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THE NOTICE OF INTENTION TO FILE A CLAIM DID NOT SUFFICIENTLY IDENTIFY THE LOCATION OF THE SLIP AND FALL, RENDERING THE FILING OF THE CLAIM UNTIMELY (SECOND DEPT).

The Second Department determined the Court of Claims properly dismissed the claim in this slip and fall case. The notice of intention to file a claim did not sufficiently identify the location of the slip and fall:

A claim to recover damages for personal injuries shall be filed and served upon the Attorney General within 90 days after the claim accrued, unless within 90 days, the claimant serves upon the Attorney General a written notice of intention to file a claim, in which event the claim shall be filed and served upon the Attorney General within two years after the accrual of such claim (see Court of Claims Act § 10[3] … ). The Court of Claims Act requires a claim to specify, among other things, “the time when and place where” the claim arose (Court of Claims Act § 11[b] … ). A notice of intention to file a claim must also include a statement as to when and where the claim arose … . …

… [T]he notice of intention to file a claim failed to describe the location of the alleged accident with sufficient specificity to satisfy the requirements of Court of Claims Act § 11(b) as the generalized description did not give notice as to where on the path the accident occurred … . Moreover, “‘[t]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11′” … . Further, lack of prejudice to the State is immaterial … .

As the notice of intention was deficient, it did not serve to extend the claimant’s time to file and serve a claim beyond the 90-day statutory period (see Court of Clams Act § 10[3] … ). Therefore, the claimant’s claim, which was filed approximately one year after accrual of the claim, was untimely … . Criscuola v State of New York, 2020 NY Slip Op 06241, Second Dept 11-4-20

 

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DEFENDANT HOTEL PROPERLY FOUND NEGLIGENT FOR FAILING TO PROVIDE ADEQUATE SECURITY IN THIS THIRD-PARTY ASSAULT CASE; HOWEVER THE HOTEL SHOULD NOT HAVE BEEN APPORTIONED 100% OF THE FAULT (SECOND DEPT).

The Second Department determined the evidence supported plaintiff’s verdict in this third-party assault action, but the defendant hotel should not have been found 100% at fault for failure to provide adequate security. 35% of the fault should have been apportioned to the shooter. Plaintiff was in a car in the hotel parking lot when he was shot by third-party defendant Williams:

… [The plaintiff made out a prima facie case of negligence at trial, and the jury’s finding in this regard was not against the weight of the evidence. The plaintiff established that the defendants employed almost no security measures in the parking lot where the shooting took place, and that in light of the history of criminal activity in the parking lot, the defendants should have been aware of the “likelihood of conduct on the part of third [parties]” that would “endanger the safety” of visitors to the parking lot … .

However, the apportionment of 100% of the fault in the happening of the shooting to the defendants was not supported by a fair interpretation of the evidence … . An apportionment of 65% of the fault to the defendants and 35% of the fault to Williams better reflects a fair interpretation of the evidence … .  Carter v BMC-HOJO, Inc., 2020 NY Slip Op 06237, Second Dept 11-4-20

 

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DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION GRANTED IN THE INTERESTS OF SUBSTANTIAL JUSTICE; THE EVIDENCE SUGGESTED DEFENDANT WAS THE VICTIM OF A SCHEME TO DEFRAUD; SUPREME COURT, HOWEVER, SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department determined defendant’s decedent’s (Renda’s) motion to vacate a default judgment in this foreclosure action should have been granted in the interests of substantial justice. There was evidence Renda was the victim of a scheme to defraud and foreclosure triggers the equitable powers of the court. Supreme Court should not have, sua sponte, dismissed the complaint, however:

… [W]e find that the defendant is entitled to vacatur of her default in the interests of substantial justice. “In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” … . “A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … .

Here, the evidence submitted strongly suggests that Renda was the victim of a scheme to defraud … .

… [T]he Supreme Court erred in, sua sponte, directing dismissal of the complaint. Here, there were no extraordinary circumstances warranting the sua sponte dismissal, and there is no indication that the court gave the parties an opportunity to be heard regarding the dismissal of the complaint … . Caridi v Tanico, 2020 NY Slip Op 06236, Second Dept 11-4-20

 

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INFANT PLAINTIFF WAS A PASSENGER ON DEFENDANTS’ ALL TERRAIN VEHICLE (ATV), DRIVEN BY DEFENDANTS’ DECEDENT, WHO WAS INTOXICATED, WHEN THE ATV CRASHED INTO A TREE; THE NEGLIGENT SUPERVISION CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THERE IS NO COMMON LAW “NEGLIGENT PROVISION OF ALCOHOL TO A MINOR” CAUSE OF ACTION IN NEW YORK; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THE NEGLIGENCE CAUSE OF ACTION BASED ON THE VIOLATION OF THE VEHICLE AND TRAFFIC LAW; CAUSES OF ACTION FIRST ADDRESSED IN PLAINITIFFS’ REPLY PAPERS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there is no common law cause of action in New York for negligent provision of alcohol to a minor; (2) summary judgment should have been granted on the negligence cause of action against the estate of the infant driver and owner of the all terrain vehicle (ATV); and (3) the negligent supervision cause of action properly survived summary judgment. Infant plaintiff was a passenger on the ATV driven by defendants’ decedent, who was intoxicated, when the ATV struck a tree. The court noted that the two causes of action which plaintiffs addressed only in their reply papers were properly dismissed:

… [T]he Supreme Court should have granted the plaintiffs’ cross motion for summary judgment on the issue of the liability of Nicola Trivigno [ATV owner} and Frankie’s [defendants’ decedent’s] estate. A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability … . A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law …  Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by presenting evidence that Frankie operated the ATV while intoxicated in violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law § 1192). Frankie’s negligence is imputed to Nicola Trivigno, who was the owner of the ATV which was being driven by Frankie with Nicola Trivigno’s permission … . Abtey v Trivigno, 2020 NY Slip Op 06233, Second Dept 11-4-20

 

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PLAINTIFFS FOUND OUT WELL INTO THE CONTRACT FOR GAS-MAIN WORK THAT THE REQUESTED INSURANCE COVERAGE HAD NOT BEEN PROVIDED; THE DECLARATORY JUDGMENT CAUSE OF ACTION WAS PROPERLY DISMISSED BECAUSE IT DEPENDED ON A CIRCUMSTANCE THAT MAY NOT OCCUR; THE NEGLIGENT PROCUREMENT CAUSE OF ACTION WAS PROPERLY DISMISSED FOR LACK OF DAMAGES; THE BREACH OF CONTRACT CAUSE OF ACTION WAS SUPPORTED BY NOMINAL DAMAGES; THE FRAUD AND NEGLIGENT MISREPRESENTATION CAUSES OF ACTION WERE SUPPORTED BY A SPECIAL RELATIONSHIP WITH THE INSURANCE BROKER AND DETRIMENTAL RELIANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiffs’ causes of action for declaratory relief and negligent procurement were properly dismissed but the causes of action for breach of contract and fraud and negligent misrepresentation should not have been dismissed. Plaintiffs contracted with Con Ed to work on a gas main and requested insurance coverage for the project from defendants. Well into the project plaintiffs learned that they were not insured and they procured coverage elsewhere for a much higher premium. The declaratory judgment cause of action sought a declaration that defendants would be responsible if plaintiffs are sued for damage done when plaintiffs were uninsured. Because that circumstance may never occur the declaratory judgment cause of action was properly dismissed. The negligent procurement cause of action was properly dismissed because there were no damages. The breach of contract cause of action should not have been dismissed because nominal damages will support it. The fraud and negligent misrepresentation causes of action should not have been dismissed because a special relationship between plaintiffs and the insurance broker had been sufficiently alleged:

” … Nominal damages allow vindication of those rights” … . … “[A]ctual damages are not an essential element” of a breach of contract cause of action … .

… “Where a special relationship develops between the broker and client, [the] broker may be liable . . . for failing to advise or direct the client to obtain additional coverage” … . “… [T]hree ‘exceptional situations’ … may give rise to such a special relationship: ‘(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'” … . … The plaintiffs, at a minimum, claim to have suffered damages when they, on two occasions, made bids for long-term contracts to perform gas main repair work for Con Ed that were priced, in part, based on the defendants’ alleged misrepresentations as to the price of insurance coverage for that work. AB Oil Servs., Ltd. v TCE Ins. Servs., Inc., 2020 NY Slip Op 06232, Second Dept 11-4-20

 

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HEARSAY EVIDENCE TO WHICH NO OBJECTION WAS MADE CAN BE CONSIDERED BY THE COURT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS HIT AND RUN ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department noted that hearsay evidence to which no objection was raised may be considered by the court. Here the hearsay was a GPS document which purported to show the location of a vehicle owned by defendant AT&T submitted to demonstrate its vehicle was not involved in the hit and run accident:

… Supreme Court denied the motion on the ground that the GPS document was inadmissible inasmuch as it was submitted to the court without the proper foundation and there was no information as to its reliability. AT & T appeals.

“[I]n civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” … . The Supreme Court should not have denied AT & T’s motion on the ground that the GPS document was inadmissible since the plaintiff never raised that issue in opposition to the motion … .

In any event, the other evidence submitted by AT & T established, prima facie, that AT & T’s vehicle was not involved in the subject accident … . In opposition, the plaintiff failed to raise a triable issue of fact as to the identity of the driver or owner of the vehicle which struck him … . Costor v AT&T Servs., Inc., 2020 NY Slip Op 06098, Second Dept 10-28-20

 

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ALTHOUGH THE SEQRA REVIEW OF THE PROPOSED MODIFICATION OF A LANDFILL WAS PROPERLY DONE, SUPREME COURT SHOULD NOT HAVE DETERMINED THAT NEARBY RESIDENTS DID NOT HAVE STANDING TO CONTEST THE RULING (THIRD DEPT).

Although the Third Department determined the Department of Environmental Conservation (DEC) had properly conducted its State Environmental Quality Review Act (SEQRA) review of the proposed modification of a landfill, the petition by nearby residents should not have been denied on the ground that the petitioners did not have standing to contest the DEC ruling:

… [A]t least some of the petitioners will suffer distinct environmental harm under the circumstances presented in these proceedings. For instance, although one might expect the visual impact of the landfill expansion to be widespread, DEC specifically found that the impact would be limited and that the areas where the individual petitioners live and/or maintain recreation facilities would be among the few having a “generally unobstructed” view of the landfill. Many of the individual petitioners confirmed that they can see the landfill from their residences, explained how they are personally impacted by the sights, sounds, smells and dust generated by operations there, and further articulated how those impacts will worsen if the landfill expansion goes forward … . Moreover, the Halfmoon petitioners alleged that those impacts will impair the use and enjoyment of Halfmoon’s public park, trails and boat launches across the river, while one of the individual Halfmoon petitioners described how she was intimately involved in the development of a trail system and boat launch along the river and was similarly concerned by those impacts … . Standing rules are not to be applied in a manner so restrictive that agency actions are insulated from judicial review and, in our view, the foregoing was sufficient to establish that at least some of the petitioners in each proceeding will suffer environmental impacts different from those experienced by the general public so as to afford standing to sue … . Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 06180, Third Dept 10-29-20

 

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BREACH OF CONTRACT COUNTERCLAIM AGAINST HOME IMPROVEMENT CONTRACTOR PROPERLY DECIDED IN HOMEOWNERS’ FAVOR; THE CONTRACT DID NOT COMPLY WITH GENERAL BUSINESS LAW 771(1)(b) AND THE CONTRACTOR’S PERFORMANCE WAS DEFICIENT (THIRD DEPT).

The Third Department determined defendants’ breach of contract counterclaim against plaintiff contractor was correctly decided in defendants’ favor after a bench trial and the damages were proper (with the exception of one mistake). The Third Department noted that the home improvement contract did not comply with General Business Law 771 (1) (b):

The record reflects, and plaintiff does not dispute, that he failed to comply with General Business Law § 771 (1) (b), which requires that a home improvement contract include, among other things, provisions as to “[t]he approximate dates, or estimated dates, when the work will begin and be substantially completed, including a statement of any contingencies that would materially change the approximate or estimated completion date.” Inasmuch as the contract failed to include these statutorily required provisions, we find that Supreme Court properly dismissed plaintiff’s breach of contract claim as “a contractor cannot enforce a contract that fails to comply with General Business Law § 771” … . …

The credible testimony at trial established that the work performed by plaintiff was deficient … .

“[T]he proper measure of damages for breach of a construction contract is the cost to either repair the defective construction or complete the contemplated construction” … . Lapenna Contr., Ltd. v Mullen, 2020 NY Slip Op 06183, Third Dept 10-29-20

 

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EVEN IF PLAINTIFF BANK DID NOT SATISFY THE GOOD CAUSE STANDARD FOR AN EXTENSION OF TIME TO SERVE DEFENDANT IN THIS FORECLOSURE ACTION, PLAINTIFF WAS ENTITLED TO AN EXTENSION IN THE INTEREST OF JUSTICE PURSUANT TO CPLR 306-b (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of the complaint in the interest of justice should have been granted. The Third Department noted that defendant had waived the statute of limitations defense by not asserting it in an answer or a motion to dismiss and Supreme Court should not have cancelled the mortgage because defendant did not request that relief:

… [D]efendant contends … that her default was properly vacated due to lack of personal jurisdiction. Plaintiff does not raise any argument as to whether service was properly effectuated upon defendant or whether a traverse hearing should have been granted. … Plaintiff instead argues that it was entitled to an extension of time under CPLR 306-b to cure any service defects.

To that end, a plaintiff may be granted an extension of time to serve process upon a defendant “upon good cause shown or in the interest of justice” … . Even if we agreed with defendant that plaintiff failed to satisfy the good cause standard of CPLR 306-b, we find that plaintiff established its entitlement to an extension of time in the interest of justice. “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . The record discloses that, approximately one month after commencing this action, plaintiff made numerous attempts to serve defendant at the address provided on the mortgage documents. Plaintiff likewise cross-moved for an extension of time to cure any service defects approximately one month after defendant raised the issue of improper service. Furthermore, defendant does not argue, nor does the record indicate, that she would suffer any prejudice if an extension of time was granted. In view of the foregoing, and taking into account that plaintiff demonstrated the merits of its claim, plaintiff’s cross motion, to the extent that it sought an extension of time to serve process in the interest of justice, should have been granted … . U.S. Bank Natl. Assn. v Kaufman, 2020 NY Slip Op 06184, Third Dept 10-29-20

 

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PETITIONER, THE OWNER OF A LEASED CAR DAMAGED IN AN ACCIDENT, SOUGHT A DECLARATION THAT THE RESPONDENT REPAIR SHOP’S GARAGEKEEPER’S LIEN WAS NULL AND VOID ALLEGING IT DID NOT AUTHORIZE THE REPAIR; ALTHOUGH THE NOTICE OF THE SALE TO PAY OFF THE LIEN DID NOT COMPLY WITH THE LIEN LAW, THE PETITION SHOULD NOT HAVE BEEN GRANTED BASED UPON EVIDENCE SUBMITTED IN SURREPLY (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the petition, brought by the owner of a leased vehicle damaged in an accident, seeking a declaration that the respondent repair shop’s garagekeeper’s lien was null and void because it did not authorize the repair, should not have been granted. Although the notice of the sale to pay off the lien did not comply with the Lien Law, evidence submitted by the petitioner in suureply should not have been considered. Therefore the petition should not have been granted on the merits and respondent repair shop should have been allowed to submit an answer:

Accepting that respondent attempted “with due diligence” to personally serve the notice upon petitioners within the county where the lien arose, however, the notice was not sent via “certified mail, return receipt requested, and by first-class mail” as required to accomplish service under Lien Law § 201 … . Those service requirements are meant “to insure that [owners] have an adequate opportunity to reclaim their vehicles” … and, inasmuch as a garagekeeper’s lien is a statutory creation in derogation of common law, the failure to comply with them renders service defective … . Accordingly, in view of respondent’s failure to serve the notice in the manner required by the Lien Law, the time in which to commence this proceeding challenging the lien never began to run … . …

Supreme Court did abuse its discretion, however, in rebuffing respondent’s request to serve an answer and instead granting the petition on the merits. There was nothing to show that respondent was not a registered repair shop during the relevant period, and respondent asked petitioners to review a vehicle lease agreement that it believed conferred actual authority upon [the lessee] to authorize repairs on [petitioner’s] behalf … .  Petitioners instead provided that agreement for the first time in their surreply papers, a belated attempt to introduce new factual information to which respondent could not respond and that should have been rejected … . Matter of Daimler Trust v R&W Auto Body, Inc., 2020 NY Slip Op 06187, Third Dept 10-29-20

 

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