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HEIGHT DIFFERENTIAL BETWEEN TWO ADJACENT SIDEWALK SLABS WAS A TRIVIAL DEFECT AS A MATTER OF LAW; SLIP AND FALL ACTION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged one-inch height-differential in adjacent sidewalk slabs was not actionable in this slip and fall case:

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, in support of its motion, the defendant submitted, inter alia, the transcripts of the plaintiff’s testimony from a hearing pursuant to General Municipal Law § 50-h and her deposition testimony as well as photographs of the alleged defective sidewalk, which established, prima facie, that the height differential between the two slabs of abutting concrete that constituted the sidewalk was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed … . Boesch v Comsewogue Sch. Dist., 2021 NY Slip Op 04007, Second Dept 6-23-21

 

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THE CITY CHARTER PROVISION DID NOT PROVIDE FOR NOTICE OF A PENDING TAX FORECLOSURE SALE TO MORTGAGEES AND THEREBY VIOLATED THE MORTGAGEE’S DUE PROCESS RIGHTS IN THIS PROCEEDING; THE MORTGAGEE’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CITY WAS PROPERLY GRANTED (SECOND DEPT). ​

The Second Department determined the city charter provision did not provide for notice of pending tax lien sales to parties other than the owner which violated the due process rights of mortgagees:

“The constitutional guarantee of due process requires that a party who has a substantial property interest which may be affected by a tax lien sale receive notice that is ‘reasonably calculated’ to apprise it of an impending sale” … . Thus, “actual notice of a tax sale must be given to all parties with a substantial interest in the property whose names and addresses are ‘reasonably ascertainable'” … . A mortgagee has a legally protected property interest and is legally entitled to notice of a pending tax sale … .

Here, section 93 of the City Charter of the City of Middletown … does not provide for notice of pending tax lien sales to parties other than the owner, but provides only for post-sale notice 60 days prior to the divesting of all rights in the property. As such, City Charter section 93 fails to comport with due process requirements because it makes no provision for actual notice of impending tax sales to be given to mortgagees of record … . Accordingly, the Supreme Court properly denied the City’s motion for summary judgment dismissing the complaint insofar as asserted against it, and, as relevant to this appeal, granted that branch of [the mortgagee’s]  motion which was for summary judgment on the complaint insofar as asserted against the City. Bayview Loan Servicing, LLC v City of Middletown, 2021 NY Slip Op 04006, Second Dept 6-23-21

Similar issue and result in Delacorte v Luyanda, 2021 NY Slip Op 04009, Second Dept 6-23-21

 

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PLAINTIFF BANK’S REPRESENTATIVE RELIED ON UNIDENTIFIED DOCUMENTS WHICH WERE NOT ATTACHED TO HER AFFIDAVIT TO DEMONSTRATE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s representative relied on business records which were not identified or attached to demonstrate defendant’s (Huertas’s) default in this foreclosure action. Therefore the plaintiff’s motion for summary judgment should not have been granted:

… [T]he plaintiff relied upon the affidavit of Crystal Dunbar, a foreclosure specialist of … the mortgage loan servicer for the plaintiff’s assignee … to show that Huertas had defaulted under the terms of the subject note by failing to make required monthly payments. In her affidavit, Dunbar stated that Huertas “defaulted under their note for $227,136.00 owing to the Plaintiff . . . by having failed to make monthly payments on September 01, 2009 to date.” Dunbar did not state that she had personal knowledge of the default, but averred that she had “personal knowledge of the [p]laintiff’s records and record making practices, and how such records [were] made, used and kept.” Dunbar’s affidavit was sufficient to provide a foundation for the admission, under the business records exception to the rule against hearsay (see CPLR 4518[a]), of records related to the subject mortgage … . However, Dunbar’s purported knowledge of Huertas’s default was based upon her review of unidentified business records, which she failed to attach to her affidavit. Accordingly, her assertions regarding Huertas’s default, without the business records upon which she relied in making those assertions, constituted inadmissible hearsay … . Bank of Am., N.A. v Huertas, 2021 NY Slip Op 04005, First Dept 6-23-21

 

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THE HARASSMENT-RELATED SPEECH PROHIBITIONS IN THE ORDER OF PROTECTION DID NOT VIOLATE THE FIRST AMENDMENT BUT THE PROVISION PROHIBITING RESPONDENT FROM DISCSUSSING THE PETITIONER OR THE FAMILY OFFENSE PROCEEDING WAS STRUCK FROM THE ORDER OF PROTECTION AS UNNECESSARY (FIRST DEPT).

The First Department affirmed the finding respondent committed the family offense of harassment by sending email about petitioner’s personal matters to 53 people. Although the harassment prohibitions in the order of protection did not violate the Firs Amendment, the provision in the order of protection which prohibited respondent from discussing the petitioner or the proceedings was struck as unnecessary:

Respondent contends that the provision of the order prohibiting him from discussing petitioner or the case with anyone familiar with petitioner violated his First Amendment right to freedom of speech. To be sure, respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages is not protected by the First Amendment, because those repeated and unwanted communications serve no legitimate purpose … . However, because the harassment is adequately addressed by the provision that respondent stay away from petitioner and not contact her, we delete the prohibition against his discussing petitioner or the proceeding … . Matter of Sophia M. v James M., 2021 NY Slip Op 03992, First Dept 6-22-21

 

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THE LANDLORD AND GENERAL CONTRACTOR RESPONSIBLE FOR THE INSTALLATION OF AN UNAUTHORIZED SYSTEM TO DELIVER GAS TO APPARTMENTS WERE PROPERLY CONVICTED OF MANSLAUGHTER AFTER A GAS EXPLOSION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the manslaughter convictions of the landlord (Hrynenko) and general contractor (Kukic) stemming from a gas explosion which killed two and injured 13. The defendants were responsible for installing an unauthorized system for delivering gas to apartments in the building. The evidence was deemed legally sufficient and the verdicts were not against the weight of the evidence:

… [T]he evidence was legally sufficient to prove that defendants recklessly caused the victims’ deaths when they deliberately circumvented safety regulations to create and operate the unauthorized system that diverted natural gas from the building at 119 Second Avenue to the apartments in the building at 121 Second Avenue. Contrary to defendants’ primary argument, the explosion was a foreseeable result of their actions. There was ample evidence that defendants, who both had ample experience with buildings and the relevant DOB [Department of Buildings] and Con Ed regulations, understood the risk that death would occur when they proceeded with building and operating the unauthorized gas delivery system … . However, Hrynenko needed a gas delivery system to enable her to immediately begin collecting rent for the apartments at 121, so she chose not to wait for Con Ed’s permitting and inspection process to be completed for the authorized system and instead had Kukic build an unauthorized and dangerous makeshift system, using unlicensed plumbers, which they hid from Con Ed. The record shows that defendants both had active roles throughout the planning, building and operation of the system. People v Kukic, 2021 NY Slip Op 03996, First Dept 6-22-21

 

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THE DESIGNATING PETITIONS INCLUDED THE NAMES OF CANDIDATES WHO DID NOT AGREE TO BE LISTED; THE PETITIONS WERE THEREFORE PROPERLY INVALIDATED ON THE GROUND OF FRAUD (SECOND DEPT).

The Second Department determined Supreme Court properly invalidated appellants’ designating petitions because they included the names of candidates who did not consent to be listed on the petitions:

… [A] designating petition will be invalidated upon a showing that the entire petition is permeated with fraud … . Here, the petitioners demonstrated by clear and convincing evidence that the designating petitions of the appellants … were permeated with fraud, as it is undisputed that those designating petitions included the names of several candidates who never affirmatively agreed to be listed thereon, and the hearing evidence amply supported the Supreme Court’s determination that their inclusion was intentional and designed to mislead others. Thus, these designating petitions were properly invalidated on the ground of fraud … . Matter of Ariola v Maio, 2021 NY Slip Op 03988, Second Dept 6-17-21

 

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SENTENCE MUST BE PRONOUNCED ON EACH COUNT OF THE CONVICTION; SENTENCE VACATED AND REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, noted that sentence must be pronounced for each count of the conviction:

… County Court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20). Although the certificate of conviction states that defendant was sentenced on each count to concurrent terms of incarceration of nine years with five years of postrelease supervision, the court, at sentencing, “failed to impose a sentence for each count of which defendant was convicted” … . People v Brady, 2021 NY Slip Op 03951, Fourth Dept 6-17-21

 

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DECEDENT, WHO DIED TESTATE IN 2004, WAS AWARDED COMPENSATION BY CONGRESS IN 2015 BECAUSE HER HUSBAND HAD BEEN HELD IN IRAN AS A HOSTAGE FROM 1979 TO 1981; BECAUSE THE COMPENSATION WAS AWARDED AFTER HER DEATH, IT DOES NOT PASS BY WILL, BUT RATHER BY THE LAWS OF INTESTACY (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Centra, determined the funds awarded by Congress to the decedent, after the decedent’s death, do not pass by decedent’s will, but rather by the laws of intestacy. Decedent, who died in 2004, was the wife of a man held hostage in Iran from 1979 to 1981. In 2015 Congress awarded compensation to the hostages’ families:

Regarding property acquired by an estate after the death of the testator, case law is sparse, but is consistent with the language in EPTL 3-3.1 providing that only property that a testator is entitled to devise “at the time of his [or her] death” may be distributed pursuant to the terms of the will … . We are particularly persuaded by the decision in Shaw Family Archives Ltd. , which involved a dispute over ownership interest in Marilyn Monroe’s right of publicity after her death. The court determined that New York law did not permit a testator to dispose by will of property that she did not own at the time of her death … . The court cited to EPTL 3-3.1 and held that “[t]he corollary principle recognized by the courts is that property not owned by the testator at the time of his [or her] death is not subject to disposition by will” … .

We agree with the reasoning in Shaw Family Archives Ltd. that the New York rule is grounded in the testator’s lack of capacity to devise property he or she does not own at the time of death … . Matter of Keough, 2021 NY Slip Op 03948, Fourth Dept 6-17-21

 

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HUSBAND’S PROCEEDS FROM THE SALE OF STOCK DID NOT LOSE THEIR SEPARATE-PROPERTY CHARACTER WHEN THEY WERE BRIEFLY PLACED IN THE PARTIES’ JOINT BANK ACCOUNT BEFORE BEING USED FOR THE DOWNPAYMENT FOR THE MARITAL RESIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined funds from the husband’s sale of stock were his separate property, even though the funds were briefly placed in a joint account before using them for the down payment on the marital residence:

… [D]efendant offered uncontroverted testimony, supported by documentary evidence, that he placed funds acquired from the sale of stocks he had purchased prior to the marriage into the parties’ joint bank account because it was his only checking account and he could not access the funds directly from the platform from which he sold the stock … . The funds remained in the account for only a matter of weeks before defendant withdrew a majority of them to pay a portion of the down payment for the marital home … . Thus, defendant established that the account was used “only as a conduit” for the sale of his stock … . The funds therefore maintained their character as separate property, and defendant is entitled to a credit for his portion of the down payment … . LaPoint v Claypoole, 2021 NY Slip Op 03947, Fourth Dept 6-17-21

 

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THE ERIE COUNTY SHERIFF’S OFFICE (ECSO) IS NOT A SEPARATE ENTITY APART FROM THE COUNTY; THE COUNTY MAY BE SUED FOR THE ACTIONS OF CIVILIAN EMPLOYEES OF THE SHERIFF’S OFFICE PURSUANT TO RESPONDEAT SUPERIOR; HERE PLAINTIFF ALLEGED PLAINTIFF’S DECEDENT DIED IN HIS CAR AWAITING RESCUE DURING A SNOWSTORM (FOURTH DEPT).

The Fourth Department determined the Erie County Sheriff’s Office (ECSO) is not a separate entity apart from the county, and the county may be liable for the acts of the sheriff’s office’s civilian employees pursuant to respondeat superior. The lawsuit alleged the defendants failed to timely rescue plaintiff’s decedent who died in his car during a snowstorm:

A sheriff’s office has no legal identity separate from its corresponding county, “and thus an ‘action against the Sheriff’s [Office] is, in effect, an action against the [corresponding] County itself’ ” … . …

Although a “county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior” … , we conclude that a county may be vicariously liable for the negligent acts of the sheriff’s civilian employees given the general rule that a sheriff’s office does not exist separately from its corresponding county … . Moreover, and contrary to defendants’ further contention, the County is not entitled to immunity under Executive Law § 25 because that statute was not pleaded as an affirmative defense in the answer (see CPLR 3018 [b] …). Abate v County of Erie, 2021 NY Slip Op 03940, Fourth Dept 6-17-21

 

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