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DEFENDANT DRIVER WAVED TO PLAINTIFF’S DECEDENT, A PEDESTRIAN, INDICATING SHE WAS ALLOWING PLAINTIFF’S DECEDENT TO CROSS THE STREET; ONE SECOND LATER PLAINTIFF’S DECEDENT WAS STRUCK BY ANOTHER CAR; THE ACCIDENT WAS THE RESULT OF A SUPERSEDING, INTERVENING ACT AND DEFENDANT WAS NOT LIABLE AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant driver, Biesty, was entitled to summary judgment in this pedestrian accident case because the act of another driver was the supervening cause of the accident. Biesty had stopped at a stop sign and waved to plaintiff-pedestrian (Nanfro) indicating Biesty would allow Nanfro to cross the street. One second later Nanfro was struck by a car driven by Agostinelli:

A driver of a motor vehicle may, under certain circumstances, be liable to a pedestrian where the driver “undertakes to direct a pedestrian safely across the road in front of his [or her] vehicle, and negligently carries out that duty” … . “However, even if a pedestrian is injured because he or she relied on a driver’s gesture directing him or her to cross a roadway, the acts of another driver may constitute a superseding, intervening act that breaks the causal nexus” … . “Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law” … .

Here, assuming without deciding that Biesty negligently motioned Nanfro to continue walking across the street and that Nanfro relied upon the gesture, Agostinelli’s unforeseeable failure to see what was there to be seen and failure to yield the right-of-way to Nanfro, who was crossing the street within an unmarked crosswalk, constituted an intervening and superseding cause that established Biesty’s prima facie entitlement to judgment as a matter of law … . Levi v Nardone, 2019 NY Slip Op 08665, Second Dept 12-4-19

 

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PLAINTIFF, WHO WAS USING HIS OWN LADDER WHEN IT SLID CAUSING HIM TO FALL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case was properly granted. The rolling stairway provided to plaintiff was not high enough to reach the control box for a door which was stuck open. So plaintiff used his own ladder which slid to the side causing him to fall 10 or 12 feet:

Labor Law § 240(1) provides that building owners and contractors shall furnish, or cause to be furnished, safety devices which are “so constructed, placed and operated as to give proper protection [to workers]” … . “To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries” … . A building owner may be held liable for a violation of Labor Law § 240(1) even if it did not exercise supervision or control over the work … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action … by demonstrating that he was injured when he fell while using an unsecured ladder, which unexpectedly collapsed and caused his injuries, without the benefit of any safety devices to prevent such a fall … . Jara v Costco Wholesale Corp., 2019 NY Slip Op 08664, Second Dept 12-4-19

 

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THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been accepted because it was based upon business records which were not in evidence:

… Supreme Court should have granted that branch of the defendant’s cross motion which was to reject the referee’s report. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “The referee’s findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” … .

Here, in addition to the outstanding principal amount of the loan, along with accrued interest and charges, the referee included $507,095.35 in “Tax Disbursements” and $27,705.00 in “Hazard Insurance Disbursements” as part of the total amount due to the plaintiff. The defendant correctly objected to the inclusion of these disbursements on the ground that they were calculated based on business records that were never produced by the plaintiff or submitted to the referee (see CPLR 4518[a] …). HSBC Bank USA, N.A. v Cherestal, 2019 NY Slip Op 08660, Second Dept 12-4-19

 

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DEFENDANT, A PODIATRIST, USING ALTERNATIVE MEDICINE (OZONE THERAPY), TREATED PLAINTIFF FOR LYME DISEASE; DEFENDANT DID NOT SUBMIT PROOF OF THE APPLICABLE STANDARD OF CARE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should not have been granted because defendant did not submit proof of the appropriate standard of care. The defendant, a podiatrist, treated plaintiff for Lyme disease with “ozone therapy:”

In this medical malpractice action, plaintiff testified that after he saw an advertisement by defendant in a magazine about alternative medicine he sought treatment from defendant for Lyme disease. Defendant is a licensed podiatrist who the record shows told plaintiff that he could treat a host of incurable non-podiatric conditions.  * * *

Defendant has a history of being accused of using his putative study of ozone therapy’s ostensible benefits in treating podiatric conditions as a cover for his treatment of non-podiatric conditions … . In the present case, the record reflects that the putative treatment was not for a podiatric condition, and thus that defendant was practicing medicine outside of the medical confines of podiatry … , which raises an issue of professional misconduct … .

Defendant failed to make the necessary prima facie showing of entitlement to judgment as a matter of law, requiring reversal and denial of his motion for summary judgment regardless of the sufficiency of the opposing papers … . Defendant failed to establish the standard of care with which he should have complied for the treatment of Lyme disease, as to which he submitted no expert evidence … . Thus, on this record, it cannot be determined whether defendant deviated from accepted standards of practice. A trial is required on the issue whether defendant’s treatment proximately caused the physical and neurological manifestations of injury alleged by plaintiff. Georgievski v Robins, 2019 NY Slip Op 08619, First Dept 12-3-19

 

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SUBPOENA ISSUED BY THE ATTORNEY GENERAL OF THE US VIRGIN ISLANDS SHOULD HAVE BEEN QUASHED BECAUSE IT WAS ISSUED WITHOUT ANY INVOLVEMENT BY A STATE COURT (FIRST DEPT).

The First Department, reversing Supreme Court, determined a subpoena issued by the Attorney General of the United State Virgin Islands (USVI) should have been quashed for failure to comply with CPLR 3119:

The subpoena … failed to meet the procedural requirements for out-of-state subpoenas because it was not issued “under authority of a court of record” (see generally CPLR 3119[a][1], [4] … ). Although the subpoena need not have been issued in connection with a pending litigation, there must have been some court involvement, such as the issuance of a commission by a state court clerk or signature of the subpoena by a state court judge … . We reject respondents’ argument that administrative subpoenas are outside the scope of CPLR 3119 and not subject to any restrictions on issuance. Matter of American Express Co. v United States Virgin Is. Dept. of Justice, 2019 NY Slip Op 08618, First Dept 12-3-19

 

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ALTHOUGH THE CONTRACT WAS NEVER SIGNED, IT IS CLEAR THE PARTIES INTENDED TO BE BOUND BY IT (FIRST DEPT)

The First Department noted that a contract need not be signed to be valid. Here the contract was a “termination agreement” which addressed a real estate broker’s entitlement to commissions for sales pending upon termination:

It is true that neither party signed the Termination Agreement. However, where the evidence supports a finding of intent to be bound, a contract will be unenforceable for lack of signature only if the parties “positive[ly] agree[d] that it should not be binding until so reduced to writing and formally executed” … . While the Termination Agreement contained a counterparts clause and signature lines indicating that it could be accepted by signature and countersignature, it did not positively state that the parties could assent only by signing. By contrast, the Engagement Agreement, also drafted by defendants, expressly provided that “in unsigned form [it] does not become an offer of any kind and does not become capable of acceptance.” Thus, defendants knew how to draft an agreement that could be accepted only by signature, but they did not so draft the Termination Agreement. The evidence, i.e., the parties’ months-long email exchanges, during which plaintiff submitted his list of pending transactions, defendants drafted the Termination Agreement and forwarded it to plaintiff, and the parties disagreed about the extent to which transactions listed by plaintiff were covered, supports a finding that the parties intended to be bound by the Termination Agreement, despite their failure to sign it … . Lerner v Newmark & Co. Real Estate, Inc., 2019 NY Slip Op 08611, First Dept 12-3-19

 

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QUESTION OF FACT WHETHER THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND DEFENDANT INSURANCE BROKER SUCH THAT THE BROKER COULD BE LIABLE FOR THE FAILURE TO PROCURE ADEQUATE COVERAGE FOR A DEMOLITION PROJECT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there is a question of fact whether a special relationship existed between plaintiffs and defendant insurance broker, thereby making the broker liable for the failure to procure adequate coverage for a demolition contract:

Issues of fact exist as to whether a special relationship arose between plaintiff STB Investments Corporation and its managing agent plaintiff 303 West 42nd Street Realty Co. (plaintiffs), on the one hand, and defendant insurance broker, on the other, that imposed on defendant a duty to advise plaintiffs as to insurance coverage that would have included the loss arising from plaintiffs’ demolition project … . Plaintiffs contend that the special relationship arose from an interaction with defendant in which they relied on defendant’s expertise as to coverage. There is evidence that plaintiffs’ property manager, who allegedly had never before purchased insurance for a demolition project, requested that defendant obtain adequate coverage for that particular risk, and that defendant agreed to do so, reviewed the demolition contract as part of its efforts, and discussed with plaintiffs the demolition contractor’s coverage in the larger context of determining the appropriate level of coverage to obtain for plaintiffs … . STB Invs. Corp. v Sterling & Sterling, Inc., 2019 NY Slip Op 08606, First Dept 12-3-19

 

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BECAUSE THE B MISDEMEANOR CARRIES DEPORTATION AS A POTENTIAL PENALTY, DEFENDANT IS ENTITLED TO A JURY TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction based upon a recent Court of Appeals case which held a defendant charged with a misdemeanor which carries deportation as a potential penalty is entitled to a jury trial:

… [T]he defendant, a noncitizen, is entitled to a jury trial under the Sixth Amendment of the United States Constitution because the charged crime of attempted assault in the third degree, a class B misdemeanor, carries a potential penalty of deportation (see People v Suazo, 32 NY3d 491). We note that because People v Suazo was decided after this matter was argued but before it was decided, the change of the law set forth therein therefore applies to the defendant … . Accordingly, we reverse the judgment of conviction and grant a new trial. People v Ahsan, 2019 NY Slip Op 08571, Second Dept 11-27-19

 

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14-YEAR-OLD PLAYING CATCH ON A SCHOOL ATHLETIC FIELD ASSUMED THE RISK OF INJURY FROM A TWO TO FIVE INCH DEPRESSION IN THE FIELD (SECOND DEPT).

The Second Department, over an extensive dissent, determined that the primary assumption of risk doctrine applied to a 14-year-old experienced football player who was injured by stepping into a 2 to 5 inch depression in a school athletic field. The majority distinguished the condition here, part of the natural features of a grass field, and a condition resulting from disrepair:

The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field … . Moreover, the infant plaintiff’s testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed … .

Like our dissenting colleague, we acknowledge the Court of Appeals’ admonition that the doctrine of primary assumption of risk “does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . Thus, the doctrine does not necessarily absolve landowners of liability where they have allowed certain defects, such as a hole in a net in an indoor tennis court, to persist … . In this case, we do not determine the doctrine’s applicability to similar to that of a hole in an indoor tennis net, as there is a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field … . Ninivaggi v County of Nassau, 2019 NY Slip Op 08568, Second Dept 11-27-19

 

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COPY OF POSTNUPTIAL AGREEMENT SHOULD NOT HAVE BEEN ADMITTED UNDER THE BEST EVIDENCE RULE; JUDGMENT OF DIVORCE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined a copy of the postnuptial agreement should not have been admitted pursuant to the best evidence rule:

The best evidence rule requires the production of an original writing where its contents are in dispute and sought to be proven … . The rule serves mainly to protect against fraud, perjury, and inaccuracies derived from faulty memory … . “[S]econdary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . “Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original” … . The more important the document is to the resolution of the ultimate issue in the case, the stricter the requirement of establishing its loss … .

Here, at trial, the plaintiff merely testified that she did not possess the original postnuptial agreement and that she believed it was either lost or stolen. Given the significance of the postnuptial agreement to the issue of equitable distribution, the defendant’s allegations that his purported signature on the document was forged, and the plaintiff’s failure to adequately explain the unavailability of the original document, we disagree with the Supreme Court’s determination to admit a copy of the document into evidence … , and to incorporate the purported agreement into the judgment of divorce. Mutlu v Mutlu, 2019 NY Slip Op 08567, Second Dept 11-27-19

 

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