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PETITIONER, PURSUANT TO LIEN LAW 38, HAS A RIGHT TO AN ITEMIZED STATEMENT BREAKING DOWN THE AMOUNT OF A MECHANIC’S LIEN; THE INFORMATION PROVIDED BY THE RESPONDENT HERE WAS DEEMED INSUFFICIENT TO SATISFY LIEN LAW 38 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking an itemized statement breaking down the amount of a mechanic’s lien should have been granted:

Lien Law § 38 provides, in relevant part, that “[a] lienor who has filed a notice of lien shall, on demand in writing, deliver to the owner or contractor making such demand a statement in writing which shall set forth the items of labor and/or material and the value thereof which make up the amount for which he [or she] claims a lien, and which shall also set forth the terms of the contract under which such items were furnished.” The documents provided by the respondent in opposition to the petition failed to comply with the requirements of Lien Law § 38. The documents, among other things, failed to sufficiently set forth “‘the items and cost of labor, or the items and cost of materials'” … . Matter of Red Hook 160, LLC v Borough Constr. Group, LLC, 2022 NY Slip Op 02267. Second Dept 4-6-22

​Practice Point: When a notice of a mechanic’s lien is filed the contractor or owner, pursuant to Line Law 38, has the right to request a statement breaking down the items and cost of labor or the items and cost of materials.

 

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A COURT REVIEWING THE DENIAL OF A FOIL REQUEST CANNOT BASE ITS RULING AFFIRMING THE DENIAL ON A GROUND NOT RAISED BY THE AGENCY TO WHICH THE REQUEST WAS MADE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court reviewing the denial of a FOIL request cannot base its ruling on a ground that was not cited by the agency to which the request was made:

“In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are narrowly construed” …  This showing requires the agency “to articulate a particularized and specific justification for denying access,” and “[c]onclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . “If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material” … .

“It is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency” … . A reviewing court “‘is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis'” … . Matter of McFadden v McDonald, 2022 NY Slip Op 02265, Second Dept 4-6-22

Practice Point: A court affirming the denial of a FOIL request cannot do so on a ground not raised by the agency to which the request was made.

 

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RPAPL 1301(3) PROHIBITS MORE THAN ONE FORECLOSURE AT A TIME; THE VIOLATION OF THAT STATUTE HERE WAS A MERE IRREGULARITY WHICH SHOULD HAVE BEEN DISREGARDED; THE PRIOR ACTION WAS DISMISSED AFTER THE INSTANT ACTION WAS COMMENCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fact that RPAPL 1301(3), which prohibits more than one foreclosure at a time, was technically violated did not warrant dismissing the second action:

Here, the plaintiff failed to seek leave of court to commence this action while the 2010 action was still pending. However, the 2010 action had previously been marked disposed, and no further action occurred in the 2010 action until the administrative dismissal on April 9, 2018. Additionally, by the time the defendants cross-moved in this action for summary judgment dismissing the complaint insofar as asserted against them, the 2010 action had already been dismissed for nearly six months. Thus, the defendants were not prejudiced by having to defend against more than one action, and the plaintiff’s failure to strictly comply with RPAPL 1301(3) should have been disregarded as a mere irregularity … . HSBC Bank USA, N.A. v Kading, 2022 NY Slip Op 02255, Second Dept 4-6-22

Practice Point: Although RPAPL 1301(3) prohibits more than one foreclosure action at a time, if there is no prejudice to the borrowers a violation of that statute will be disregarded as a mere irregularity. Here the inactive first action was dismissed before the borrowers moved for summary judgment in the second.

 

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THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners’ application to deem the late notice of claim timely served nunc pro tunc should not have been granted. Apparently petitioners’ child tripped and fell on a stairwell at at her school. The fact that the school was aware of the child’s injury at the time does not mean the school was aware of a potential lawsuit. The year-long delay was not adequately explained; infancy is not enough. And the petitioners did not show the school was not prejudiced by the delay:

The appellant’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable” … . The petitioner mother stated in an affidavit submitted in support of the application that the school nurse called her on the day of the accident, advising her that her daughter fell on the stairs and injured her right foot. This statement, however, did not provide the appellant with actual knowledge of the facts underlying the petitioners’ claim of negligent supervision … .. Similarly, although the petitioner mother stated in her affidavit that she spoke to an employee of the appellant about the accident approximately two months after it occurred, the mother’s affidavit indicates that the employee had no information or details to share. Moreover, letters sent by the petitioners’ attorneys to the appellant did not advise it of the essential facts underlying the negligent supervision claim. J. G. v Academy Charter Elementary Sch., 2022 NY Slip Op 02251, Second Dept 4-6-22

​Practice Point: An application to serve a late notice of claim against a school may be granted if the school had timely knowledge of the claim. But that doesn’t mean timely knowledge of the injury or the incident. It means timely knowledge of the potential lawsuit.

 

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IN THIS MEDICAL MALPRACTICE CASE, WHETHER DEFENDANT REGISTERED NURSE AND DEFENDANT PHYSICIAN’S ASSISTANT GAVE PLAINTIFF THE APPROPRIATE DISCHARGE INSTRUCTIONS AFTER DISOVERING A LUMP IN PLAINTIFF’S BREAST CREATED A QUESTION OF FACT; THERE WAS A QUESTION OF FACT WHETHER THE DOCTOR WHO COSIGNED THE PHYSICIAN ASSISTANT’S CHART SHOULD HAVE REVIEWED THE CHART (FIRST DEPT).

The First Department, reversing Supreme Court, determined questions of fact precluded summary judgment in favor of defendant registered nurse (Varas), defendant physician’s assistant (Rogan), and defendant doctor who cosigned the physician assistant’s chart (Shaukat). Plaintiff alleged she was told the lump in her breast was a cyst and was given no follow-up instructions. Defendants allege plaintiff was given the appropriate follow-up instructions (to rule out cancer). Several months later plaintiff was diagnosed with stage IV breast cancer:

Defendants Varas and Rogan made a prima facie showing that they did not depart from the applicable standard of care in providing plaintiff with verbal or written discharge instructions … . There are disputed issues of fact, however, that preclude summary judgment, including what, if anything at all, plaintiff was told upon discharge.

Dr. Shaukat established prima facie that she did not depart from the applicable standard of care through her expert physician’s opinion that cosigning a physician assistant’s chart “is a customary administrative function in major accredited hospitals,” and that she acted within that standard of care by cosigning plaintiff’s chart. In opposition, however, plaintiff raised an issue of fact through her expert physician’s opinions that “this function is not merely administrative”; that, in accordance with American Medical Association policy, “physician[s] must review the [physician assistants’] work to ensure conformity with the standard of care, not to simply rubberstamp medical records for ‘administrative’ purposes only”; and that Dr. Shaukat failed to conform to this standard of care by not recognizing alleged deficiencies in plaintiff’s chart and by not instructing Rogan to call plaintiff to tell her that she required imaging promptly in order to rule out a more serious condition, such as breast cancer … . Almonte v Shaukat, 2022 NY Slip Op 02221, First Dept 4-5-22

​Practice Point: In this medical malpractice case, whether a registered nurse and a physician’s assistant gave plaintiff adequate discharge instructions after discovery of a lump in plaintiff’s breast raised a question of fact. In addition, whether the doctor who cosigned the physician assistant’s chart should have reviewed the chart raised a question of fact.

 

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ALTHOUGH THE RECORDS OF TRAFFIC INFRACTIONS ARE SEALED PURSUANT TO CPL 160.55, THE RECORDS OF A VIOLATION OF NYC ADMINISTRATIVE CODE 19-190(b), AN UNCLASSIFIED MISDEMEANOR WHICH CRIMINALIZES STRIKING A PEDESTRIAN WHO HAS THE RIGHT OF WAY, ARE NOT SEALED; THEREFORE PLAINTIFF IS ENTITLED TO DISCOVERY OF THOSE RECORDS IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this vehicle-pedestrian accident case was entitled to the records of the driver’s guilty plea to an unclassified misdemeanor (under the NYC Administrative Code), which criminalizes striking a pedestrian who has the right of way: The unclassified misdemeanor is not covered by the sealing statute, Criminal Procedure Law (CPL) 160.55 which seals records of Vehicle and Traffic Law infractions:

… [Defendant driver] was arrested, charged, and subsequently pled guilty to Administrative Code of City of NY § 19-190(b), an unclassified misdemeanor, and to Vehicle and Traffic Law § 1146(c)(1), a traffic violation, for failing to yield to plaintiff’s decedent and causing him injury. Plaintiff … now seeks the records pertaining to [the driver’s] unclassified misdemeanor. The City defendants argue that these records are not discoverable because they overlap with [the driver’s] traffic infraction records, which are sealed pursuant to CPL 160.55.

Under CPL 160.55, all records and papers relating to the arrest or prosecution of an individual convicted of a traffic infraction or violation, following a criminal action or proceeding, shall be sealed and not made available to any person or public or private agency … . Plaintiff is entitled to [the driver’s] records pertaining to his unclassified misdemeanor, as the records are not subject to CPL 160.55, and it does not appear that they were sealed … . To the extent these records contain references or information related solely to [the driver’s] sealed traffic violation case, the City must redact or remove it from its production. Lu-Wong v City of New York, 2022 NY Slip Op 02226, First Dept 4-5-22

Practice Point: Although the records of traffic infractions are sealed under CPL 160.55, the records of a violation of the NYC Administrative Code, which criminalizes striking a pedestrian who has the right-of-way, are not subject to that sealing statute. Therefore the plaintiff in this vehicle-pedestrian accident case was entitled to those records.

 

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THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT).

The First Department noted that the trial judge properly allowed plaintiff to call her treating physician to rebut the testimony of defendants’ expert, even though the doctor’s testimony could have been presented in her case-in-chief:

The trial court providently exercised its discretion in permitting plaintiff to call her treating radiologist as a rebuttal witness … . While plaintiff’s radiologist’s testimony could have been offered as part of her case-in-chief, and her failure to offer the testimony at that time deprived her of the right to make use of it as affirmative evidence, she still had the right to offer the testimony in order “to impeach or discredit” the testimony of defendants’ expert radiologist … . Reinoso v New York City Tr. Auth., 2022 NY Slip Op 02242, First Dept 4-5-22

Practice Point: In a civil case, a judge has the discretion to allow a plaintiff to present rebuttal evidence which could have been presented in the case-in-chief.

 

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THE JUDGE SHOULD HAVE INQUIRED FURTHER WHEN SEVERAL PROSPECTIVE JURORS INDICATED THEY WOULD BE INCLINED TO BELIEVE THE VICTIM IN THIS SEXUAL ABUSE CASE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s sexual-abuse conviction, determined the judge should have inquired further when several prospective jurors indicated they would be inclined to believe the victim:

PROSPECTIVE JUROR [Mr. L.]: … I would say that I do think that there is a lot of disincentives to come forward at all. And to come forward to this point, it would surprise me that someone would get that far without there being anything at all to it

THE COURT: Okay. …

MR. LYNCH: I know some of you raised your hand. Who agrees with the statement that Mr. L. just said?” (at which time 5 jurors raised their hands).

This statement by prospective juror (Mr. L.) and the apparent agreement by the other prospective jurors who raised their hands was sufficient to raise “a serious doubt regarding the ability to be impartial” … . The court erred in not engaging in any further inquiry of these jurors in order to elicit an unequivocal assurance of their impartiality and their ability to follow the court’s instructions … . People v Ledezma, 2022 NY Slip Op 02236, First Dept 4-5-22

Practice Point: In this sexual abuse case, five prospective jurors agreed with a prospective juror who said he would be inclined to believe the victim because of how hard it is to come forward. The judge should have made further inquiries. New trial ordered.

 

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PLAINTIFF FELL LEAVING AN ELEVATOR HE HAD JUST MODIFIED TO PREVENT ACCESS TO A FLOOR; HIS WORK WAS NOT ROUTINE MAINTENANCE; INDUSTRIAL CODE PROVISIONS ABOUT GUARDING HAZARDOUS OPENINGS APPLIED; ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT; LABOR LAW 200, 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s work on the elevator was not routine maintenance and therefore Labor Law 240(1) and 241(6) were applicable; (2) the Labor Law 241(6) cause of action based on Industrial Code provisions requiring the guarding of hazardous openings should not have been dismissed; and (3) there are questions of fact whether one defendant, Edge, based on a subcontract, was liable as a statutory agent under Labor Law 200, 240(1) and 241(6):

Plaintiff and a coworker lowered a building’s freight elevator into the basement to allow plaintiff to perform work on top of the elevator. Plaintiff testified that he spent about 40 minutes performing that work, which involved making changes to the elevator in order to prevent people from accessing a first-floor renovation site by means of the elevator’s rear door. The elevator’s front door opened onto an outdoor area. After performing this task, plaintiff claims that he tripped on a wooden ramp, which led from a loading dock to the elevator, and fell. …

… [P]laintiff was engaged in altering the premises within the meaning of Labor Law § 240(1), since his work was intended to secure the premises in preparation for the renovation project … .

The Labor Law § 241(6) claim should be reinstated insofar as it is based on alleged violations of Industrial Code §§ 23-1.7(b)(1)(i) and 23-1.15(a), since there are issues of fact as to whether plaintiff’s accident was proximately caused by the lack of a compliant “safety railing” guarding the “hazardous opening,” and it is undisputed that the opening was not “guarded by a substantial cover fastened in place” (12 NYCRR § 23-1.7[b][1][i]). …

… [T]here is testimonial evidence that the subcontract made Edge responsible for performing all aspects of the sidewalk excavation, including safety procedures. Moreover, there are issues of fact as to whether Edge created or had notice of the defective condition that caused plaintiff to fall into the excavation hole … . Rooney v D.P. Consulting Corp., 2022 NY Slip Op 02243, First Dept 4-5-22

Practice Point: This case found that a subcontractor responsible for safety procedures could be liable as a statutory agent under Labor Law 200, 240(1) and 241(6).

 

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BOTH THE INDICTMENT AND THE SUPERIOR COURT INFORMATION CHARGED CRIMES WITH THE ELEMENT THAT THE VICTIM WAS LESS THAN 17; BOTH HAD THE WRONG BIRTH DATE FOR THE VICTIM WHICH THEREBY ALLEGED THE VICTIM WAS MORE THAN 17; THAT IS A JURISDICTIONAL DEFECT WHICH CANNOT BE CORRECTED BY AMENDMENT (THIRD DEPT). ​

The Third Department, reversing the conviction and dismissing the superior court information, determined that both the indictment and the subsequent superior court information were jurisdictionally defective. Both charged sexual offenses with the victim being less than 17 years old as an element. Both had the wrong birth date for the victim, which placed the victim’s age at more than 17 years old. The Third Department noted that the indictment, which was replaced by the superior court information, was improperly amended to reflect the correct birth date:

… [T]he superior court information specifically cited and charged defendant with endangering the welfare of a child under Penal Law § 260.10 (1), which provides that “[a] person is guilty of endangering the welfare of a child when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old” (Penal Law § 260.10 [1]). However, the superior court information also alleged that, “[o]n or about November 13, 2016, . . . the defendant . . . did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old, . . . having a date of birth of 6/2/1999, by engaging in oral sexual conduct with” the victim. Inasmuch as the offense of endangering the welfare of a child requires that the victim be less than 17 years old, we find that the superior court information was jurisdictionally defective because it failed to effectively charge defendant with the commission of a crime where the date of birth indicated that the victim was 17 at the time of the offense … .

Although a trial court may permit an indictment to be amended “with respect to defects, errors or variances from the proof relating to the matters of form, time, place, names of persons and the like” (CPL 200.70 [1]), an indictment may not “be amended for the purpose of curing . . . [a] failure thereof to charge or state an offense[] or . . . [l]egal insufficiency of the factual allegations” (CPL 200.70 [2] [a], [b] … ). Here, inasmuch as the first five counts of the indictment charged defendant with offenses that required the victim to be less than 17 years old, such counts suffered from the same jurisdictional defect as the superior court information in that they failed to allege a crime by stating that the victim’s date of birth was June 2, 1999 — making the victim 17 years old at the time of the alleged offense on November 13, 2016. As such, County Court had no authority to grant the People’s application to amend those counts, “regardless of any consistency with the People’s theory before the grand jury” or lack of prejudice to defendant … . People v Solomon, 2022 NY Slip Op 02158, Third Dept 3-31-22

Practice Point: If an element of the crime is that the victim is less than 17, and the indictment and the superior court information have the wrong birth date which puts the victim’s age at more than 17, the indictment and the superior court information are jurisdictionally defective and cannot be amended.

 

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