You are here: / PLAINTIFF WAS KNOCKED DOWN WHEN MALL SHOPPERS PANICKED AND FLED BECAUSE...

Search Results

/

PLAINTIFF WAS KNOCKED DOWN WHEN MALL SHOPPERS PANICKED AND FLED BECAUSE A FALLING DISPLAY SOUNDED LIKE GUNSHOTS; QUESTIONS OF FACT CONCERNING THE FORESEEABILITY OF THE PANIC AND THE OPPORTUNITY TO CONTROL THE PANIC PRECLUDED SUMMARY JUDGMENT RE THE OWNERS AND SECURITY COMPANY (SECOND DEPT).

The Second Department determined the owners of a shopping mall and the mall security company did not eliminate questions of fact about whether they owed a duty to prevent harm to plaintiff, who was knocked down when shoppers panicked. Apparently security personnel were struggling with a shoplifter when a display of perfume bottles was knocked over causing a crash which apparently sounded like gunshots:

“‘Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property'” … . An owner’s duty to control the conduct of persons on its premises arises when it has the opportunity to control such conduct, and is reasonably aware of the need for such control … . The record demonstrates that the mall defendants and AlliedBarton [the security company] had trained employees to handle mall evacuations and active shooters, including a live drill with other employees assuming the role of panicked shoppers. Thus, the mall defendants did not eliminate all triable issues of fact as to whether it was foreseeable that a disturbance in the mall, like the one caused by the incident with Darby [the alleged shoplifter], could cause a dangerous panic. Furthermore, contrary to the mall defendants’ contention, they failed to establish that they had no notice or opportunity to control the panic or the crowd before it reached [the] store [where plaintiff was shopping] and allegedly ultimately caused the plaintiff’s injuries. Grogan v Simon Prop. Group, Inc., 2021 NY Slip Op 01396, Second Dept 3-10-21

 

/ ,

THE MOTION FOR AN ORDER OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for an order of attachment should not have been granted:

“In order to be granted an order of attachment under CPLR 6201(3), a plaintiff must demonstrate that the defendant has concealed or is about to conceal property in one or more of several enumerated ways, and has acted or will act with the intent to defraud creditors, or to frustrate the enforcement of a judgment that might be rendered in favor of the plaintiff” … . “Affidavits containing allegations raising a mere suspicion of an intent to defraud are insufficient. It must appear that such fraudulent intent really existed in the defendant’s mind” … . The “mere removal, assignment or other disposition of property is not grounds for attachment” … . Cyngiel v Krigsman, 2021 NY Slip Op 01391, Second Dept 3-10-21

 

/ , ,

THE CRITERIA FOR APPOINTMENT OF A TEMPORARY RECEIVER IN THIS PARTITION AND SALE ACTION WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the evidence did not support the appointment of a temporary receiver of a residential building and cooperative apartment that were the subjects of a partition and sale action:

CPLR 6401(a) permits the court, upon a motion by a person with an “apparent interest” in property, to appoint a temporary receiver of that property where “there is danger” that it will be “materially injured or destroyed.” However, the appointment of a temporary receiver “is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits” … .Therefore, a motion seeking such an appointment should be granted only where the moving party has made a “clear and convincing” evidentiary showing of “irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests” … .

Here, the plaintiff failed to make the requisite showing. In particular, the plaintiff’s speculative and conclusory allegations that the defendants failed to repair and maintain the subject properties and commingled income derived from the subject properties with their personal income were insufficient to demonstrate that there was a danger of irreparable loss or material injury to the subject properties warranting the appointment of a temporary receiver … . Similarly, without more, the defendants’ failure to maintain adequate records does not demonstrate that the plaintiff’s interest in the subject properties is in imminent danger of irreparable loss or waste … . Cyngiel v Krigsman, 2021 NY Slip Op 01390, Second Dept 3-10-21

 

/

THE REFEREE DID NOT COMPLY WITH THE ORDER OF REFERENCE; SUPREME COURT’S RULINGS BASED UPON THE REFEREE’S ORDER WERE THEREFORE INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee did not comply with the order of reference and the referee’s order exceeded the scope of authority given by the order of reference. Therefore the grant of summary judgment, which was based on the referee’s order, was reversed:

A referee derives his or her authority from an order of reference by the court … , and the scope of the authority is defined by the order of reference (see CPLR 4311 … ). A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction … .

Here, the order of reference directed the Referee to hear and determine the issue of the preliminary injunction. The Referee’s order, however, did not render a determination on the issue of the preliminary injunction. Brighton Leasing Corp. v Brighton Realty Corp., 2021 NY Slip Op 01384 Second Dept 3-10-21

 

/ ,

THE CITY DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK/CURB DEFECT IN THIS SLIP AND FALL CASE BECAUSE THE DEFECT DID NOT APPEAR ON THE BIG APPLE MAP WHICH HAD BEEN SERVED ON THE CITY, DESPITE THE APPARENT EXISTENCE OF ANOTHER BIG APPLE MAP WHICH SHOWED THE DEFECT BUT WAS NOT SHOWN TO HAVE BEEN SERVED ON THE CITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Big Apple map demonstrated the city did not have prior written notice of the sidewalk/curb defect where plaintiff allegedly slipped and fell, despite the apparent existence of another Big Apple map which showed the defect but was not shown to have been served on the city (NYC):

Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. (hereinafter Big Apple), and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon … . Where a plaintiff relies on a Big Apple map, the map served on the City closest in time prior to the subject accident is controlling … .

Here, the City met its prima facie burden by proffering evidence that the most recent Big Apple map served on it did not show the defect and that it had not received any other prior written notice of the allegedly defective condition … . Although the plaintiff produced a competing Big Apple map which purportedly showed the defect, that map was not accompanied by any evidence showing when it had been served on the City. Abdullah v City of New York, 2021 NY Slip Op 01377, Second Dept 3-10-21

 

/ ,

THE BANK’S FAILURE TO REJECT THE LATE ANSWER WITHIN 15 DAYS WAIVED THE LATE SERVICE AND DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank waived its objection to a late answer by not timely rejecting it within 15 days. Therefore the default was also waived:

The defendant failed to timely appear or answer the complaint. … On April 30, 2018, the defendant served an answer with counterclaims. Seventeen days later, on May 17, 2018, the plaintiff served a notice of rejection in which it rejected the answer as untimely. …

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections” … . Here, the plaintiff’s undisputed failure to reject the defendant’s answer within the fifteen-day statutory time frame constituted a waiver of the late service and the default … . U.S. Bank N.A. v Lopez, 2021 NY Slip Op 01440, Second Dept 3-10-21

 

/ , ,

THE BORROWER’S APPLICATION FOR A LOAN MODIFICATION DID NOT RELIEVE THE BANK OF THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANK DID NOT PROVIDE SUFFICIENT PROOF OF THE MAILING OF THE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined (1) the bank was still required to provide the RPAPL1304 notice despite the application for a loan modification, and (2) the proof of mailing the notice was insufficient. The court noted that proof of mailing submitted for the first time in reply cannot be considered as part of the bank’s prima facie case:

When the instant action was commenced, RPAPL 1304(3) provided: “The ninety day period specified in the notice[ ] contained in [RPAPL 1304(1)] shall not apply, or shall cease to apply, if the borrower has filed [an application for the adjustment of debts of the borrower or an order for relief from the payment of debts], or if the borrower no longer occupies the residence as the borrower’s principal dwelling” … . A loan modification was not an adjustment of debts within the meaning of the version of RPAPL 1304(3) then in effect and, in any event, a lender was relieved only from the requirement to provide notice within the “ninety day period” (RPAPL 1304[3]), not from the requirement to provide the notice specified in RPAPL 1304(1) … . …

US Bank failed to establish, prima facie, that it complied with RPAPL 1304. Although Ubinas stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, of an envelope addressed to the defendant bearing a certified mail 20-digit barcode, and of an envelope bearing a first-class mail postage stamp, US Bank failed to attach, as exhibits to the motion, any documents to prove that the mailing actually occurred. There is no copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute. Further, while Ubinas attested that she had personal knowledge of the record-making practices of Ocwen, and that the 90-day notice was sent in compliance with RPAPL 1304, she did not attest to knowledge of the mailing practices of the Law Offices of McCabe, Weisberg, and Conway, P.C., the entity that allegedly sent the notices to the defendant on behalf of Ocwen. On appeal, US Bank relies upon the signed certified mail return receipt submitted in reply. The moving party, however, cannot meet its prima facie burden by submitting evidence for the first time in reply … . U.S. Bank N.A. v Hammer, 2021 NY Slip Op 01439, Second Dept 3-10-21

 

/ ,

THE COMPLAINT IN THIS LABOR LAW 200 ACTION ALLEGED INJURY CAUSED BY A DANGEROUS CONDITION AT THE WORK SITE; THE DEFENDANTS IGNORED THAT THEORY IN THEIR MOTION FOR A SUMMARY JUDGMENT AND FOCUSED ON AN INAPPLICABLE THEORY (THE MEANS AND MANNER OF WORK); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 200 action should not have been granted. There are two distinct theories which will support a Labor Law 200 cause of action. If the injury stems from the means and manner of the work, the defendant must have supervisory authority over the way the work is done. If the injury stems from a dangerous condition, the defendant must have control over the work site and must have created or had notice of the dangerous condition. Here plaintiff alleged a door at the work site was not adequately secured and he was injured when wind blew the door shut. The door therefore was alleged to constitute a dangerous condition. In their motion papers, however, the defendants addressed only the means-and-manner-of-work theory:

… [T]he plaintiff’s complaint and verified bill of particulars sounded almost entirely in premises liability, and alleged, inter alia, that the door was not properly constructed, placed, or secured, and that it lacked adequate securing devices. To establish their prima facie entitlement to judgment as a matter of law, the defendants were obligated to address the proof applicable to the plaintiff’s dangerous condition theory of liability, or alternatively, to demonstrate, prima facie, that this case fell only within the ambit of the means and methods category of Labor Law § 200 cases … . On their motion, the defendants summarily concluded that the case exclusively implied a means and methods theory of liability, and contended that they only had general supervisory authority over the work site, which would be insufficient to impose liability for common-law negligence and under Labor Law § 200 in a means and methods case … . The defendants, however, failed to address premises liability and whether they either created the alleged dangerous condition or had actual or constructive notice of it … . Rodriguez v HY 38 Owner, LLC, 2021 NY Slip Op 01436, Second Dept 3-10-21

 

/

DEFENDANT’S MOTION TO WITHDRAW HIS PLEA, AND THE CIRCUMSTANCES SURROUNDING HIS ACCEPTANCE OF THE PLEA OFFER, RAISED THE POSSIBILITY THAT DEFENDANT ACCEPTED THE PLEA OFFER TO MAKE SURE HIS BAIL WOULD NOT BE INCREASED; DEFENDANT WAS WORRIED ABOUT BEING ABLE TO FIND CARE FOR HIS THREE-YEAR-OLD SON; BAIL SHOULD NOT BE A CONSIDERATION IN PLEA NEGOTIATIONS; THE MOTION TO WITHDRAW THE PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The Second Department, reversing County Court, determined it was an abuse of discretion to deny defendant’s motion to withdraw his plea without holding a hearing. The matter was remitted for a hearing. The defendant was given a “last chance” to accept a plea offer just before the suppression hearing began. Defense counsel asked about bail at that time and then defendant met with defense counsel before deciding to take the plea offer. In his motion to withdraw the plea, defendant alleged that, based upon his discussion with defense counsel, he thought his bail would be substantially increased if he didn’t take the plea offer and was concerned about taking care of his three-year-old son. He had brought his son  to court because he couldn’t find a babysitter:

Bail status “has no legitimate connection to the mutuality of advantage underlying plea bargaining because it does not relate either to the more lenient sentence for which the defendant is negotiating or to the waiver of trial and the certainty of conviction the prosecution is seeking” … . Accordingly, “[t]he prospect of an immediate change in bail status, therefore, is an inappropriate consideration in plea negotiations” … .

Here, the plea bargaining process and the defendant’s affidavit raise a legitimate question as to the voluntariness of the defendant’s plea and, therefore, the defendant’s motion should not have been denied without a hearing … . The County Court’s response to defense counsel’s questions regarding bail, which included a statement that this was the defendant’s “last chance” to accept the offer, raise a legitimate question as to whether the defendant understood that the court’s purportedly forthcoming bail decision was contingent on acceptance of the offer. Notably, after the defendant accepted the plea, the court never brought up the issue of changing the defendant’s bail status, effectively continuing his release on cash bail without any changes … .  People v Swain, 2021 NY Slip Op 01430, Second Dept 3-10-21

 

/ , , ,

IN THIS FORECLOSURE ACTION, THE JUDGE SHOULD HAVE FIRST DETERMINED WHETHER ANY DISTRIBUTEES OF THE DECEASED MORTGAGORS WERE NECESSARY PARTIES [RPAPL 1311 (1)] AND, IF SO, SUMMON THEM PURSUANT TO CPLR 1001 [b]; THE MOTION TO DISMISS FOR FAILURE TO JOIN NECESSARY PARTIES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether any distributees of the deceased mortgagors were necessary parties in this foreclosure action. The motion to dismiss for failure to join necessary parties should not have been granted. The court should have determined whether joinder of any parties was required and then summon them pursuant to CPLR 1001 [b]:

Pursuant to RPAPL 1311(1), “necessary defendants” in a mortgage foreclosure action include, among others, “[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein.”

“In certain circumstances, the estate of the mortgagor is not a necessary party to a mortgage foreclosure action” … . In particular, “where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees,” in whom title to the real property automatically vests … .

Here, the plaintiff did not seek a deficiency judgment. However, questions of fact existed, which should have been resolved by the Supreme Court, as to whether any distributees of the deceased mortgagors, other than the defendants herein, retained an interest in the property such that they were necessary parties to the foreclosure action. Further, to the extent that there were such necessary parties to the action, dismissal of the complaint was not the proper remedy; rather, the property remedy in such instance is to direct the joinder of those parties (see CPLR 1001[b] … . NRZ Pass-Through Trust IV v Tarantola, 2021 NY Slip Op 01423, Second Dept 3-10-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy