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PLAINTIFF WAS A PASSENGER IN DEFENDANT MC RAE’S VEHICLE WHEN MC RAE’S VEHICLE WAS STRUCK FROM BEHIND; THE ALLEGATION THAT MC RAE STOPPED FOR NO APPARENT REASON RAISED A QUESTION OF FACT WHETHER MC CRAE WAS COMPARATIVELY NEGLIGENT; COMPARATIVE NEGLIGENCE WILL PRECLUDE SUMMARY JUDGMENT WITH RESPECT TO CROSS CLAIMS BETWEEN DEFENDANTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant driver’s (McRae’s) motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff was a passenger in defendant McRae’s vehicle. McRae alleged his vehicle was stopped when it was struck by defendant NYC Transit Authority’s (NYCTA’s) bus (driven by defendant Pena). Defendants NYCTA and Pena alleged McRae stopped his vehicle for no apparent reason raising a question of fact about whether defendant McRae was comparatively negligent. Comparative negligence will preclude summary judgment with respect to cross claims between defendants:

… [T]he plaintiff established, prima facie, that NYCTA and Pena were negligent. In support of his motion, the plaintiff submitted, inter alia, the transcript of his deposition testimony, which demonstrated that the bus Pena was operating struck McRae’s stopped vehicle in the rear. In opposition, the NYCTA defendants failed to raise a triable issue of fact. The NYCTA defendants submitted, among other things, an affidavit in which Pena averred that McRae made a right turn into the path of the bus and began to move forward, but then stopped short. In essence, this explanation amounts to nothing more than a claim that McRae’s vehicle came to a sudden stop which, without more, failed to raise a triable issue of fact as to NYCTA and Pena’s liability … .

The Supreme Court should have denied that branch of McRae’s motion which was for summary judgment dismissing all cross claims insofar as asserted against him. In support of his motion, McRae submitted his affidavit, in which he averred that his vehicle, while stopped at a red light, was struck in the rear by the bus operated by Pena. Thus, McRae established, prima facie, that Pena was solely at fault in the happening of the accident … . In opposition, however, the NYCTA defendants raised a triable issue of fact as to whether McRae was comparatively at fault in the happening of the accident because he stopped suddenly for no apparent reason … . Thompson v New York City Tr. Auth., 2022 NY Slip Op 05052, Second Dept 8-24-22

Practice Point: Plaintiff was a passenger in defendant McRae’s car which was struck from behind by a NYC Transit Authority (NYCTA) bus. Defendant NYCTA raised a question fact about Mc Rae’s comparative negligence by alleging Mc Rae stopped suddenly for no apparent reason. Comparative negligent will preclude summary judgment with respect to cross-claims between defendants.

 

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DEFENDANT MADE A LEFT TURN IN THE PATH OF PLAINTIFF’S VEHICLE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY AND DISMISSING THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on liability and dismissing the comparative negligence affirmative defense in this intersection traffic accident case should have been granted:

… [T]he plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his deposition testimony and the deposition testimony of the defendant driver, which demonstrated that the defendant driver made a left turn directly into the path of the plaintiff’s vehicle without yielding the right-of-way to the plaintiff, in violation of Vehicle and Traffic Law § 1141, and when it was not reasonably safe to make a left turn, in violation of Vehicle and Traffic Law § 1163(a) … . The plaintiff also established, prima facie, that he was entitled to judgment as a matter of law dismissing the affirmative defense alleging comparative negligence by demonstrating that he was not at fault in the happening of the accident and that the defendant driver’s negligence was the sole proximate cause of the accident … . The plaintiff, who had the right-of-way, was entitled to anticipate that a vehicle turning left would obey the traffic laws requiring that vehicle to yield, and the evidence established that the plaintiff did not have a sufficient opportunity to avoid the accident when the defendant driver turned left directly into the path of the plaintiff’s vehicle … . Seizeme v Levy, 2022 NY Slip Op 05049, Second Dept 8-24-22

Practice Point: Defendant made a left turn in violation of the Vehicle and Traffic causing a collision with plaintiff in the oncoming lane. Plaintiff was entitled to summary judgment on liability and dismissing the comparative negligence affirmative defense.

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THE LEG OF A LARGE DECORATIVE THRONE IN DEFENDANT’S BAR WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT AN ACTIONABLE TRIPPING HAZARD; PLAINTIFF HAD FREQUENTED THE BAR AND THE THRONE WAS READILY OBSERVABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the leg of a large decorative throne in defendant’s bar was open and obvious and therefore was not an actionable tripping hazard:

… [T]he defendant established … that the large decorative throne that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous … . “‘[T]here is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses'” … . “‘A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident'” … . “‘The determination of [w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case'” … .

Here, … the alleged defective condition was readily observable by those employing the reasonable use of their senses and was not inherently dangerous. The deposition testimony of a pianist who had performed at the bar for more than 20 years established that the throne was a novelty of the establishment, which drew in patrons. Further, the plaintiff’s own testimony established that he was aware of the throne, as he frequented the establishment and purported to have previously complained to the manager about its location … . Rider v Manhattan Monster, Inc., 2022 NY Slip Op 05048, Second Dept 8-24-22

Practice Point: Here plaintiff allegedly tripped over the leg of a large decorative throne in defendant’s bar. The throne was a readily observable novelty which drew patrons to the bar. Plaintiff frequented the bar and was well aware of the location of the throne. Because the throne was open and obvious it did not constitute an actionable tripping hazard.

 

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HERE THE DEFENDANT DID NOT COMPLETE THE TREATMENT REQUIRED BY THE PLEA AGREEMENT; THE GUILTY PLEA WAS THEREFORE INDUCED BY AN UNFULFILLED PROMISE WHICH USUALLY REQUIRES THAT THE PLEA BE VACATED; HERE SUPREME COURT FELT DEFENDANT SHOULD NOT HAVE BEEN TERMINATED BY THE TREATMENT PROGRAM AND PROPERLY EXERCISED DISCRETION IN FASHIONING A SENTENCE MUCH LESS THAN THAT REQUIRED BY THE PLEA AGREEMENT, LEAVING THE GUILTY PLEA IN PLACE (SECOND DEPT).

The Second Department determined Supreme Court properly exercised discretion in the face of defendant’s failure to complete treatment as required by the plea agreement. The court found that, although defendant had relapsed during the treatment for alcoholism, the relapse did not justify his being terminated by the program. Therefore the court did not vacate defendant’s guilty plea (on the ground it was induced by an unfulfilled promise) and fashioned a drastically reduced sentence (time served):

“[I]n most instances when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court” … . In this case, the Supreme Court providently exercised its discretion in determining that, although the defendant spent more than a year in residential substance abuse treatment programs, specific performance of the conditional plea agreement was not warranted. Although the court did not believe that the defendant’s alcohol relapse and other reported problems at the final treatment program he attended were the real reason for his discharge, those issues nevertheless suggested that the defendant’s alcoholism, which played a role in his commission of the instant offenses, remained an unresolved concern.

Moreover, the manner in which this case was ultimately resolved essentially split the difference between what was promised if the defendant was successful in treatment, and the sentence the Supreme Court could have imposed if he was not. Although the defendant’s conviction of sexual abuse in the first degree was not vacated, he was effectively sentenced to time served, instead of four years in prison. In addition, the alternative sentence that was contemplated at the time of the defendant’s pleas of guilty included seven years of postrelease supervision. Because the court sentenced the defendant to definite terms of imprisonment, however, he avoided being subject to postrelease supervision … . People v Boissard, 2022 NY Slip Op 05042, Second Dept 8-24-22

Practice Point: Usually a guilty plea induced by a plea agreement that was not fulfilled will be vacated. Here the defendant did not wish to withdraw his guilty plea and the court properly exercised discretion in fashioning a sentence much more lenient than that required by the plea agreement. The judge took into account the defendant’s attempts to comply with the treatment required by the plea agreement, and expressed the opinion defendant should not have been terminated by the program.

 

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PETITIONER WAS ISSUED A PERMIT TO CONSTRUCT COMMERCIAL SPACE WITH 557 PARKING SPACES; THE PERMIT WAS REVOKED BECAUSE THE TOWN CODE REQUIRED 624 PARKING SPACES; BECAUSE THE PERMIT WAS INVALID, PETITIONER COULD NOT INVOKE THE “DOCTRINE OF VESTED RIGHTS” FOR A VARIANCE ALLOWING 557 SPACES (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the petitioner was not entitled to a variance pursuant to the doctrine of vested rights. Petitioner had been issued a permit to build commercial space which included 557 parking spaces. The town subsequently revoked the permit because the town code required 624 parking spaces. Petitioner then applied for a variance arguing the permit which had been issued conveyed a vested right to the originally approved 557 parking spaces:

“The doctrine of vested rights is implicated when a property owner seeks to continue to use property, or to initiate the use of property, in a way that was permissible before enactment or amendment of a zoning ordinance but would not be permitted under a new zoning law” … . Such “a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development” … . However, “[v]ested rights cannot be acquired in reliance upon an invalid permit” … . “[T]he mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results” … . Here, as the ZBA [zoning board of appeals] soundly determined, the permit issued to the petitioner was invalid, since the Town Code plainly sets forth the method for calculating the nonresidential gross floor area according to which the number of required parking spaces is set and pursuant to that method, the required number of spaces exceeded the 557 spaces planned by the petitioner … . Since the permit issued to the petitioner was invalid, it could not have conferred vested rights … . Matter of C & B Realty #3, LLC v Van Loan, 2022 NY Slip Op 05036, Second Dept 8-24-22

Practice Point: Here the petitioner was issued a permit for construction which was later revoked as invalid because it violated the town code. The “doctrine of vested rights” does not apply to the provisions in an invalid permit. Therefore petitioner’s application for a variance to build according to the provisions of the revoked permit was denied. The “doctrine of vested rights” is explained in the decision.

 

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PLAINTIFF, A SCHOOL PSYCHOLOGIST, WAS ASSAULTED BY AN AUTISTIC STUDENT; THE NEGLIGENT-PARENTAL-SUPERVISION CAUSE OF ACTION AGAINST THE STUDENT’S PARENTS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “negligent parental supervision” cause of action against the parents of an autistic child who assaulted plaintiff school psychologist should not have been dismissed. In addition, the parents did not demonstrate their son was, due to his disability, incapable of being liable for negligence or assault. The facts are not discussed:

The plaintiff * * * was assaulted by the defendant David George (hereinafter David), an autistic student with an IQ of 41, who was almost 14 years old at the time. * * *

“While, as a general rule, parents are not liable for the torts of their child, a parent may be held liable, inter alia, where the parent[s] negligence consists entirely of his [or her] failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity toward such conduct'” … . Thus, a parent moving for summary judgment dismissing a cause of action alleging negligent supervision based on the physical tortious conduct of the parent’s child, must establish, prima facie, that the parent was not aware that, prior to the subject incident, his or her child engaged in violent or vicious conduct that would endanger a third party … . …

The defendants’ contention that the branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against David, on the ground that due to his developmental disability he was “non sui juris and incapable of being liable for negligence” or assault …, is without merit. Levine v George, 2022 NY Slip Op 05032, Second Dept 8-24-22

Practice Point: Parents are usually not responsible for the torts of their child. In this case the autistic child assaulted plaintiff school psychologist. The facts were not discussed, But the appellate court determined the “negligent parental supervision” cause of action should not have been dismissed.

 

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QUESTIONS OF FACT WHETHER DEFENDANT BUS DRIVER WAS NEGLIGENT; PLAINTIFF’S HAND WAS CAUGHT IN THE CLOSED DOOR OF THE BUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the driver of the bus negligent in closing the door on plaintiff’s hand and in failing to open the door to release plaintiff’s hand:

A “defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “There can be more than one proximate cause of an accident” …, and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … .

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint … . The evidence submitted in support of the motion failed to eliminate all triable issues of fact as to whether [the driver] negligently closed the doors as the plaintiff was attempting to board the bus, and negligently failed to reopen the doors and release the plaintiff’s hand after it became trapped. John v Dobson, 2022 NY Slip Op 05029, Second Dept 8-24-22

Practice Point: Plaintiff’s hand was caught in the closed door of the defendants’ bus. There were questions of fact whether the driver was negligent in closing the door on plaintiff’s hand and failing to open the door to release plaintiff’s hand.

 

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DEFENDANT MADE A LEFT TURN IN FRONT OF PLAINTIFF IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant attempted to make a left turn in front of plaintiff’s vehicle from the middle lane, cutting off plaintiff. The court noted that a plaintiff’s comparative negligence is not a bar to summary judgment:

The accident allegedly occurred when the defendants’ vehicle attempted to make a left turn from the middle lane of Rockaway Boulevard in front of the plaintiff’s vehicle, and cut off the plaintiff’s vehicle. …

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “To be entitled to . . . summary judgment [on the issue of liability] a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … . A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, his own affidavit, which demonstrated that the driver of the defendants’ vehicle was negligent in striking the plaintiff’s vehicle while attempting to make a left turn from the middle lane of traffic (see Vehicle and Traffic Law §§ 1128[a]; 1160[b …). Jaipaulsingh v Umana, 2022 NY Slip Op 05028, Second Dept 8-24-22

Practice Point: Here defendant violated the Vehicle and Traffic Law by making a left turn from the middle lane, cutting plaintiff off. Comparative negligence is not a bar to summary judgment. Plaintiff’s motion for summary judgment should have been granted.

 

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QUESTION OF FACT WHETHER DEFENDANT’S DOUBLE-PARKED TRUCK MERELY FURNISHED THE OCCASION FOR THE MOTORCYCLE ACCIDENT OR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF FLIPPED OVER THE MOTORCYCLE BRAKING TO AVOID COLLIDING WITH THE TRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff motorcyclist raised a question of fact whether defendant’s double-parked truck was a proximate cause of the accident. Plaintiff alleged the motorcycle struck a defect in the road which cause the motorcycle to veer toward defendant’s truck. Plaintiff flipped over the motorcycle when he braked to avoid colliding with truck. The issue was whether the double-parked trucked merely furnished the occasion for the accident or whether the double-parked truck was a proximate cause of the accident (a difficult distinction which comes up occasionally in the appellate decisions):

In support of its motion, [defendant] Peapod submitted the transcript of the plaintiff’s deposition testimony in which the plaintiff testified that his motorcycle struck a road defect, but that the defect did not cause him to immediately fall or apply the brakes. Instead, when the motorcycle encountered the defect, the motorcycle veered toward Peapod’s double-parked truck 40 yards ahead of him in the same lane of traffic. In order to avoid colliding with the truck, the plaintiff applied the front brakes of the motorcycle, which resulted in him flipping over the motorcycle. Given this evidence, it cannot be said that Peapod established as a matter of law that the truck merely furnished the occasion for the accident … . Rather, this testimony demonstrated the existence of a triable issue of fact as to whether the presence of Peapod’s double-parked truck was a proximate cause of the accident … . Further, the evidence relied upon by Peapod in support of its motion failed to establish, prima facie, that its truck was not negligently parked or violating applicable traffic regulations … . Colletti v City of New York, 2022 NY Slip Op 05019, Second Dept 8-24-22

Practice Point: Accident cases sometimes require making a difficult distinction between merely furnishing an occasion for an accident, which is not actionable, and a proximate cause of an accident. Supreme Court held the presence of defendant’s double-parked truck merely furnished the occasion for plaintiff’s motorcycle accident. The Second Department reversed finding a question of fact whether the presence of the truck was a proximate cause of the accident.

 

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AN ACTION FOR “STRICT FORECLOSURE” PURSUANT TO RPAPL 1352 ALLOWS THE PURCHASER OF FORECLOSED PROPERTY TO EXTINGUISH ANY POTENTIAL CLAIM TO THE PROPERTY BY A NECESSARY PARTY NOT INCLUDED IN THE ORIGINAL FORECLOSURE PROCEEDINGS (SECOND DEPT). ​

he Second Department explained that an action for “strict foreclosure” pursuant to RPAPL 1352 is properly brought by the purchaser of foreclosed property to extinguish any claim to the property by a necessary party who not named in the foreclosure action:

Where, as here, a necessary party was omitted from a foreclosure action, the purchaser of the foreclosed property may commence a strict foreclosure action pursuant to RPAPL 1352 … . “RPAPL 1352 permits a strict foreclosure action against a person not named in the original foreclosure action, who has either a right of redemption to the subject property or a right to foreclose a subordinate mortgage or other lien” … . The statute authorizes the court to issue a judgment that fixes a time period within which any such person must act to redeem or begin a foreclosure action. If the person fails to redeem the property or commence a foreclosure action within the time period fixed by the court, such person “shall be excluded from claiming any title or interest in such property and all title or interest of such person . . . or the right to foreclose a subordinate mortgage or other lien against such property shall thereby be extinguished and terminated” … . “Since RPAPL 1352 operates to dispose of the encumbrances of those whose interests were junior at the time of the original foreclosure but who were not joined as parties to that action, a judgment of strict foreclosure cures a defect in the judgment or sale under the first foreclosure” … . 71-21 Loubet, LLC v Bank of Am., N.A., 2022 NY Slip Op 05012, Second Dept 8-24-22

Practice Point: Pursuant to RPAPL 1352, the purchaser of foreclosed property can extinguish any potential claim to the property by a necessary party not included in the original foreclosure proceedings.

 

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