Dept 5-3-23

Practice Point: A judge’s authority to dismiss a complaint in the absence of the statutory conditions in CPLR 3216 (failure to prosecute) is extremely limited. Here in this foreclosure action the Second Department rejected its own precedent and held plaintiff’s alleged failure to appear at a status conference and comply with the directive to move for an order of reference by a specified date did not justify the sua-sponte dismissal of the complaint.

 

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IN THIS PARKING-LOT-ICE SLIP AND FALL CASE, THE SNOW REMOVAL CONTRACTOR DID NOT DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM AND THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; THE DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant snow-removal company, Landscapes, and the defendant property owners, Nambar, were not entitled to summary judgment in this parking-lot-ice slip and fall case. Landscapes did not show it did not launch an instrument of harm by piling snow which melted and formed ice, and the Nambar defendants did not show they did not have constructive notice of the icy condition:

… [S]ince the plaintiff’s pleadings alleged that the Landscapes defendants, through their snow removal efforts, created the icy condition in the parking lot, thereby launching a force or instrument of harm that caused the plaintiff’s injuries, those defendants, in support of their motion for summary judgment, were required to establish, prima facie, that they did not create the alleged dangerous condition … . The Landscapes defendants failed to make such a showing, as they did not affirmatively establish that they did not create the icy condition by negligently piling snow in an elevated area in the parking lot, where it allegedly melted and created a stream of water that refroze … . …

… [T]he Namdar defendants failed to eliminate triable issues of fact as to whether they had constructive notice of the alleged ice condition. The deposition testimony of the Namdar defendants’ building engineer raised a triable issue of fact as to whether those defendants had notice of the condition that allegedly caused the ice to form, i.e., the stream of water flowing from the pile of snow in the elevated area of the parking lot … . In addition, the deposition testimony of [one of the Landscapes defendants] indicated that the building engineer had instructed him to pile snow in certain places, including the elevated area of the parking lot, thus raising a triable issue of fact as to whether the Namdar defendants were responsible for creating the alleged ice condition … . Tomala v Islandia Expressway Realty, LLC, 2023 NY Slip Op 02347, Second Dept 5-3-23

Practice Point: Here in this slip and fall case the snow-removal contractor did not demonstrate it did not launch an instrument of harm by piling snow such that it melted and formed ice and the property owners did not demonstrate they did not have constructive notice of or did not participate in the creation of the dangerous condition. The defendants should not have been granted summary judgment.

 

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DEFENDANT COULD NOT SEEK INDEMNIFICATION FOR PLAINTIFF’S DAMAGES FROM THIRD-PARTY DEFENDANT BECAUSE PLAINTIFF WAS THE THIRD-PARTY DEFENDANT’S SPECIAL EMPLOYEE FOR WHOM WORKERS’ COMPENSATION WAS THE EXCLUSIVE REMEDY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Count, determined the defendant, TIA, could not seek indemnification for plaintiff’s damages from third-party defendant, Freeman, because plaintiff was Freeman’s special employee for whom Workers’ Compensation is the exclusive remedy:

Supreme Court should have dismissed TIA’s common-law indemnification and contribution claims on the ground that plaintiff was Freeman’s special employee when his accident occurred and therefore, the claims are precluded by the Workers’ Compensation Law. “A worker may be deemed a special employee where he or she is ‘transferred for a limited time of whatever duration to the service of another'” … . “While the mere transfer does not compel the conclusion that a special employment relationship exists, a court is most likely to find that it does where the transferee ‘controls and directs the manner, details and ultimate result of the employee’s work'” … . Carey v Toy Indus. Assn. TM, Inc., 2023 NY Slip Op 02280, First Dept 5-2-23

Practice Point: If plaintiff’s sole remedy against a party is Workers’ Compensation, a defendant cannot seek indemnification from that party. Here plaintiff was the third-party defendant’s special employee so defendant could not seek indemnification from the third-party defendant.

 

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PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT).

The Fourth Department, reversing the denial of General Municipal Law 207-a benefits in this Article 78 proceeding, determined petitioner, a correction officer, was injured performing her duties when she attempted to move laundry bags blocking the hallway in the jail housing unit. The Fourth Department noted that Supreme Court should not have transferred the Article 78 proceeding to the appellate division because the determination was not based upon a hearing at which evidence was taken “pursuant to direction by law:”

… Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) on the ground that the petition raised a substantial evidence issue. Respondent’s determination “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ (CPLR 7803 [4]). Rather, the determination was the result of a hearing conducted pursuant to the terms of [an] agreement” between petitioner’s union and respondent … . Nevertheless, in the interest of judicial economy, we consider the merits of the petition …. …

Petitioner testified at the hearing that she thought the laundry bags outside the main entrance door were a “safety issue,” particularly because they would block other officers from moving through the hallway quickly and because persons using the hallway may get hurt. She further testified that her training and job responsibilities required her to address safety concerns. Petitioner also submitted documentary evidence that correction officers were under the duty to ensure that laundry bags are not placed on the housing unit floor at any time. Moreover, it is undisputed that there was no policy prohibiting correction officers from moving laundry bags. Although respondent submitted testimony that correction officers should order inmates to move laundry bags, that testimony did not address the location of the laundry bags and the safety hazard posed by laundry bags left in a hallway. We therefore conclude that the determination to deny petitioner’s application for section 207-c benefits was arbitrary and capricious … . Matter of Williams v County of Onondaga, 2023 NY Slip Op 02262, Fourth Dept 4-28-23

Practice Point: A correction officer injured moving laundry bags blocking a jail hallway was performing her duties and was entitled to General Municipal Law 207-c benefits.

Practice Point: An Article 78 proceeding should not be transferred to the appellate division unless evidence was taken at a hearing “pursuant to direction by law.” Here the hearing, which was held pursuant to an agreement between the respondent and petitioner’s union, did not meet that criteria.

 

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THE FIRST, THIRD AND FOURTH DEPARTMENTS HAVE HELD THAT THE VIOLATION OF THE INDUSTRIAL CODE PROVISION 12 NYCRR 23-4.2 (K) WILL NOT SUPPORT A LABOR LAW 241(6) CAUSE OF ACTION BECAUSE IT IS NOT SUFFICIENTLY SPECIFIC; THE SECOND DEPARTMENT HAS HELD THE VIOLATION OF THAT SAME PROVISION SUPPORTS A LABOR LAW 241(6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this Labor Law 241(6) construction-accident action, determined that the violation of the Industrial Code provision 12 NYCRR 23-4.2 (k) will not support a Labor Law 241(6) cause of action. The court noted the split of authority on this issue:

… [T]he court erred in denying the moving defendants’ motion with respect to the Labor Law § 241 (6) claim against [defendant] insofar as it was based on the alleged violation of 12 NYCRR 23-4.2 (k). We have repeatedly held that 12 NYCRR 23-4.2 (k) is not sufficiently specific to support a Labor Law § 241 (6) claim … . Inasmuch as the First and Third Departments have held similarly … , we decline to adopt contrary precedent in the Second Department … . Vicki v City of Niagara Falls, 2023 NY Slip Op 02260, Fourth Dept 4-28-23

Practice Point: In the First, Third and Fourth Department the Industrial Code provision 12 NYCRR 23-4.2 (k) is not specific enough to support a Labor Law 241(6) cause of action. The Second Department has held that the violation of the provision will support a Labor Law 241(6) cause of action.

 

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THE EVIDENCE SUPPORTED HARASSMENT AS A FAMILY OFFENSE BUT DID NOT SUPPORT AGGRAVATED HARASSMENT OR DISORDERLY CONDUCT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court in this family offense proceeding, determined harassment was supported by the evidence but disorderly conduct and aggravated harassment were not:

The undisputed evidence at the fact-finding hearing established that the parties had dated more than a decade earlier and that, after petitioner terminated the relationship, respondent continued to contact her, prompting petitioner to obtain at least two orders of protection against him. After years of not seeing each other, respondent went to petitioner’s house uninvited on October 28, 2021 and rang the doorbell. When petitioner answered the door, respondent said that she owed him a conversation. Petitioner responded that she did not want to talk to him and repeatedly asked him to leave. Respondent refused to leave, prompting petitioner to call the police. Respondent eventually left before the police arrived. Approximately six weeks later, respondent again went to petitioner’s house uninvited and demanded to speak to her. Petitioner asked him to leave at least a dozen times, but respondent ignored those requests and entered her garage where she was standing. The police arrived shortly thereafter and took respondent into custody, charging him with trespass.

In our view, Family Court properly determined that respondent committed the family offense of harassment in the second degree by engaging in a course of conduct or repeatedly committing acts that alarmed or seriously annoyed petitioner while having the intent to harass, annoy or alarm petitioner (see Penal Law § 240.26 [3] … ). We agree with respondent, however, that petitioner failed to meet her burden of establishing by a fair preponderance of the evidence that respondent committed the family offenses of disorderly conduct (§ 240.20) or aggravated harassment in the second degree (§ 240.30 [1]). Matter of Ohler v Bartkovich, 2023 NY Slip Op 02256, Fourth Dept 4-29-23

Practice Point: Here the facts supported harassment as a family offense but did not support aggravated harassment or disorderly conduct.

 

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DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT).

The Fourth Department noted that if the underlying conviction has been reversed and the indictment dismissed it can no longer be the basis for classifying the defendant as a “sex offender:”

While this appeal was pending, this Court reversed the judgment convicting defendant of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15) on the law and dismissed the indictment … .

A “sex offender” includes a person who is convicted of an offense described in Correction Law § 168-a (2) or (3). However “[a]ny [such] conviction set aside pursuant to law is not a conviction” for purposes of the statute (§ 168-a [1]; see § 168-d [1] [a]). Inasmuch as defendant’s judgment of conviction has been “set aside pursuant to law” (§ 168-a [1]) by reversal of this Court …, defendant does not qualify as a “sex offender” within the meaning of SORA, and the risk level determination must be vacated … . People v Congdon, 2023 NY Slip Op 02228, Fourth Dept 4-28-23

Practice Point: Where a sexual-offense conviction has been reversed on the law and the indictment dismissed, the defendant cannot be classified as a “sex offender.”

 

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