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THE TIP OF PLAINTIFF THIRD-GRADER’S FINGER WAS SEVERED WHEN A DOOR IN THE SCHOOL BUILDING SLAMMED SHUT; THE DEFENDANT-SCHOOL’S (DEPARTMENT OF EDUCATION’S [DOE’S]) MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED; THE DOOR WAS NOT DEFECTIVE, THE SCHOOL HAD NO NOTICE OF A PROBLEM WITH THE DOOR, SUPERVISION COULD NOT HAVE PREVENTED THE ACCIDENT, AND NYC IS NOT LIABLE FOR AN ACCIDENT ON SCHOOL (DOE) PROPERTY (SECOND DEPT).

The Second Department determined defendant school (NYC Department of Education [DOE]) was entitled to summary judgment in this premises liability and negligent supervision action. Plaintiff third-grader alleged a door closed on his finger, severing the tip. The school demonstrated it had no notice of any problems with the door and that supervision could not have prevented the accident. The Second Department noted that the unsigned depositions were properly considered because they were submitted by the DOE and therefore were adopted as accurate, and further noted that, because the accident occurred on school property, the city (NYC) was not liable:

The unsigned deposition transcripts of the school’s custodial engineer and the injured plaintiff’s teacher, who testified on behalf of their employer, the DOE, were admissible under CPLR 3116(a) because the transcripts were submitted by the DOE and, therefore, were adopted as accurate … . …

The deposition testimony of the building’s custodial engineer established that he inspected the door at least twice per week before the accident. Moreover, the school principal provided evidence that a search of the school’s records revealed no “indication of any maintenance, repairs, work orders, or other issues reported” with respect to the door during the two-year time period prior to the accident. This evidence, together with evidence that the subject door was in regular use, including regular use by the infant plaintiff, was sufficient to establish, prima facie, that the door was not defective … . …

When an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury … . E.W. v City of New York, 2020 NY Slip Op 00175, Second Dept 1-8-20

 

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PARTY WHICH PURCHASED THE PROPERTY AFTER FORECLOSURE WAS COMMENCED WAS ENTITLED TO INTERVENE IN THE FORECLOSURE PROCEEDINGS BUT DID NOT HAVE STANDING TO ALLEGE PLAINTIFF BANK DID NOT COMPLY WITH NOTICE REQUIREMENTS; THE ESTATE OF THE ORIGINAL BORROWER IS NOT A NECESSARY PARTY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the party (appellant) which purchased the property after foreclosure was commenced should have been allowed to intervene in the foreclosure proceedings. The Second Department further determined the estate of the original borrower was not a necessary party, the appellant did not have standing to allege plaintiff bank’s noncompliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 and plaintiff’s failure to serve a notice of default:

On September 10, 2015, the plaintiff commenced this action to foreclose a mortgage on premises owned by the defendant Shawn A. Carrington. Carrington failed to answer the complaint. On March 23, 2016, Carrington sold the premises to the appellant 1698 Management Corp. …

The appellant was entitled to intervene as of right pursuant to CPLR 1012(a) since it established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale … . Contrary to the court’s determination, the appellant was not limited to continuing the action in Carrington’s name pursuant to CPLR 1018. The fact that the appellant obtained its interest in the premises after the action was commenced and the notice of pendency was filed does not definitively bar intervention … , nor does the fact that Carrington defaulted in answering the complaint … . Furthermore, under the circumstances of this case, the appellant’s motion, made less than five months after it purchased the premises, and before an order of reference was issued, was timely … . US Bank N.A. v Carrington, 2020 NY Slip Op 00173, Second Dept 1-8-20

 

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PLAINTIFF STATED A CAUSE OF ACTION FOR VIOLATION OF LABOR LAW 196-d AGAINST A CORPORATE OFFICER AND A SHAREHOLDER INDIVIDUALLY FOR FAILING TO REMIT SERVICE CHARGES AND GRATUITIES TO THEIR WAITSTAFF EMPLOYEES; REQUEST FOR AN EXTENSION TO SEEK CLASS CERTIFICATION SHOULD HAVE BEEN GRANTED; MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED; PLAINTIFF’S DISCOVERY DEMANDS WERE PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff banquet server had stated a cause of action against the Cortses (an officer and a shareholder in the corporation, Falkirk Management, sued by plaintiff) individually alleging the Cortses were plaintiff’s employers within the meaning of Labor Law 196-d and did not remit service charges and gratuities to the waitstaff; (2) corporate shareholders and officers like the Cortes can be liable for corporate violations of the Labor Law; plaintiff’s discovery demands were burdensome or immaterial and therefore improper (CPLR 3101(a)); (3) plaintiff’s request for an extension to move for class certification should have been granted (CPLR 901(a); 902); and (4) plaintiff’s motion to amend the complaint should have been granted:

… [T]he complaint alleged that the Cortses exercised control over the “day-to-day operations” of “[the Country Club],” including “authority regarding the pay practices” of Falkirk Management. * * *

… [T]he information sought by the plaintiff in her first set of interrogatories and first request for the production of documents was largely burdensome or immaterial, and consequently, palpably improper … . * * *

A plaintiff’s need to conduct pre-class certification discovery to determine whether the prerequisites of a class action set forth in CPLR 901(a) can be satisfied constitutes good cause for the extension of the 60-day time period fixed by CPLR 902 … . * * *

[Re: the motion to amend the complaint:] the defendants alleged no surprise or prejudice … . Moreover, the proposed amendments are not palpably insufficient or patently devoid of merit … . Lomeli v Falkirk Mgt. Corp., 2020 NY Slip Op 00115, Second Dept 1-8-20

 

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PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF’S PUBLIC STATEMENTS CALLING DEFENDANTS CON ARTISTS, SCAMMERS AND THIEVES WERE DEFAMATORY; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COUNTERCLAIMS ALLEGING DEFAMATION PROPERLY DENIED; THE LAW OF DEFAMATION CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department determined defendants’ counterclaims alleging defamation properly survived plaintiff’s motion for summary judgment. The law of defamation is concisely and completely explained in the decision:

… [D]uring a Sabbath gathering at the parties’ synagogue, the plaintiff allegedly stood up at the center podium, asked for the congregants’ attention, and, pointing to the Nissanis, stated that he wanted “to make an announcement for everyone to know” that “[w]e have in our synagogue two NOCHLIM,” which the Nissanis claim is a Hebrew word for “scammers or con artists.” The plaintiff allegedly continued: “They are David Nissani and Ronen Nissani,” and “if they ask you to do any business with them, or to invest with them, then you definitely should not.” After services had concluded, while the Rabbi was admonishing the plaintiff for bringing business affairs to the synagogue, the plaintiff allegedly stated in the presence of the Rabbi and the synagogue’s president, “But these people are Nochlim and Ganavim,” a Hebrew word for “thieves.” As Ronen Nissani began to walk home from the synagogue, the plaintiff allegedly shouted at him in front of the synagogue in the presence of others that “I’m going to be on your ass until I get my money! I’m not going to leave you alone! You will see! You are thieves!” * * *

The plaintiff failed to establish, prima facie, that these statements did not constitute false assertions of fact … . Viewed in the context in which the allegedly defamatory statements were made, a reasonable listener would likely understand those statements to imply that the Nissanis swindled the plaintiff out of money in connection with their business … . The statements can readily be proven true or false and, given the tone and overall context in which the statements were made, signaled to the average listener that the plaintiff was conveying facts about the Nissanis … .

Even if the challenged statements had not conveyed assertations of fact, they would nonetheless be actionable as mixed opinion, since a reasonable listener would have inferred that the plaintiff had knowledge of facts, unknown to the audience, which supported the assertions he made … . Levy v Nissani, 2020 NY Slip Op 00113, Second Dept 1-8-20

 

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TENANT IN THE BUILDING ABUTTING A DEFECTIVE SIDEWALK WAS NOT LIABLE FOR A SLIP AND FALL; RELEVANT LAW CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, a tenant in the building abutting the sidewalk, could not be held liable for a sidewalk defect which allegedly caused plaintiff’s slip and fall. The Second Department concisely but completely laid out the law on the issues:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” … . “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect, make special use of the sidewalk, violate any applicable statute, or have a contractual duty to maintain the sidewalk where the accident occurred … . Leitch-Henry v Doe Fund, Inc., 2020 NY Slip Op 00112, Second Dept 1-8-20

 

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DEFENDANT PROPERTY OWNER/MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF ANY PROBLEMS WITH A DOOR WHICH ALLEGEDLY MALFUNCTIONED CAUSING PLAINTIFF’S DECEDENT TO FALL OUT OF A WHEELCHAIR LIFT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ [property owner/manager’s ?] motion for summary judgment should have been granted. Plaintiff alleged the door to a wheelchair lift on the exterior of the building where plaintiffs lived malfunctioned causing plaintiff’s decedent to fall out of the lift. The defendants presented evidence they did not have notice of any problems with the door:

Defendants established prima facie entitlement to judgment as a matter of law in this action where plaintiff’s decedent was injured when the door to the wheelchair lift on the exterior of the building in which they lived malfunctioned causing him to fall out of the lift. Defendants submitted evidence demonstrating that they did not have notice of any malfunction in the subject door through service records showing no issues related to the door opening prematurely … .

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff did not submit any evidence that complaints about the lift were similar in nature or caused by similar contributing factors … . Nor is the doctrine of res ipsa loquitur applicable under the circumstances presented … . Pui Kum Ng Lee v Chatham Green, Inc., 2020 NY Slip Op 00069, First Dept 1-7-20

 

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MOTION TO VACATE DEFENDANT’S JUDGMENT OF CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; SUPREME COURT MAY HAVE IMPROPERLY RELIED ON CPL 440.30 (d) WHICH ONLY APPLIES IF THE MOTION IS BASED SOLELY ON AN ALLEGATION BY THE DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his judgment of conviction should not have been denied without a hearing. There was a question of fact whether defense counsel was aware he could call an expert to testify defendant, who had ingested drugs, did not have the required mental state (depraved indifference). The First Department noted Supreme Court may have improperly relied on Criminal Procedure Law (CPL) 440.30 (d) which applies only if the motion is based solely on an allegation by the defendant (not the case here):

While the motion court had a sound basis for its conclusion that there was “no reasonable possibility” that defendant’s trial counsel “was unaware that he could call an expert to testify about the defendant’s state of mind,” we find that this was not an adequate basis for denying the motion without a hearing in these circumstances. First, to the extent the court may have been relying on CPL 440.30(d), that section permits summary denial when “there is no reasonable possibility that such an allegation is true,” but it applies only when the allegation “is made solely by the defendant.” That is not the case here, where the allegation at issue regarding trial counsel’s statements was made by defendant’s motion counsel based on his own knowledge.

Nor do we believe that this is a case such as People v Samandarov (13 NY3d 433 [2009]), where the lack of merit of a CPL 440.10 motion could be determined on the parties’ submissions, despite it being “theoretically possible that a hearing could show otherwise” (id. at 440). Here, while the court’s perception may well be borne out, there are issues of fact sufficient to warrant a hearing … . People v Martin, 2020 NY Slip Op 00067, First Dept 1-7-20

 

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THIRD-PARTY PLAINTIFFS WERE NOT REQUIRED TO AND DID NOT PARTICIPATE IN THE WORKERS’ COMPENSATION PROCEEDINGS; THEREFORE THE WORKERS’ COMPENSATION BOARD’S FINDING THAT THIRD-PARTY DEFENDANT WAS PLAINTIFF’S EMPLOYER WAS NOT BINDING ON THE THIRD-PARTY PLAINTIFFS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Workers’ Compensation Board’s finding that third-party defendant I & G Group was plaintiff’s employer was not binding on the third-party plaintiffs because the third-party plaintiffs did not participate in the Workers’ Compensation proceedings. Therefore the matter has to be litigated and I & G Group’s motion for summary judgment should should not have been granted:

The Court of Appeals has … recognized that a decision by the worker’s compensation board may not be binding on parties who do not participate in its hearings. * * * “[U]nless the Legislature expands the definition of parties in interest, the unfortunate result will be that a duplicative proceeding must be held and the issue of compensability adjudicated anew because defendants never had a full and fair opportunity’ to litigate the question” … .

Here, because it is undisputed that appellants [third-party plaintiffs] were not given notice of the worker’s compensation hearing, and were not afforded the opportunity to present evidence or cross-examine witnesses, their third-party claims, in which they challenge the identity of plaintiff’s employer, should not have been dismissed as precluded by the board’s prior determination of that issue … . Martinez v 250 W. 43 Owner, LLC, 2020 NY Slip Op 00058, First Dept 1-7-20

 

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THE INDICTMENT CHARGING PROMOTING PRISON CONTRABAND WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT POSSESSED LESS THAN 25 GRAMS OF MARIJUANA WHICH DOES NOT MEET THE DEFINITION OF ‘DANGEROUS CONTRABAND,” AN ELEMENT OF THE OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the indictment, charging defendant with promoting prison contraband in the first degree was jurisdictionally defective because it alleged possession of less that 25 grams of marijuana:

Defendant asserts that the indictment is jurisdictionally defective based on the Court of Appeals’ decision in People v Finley (10 NY3d 647 [2003]). In that case, the Court held that the possession of a small amount of marihuana, specifically less than 25 grams, did not, absent aggravating circumstances, constitute dangerous contraband within the meaning of Penal Law §§ 205.00 (4) and 205.25 as is necessary to support the charge of promoting prison contraband in the first degree … . Defendant contends that there is no valid basis in the indictment for this charge because he possessed less than 25 grams of marihuana. The People concede that this is a jurisdictional defect warranting reversal of the judgment of conviction. In addition, defendant requests that the indictment be dismissed in its entirety, and the People consent to such relief given that defendant’s guilty plea satisfied both charges contained therein. Accordingly, based upon our review of the record, the case law and the parties’ submissions, we conclude that the judgment of conviction must be reversed, thereby vacating the plea and sentence, and that the indictment must be dismissed in its entirety. People v Lawrence, 2020 NY Slip Op 00004, Third Dept 1-2-20

 

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COUNTY COURT DID NOT ISSUE A WRITTEN ORDER RE THE DEFENDANT’S RISK ASSESSMENT PURSUANT TO THE SEX OFFENDER REGISTRATION ACT (SORA); THEREFORE THE APPEAL WAS NOT PROPERLY BEFORE THE APPELLATE DIVISION AND WAS DISMISSED (THIRD DEPT).

The Third Department determined Count Court had not issued a written order with respect to the defendant’s risk assessment under the Sex Offender Registration Act (SORA) and therefor the appeal was not properly before the court:

Following a hearing at which the People advocated for an upward departure, County Court granted the request and classified defendant as a risk level three sex offender with a sexually violent offender designation. Defendant appeals.

It is a statutory requirement that County Court “render an order setting forth its determinations and findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n [3] … ). That written order then must be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a] …).

Although the record before us contains a decision of County Court that sets forth its findings of fact and conclusions of law, the court did not issue a written order and the risk assessment instrument does not contain the “so ordered” language so as to constitute an appealable order. Absent any order by the court, this appeal is not properly before us and must be dismissed … . People v Johnson, 2020 NY Slip Op 00006, Third Dept 1-2-20

 

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