You are here: / PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT IN THIS TRUCK-BICYCLE...

Search Results

/ ,

PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT IN THIS TRUCK-BICYCLE COLLISION CASE; THE TRUCK DRIVER BREACHED HIS DUTY TO SEE WHAT SHOULD BE SEEN (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff bicyclist was entitled to summary judgment in this traffic accident case based upon the video taken from inside defendants’ truck (which collided with plaintiff):

The video footage taken from inside defendants’ truck shows plaintiff bicycling on the right side of the lane in front of Ortiz [the truck driver] before being struck … . Ortiz thus failed to exercise due care to avoid colliding with a bicyclist (Vehicle and Traffic Law § 1146[a]), and breached his duty “to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident”  … . Moreover, plaintiff was not required to demonstrate his own freedom from comparative negligence nor to show that defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment … . Fernandez v Ortiz, 2020 NY Slip Op 02856, Second Dept 5-14-20

 

/

LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE ACCIDENT WAS RELATED TO MATERIAL ON THE FLOOR WHICH CAUSED THE WHEELS OF A CART PLAINTIFF WAS PUSHING TO GET STUCK; DEFENDANT DID NOT DEMONSTRATE WHEN THE FLOOR WAS LAST INSPECTED OR CLEANED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 200 and common law negligence causes of action should not have been dismissed. Plaintiff was pushing a cart when the wheels got stuck. When a coworker kept pulling the cart plaintiff hand was pinned and the tip of his index finger was severed. Plaintiff alleged there were steel rods (which were integral to the work) and garbage on the floor:

A defendant will be found to have “failed to establish that they lacked constructive notice of the dangerous condition that caused plaintiff’s injury, [if] they submitted no evidence of the cleaning schedule for the work site or when the site had last been inspected before the accident” … .

Here, plaintiff alleges that there was “garbage” as well as rods on the floor that impeded the cart’s movement. Bravo’s [the builder’s] contract explicitly required it to look for dangerous and hazardous conditions on a daily basis, and to keep the workplace safe. However, since Bravo submitted no evidence as to its inspection and cleaning schedule of the worksite, this claim must be reinstated.

It is not relevant whether the rods on which the cart got stuck were an open and obvious condition that plaintiff could have seen, since that issue raises a question of plaintiff’s comparative negligence and does not bear on defendant’s own liability … . Spencer v Term Fulton Realty Corp., 2020 NY Slip Op 02855, First Dept 5-14-20

 

/ , ,

DEFENDANT SUFFICIENTLY DEMONSTRATED A PLEA WHICH WOULD NOT RESULT IN MANDATORY DEPORTATION COULD HAVE BEEN WORKED OUT; THE MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to set aside his conviction based upon ineffective assistance of counsel should not have been denied without a hearing. The defendant presented sufficient evidence that defense counsel could have negotiated a plea which would not result in mandatory deportation:

Where the basis of a claim for ineffective counsel is counsel’s failure to attempt to negotiate an immigration friendly plea, defendant has to show that there is a reasonable probability that the People would have made such an offer … . If the likelihood that the People would have made such an offer is speculative, then the motion may be denied without a hearing … . Here, however, defendant’s motion shows that there was a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences. …

Defendant has adequately alleged that there was a reasonable possibility that the People would have offered defendant such a plea, despite the fact that the drug possession charge is a lesser-included offense to the drug sale charge. First, the People agreed to a sentence of one year in prison and one year of post-release supervision in order to cover defendant’s drug offenses. This suggests that there was a reasonable possibility that the People would have agreed to a different, immigration-favorable disposition resulting in the same aggregate prison time … . …

Second, both offenses subject defendant to equally enhanced sentences if he were to be convicted of another felony within 10 years … . …

Third, if the People had only been willing to offer the lesser-included offense together with a longer sentence, defendant might well have been willing to agree to that. …

Finally, there is no evidence that the People specifically sought a conviction on the drug sales offense in order to secure a harsher immigration consequence for defendant … . …

‘… [D]efendant demonstrated a reasonable possibility that he would have rejected his plea had he known that he could have obtained a sentence that had less harsh immigration consequences … . People v George, 2020 NY Slip Op 02852, First Dept 5-14-20

 

/ , , ,

THE BANKRUPTCY EXCEPTION TO THE INSURED VS INSURED EXCLUSION IN THE DIRECTORS AND OFFICERS LIABILITY POLICY APPLIED TO THE CREDITOR TRUST WHICH WAS SET UP TO PURSUE THE BANKRUPTCY ESTATE’S LEGAL CLAIMS ON BEHALF OF UNSECURED CREDITORS; THE CREDIT TRUST SUED THE DIRECTORS AND OFFICERS OF THE INSURED ALLEGING BREACH OF FIDUCIARY DUTY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, in a matter of first impression, determined that the bankruptcy exception to the insured vs. insured exclusion of a Directors and Officers (D & O) liability insurance policy applied to a Creditor Trust. The Creditor Trust was formed pursuant to a Chapter 11 bankruptcy reorganization plan for the insured, RCS Capital Corporation (RCAP), to pursue the bankruptcy estate’s legal claims on behalf of unsecured creditors of the insured:

… [T]he Creditor Trust sued RCAP’s directors and officers alleging they had breached their fiduciary duties to the company. The directors and officers sought coverage under RCAP’s D & O liability policy with Westchester (the insurer). Westchester commenced this action in response, seeking a declaratory judgment that it has no coverage obligations.

This appeal raises an issue of apparent first impression of whether a D & O liability policy’s bankruptcy exception, which allows claims asserted by the “bankruptcy trustee” or “comparable authority,” applies to claims raised by a Creditor Trust, as a post-confirmation litigation trust, to restore D & O coverage removed by the insured vs. insured exclusion. For the reasons that follow, we find that the bankruptcy exception, to the insured vs. insured exclusion, applies to restore coverage. Specifically, we interpret the broad language “comparable authority” to encompass a Creditor Trust that functions as a post-confirmation litigation trust, given that such a Creditor Trust is an authority comparable to a “bankruptcy trustee” or other bankruptcy-related or “comparable authority” listed in the bankruptcy exception. Westchester Fire Ins. Co. v Schorsch, 2020 NY Slip Op 02895, First Dept 5-14-20

 

/

ALTHOUGH RESPONDENT VOTED IN CONNECTICUT WHILE IN COLLEGE THERE, NEW YORK REMAINED HIS ELECTORAL RESIDENCY; THEREFORE RESPONDENT WAS ELIGIBLE TO RUN FOR STATE SENATE IN NEW YORK (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined New York, not Connecticut, was respondent’s (Koffman’s) electoral residency. Therefore respondent was eligible to run for the State Senate in New York. Respondent had attended college in Connecticut and registered to vote a there during college:

Petitioner submitted proof that respondent had registered to vote and had voted in Connecticut from 2015 to 2018 instead of voting by absentee ballot in New York. In opposition to the summary judgment motion, respondent presented his affidavit and documentary evidence which demonstrated, among other things, that he was born and raised in New York; that he used his New York home as his permanent address; maintained his New York driver’s license; paid New York taxes; completed New York jury service while he was a student at Yale; lived in New York when school was not in session; returned to New York to live and work after graduation, and always considered himself a New York resident. * * *

Under the circumstances here, where there was ample proof that Koffman was a New York resident and that Koffman’s presence in Connecticut as a college student was temporary, together with the fact that he was not required under Connecticut law to renounce any voter registration in another state … , petitioner fell short of meeting his burden by clear and convincing evidence that respondent does not meet the residency requirement of the NY Constitution. Matter of Quart v Kaufman. 2020 NY Slip Op 02904, First Dept 5-14-20

 

/

BELATED FILING OF COVER SHEETS, UNDER THE UNIQUE COVID-19-RELATED CIRCUMSTANCES IN NEW YORK CITY, WAS NOT A FATAL DEFECT (DISAGREEING WITH THE SECOND DEPARTMENT) (FIRST DEPT).

The First Department, reversing Supreme Court, disagreeing with the Second Department, determined that, given the unique Covid-19-related circumstances in New York City, the belated filing of designating-petition cover sheets was not a fatal defect:

This election law proceeding involves the belated filing of cover sheets where the delay in filing is attributable to illness or quarantine because of the current COVID-19 pandemic. We hold that under the unique circumstances existing in New York City during the past few months, and the specific health challenges alleged here, the belated filing of these specific documents is not a fatal defect. In so holding, we note that no challenge has been presented to the number of signatures in the designating petitions and no claim of fraud has been alleged. Indeed, there is no evidence of specific actual prejudice presented. Although respondent Board of Elections contends that a cover sheet is necessary for administrative convenience, that cannot outweigh the right to ballot access in the current unique circumstances. Matter of Mejia v Board of Elections in the City of N.Y., 2020 NY Slip Op 02902, First Dept 5-14-20

Similar issue and result in Matter of Mujumder v Board of Elections in the City of N.Y., 2020 NY Slip Op 02903, First Dept 5-14-20

 

/ ,

ALTHOUGH MOTHER DID NOT APPEAR AT THE SCHEDULED CONFERENCE AND DID NOT HAVE A MERITORIOUS DEFENSE IN THIS NEGLECT PROCEEDING, SHE WAS NOT AWARE FINDINGS OF FACT WOULD BE MADE IN HER ABSENCE; DEFAULT ORDER VACATED ON DUE PROCESS GROUNDS (THIRD DEPT).

The Third Department, reversing Family Court, determined mother was deprived of her right to due process when findings of fact were made in her absence in this neglect proceeding. Although mother did not appear at a scheduled conference, mother was not aware findings of fact would be made:

A parent has a right “to be present at every stage of” a Family Ct Act article 10 proceeding as a matter of due process, but that right “is not absolute” … . Family Ct Act § 1042 provides that “a court may proceed with a hearing . . . in a parent’s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing” … . Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated “a meritorious defense to the petition, unless . . . [he or she] willfully refused to appear at the hearing” … . If the parent demonstrates that the default itself resulted from a deprivation of his or her “fundamental due process rights,” however, the default is a nullity and no showing of a meritorious defense is required … . …

… [A]lthough respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact-finding hearing might be conducted at it so as to satisfy due process … . Indeed, despite the references in the order of fact-finding to an inquest, there is no dispute that Family Court departed from “the proper course” of conducting a hearing in respondent’s absence by accepting the allegations in the petition as proven by virtue of respondent’s default … . It would offend due process to hold that respondent “default[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen” … . Thus, notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent’s motion. Matter of Arra L. (Christine L.), 2020 NY Slip Op 02829, Third Dept 5-14-20

 

/ , , ,

PUBLIC VERSUS PRIVATE NUISANCE EXPLAINED; BECAUSE DEFENDANTS SOLD THEIR PROPERTY, THE APPEAL RELATED TO THE INJUNCTION CAUSE OF ACTION WAS MOOT (THIRD DEPT).

The Third Department determined plaintiffs’ private nuisance cause of action should not have been dismissed, but the public nuisance cause of action was properly dismissed. The Third Department noted that, because defendants’ property had been sold, the injunction aspect of the case was moot. The defendants had put in a parking area and a retaining wall which plaintiffs’ alleged blocked their view of oncoming traffic making it dangerous for plaintiffs’ to pull out from their driveway:

Plaintiffs’ complaint alleges that defendants paved a significant area of their front yard and proceeded to park cars and trucks thereon, and, as a result, their view of oncoming traffic was significantly hindered when they used their driveway. As a consequence, they claimed that they suffered great anxiety, as they continually worried about being in a traffic accident. What plaintiffs can ultimately prove, or whether damages of this sort are recoverable, is not our concern when determining a motion to dismiss for failure to state a cause of action … . Rather, “the dispositive inquiry is whether plaintiffs have a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory” … . Here, after applying the strict standards of a pre-answer motion to dismiss, we conclude that Supreme Court erred in dismissing plaintiffs’ cause of action for private nuisance.

… “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … . Plaintiffs have not alleged that defendants interfered with the use of a public place or public rights. The complaint alleges that plaintiffs and the public (pedestrian, cyclist or motorist) are at risk of suffering a collision. “[W]here the claimed injury is common to the entire community, a private right of action is barred” … . Moreover, we find without merit plaintiffs’ claim that they suffer a special damage in that they will suffer liability as a result of any collision that might occur. Even were we to conclude that this claim is not completely speculative, the injury proposed by plaintiffs is not different in kind, but merely in degree, to that which may be suffered by the public as a whole. As such, it does not qualify as a “special injury” so as to allow plaintiffs to bring a public nuisance cause of action … . Duffy v Baldwin, 2020 NY Slip Op 02836, Third Dept 5-14-20

 

/

REFERENCES TO DEVIATE BEHAVIOR AND USE OF FORCE IN PETITIONER-INMATE’S CRIME AND SENTENCE INFORMATION FORM AND HIS COMPAS RISK AND NEEDS ASSESSMENT INSTRUMENT NOT SUPPORTED BY THE SEXUAL OFFENSES COMMITTED; THE PETITION SEEKING CORRECTION OF THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined petitioner-inmate had raised legitimate issues about the contents of his Crime and Sentence Information (CSI) form and his COMPAS Risk and Needs Assessment Instrument requiring further proceedings in this Article 78 action. Specifically petitioner argued that references to “deviate” behavior and use of force in connection with sexual offenses were inaccurate:

… [W]ith respect to the CSI form, petitioner was not convicted of any crimes involving an element of “deviate” behavior … . Additionally, with regard to the challenged characterization in the COMPAS instrument indicating that petitioner committed a “[s]ex [o]ffense with [f]orce,” we note that petitioner was not convicted of a crime involving “force” or “forcible” contact … . Accordingly, to the extent that the inclusion of such references in the CSI form and COMPAS instrument could be perceived as misleading and be potentially prejudicial to “future deliberations concerning the petitioner’s status” … , we find that, at this stage of the proceeding, in the absence of a more developed record, petitioner has stated a potentially valid cause of action. Because respondent has yet to serve an answer in this matter, this matter must be remitted to Supreme Court for this purpose … . Matter of Staropoli v Botsford, 2020 NY Slip Op 02840, Third Dept 5-14-20

 

/ , ,

VOLUNTARY DISCONTINUANCES OF PRIOR FORECLOSURE ACTIONS AND THE RELATED CORRESPONDENCE DID NOT UNAMBIGUOUSLY DE-ACCELERATE THE DEBT; THEREFORE THE FORECLOSURE ACTION IS TIME-BARRED; TWO-JUSTICE DISSENT ARGUED THE CORRESPONDENCE DE-ACCELERATED THE DEBT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the foreclosure action was time-barred. The initial foreclosure action was in 2010. That action was discontinued and the mortgage was subsequently assigned three times. After a second discontinuance, the third foreclosure action was commenced in 2017. The majority concluded that the discontinuances and related correspondence did not de-accelerate the debt, so the statute of limitations kept running from the initial action in 2010. The dissenters argued the debt had been de-accelerated by correspondence with the defendant:

… [T]he voluntary discontinuance of the first two actions, without more, did not constitute an affirmative revocation of the initial acceleration of the debt … . That is particularly so because plaintiff’s predecessors in interest moved to discontinue each action due to title concerns, without addressing the prospect of revoking the acceleration and resuming installment payments … . * * *

[The plaintiffs’] letters do not indicate a clear and unambiguous return to an installment payment plan and, for all practical purposes, do not actually evidence any real intent to de-accelerate the loan. In effect, “plaintiff simply put defendant[s] on notice of its obligation to cure a . . . default and then promptly embarked on the notices required to initiate a [third] foreclosure action” … . In our view, these notices do not constitute affirmative actions to de-accelerate the mortgage … . U.S. Bank Natl. Assn. v Creative Encounters LLC, 2020 NY Slip Op 02844, Third Dept 5-14-20

 

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