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PLAINTIFF’S FALL FROM A LOW CONCRETE RETAINING WALL TO THE GROUND WAS NOT THE TYPE OF ELEVATION-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined the Labor Law 240(1) cause of action should have been dismissed. Plaintiff alleged he stepped on a low concrete retaining wall and slipped on oil, which was not the type of elevation hazard covered by section 240(1):

… [T]he defendant established that it was entitled to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) on the ground that the plaintiff was not exposed to the type of elevation-related hazard contemplated by that statute. The evidence submitted by the defendant established that the height differential from the concrete retaining wall to the ground did not constitute a physically significant elevation differential covered by the statute … . Eliassian v G.F. Constr., Inc., 2021 NY Slip Op 00419, Second Dept 1-27-21

 

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THE HOMEOWNER AND THE GENERAL CONTRACTOR DID NOT HAVE SUFFICIENT SUPERVISORY AUTHORITY TO BE LIABLE IN THIS LABOR LAW 200 AND COMMON-LAW NEGLIGENCE ACTION STEMMING FROM A SCAFFOLD COLLAPSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Labor Law 200 and negligence causes of action against the homeowners (the Chetrits) and the general contractor (J & S) should have been dismissed in this scaffold-collapse case. Neither defendant had sufficient supervisory authority to trigger liability. Plaintiff worked for a company hired by J & S, the general contractor:

“‘Section 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site work[ers] with a safe place to work'” … . “‘To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'” … . Here, both the Chetrits and J & S demonstrated their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against each of them, as the record demonstrates that neither the Chetrits nor J & S supervised, directed, or otherwise controlled the plaintiff’s work … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contentions, the fact that Abraham Chetrit, David Chetrit, and J & S’s employees often visited the work site to inspect the work, make requests, and ask questions does not preclude summary judgment, as “‘[m]ere general supervisory authority at [the] work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200′” … . Moreover, although J & S employees had the power to stop any unsafe work at the work site, this alone is insufficient to impose liability under Labor Law § 200 … . Debennedetto v Chetrit, 2021 NY Slip Op 00413, Second Dept 1-27-21

 

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THE VIRGINIA DIVORCE DID NOT CHANGE THE PARTIES’ STATUS FROM TENANTS BY THE ENTIRETY TO TENANTS IN COMMON FOR THEIR NEW YORK MARITAL RESIDENCE; NEW YORK FOLLOWS THE “DIVISIBLE DIVORCE” DOCTRINE (SECOND DEPT).

The Second Department determined that the Virginia divorce did not affect the couple’s status as tenants by the entirety for the marital home n New York:

The plaintiff contends that the tenancy by the entirety dissolved by operation of law when the Virginia divorce decree was entered, and that the ownership interest in the subject property transformed from a tenancy by the entirety to a tenancy in common … . New York, however, follows the “divisible divorce” doctrine, pursuant to which the ex parte Virginia divorce decree, obtained without personal jurisdiction over the defendant, terminated the parties’ status as husband and wife, but had no effect on the defendant’s property rights … . In conformity with this doctrine, it is well established that an ex parte foreign divorce decree cannot divest the nonappearing spouse of his or her rights in a New York tenancy by the entirety … . Contrary to the plaintiff’s contention, the full faith and credit clause of the federal constitution requires only that New York recognize that the Virginia divorce decree dissolved the parties’ marital status … . Thus, the tenancy by the entirety in which the parties own their marital home has not been terminated. Bernhardt v Schneider, 2021 NY Slip Op 00407, Second Dept 1-27-21

 

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DEFENDANT ATTORNEY’S AFFIDAVIT IN SUPPORT OF ADMITTING LAW-FIRM BUSINESS RECORDS DID NOT INDICATE THE AFFIANT WAS FAMILIAR WITH THE RECORD KEEPING PRACTICES AND PROCEDURES OF THE LAW FIRM; THEREFORE THE COURT SHOULD NOT HAVE CONSIDERED THE RECORDS IN THE SUMMARY JUDGMENT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants failed to lay a proper foundation for the admissibility of business records (the Matter Ledger Card) which purported to describe the legal work done by defendants for plaintiff:

We agree with the plaintiff that the court should not have considered these documents because the defendants failed to submit them in admissible form … .

The defendants failed to lay a proper foundation for the admissibility of the Matter Ledger Card pursuant to CPLR 4518. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . [Defendant’s] affidavit failed to set forth that he “was personally familiar with [the law firm’s] record keeping practices and procedures” and, as a result, failed to lay a proper foundation for the admission of the Matter Ledger Card concerning the plaintiff’s payment history … . Anghel v Ruskin Moscou Faltischek, P.C., 2021 NY Slip Op 00403, Second Dept 1-27-21

 

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ALTHOUGH DEFENDANTS MISSED THE DEADLINE AND THEREBY WAIVED THE RIGHT TO MEDICAL EXAMINATIONS OF PLAINTIFF, THE MOTION TO STRIKE THE NOTE OF ISSUE AND COMPEL AN EXAM SHOUD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to strike the note of issue and certificate of readiness and compel a medical examination of plaintiff should have been granted. Although the defendants missed the agreed deadline for the exam, they had an adequate excuse and there was no prejudice:

Although a defendant waives the right to medical examinations of the plaintiff by failing to conduct them within the time period set forth in compliance conference orders … , “under certain circumstances and absent a showing of prejudice to the opposing party, the court may exercise its discretion to relieve a party of a waiver of the right to conduct a physical examination” … . Here, a scheduled medical examination of the plaintiff failed to happen due to a clerical error by the vendor that scheduled the examination. Consequently, the defendants did not have the opportunity to conduct an independent medical examination of the plaintiff. Further, no prejudice was shown by the plaintiff. Andujar v Boyle, 2021 NY Slip Op 00400, Second Dept 1-27-21

 

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PLAINTIFF ALLEGED SHE TRIPPED ON A TWIG ON THE SIDEWALK WHICH WAS NOT ADEQUATELY ILLUMINATED; DEFENDANT, IN HER MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITIONS OR THAT THE CONDITIONS WERE NOT A PROXIMATE CAUSE OF THE FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property owner’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged she tripped on a twig on the sidewalk in an area which was not adequately illuminated. The defendant, in her motion papers, did not demonstrate she lacked constructive notice of the conditions or that the conditions were not a proximate cause of the fall:

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition … . “In a premises liability case, a defendant [real] property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … .

Here, the defendant failed to establish, prima facie, that she lacked constructive notice of the alleged dangerous conditions—to wit, the twig on the sidewalk and inadequate lighting on the premises, or that these conditions were not a proximate cause of the plaintiff’s fall … . Since the defendant failed to meet her initial burden as the movant, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . Wittman v Nespola, 2021 NY Slip Op 00454, Second Dept 1-27-21

 

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IN THIS THIRD-PARTY ASSAULT CASE, THE FACT THAT THE INTRUDER KILLED PLAINTIFF’S DECEDENT, A RESIDENT OF DEFENDANT’S APARTMENT BUILDING, IN A PRE-MEDITATED, TARGETED ATTACK DID NOT, AS A MATTER OF LAW, INSULATE THE LANDLORD FROM LIABILITY BASED UPON AN ALLEGEDLY BROKEN LOCK ON THE BUILDING’S EXTERIOR DOOR; THE 2ND DEPARTMENT DISAGREED WITH A LINE OF 1ST DEPARTMENT CASES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, disagreeing with a line of First Department decisions, determined a targeted, premeditated attack on a building resident is not necessarily an intervening cause which insulates the landlord from liability. Here plaintiff’s decedent was targeted by her former fiance (Boney) who set her, himself and one of her children on fire in the hallway outside plaintiff’s decedent’s apartment. There was evidence the exterior door to the building did not have a functioning lock. The Second Department held that the defendant landlord (the New York City Housing Authority [NYCHA]) did not eliminate questions of fact about whether the broken lock was a proximate cause of the attack and whether the attack was foreseeable:

The test in determining summary judgment motions involving negligent door security should … not focus on whether the crime committed within the building was “targeted” or “random,” but whether or not, and to what extent, an alleged negligently maintained building entrance was a concurrent contributory factor in the happening of the criminal occurrence. In examining whether there is a triable issue of fact as to foreseeability and proximate cause requiring trial, a jury could conceivably conclude that the chronically broken lock at the building’s front door provided Boney with an opportunity to attack the decedent, in a manner that might not otherwise have been possible, and that NYCHA could have foreseeably anticipated that its broken front door lock would result in the entry of intruders into the building for the commission of criminal activities against known or unknown specific tenants … . All of these actions should be examined sui generis, recognizing the unique facts of individualized matters, rather than simplistically or arbitrarily channeling them into either “targeted” or “random” criminal boxes that do not accommodate the factual nuances that may vary from case to case. Scurry v New York City Hous. Auth., 2021 NY Slip Op 00447, Second Dept 1-27-21

 

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DEFENDANTS DID NOT SEEK LEAVE OF COURT TO FILE A LATE MOTION FOR SUMMARY JUDGMENT AND OFFERED AN EXPLANATION FOR THE FIRST TIME IN REPLY PAPERS; THE EXPLANATION SHOULD NOT HAVE BEEN CONSIDERED AND THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s late motion for summary judgment should not have been granted. Defendants did not seek permission to make the late motion and only offered an explanation for the delay in reply papers, which should not have been considered:

Pursuant to CPLR 3212(a), unless the trial court directs otherwise, a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” … . Here, the defendants moved for summary judgment dismissing the complaint more than 120 days after the filing of the note of issue without seeking leave of court or offering an explanation showing good cause for their delay. As a result, the Supreme Court improvidently exercised its discretion in considering the defendants’ good cause argument, presented for the first time in reply papers, and in granting their motion … . Rivera v Zouzias, 2021 NY Slip Op 00443, Second Dept 1-27-21

 

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PLAINTIFF’S SIGNING A CONSENT FORM PRIOR TO SURGERY DID NOT REQUIRE DISMISSAL OF THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice, lack of informed consent and battery causes of action should not have been dismissed. Plaintiff alleged defendant doctor operated on the wrong site. Defendant testified she removed a cyst from plaintiff’s left leg and plaintiff alleged defendant should have removed an abscess. The court noted that plaintiff’s signing a consent form did not require dismissal of the lack of informed consent cause of action:

As to the lack of informed consent cause of action, the deposition testimony of the plaintiff and the defendant and the generic consent form signed by the plaintiff presented triable issues of fact as to whether the defendant informed the plaintiff about the procedure, the alternatives thereto, and the reasonably foreseeable risks and benefits of the proposed treatment and the alternatives … . “[T]he fact that the plaintiff signed a consent form does not establish [the defendant’s] entitlement to judgment as a matter of law” where, as here, the form was generic, and beyond a barebones handwritten notation of the areas of the body, “Left Bartholin/Left Inguinal Abscess,” “did not contain any details about the operation” … . The consent form does not even indicate the procedure to be performed, but merely lists an area of the body, “Left Bartholin,” and a condition, “Left Inguinal Abscess.” Preciado v Ravins, 2021 NY Slip Op 00441, Second Dept 1-27-21

 

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DAMAGES FOR EMOTIONAL DISTRESS ARE NOT AVAILABLE FOR BREACH OF CONTRACT; INSURANCE LAW 2601 DOES NOT CREATE A PRIVATE RIGHT OF ACTION; A GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICES CAUSE OF ACTION WILL SUPPORT A CLAIM FOR PUNITIVE DAMAGES (SECOND DEPT).

The Second Department, modifying Supreme Court, determined emotional-distress damages are not available for breach of contract and Insurance Law 2601 does not create a private right of action. Plaintiff’s property was damaged by Hurricane Sandy. Plaintiff and defendant insurers reached a settlement agreement in which defendants agreed to pay plaintiff $1.6 million within 21 days. Defendants paid only about $400,000, claiming that the over $1 million already paid, together with the $400,000, satisfied the $1.6 million agreed to. Supreme Court and the Second Department disagreed finding that the settlement agreement was unambiguous. Plaintiff was therefore entitled to summary judgment on the breach of contract cause of action (the defendants’ mutual and unilateral mistake arguments were rejected). The deceptive business practices (General Business Law 349) cause of action, together with the related punitive damages claim, survived defendants’ motion to dismiss. With respect to damages for emotional distress, the court wrote:

… Supreme Court should have granted that branch of the defendants’ cross motion which was to dismiss the plaintiff’s demand for damages for emotional distress. A breach of a contractual duty does not create a right of recovery for damages for emotional distress … . Here, the plaintiff alleges no facts giving rise to a relationship between him and the defendants apart from the insurance contract and settlement agreement. An alleged breach of the implied covenant of good faith and fair dealing does not support an award of damages for emotional distress … . Inasmuch as Insurance Law § 2601 serves to regulate insurers’ performance of their contractual obligations rather than to create a separate duty of care and does not give rise to a private cause of action … , the defendants’ alleged violation of their obligations under Insurance Law § 2601 does not support a claim for damages for emotional distress. Perlbinder v Vigilant Ins. Co., 2021 NY Slip Op 00439, Second Dept 1-27-21

 

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