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THE DAMAGES AMOUNT ASSESSED AGAINST THE DEFAULTING DEFENDANT IN THE INQUEST WAS EXCESSIVE (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the amount of damages assessed against the defaulting defendant in the inquest was excessive:

Although this Court is not relieving the defendant of his default, this Court may consider whether excessive damages were awarded … . “An unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Based upon the proof submitted at the inquest, an award of $25,000 constitutes reasonable compensation … . Kokolis v Wallace, 2022 NY Slip Op 01018, Second Dept 2-16-22

 

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THE PURPORTED STIPULATION OF DISCONTINUANCE OF THE FORECLOSURE ACTION AND THE PURPORTED NOTICE OF DISCONTINUANCE WERE INVALID; SUPREME COURT SHOULD NOT HAVE DETERMINED THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN REVOKED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined both the purported stipulation of discontinuance and the purported notice of discontinuance were invalid. Therefore the judge should not have determined the acceleration of the mortgage debt had been revoked:

…Supreme Court erred in discontinuing the action based upon a purported stipulation of discontinuance, and then interceding on the plaintiff’s behalf to declare the acceleration of the loan revoked. The stipulation was clearly ineffective as it was only signed by the attorney for the plaintiff (see CPLR 3217[a][2] …). Further, to the extent that the stipulation was construed as a notice of discontinuance, it was equally ineffective to discontinue the action, as it was not served upon the appellant (see CPLR 3217[a][1] …). HSBC Bank USA, N.A. v Rini, 2022 NY Slip Op 01016, Second Dept 2-16-22

 

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THE TENANT WHICH SUPPLIED THE ALLEGEDLY DEFECTIVE LADDER TO THE PLAINTIFF IN THIS LADDER-FALL CASE WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the tenant, Fresh Direct, which supplied the allegedly defective ladder to plaintiff was not entitled to summary judgment on the Labor Law 200 and common law negligence causes of action. Plaintiff fell 20 feet when the ladder slipped:

Fresh Direct failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly defective condition of the ladder that, according to the plaintiff, it provided at the time of the accident … . Hamm v Review Assoc., LLC, 2022 NY Slip Op 01011, Second Dept 2-16-22

 

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QUESTIONS OF FACT WHETHER THE DEFENDANT BUS DRIVER SAW WHAT SHOULD HAVE BEEN SEEN AND WHETHER THE EMERGENCY DOCTRINE APPLIED TO THIS REAR-END COLLISION CASE; THE BUS WAS BEHIND PLAINTIFF’S SCOOTER AND BOTH THE BUS AND THE SCOOTER APPARENTLY CHANGED LANES AT THE SAME TIME (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant bus driver (Payne) failed to see what should have been seen and whether the emergence doctrine applied to this rear-end collision case. Plaintiff was on a motor scooter in front of the bus and both the bus and the scooter changed lanes at approximate the same time:

… [E]ven if Payne had the right of way, she testified at her deposition that she did not see the plaintiff on his motor scooter until “seconds” before the accident. Since the video recording taken from the bus seems to show that the bus was following the plaintiff’s motor scooter for approximately two blocks prior to the accident, Payne’s testimony raised a triable issue of fact as to whether Payne failed to see what was there to be seen through the proper use of her senses, and thus whether she exercised reasonable care to avoid the accident and whether her actions were a proximate cause of the accident … . …

… [T]he evidence failed to eliminate the existence of triable issues of fact as to whether Payne’s actions contributed to or caused the emergency, in light of, inter alia, her failure to observe the motor scooter earlier … . Fergile v Payne, 2022 NY Slip Op 01008, Second Dept 2-16-22

 

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PROBABLE CAUSE FOR ARREST IS A COMPLETE DEFENSE TO CAUSES OF ACTION FOR FALSE ARREST, FALSE IMPRISONMENT AND BATTERY STEMMING FROM THE ARREST (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court noted that probable cause for arrest is a complete defendant to causes of action for false arrest, false imprisonment and battery association with the arrest:

The Supreme Court should have granted those branches of the municipal defendants’ motion which were for summary judgment dismissing the seventh, eighth, and ninth causes of action, alleging false arrest, false imprisonment, and assault and battery insofar as asserted against them. The existence of probable cause constitutes a complete defense to causes of action alleging false arrest and false imprisonment … . The existence of probable cause is also a complete defense to a cause of action alleging assault and battery based solely on bodily contact during an allegedly unlawful arrest … . Farquharson v United Parcel Serv., 2022 NY Slip Op 01007, Second Dept 2-16-22

 

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PLAINTIFF REAL ESTATE BROKER DID NOT ESTABLISH IT WAS ENTITLED TO A BROKERAGE FEE; THE BROKERAGE AGREEMENT EXPIRED BY ITS OWN TERMS BEFORE THE LEASE TOOK EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court after a bench trial, determined plaintiff real estate broker was not entitled to a brokerage commission:

“In order to recover a real estate brokerage commission, [a] broker must establish: (1) that [it] is duly licensed, (2) that [it] had a contract, express or implied, with the party to be charged with paying the commission, and (3) that [it] was the procuring cause of the [transaction]” … . …

Although the agreement entitled the plaintiff to collect a commission “[i]f within 60 days after the expiration . . . of th[e] . . . agreement, a lease is signed or negotiations continue and ultimately lead to a signed lease of the Property to a person or entity” on a list of potential tenants to be provided by the plaintiff within 10 days of expiration of the brokerage agreement, the lease was not signed within 60 days of the expiration of the brokerage agreement, and the plaintiff did not present any evidence that it supplied a list of potential tenants to the defendant. Thus, the brokerage agreement, by its terms, expired months before the defendant entered into a binding lease … . Cpex Real Estate, LLC v Tomtro Realty Corp., 2022 NY Slip Op 00999, Second Dept 2-16-22

 

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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT; THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT WERE NOT PRODUCED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the bank’s proof of compliance with the notice requirements of RPAPL 1304 was insufficient. The court noted that, under the facts, standing to contest the bank’s compliance with RPAPL 1304 was personal to each borrower, one borrower could not assert that defense on behalf of another borrower:

JPMorgan submitted an affidavit, entitled an “Affidavit of Mailing,” signed by James A. Ranaldi, an “Authorized Signer” employed by JPMorgan. Ranaldi, however, did not attest to personal knowledge of the actual mailings. Nor did he state that he had personal knowledge “of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … . Although Ranaldi asserted, based upon his review of business records associated with the subject loan, that “a ninety-day (90) pre-foreclosure notice dated 12/04/2009 was sent by regular first class and certified mail under the exclusive care and custody of the United States Postal Service addressed to [the defendant at the subject property],” “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted”… . The records attached to Ranaldi’s affidavit provided evidence that the 90-day notice was sent to the defendant by certified mail. But none of the documents, considered individually or together, including the copies of the notice letters themselves, provided any information as to whether the 90-day notice was sent to the defendant by regular first-class mail … . Without business records proving the matter asserted, Ranaldi’s “unsubstantiated and conclusory” statement, by itself, was insufficient to establish that the RPAPL 1304 notice was mailed to the defendant by first-class mail … . Wilmington Sav. Fund Socy., FSB v Kutch, 2022 NY Slip Op 01066, Second Dept 2-16-22

 

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PLAINTIFF WAS INJURED WHEN THE ARM AND FOOT PEDAL OF AN ELLIPTICAL MACHINE AT DEFENDANT’S GYM BROKE OFF; DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEFECT OR THE APPLICABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant gym was not entitled to summary judgment in this personal injury action. Plaintiff alleged the arm and foot pedal of the elliptical machine she was using detached. Defendant did not demonstrate that it did not have constructive notice of the defect or that plaintiff assumed the risk of injury:

Although the defendants submitted a transcript of deposition testimony from their employee regarding the defendants’ general practice of testing exercise equipment each weekday, they failed to present any specific evidence as to when the subject elliptical machine was last inspected relative to the subject incident. Mere reference to general practices, with no evidence regarding any specific inspection of the equipment in question, is insufficient to establish lack of constructive notice … . …

… [P]articipants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport or recreational activity … . Here, the risk of the left arm and foot pedal of an elliptical machine detaching or hinging out is not inherent in the recreational activity of exercising on an elliptical machine in a gym. Rather, the alleged defective condition of the elliptical machine enhanced the risk of injuries … . Buffalino v XSport Fitness, 2022 NY Slip Op 00998, Second Dept 2-16-22

 

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TO BE ENTITLED TO SUMMARY JUDGMENT BASED ON A PATIENT’S FAILURE TO SHOW UP FOR AN INDEPENDENT MEDICAL EXAMINATION (IME), THE NO-FAULT INSURER MUST SHOW BOTH THAT THE PATIENT DID NOT SHOW UP AND THE REQUEST FOR THE IME AND THE SCHEDULING OF THE IME COMPLIED WITH THE REQUIRED TIME-FRAMES (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-insurer’s motion for summary judgment in this no-fault insurance action should not have been granted. Although an insurer need not pay no-fault claims if the patient did not appear for an independent medical examination (IME), in order to warrant an award of  summary judgment the insurer must demonstrate compliance with the required time frames for requesting and scheduling the IME:

The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio … . However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear … . Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims (11 NYCRR 65-3.5[b],[d] ), plaintiff failed to establish its prima facie entitlement to summary judgment … . American Tr. Ins. Co. v Martinez, 2022 NY Slip Op 00963, First Dept 2-15-22

 

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SUPREME COURT, IN THE CONTEXT OF A MOTION TO DISMISS, SHOULD NOT HAVE DETERMINED AS A MATTER OF LAW THAT THE DEFENDANTS WERE NOT “AFFILIATES” WITHIN THE MEANING OF THE LANGUAGE OF A RELEASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Supreme Courts should have simply denied the motion to dismiss instead of deciding what parties were included in the term “affiliates” in the release at issue:

Supreme Court erred in finding, as a matter of law, that the word “affiliates” in the release entered into between plaintiffs and Siddiqui could not be read to include defendants Cernich and Huan Tseng … . The word “affiliates” may apply to individuals, and is “not commonly understood to apply only to entities” … . Furthermore, the arbitrator’s conclusion, in an earlier arbitration against different parties, that the release did not apply to nonparty Ming Dang does not serve as a conclusive basis for finding that the release did not apply to defendants. Accordingly, the scope of the release language with respect to Cernich and Tseng was ambiguous, and Supreme Court should have simply denied the motion to dismiss without determining the meaning of the release language as a matter of law. Apollo Mgt., Inc. v Cernich, 2022 NY Slip Op 00964, First Dept 2-15-22​

 

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