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PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AS THEY SOUGHT TO VACATE A CONSTRUCTION CONTRACT; THE CONSTRUCTION PROGRESSED TO THE POINT WHERE THE COURT MUST DISMISS THE APPEAL AS MOOT (THIRD DEPT).

The Third Department determined the petitioners’ appeal of the denial of a declaratory judgment seeking to vacate the award of a construction contract by the Office of State Comptroller (OSC) must be dismissed as moot. The petitioners did not seek to maintain the status quo by injunction and the work had progressed too far:

… [T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Where a change in circumstances involves the substantial completion of construction, “courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness … . Matter of Bothar Constr., LLC v Dominguez, 2022 NY Slip Op 00346, Third Dept 1-20-22

 

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SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE ASSAULT (THIRD DEPT). ​

The Third Department determined defendant SUNY Albany’s motion for summary judgment in this inadequate-security case was properly denied. Claimant was assaulted in her dorm room by a person who was not authorized to be in the dormitory. The Court of Claims held the school was not protected by government immunity because building security was a proprietary function (akin to a landlord’s duty), as opposed to a governmental function, and therefore government immunity did not apply. There was evidence the lock on the dormitory door was not adequate and the sexual assault by an intruder was foreseeable:

As the Court of Appeals has recognized, “[a] governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions” and “any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the [governmental entity’s] alleged negligent action falls into, either a proprietary or governmental capacity” (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). In Miller, a student at a state university was raped by an intruder in the laundry room in her dormitory. The Court of Appeals permitted the claim of negligence — stemming from the defendant’s failure to lock the entrance doors to the dormitory — to go forward in the defendant’s proprietary capacity as a landlord. As in Miller, claimant’s allegations that defendants failed to, among other things, install proper security devices, including locks, clearly implicate defendants’ proprietary function as a landlord, and the Court of Claims therefore correctly rejected defendants’ claim of governmental immunity. …

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . Criminal conduct is foreseeable if it is “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . P.R.B. v State of New York, 2022 NY Slip Op 00348, Third Dept 1-20-22

 

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GIVEN THE INITIAL LACK OF DISCLOSURE BY THE PEOPLE AND DEFENDANT’S RESPONSES ONCE THE PEOPLE DISCLOSED THE TRANSMISSION WHICH LED TO HIS ARREST, DEFENDANT ALLEGED SUFFICIENT FACTS TO WARRANT A MAPP/DUNAWAY HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had alleged sufficient facts to warrant a hearing on whether the police had probable cause to arrest him:

… [D]efendant’s motion challenged the constitutional adequacy of “any transmitted description on which the seizing officers relied in detaining and arresting the defendant.”

Defendant’s access to information was limited, because … the People … did not disclose “by either voluntary discovery or otherwise, . . . the description radioed by the purchasing officer to the arresting officer” … . Indeed, … the People did not even specifically aver that such a communication occurred. … [T]he absence of factual allegations regarding the content of a transmission from the undercover to the arresting officer did not render defendant’s motion deficient. …

[D]efendant made allegations of facts within his knowledge that … were pertinent to defendant’s argument that probable cause to arrest him was lacking. … [D]efendant described his own appearance at the time of arrest to the extent of stating that he was a 44-year-old black man, and that there was nothing “particularly distinctive about his appearance” that would tend to “preclude the possibility of misidentification.” This description allowed for a comparison between defendant’s self-description and the transmitted description, once that description was disclosed. People v Fleming, 2022 NY Slip Op 00360, First Dept 1-20-22

 

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THE PLAINTIFFS’ REQUEST TO PROCEED ANONYMOUSLY IN THIS CHILD VICTIMS ACT CASE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF ANY HARM WHICH WOULD RESULT FROM USING PLAINTIFFS’ LEGAL NAMES IN THE CAPTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiffs in this Child Victims Act action should not have been allowed to proceed anonymously. The request was not supported by sufficient evidence of harm which would result from using plaintiff’s legal names in the caption:

Several New York courts “have addressed the legislature’s intent in enacting the CVA [Child Victims Act] with respect to the use of pseudonyms and concluded that the legislature ‘left it up to each alleged victim to determine whether to seek anonymity’ . . . [and] ‘left it to the courts to assess each individual case'” … . This Court has held that permission to use a pseudonym will not be granted automatically and has noted that the motion court “should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it” … . In determining whether to grant a plaintiff’s request to proceed anonymously, the motion court must “‘use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant'”… . A plaintiff seeking permission to proceed anonymously by employing a pseudonym must provide facts specific to the plaintiff that will allow the motion court to exercise its discretion in an informed manner … .

Here, plaintiffs’ motion to allow 33 unnamed plaintiffs to proceed anonymously should have been denied because plaintiffs failed to submit sufficient evidence to support the relief requested. Plaintiffs only submitted a short attorney affirmation, which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm should their identities be revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously … . Twersky v Yeshiva Univ., 2022 NY Slip Op 00366, First Dept 1-20-22

 

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IN THIS ELEVATOR-ACCIDENT CASE, THE BUILDING OWNERS WERE ENTITLED TO A CONDITIONAL JUDGMENT ON CONTRACTUAL INDEMNIFICATION AGAINST THE ELEVATOR-MAINTENANCE COMPANY BEFORE THE PRIMARY ACTION IS DETERMINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this elevator accident case was entitled to a conditional judgment (pending determination of the primary action) against the elevator maintenance company (Otis) for contractual indemnification:

“A court may render a conditional judgment on the issue of indemnity pending determination of the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed” … . To obtain conditional relief on a claim for contractual indemnification, “the one seeking indemnity need only establish that it was free from any negligence and [may be] held liable solely by virtue of . . . statutory [or vicarious] liability” … .

… [The building-owner] defendants established their … entitlement to judgment as a matter of law by showing that they did not have notice of the alleged defect in the subject elevator … , and Otis did not notify the [them] when repairs and/or maintenance was performed on the elevators in the building. Winter v ESRT Empire State Bldg., LLC, 2022 NY Slip Op 00333, Second Dept 1-19-22

 

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PLAINTIFF AND DEFENDANTS OWN ADJOINING LOTS ORIGINALLY CONVEYED BY THE SAME GRANTOR WITH A RESTRICTION ALLOWING ONLY ONE RESIDENCE PER LOT; PLAINTIFF HAD THE REQUISITE “VERTICAL PRIVITY” TO ENFORCE THE RESTRICTION WHEN DEFENDANTS SOUGHT TO SUBDIVIDE THEIR LOT; DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE COVENANT WAS UNENFORCEABLE DUE TO RPAPL 1951 BECAUSE THE AREA HAD CHANGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff had “vertical privity” which allowed plaintiff to enforce a covenant in the deed from the original grantor of both plaintiff’s and defendants’ neighboring lots; and (2) defendants raised a triable issue of fact whether the covenant was unenforceable pursuant to RPAPL 1951 due to changes in the area. The covenant restricted each lot one residence. Defendants sough to subdivide their lot:

… [P]laintiff has the requisite vertical privity to enforce the restrictive covenants … . The plaintiff derived title to Lot 5 from the grantor, who subdivided the Lilac Farm subdivision. By deed dated June 4, 1929, the grantor burdened Lot 6, the property conveyed to the defendants’ predecessor in title, by subjecting the conveyance to the restrictive covenants in question, and which accrued to the benefit of the property retained by the grantor, including Lot 5, which was conveyed to the plaintiff’s predecessors in title by deed dated September 20, 1929. The defendants do not allege that the succession of conveyances from the grantor to the plaintiff was not continuous and lawful. Therefore, the plaintiff has the requisite vertical privity and did not need to demonstrate a common plan or scheme for the entire subdivision … . …

… [T]he defendants raised a triable issue of fact as to whether the restrictive covenant prohibiting subdivision of the parcel is unenforceable pursuant to RPAPL 1951 due to changes in the area since the imposition of such covenant … . Shehan v Commisso, 2022 NY Slip Op 00328, Second Dept 1-19-22

 

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EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).

The Second Department, reversing Supreme Court determined; (1) the motion for summary judgment in this traffic accident case was not premature; and (2) plaintiff was entitled to summary judgment on liability. Plaintiff alleged his taxi cab was struck by defendant’s bus which crossed the double yellow line. Party depositions had not yet been taken:

“Pursuant to CPLR 3212(f), where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” … . “[M]ere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment” … . Here, the defendants’ opposition to the plaintiff’s motion consisted solely of legal argument that the motion was premature. However, the defendants did not explain why the bus operator offered no affidavit in opposition countering the plaintiff’s testimony as to how the alleged incident occurred. Moreover, the defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery which would bear on their liability for the alleged incident. …

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … ; instead, “[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Shah v MTA Bus Co., 2022 NY Slip Op 00327, Second Dept 1-19-22

 

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DEFENDANT WAS ENTITLED TO A HEARNG ON HIS MOTION TO VACATE HIS MURDER CONVICTION ON THE GROUND OF ACTUAL INNOCENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his murder conviction on the ground of actual innocence:

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial” … . Further, “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty” … . “A prima facie showing of actual innocence is made out when there is ‘a sufficient showing of possible merit to warrant a fuller exploration'” … . Upon a prima facie showing, a hearing should be conducted on a defendant’s claim of actual innocence … .

… [T]he defendant made a prima facie showing based upon the five affidavits from the alleged witnesses that he submitted and [the] recantation of [a witness’s] trial testimony [identifying defendant as the shooter]. People v Green, 2022 NY Slip Op 00315, Second Dept 1-19-22

 

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SUPREME COURT PROPERLY CONSIDERED A SUCCESSIVE AND LATE MOTION FOR SUMMARY JUDGMENT, CRITERIA EXPLAINED; DEFENDANT DEMONSTRATED PLAINTIFF WAS NOT A THIRD-PARTY BENEFICIARY OF THE CONTRACT AT ISSUE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s breach of contract cause of action should have been dismissed because plaintiff did not qualify as a third-party beneficiary of the contract entered into by defendant county. The Second Department noted that Supreme Court properly exercised its discretion in allowing the defendant county to make a successive and late motion for summary judgment:

… [A] subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts” … . … [T]he “Supreme Court is afforded wide latitude with respect to determining whether good cause exists for permitting late motions. It may . . . entertain belated but meritorious motions in the interest of judicial economy where the opposing party fails to demonstrate prejudice” … . …

“A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost” … . * * *

… [T]he County established … that the plaintiff was not a third-party beneficiary of the … contract, by showing that the plaintiff was not the only entity that could recover under the contract, and that the contract did not contain any language evincing the parties’ intent to authorize the plaintiff to enforce any obligations thereunder … . Old Crompond Rd., LLC v County of Westchester, 2022 NY Slip Op 00310, Second Dept 1-19-22​

 

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DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to the manufacturer and retailer of a “hoverboard” on the products liability (design defect), failure to warn and implied warranty causes of action. Plaintiff alleged she was using the hoverboard in accordance with the instructions and was injured. The expert affidavit provided by the defendants was conclusory and did not eliminate questions of fact on the design defect cause of action:

A defendant moving for summary judgment dismissing a design defect cause of action must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff’s actions constituted the sole proximate cause of his or her injuries … .

The defendants’ expert, in his affidavit, opined in mere conclusory fashion that the hoverboard was not defectively designed, without providing any explanation of the hoverboard’s design, or any discussion of industry standards or costs. Nor did the expert state whether the defendants had received complaints about any of the other hoverboards they had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the hoverboard was reasonably safe for its intended use … . LaScala v QVC, 2022 NY Slip Op 00305. Second Dept 1-19-22

 

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