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PLAINTIFF’S DECEDENT, A POLICE OFFICER SUFFERING FROM BIPOLAR DISORDER, COMMITTED SUICIDE; THE ESTATE BROUGHT A WRONGFUL DEATH ACTION AGAINST THE CITY; ALTHOUGH THE FACTS SUPPORTED AN EMPLOYMENT DISCRIMINATION CLAIM, THE COMPLAINT DID NOT ALLEGE HUMAN RIGHTS LAW CAUSES OF ACTION; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta. determined plaintiff’s decedent (Benitez), a police officer who committed suicide, was disabled by bipolar disorder and was entitled to accommodation under the state and city Human Rights Law. However, because the estate brought a wrongful death action, and did not allege Human Rights Law discrimination causes of action, the complaint was properly dismissed:

… [P]laintiff conceded that this case “ha[d] been primarily brought on a claim of negligence,” that it had not interposed separate statutory causes of action, and that “this [wa]s a negligence c[ase], not a c[ase] based on discriminatory practices.” …

Inasmuch as plaintiff did not raise any Human Rights Law violations for failure to accommodate, we are constrained to affirm … . Supreme Court correctly concluded that defendants did not owe Benitez a duty to prevent him from committing suicide. A defendant owes such a duty where it is either “a facility such as a hospital or jail which is in actual physical custody of an individual” or “an institution or mental health professional with sufficient expertise to detect suicidal tendencies and with the control necessary to care for the person’s well-being” … . Here, defendants had neither “actual physical custody” of the decedent nor “the control necessary to care for [his] well-being” before his suicide … . Furthermore, a defendant only breaches its duty to prevent a decedent’s suicide when it “fails to take reasonable steps to prevent a reasonably foreseeable suicide … ,” and there is no evidence in this case that the decedent’s suicide was “reasonably foreseeable” … .

On appeal, plaintiff argues that the NYPD failed to accommodate Benitez under, among other statutes, the City Human Rights Law (City HRL). However, plaintiff improperly raises elements of disability discrimination in the context of a wrongful death action. Benitez v City of New York, 2021 NY Slip Op 00617, First Dept 2-4-21

 

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AFTER TWICE ADMITTING OWNERSHIP OF THE AREA OF PLAINTIFF’S SLIP AND FALL, DEFENDANTS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THEIR ANSWER TO DENY OWNERSHIP AFTER THE STATUTE OF LIMITATIONS HAD RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants, after twice acknowledging ownership of the area of plaintiff’s slip and fall, should not have been allowed to amend their answer to deny ownership after the statute of limitations had run

[Defendants] may not amend their answer in this manner after the statute of limitations has expired; the amendment would be too prejudicial to plaintiff … . Jackson v 170 W. End Ave. Owners Corp., 2021 NY Slip Op 00625, First Dept 2-4-21

 

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ALTHOUGH THE SIDEWALK DEFECT WAS SMALL, THE AREA WAS DARKENED BY SCAFFOLDING; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was evidence the defect in the sidewalk, although small, may not have been visible because scaffolding covered the sidewalk. In addition, defendants’ expert did not inspect the sidewalk until 3 1/2 years after the accident (after repairs had been made):

Defendants and the motion court relied extensively on the height differential between the sidewalk flags, applying a mechanistic disposition of a case based exclusively on the dimension of a sidewalk defect, which defendants’ expert measured to be seven-sixteenths of an inch … .

Plaintiff presented evidence that the height differential was not the only factor that caused her to trip. First, plaintiff established that the sidewalk was covered by a scaffolding that darkened the sidewalk and made it harder to see a sidewalk defect … . Second, plaintiff established through her expert that the expansion joint between the sidewalk flags was recessed an inch below the surface, when it should have been filled in and flush with the surface (see New York City Department of Transportation Highway Rule § 2-09[f][4][v]). The recessed expansion joint, which was repaired by the time defendants’ expert examined the sidewalk, added to the hazard …

Moreover, defendants’ expert did not inspect the area where plaintiff fell until more than 3 ½ years after plaintiff’s accident. Marks v 79th St. Tenants Corp., 2021 NY Slip Op 00629, First Detp 2-4-21

 

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PLAINTIFF APPARENTLY FELL FROM A WET, SLIPPERY WOODEN LADDER; HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE ACTION; NO NEED TO SHOW THE LADDER WAS INHERENTLY DEFECTIVE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) without showing the ladder from which he fell was inherently defective:

Plaintiff testified that he was injured when he fell while using a wet and slippery wooden ladder provided by defendants for him to move between the tenth and eleventh floors of the construction site to perform his work. This testimony established prima facie that plaintiff’s work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection, as required by Labor Law § 240(1) … . It is clear that the ladder was not adequate to prevent plaintiff from falling and there is no dispute that other than the ladder, no additional safety devices were provided … . Plaintiff was not required to show that the ladder was inherently defective … . Millligan v Tutor Perini Corp., 2021 NY Slip Op 00630, First Dept 2-4-21

 

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THE METEOROLOGICAL DATA WAS NOT SWORN TO; DEFENDANTS THEREFORE DID NOT DEMONSTRATE THERE WAS A STORM IN PROGRESS IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendants asserted the storm in progress defense, but the meteorological data was not in admissible form:

In this action where plaintiff alleges that he was injured after he fell on a snowy or icy condition on defendants’ driveway, defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law. The meteorologists’ reports relied upon by defendants were not in admissible form … . The reports contain no jurat, stamp of a notary public, or any other indication that the experts were actually sworn … .

In any event, contrary to defendants’ contention, the testimony of the parties alone did not establish that the snowstorm was still in progress at the time of the accident, and was therefore insufficient to avail them of the storm in progress defense … . Morales v Gross, 2021 NY Slip Op 00632, First Dept 2-4-21

 

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THERE WAS NO PROOF THE NOTICE REQUIRED BY RPAPL 1304 WAS MAILED TO THE PROPER ADDRESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 were not complied with and the bank’s motion for summary judgment in this foreclosure action should not have been granted. There was no proof the notice was mailed to the right place:

Plaintiff failed to demonstrate its strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action … . Although the statute requires that the notice be sent to “the property address and any other address of record,” the affidavits submitted by plaintiff show that the notices were mailed neither to the mortgaged premises nor to defendant’s residence. One of the addresses to which the notices were sent not only was never occupied by defendant but also specified a unit that did not exist at that street address. The other was sent to the correct high-rise apartment building of more than 400 units but was missing the unit number. Thus, plaintiff did not send defendant proper notice under RPAPL 1304 … . U.S. Bank N.A. v Moran, 2021 NY Slip Op 00645, First Dept 2-4-21

 

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CLAIMANT, A LIVE-IN HOME HEALTH ATTENDANT, WAS INJURED WHEN SHE FELL AFTER PICKING UP MEDICAL RECORDS FROM HER DOCTOR’S OFFICE; THE PURPOSE OF HER VISIT TO THE DOCTOR’S OFFICE WAS NOT PURELY PERSONAL; THEREFORE SHE WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that claimant, a 24-hour home health aide, was entitled to Workers’ Compensation benefits even though she was injured when she fell after picking up records from her doctor’s office:

… [I]t is undisputed that it was routine for claimant to escort her client on four- or five-hour walks on days where the client had no scheduled appointments, such as the day of the subject incident. According to claimant, while on such a walk on the day of the incident, she and her client elected to briefly stop at the subject doctor’s office for multiple reasons — to collect medical paperwork pertaining to claimant’s employment and to confirm whether the doctor accepted the client’s insurance prior to scheduling her an appointment. * * *

… [T]here is not substantial evidence that claimant’s actions represented a deviation from employment as conduct specifically prohibited by the employer … . Further, without regard to whether claimant prospectively inquired about the acceptance of her client’s insurance, claimant’s act of briefly stopping while on a routine walk with her client, regardless of where that stop took place, simply cannot be said to be purely personally or wholly unrelated to her work. Moreover, stopping at the subject doctor’s office in order to collect the subject paperwork benefited the employer by allowing claimant to continue to provide round-the-clock care to her client, and to secure the documentation necessary to ensure that such care would not be interrupted in the future. We therefore find that, under the circumstances, claimant’s activity was reasonable, sufficiently work related and, thus, not purely personal, such that the Board’s decision to the contrary is not supported by substantial evidence … . Matter of Sharipova v BNV Home Care Agency, Inc., 2021 NY Slip Op 00605, Third Dept 2-4-21

 

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RARE CASE IN WHICH A SPECIAL RELATIONSHIP BETWEEN THE PLAINTIFF AND THE CITY MAY RENDER THE CITY LIABLE FOR A DELAYED RESPONSE TO A 911 CALL; BECAUSE THE DELAY MAY NOT HAVE BEEN THE RESULT OF A DELIBERATE EXERCISE OF DISCRETION, THE DOCTRINE OF GOVERNMENTAL IMMUNITY MAY NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had sufficiently alleged the existence of a special relationship with the city and dismissal based on the doctrine of governmental function immunity was not appropriate. Plaintiff called 911 and was told the ambulance was on its way. Plaintiff had other options for assistance but relied on the 911 operator’s statement. Apparently the ambulance response was delayed. Absent a special relationship a municipality may not be held liable for breach of a duty owed to the general public. Governmental immunity generally protects discretionary actions. Here the delayed response may not have been due to the deliberate exercise of discretion and therefore may not be protected by the immunity doctrine:

Plaintiff’s allegations are sufficient to establish a special relationship between the City and the decedent that brings her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public — such as the duty to provide ambulance service … . The allegation that the 911 operator told plaintiff that “we are on our way” is sufficient to establish defendants’ assumption of an affirmative duty to act on the decedent’s behalf … . Plaintiff sufficiently alleged justifiable reliance on the call operator’s statement through an affidavit submitted in opposition to defendants’ motion in which she listed several additional actions she would have taken to secure help but for the operator’s assurance … .

Dismissal is also not appropriate at this stage pursuant to the doctrine of governmental function immunity, which shields public entities from liability for “discretionary” actions taken during the performance of “governmental functions” … . It is undisputed that the provision of emergency care by FDNY EMTs constitutes a governmental function … . It is also clear that determinations of whether and when to dispatch an ambulance, the type of ambulance to dispatch and from where, and the route the ambulance should take are discretionary in nature … . However, it is not clear that the delay at issue here was due to an affirmative exercise of this discretion, rather than an unintentional failure to timely dispatch an ambulance … . Xenias v City of New York, 2021 NY Slip Op 00647, First Dept 2-4-21

 

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PLAINTIFF IN THIS TAX LIEN FORECLOSURE ACTION DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED WITH THE NOTICE TO REDEEM; THEREFORE PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES FROM THE DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff was not entitled to attorney’s fees in this tax lien foreclosure action because plaintiff did not demonstrate defendant was properly served with the notice to redeem:

Pursuant to Nassau County Administrative Code § 5-51.0(c), prior to the commencement of this action, the plaintiff was required to serve the defendant with a notice to redeem “by personal service, as defined in the Civil Practice Law and Rules of the State of New York” (see Nassau County Administrative Code § 5-51.0[a]). Here, the plaintiff purportedly served the defendant with the notice to redeem by “nail and mail” service (see CPLR 308[4]). However, contrary to the plaintiff’s contention, this service was ineffective, as the plaintiff failed to exercise the requisite due diligence in first attempting to serve the defendant pursuant to CPLR 308(1) or (2) … .

Where, as here, a plaintiff fails to properly serve the notice to redeem prior to commencing a foreclosure action, the plaintiff is precluded from recovering attorney’s fees from the person to whom the notice was required to be sent, provided that the person “offers to pay the penalties allowed by law at any time before final judgment is entered” (Nassau County Administrative Code § 5-51.0[f]). Here, the defendant offered to pay the penalties allowed by law in a letter … , nearly one month prior to entry of the final judgment … . DBW TL Holdco 2014, LLC v Kirk, 2021 NY Slip Op 00543, Second Dept 2-3-21

 

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THE JUDGMENT LIEN WAS NOT DOCKETED UNDER THE SELLER’S SURNAME; THEREFORE THE BUYER’S ACTION FOR A JUDGMENT QUIETING TITLE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff-buyer was entitled to judgment on his quiet title cause of action and to a declaration that the property is not subject to the defendant’s judgment lien. The judgment was not docketed under the seller’s surname:

… [T]he plaintiff demonstrated, prima facie, his entitlement to judgment as a matter of law on the cause of action to quiet title and for a declaration that the real property at issue is not subject to the defendant’s judgment lien. In support of his motion, the plaintiff submitted, among other things, the deposition transcript of a supervisor of the Docket Department of the Kings County Clerk’s Office (hereinafter the supervisor). The supervisor testified at her deposition that the judgment at issue was not docketed under “Paul”—the surname of the title owner of the property. Thus, no valid lien against the property was created (see CPLR 5018[c][1] …). Moreover, there is no dispute that the plaintiff had no actual or constructive notice of a judgment lien on the property … .

In opposition, the defendant failed to raise a triable issue of fact. Any alleged defects in the docketing procedure employed by the Kings County Clerk’s Office are not attributable to a bona fide purchaser of the property … . Charles v Berman, 2021 NY Slip Op 00542, Second Dept 2-3-21

 

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