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CLAIMANT WAS AN EMPLOYEE OF A LOGISTICS COMPANY WHICH FACILITATES DELIVERIES (THIRD DEPT).

The Third Department determined claimant was an employee of a logistics company (US Pack) which facilitates deliveries and was therefore entitled to unemployment insurance benefits:

The record reflects that claimant was assigned specific workdays and hours by US Pack’s operations manager and was issued an identification badge bearing US Pack’s name. Claimant was required to sit in the client’s parking lot during set hours — for which he was paid a set fee — and wait for US Pack to contact him with assignments. The client would notify US Pack about assignments, which, in turn, would call claimant to retrieve the assignments. Claimant was required to call dispatch at US Pack once the assignments were loaded into his car. Once a delivery was completed, claimant was required to call dispatch again, providing the name of the person who accepted the delivery and the time delivery was complete, before moving onto the next delivery. Although claimant could refuse an assignment, he testified that when he did, he was told he could be fired, and the following day was punished by being passed over for assignments. Some compensation was negotiated, although claimant testified that US Pack set the compensation of some of the deliveries.

Although the record establishes that claimant used his own vehicle and was not reimbursed any expenses, the record nevertheless supports the Board’s conclusion that US Pack exercised sufficient supervision, direction and control over significant aspects of claimant’s work to establish an employer-employee relationship … . Matter of Thomas (US Pack Logistics, LLC–Commissioner of Labor), 2020 NY Slip Op 07642, Third Dept 12-17-20

 

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DAMAGE TO A LEG MUSCLE, HERE THE HAMSTRING, SUPPORTED A SCHEDULE LOSS OF USE (SLU) AWARD, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined damage to a muscle, here the hamstring, qualified for a schedule loss of use (SLU):

The Board’s conclusion that no SLU award can be made because “no special consideration applies to a hamstring tear” fails to take into consideration that the 2018 guidelines specifically permit an SLU award to be based upon a permanent residual deficit caused by physical damage to a muscle, such as a hamstring. We recognize that the 2018 guidelines provide “useful criteria” and the Board makes the ultimate determination of a claimant’s degree of disability, but that determination must be supported by substantial evidence … . In finding that claimant]was not entitled to an SLU award, the Board did not discredit or find unpersuasive the medical opinion of either of the orthopedists, reject Rashid’s [the orthopedist’s] opinion that this hamstring tear injury most closely correlated to a quadricep rupture or find that the orthopedists’ SLU calculations were inadequately supported; rather, the Board found that, even if credited, the medical opinions could not support an SLU award here … . …

… [W]e find, contrary to the Board’s interpretation, that, in the absence of specific instructions regarding hamstring tears in the 2018 guidelines, a medical expert could rationally rely upon the special consideration for quadricep ruptures as the closest corollary to claimant’s injury and impairment. The absence  a special consideration addressing a hamstring impairment did not preclude an SLU award for a leg impairment … . Matter of Semrau v Coca-Cola Refreshments USA Inc., 2020 NY Slip Op 07650, Third Dept 12-17-20

 

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PLAINTIFF IN THIS SLIP AND FALL CASE ALLEGED HE WAS INJURED WHEN HE STEPPED ON A LOOSE MANHOLE COVER OWNED BY DEFENDANT-TOWN; THE TOWN DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION BUT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-town’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged he stepped on a loose manhole cover which swung out from under him crushing his leg. The town demonstrated it did not have written notice of the condition, but did not demonstrate it did not create the condition:

Where, as here, the plaintiff alleged that the affirmative negligence exception applies, the defendant must show, prima facie, that the exception does not apply … .

Here, the plaintiff alleged that the defendant created the alleged dangerous condition, inter alia, through its initial placement of the manhole and by the use of an ill-fitting manhole cover, and the defendant’s submissions in support of its motion for summary judgment do not address these allegations. Accordingly, the defendant failed to establish, prima facie, that it did not create the alleged defect … . Dejesus v Town of Mamaroneck, 2020 NY Slip Op 07542, Second Dept 12-16-20

 

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IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE WHEEL STOP, WHICH HAD BEEN MOVED FROM ITS POSITION AT THE TOP OF THE PARKING SPACE, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendants in this slip and fall case did not demonstrate the wheel stop which was an open and obvious condition that was not inherently dangerous. The wheel stop had been moved from its normal position at the top of a parking space. Plaintiff tripped over it after getting out of her car and taking a few steps while looking toward the store:

A landowner has a duty to maintain its premises in a reasonably safe condition … . There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . “Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . Brett v AJ 1086 Assoc., LLC, 2020 NY Slip Op 07532, Second Dept 12-16-20

 

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THE INSURER’S ACCEPTANCE OF PREMIUM PAYMENTS AFTER IT LEARNED OF THE MISREPRESENTATION ABOUT THE SPRINKLER SYSTEM WAIVED THE INSURER’S RIGHT TO RESCIND THE POLICY (SECOND DEPT).

The Second Department determined that the insurer’s (Hamilton’s) acceptance of premiums after disclaiming coverage for fire damage when it learned the building did not have a sprinkler system waived the insurer’s right to rescind the policy. The insured had indicated the building had a sprinkler system it its application for the policy:

The continued acceptance of premiums by an insurance carrier after learning of sufficient facts which allow for the rescission of the policy, constitutes a waiver of the right to rescind … . Here, … the record demonstrated, as a matter of law, that Hamilton waived its right to assert the plaintiff’s misrepresentation as a basis for rescinding the policy and disclaiming coverage by renewing the policy and accepting further premiums after it discovered the misrepresentation … . 5512 OEAAJB Corp. v Hamilton Ins. Co., 2020 NY Slip Op 07525, Second Dept 12-16-20

 

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PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT ON THEIR ADVERSE POSSESSION AND TRESPASS CAUSES OF ACTION SHOULD HAVE BEEN GRANTED; A DEFENDANT’S MISTAKEN BELIEF HE OR SHE HAD A RIGHT TO ENTER DOES NOT DEFEAT LIABILITY FOR TRESPASS (SECOND DEPT).

The Second Department, reversing Supreme Court in this adverse possession and trespass action, determined plaintiffs were entitled to summary judgment on their adverse possession and trespass actions. With regard to trespass, the court noted that liability is not defeated by a defendant’s belief he or she has a right to enter the property:

The Supreme Court also should have granted that branch of the plaintiffs’ cross motion which was, in effect, for summary judgment on the issue of liability on the trespass cause of action. To meet their prima facie burden, the plaintiffs were required to demonstrate that the defendant intentionally entered onto the land belonging to the plaintiffs without justification or permission … . “‘Liability may attach regardless of defendant’s mistaken belief that he or she had a right to enter'” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the trespass cause of action by submitting the affidavit of the plaintiff Jamie Montanaro, who averred that, in December 2016, the defendant removed a portion of the retaining wall on the disputed property and built a garage which encroaches upon the disputed property … . The plaintiffs also submitted the affidavit of a land surveyor who averred that the new garage encroached upon the disputed property … . Montanaro v Rudchyk, 2020 NY Slip Op 07560, Second Dept 12-16-20

 

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THE PROPERTY TRANSFERRED TO THE DEFENDANT BY WILL UPON THE DEATH OF THE PROPERTY OWNER; THEREFORE THE ESTATE WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the estate was not a necessary party in this foreclosure action because the property transferred upon the property owner’s death by operation of the will:

Pursuant to a deed dated March 27, 1991, Marjorie Colwell became the owner of certain real property located in Brooklyn (hereinafter the subject property). Colwell died on November 8, 2004. Colwell’s will bequeathed the subject property to the defendant Sonia Gaines, and also named Gaines as the executrix of the estate. …

We disagree with the Supreme Court’s determination that the estate was a necessary party to this action, and that the failure to join the estate warranted vacatur of the order of reference and the judgment of foreclosure and sale and dismissal of the complaint insofar as asserted against Gaines … . 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.” Under the circumstances of this case, the estate was not a necessary party to this mortgage foreclosure action. “Generally, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death and not at the time of probate” … . US Bank Trust, N.A. v Gaines,2020 NY Slip Op 07623, Second Dept 12-16-20

 

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PLAINTIFF BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; JUDGMENT AFTER TRIAL REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank in this foreclosure action did not demonstrate strict compliance with the notice requirements of RPAPL 1304. The judgment after trial was reversed:

… [T]he plaintiff relied upon the testimony of DeCaro [loan verification officer], who, when shown a copy of the 90-day notice, testified that the notice was printed on October 13, 2011, the same date that appears on the notice, that it was sent to the defendants at the subject property, and that such notice was maintained by Wells Fargo in the regular course of business as the plaintiff’s loan servicer. Contrary to the plaintiff’s contention, DeCaro’s testimony was insufficient to demonstrate that it complied with RPAPL 1304. DeCaro did not testify that she had personal knowledge of the purported mailing or of Wells Fargo’s mailing practices, and did not describe the procedure by which the RPAPL 1304 notice was mailed to the defendants by both certified mail and first-class mail … . Although the notice itself stated in bold print, “FIRST CLASS MAIL and CERTIFIED MAIL,” no receipt or corresponding document issued by the United States Postal Service was submitted proving that the notice was actually sent by certified mail more than 90 days prior to commencement of the action. Moreover, the mailing manifest submitted by the plaintiff failed to establish that the notice was actually mailed to the defendants by both certified mail and first-class mail … .

Since the plaintiff failed to provide evidence of the actual mailing, “or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure,” the plaintiff failed to establish its strict compliance with RPAPL 1304 … . US Bank N.A. v Pierre, 2020 NY Slip Op 07622, Second Dept 12-16-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS DENTAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; DEFENDANT DEMONSTRATED THE PERFORMED PROCEDURE WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, THEREBY NEGATING THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant established he did not depart from good and accepted practice and the procedure he performed was not the proximate cause of plaintiff’s injury. Plaintiff’s expert’s affidavit was speculative and conclusory. Plaintiff did not raise a question of fact in support of the “lack of informed consent” cause of action:

… [M]ere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the cause of action at issue, are insufficient to defeat summary judgment … .

“[L]ack of informed consent is a distinct cause of action [which] requir[es] proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … .

The defendant established, prima facie, that his care and treatment did not proximately cause the plaintiff’s alleged injuries. In opposition, the plaintiff failed to raise a triable issue of fact as to whether a lack of informed consent proximately caused his injuries … . Kelapire v Kale, 2020 NY Slip Op 07553, Second Dept 12-16-20

 

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PLAINTIFF ALLEGED HE WAS STANDING ON AN A-FRAME LADDER WHEN IT SHIFTED CAUSING A CONCRETE SLAB TO FALL ON HIS HAND; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; IN ADDITION A DEFENDANT FAILED TO SHOW IT WAS NOT AN “OWNER” WITHIN THE MEANING OF LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240(1) cause of action should not have been granted. Plaintiff alleged the A-frame ladder he was standing when positioning a concrete slab shifted causing the slab to fall on his hand. In addition the Second Department determined defendant (Cappy’s) did not demonstrate it was not an “owner” within the meaning of Labor Law 240(1):

The defendants failed to show, prima facie, that this incident did not involve an injury caused by the failure to provide a safety device to protect against an elevation-related risk, within the meaning of the statute. In particular, the plaintiff’s work entailed attempting to move or lift a heavy slab of cement at ceiling or roof level, while standing on a ladder. The plaintiff testified that the ladder “moved” while he was reaching for the slab, causing the slab to fall or drop. The plaintiff alleges, inter alia, that a sling or other device should have been provided to secure the slab. Under these circumstances, the defendants failed to show, prima facie, that this incident did not result from the failure to provide such safety device to protect against an elevation-related risk, and the evidence also raised issues of fact as to that matter … .

Further, [defendant] Cappy’s failed to show, prima facie, that it cannot be deemed an “owner” within the meaning of Labor Law § 240(1). Under Labor Law §§ 240(1) and 241(6), “those parties with a property interest who hire the general contractor” are deemed “owners” … . “Lessees who hire a contractor and have the right to control the work being done are considered ‘owners’ within the meaning of the statutes” … . Gomez v 670 Merrick Rd. Realty Corp., 2020 NY Slip Op 07549, Second Dept 12-16-20

 

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