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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case should not have been granted:

Although the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the defect in the asphalt, “actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability” … .

A lack of due diligence in determining the identity of the owner of the property upon which the subject accident occurred is not a reasonable excuse for the failure to serve a timely notice of claim … . …

In addition, the petitioner failed to satisfy her initial burden of showing that the City would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay … . Matter of Perez v City of New York, 2019 NY Slip Op 06774, Second Dept 9-25-19

 

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A FRAMED ISSUE HEARING IS REQUIRED TO DETERMINE IF THE CARRIER PROPERLY DISCLAIMED COVERAGE IN THIS TRAFFIC ACCIDENT CASE ON THE GROUND THAT ITS INSURED’S CAR HAD BEEN STOLEN; THE UNINSURED MOTORIST CARRIER’S PETITION FOR A TEMPORARY STAY OF ARBITRATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a framed-issue hearing was required to determined if the insurer, National General, properly disclaimed coverage in this traffic accident case. The insured vehicle, owned by Singh, left the scene of the accident. National General disclaimed coverage alleging the vehicle had been stolen at the time of the accident. Santos, the driver of the car struck by the Singh car, then made a demand for arbitration of uninsured motorist against his insurer, Country-Wide. Country-Wide then brought the underlying petition to stay arbitration which was denied. Country-Wide appealed:

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . “Thereafter, the burden is on the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … .

… [T]the petitioner met its initial burden by submitting evidence establishing that at the time of the accident the Singh vehicle was covered by a policy of insurance issued by National General … . National General’s disclaimer letter, submitted by Country-Wide in support of its petition, constituted prima facie evidence as to the existence of a policy of insurance covering Singh’s vehicle at the time of the accident. That same letter was sufficient to raise a triable issue of fact as to the validity of National General’s disclaimer … . “Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission” … . “[E]vidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use” … . Under these circumstances, a framed-issue hearing is necessary to determine whether National General properly disclaimed coverage of Singh’s vehicle … . Matter of Country-Wide Ins. Co. v Santos, 2019 NY Slip Op 06767, Second Dept 9-25-19

 

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ALTHOUGH PLAINTIFF HERSELF MAY NOT HAVE BEEN ABLE TO IDENTIFY THE CAUSE OF HER SLIP AND FALL, HER DAUGHTER, WHO WITNESSED THE FALL, PROVIDED SUFFICIENT EVIDENCE TO WARRANT DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (New York City Housing Authority’s, NYCHA’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff’s daughter, who witnessed the fall, provided sufficient evidence of the sidewalk defect:

“If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation”  … . “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall” … . “It only means that a plaintiff’s inability to establish the cause of his or her fall — whether by personal knowledge or by other admissible proof — is fatal to a cause of action based on negligence” … . …

In support of its motion, NYCHA submitted a transcript of the deposition testimony of the plaintiff’s daughter, Galina Moiseyeva (hereinafter Galina), who testified that she saw the plaintiff fall because of a “crack” or “gap” in the sidewalk, which made the sidewalk a “different level.” Further, Galina, who lived with the plaintiff in the premises abutting the sidewalk, testified that she walked along the sidewalk while traveling to and from work, and was previously aware of the alleged crack in the sidewalk. Contrary to NYCHA’s contentions, the alleged failure of the plaintiff and Galina to identify the exact location of the plaintiff’s alleged fall on a photograph shown at their depositions and hearings pursuant to General Municipal Law § 50-h, which photograph was taken the day after the alleged accident occurred and after NYCHA had allegedly covered the subject part of the sidewalk with plywood, did not establish, prima facie, that the plaintiff is unable to identify the cause of her fall. Under the circumstances, NYCHA failed to eliminate triable issues of fact as to whether the plaintiff fell due to the alleged defective condition of the sidewalk … . Moiseyeva v New York City Hous. Auth., 2019 NY Slip Op 06766, Second Dept 9-25-19

 

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LANDLORD DID NOT SUBMIT SUFFICIENT PROOF THAT THE LEASE REQUIRED THE TENANT TO REMOVE ICE AND SNOW, THEREFORE THE OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the out-of-possession landlord’s motion for summary judgment in this slip and fall case should not have been granted. The landlord did not submit a copy of the (expired) lease:

“Generally, when a tenant remains in possession [of the leased premises] after the expiration of a lease, pursuant to common law, there is implied a continua[tion] of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument”‘… . By failing to submit a copy of the expired lease in support of their motion, the defendants failed to establish, prima facie, that they had no contractual obligation to remove snow and ice from the property … . Even assuming that neither the plaintiff nor the defendants have a copy of the expired lease in their possession, the defendants inexplicably failed to submit a copy of a lease entered into between them and other tenants of the property, notwithstanding the deposition testimony of the defendant … that he has rented the property since he purchased it in 1996, that he entered into a lease with each tenant, and that the leases specifically provided that it was the tenants’ responsibility to remove snow and ice. Miske v Selvaggi, 2019 NY Slip Op 06765, Second Dept 9-25-19

 

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PLAINTIFF’S INJURY DID NOT INVOLVE THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) AND DEFENDANTS DID NOT EXERCISE A LEVEL OF SUPERVISORY CONTROL SUFFICIENT TO TRIGGER LIABILITY UNDER LABOR LAW 200 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s injury did not involve the type of elevation hazard covered by Labor Law 240 (1) and defendants  did not exercise the level of supervisory control necessary for liability under Labor Law 200:

The plaintiff allegedly was injured when a metal plate, which was used to cover an excavated trench located on the roadway, struck the plaintiff as it was being removed from the roadway surface. * * *

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action by their submissions, which demonstrated that they only had general supervisory authority over the plaintiff’s work … . …

“The contemplated hazards [of Labor Law § 240(1)] are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” … . The defendants established, prima facie, that the plaintiff’s injury did not result from the type of elevation-related hazard contemplated by Labor Law § 240(1) … . Lombardi v City of New York, 2019 NY Slip Op 06763, Second Dept 9-25-19

 

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BANK’S EVIDENCE OF DEFAULT WAS INADMISSIBLE HEARSAY; INSUFFICIENT PROOF THE NOTE WAS ENDORSED IN BLANK; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. There was insufficient evidence the note was endorsed in blank and there was insufficient evident of defendant’s default:

… [I]t is undisputed that a copy of the underlying note was annexed to the complaint. However, notwithstanding the plaintiff’s assertion in its appellate brief that “[t]he note, as attached to the complaint, was indorsed in blank on the reverse side of the signature page (and not a separate allonge),” it cannot be ascertained from the copy of the note annexed to the complaint whether the separate page that bears the endorsement in blank was stamped on the back of the note, as alleged by the plaintiff, or on an allonge, in which case the plaintiff would have to prove that the endorsement was “so firmly affixed thereto as to become a part thereof,” as required under UCC 3-202(2).

… [W]hile Panganiban’s [plaintiff bank’s vice president’s] affidavit was sufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a) … , the plaintiff failed to submit copies of the business records themselves. “[T]he business record exception to the hearsay rule applies to a writing or record’ (CPLR 4518[a]) . . . [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “While a witness may read into the record from the contents of a document which has been admitted into evidence , … a witness’s description of a document not admitted into evidence is hearsay” … . JPMorgan Chase Bank, N.A. v Grennan, 2019 NY Slip Op 06761, Second Dept 9-25-19

 

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BANK’S EVIDENCE OF DEFENDANT’S DEFAULT WAS INADMISSIBLE HEARSAY, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the bank’s proof that defendant (Bazigos) defaulted on the loan was inadmissible hearsay:

“In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default” … . “A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b]; 3123), by an affidavit from a person having [personal] knowledge of the facts’ (CPLR 3212[b]), or by other evidence in admissible form'” … .

Here, Bluford (a bank vice-president), whose knowledge was based on business records, did not actually attach or otherwise incorporate into her affidavit any business records showing that Bazigos had defaulted on the note. Thus, her affidavit constituted inadmissible hearsay and lacked probative value on the issue of Bazigos’s default … . HSBC Bank USA, N.A. v Bazigos, 2019 NY Slip Op 06757, Second Dept 9-25-19

 

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THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-VEHICLE ACCIDENT CASE CAN BE CONSIDERED BECAUSE PLAINTIFF ARGUED HE WAS NOT COMPARATIVELY NEGLIGENT IN HIS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF DID NOT ELIMINATE ALL QUESTIONS OF FACT ABOUT WHETHER HE WAS COMPARATIVELY NEGLIGENT; PLAINTIFF RAN INTO THE DOOR OF DEFENDANT’S CAR AS IT WAS BEING OPENED (SECOND DEPT).

The Second Department determined, because plaintiff in this bicycle-vehicle traffic accident case affirmatively argued he was not comparatively negligent, the issue of comparative negligence was properly considered on plaintiff’s summary judgment motion. Plaintiff ran into the door of defendant’s car as it was being opened. The plaintiff did not eliminate all triable issue of fact concerning his comparative negligence:

“Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability”… , the issue of a plaintiff’s comparative negligence may be decided where, as here, “the plaintiff specifically argued the absence of comparative fault in support of his [or her] motion” … .

Here, the plaintiff failed to establish, prima facie, that he was not comparatively at fault in the happening of the accident … . “A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . In support of his motion, the plaintiff submitted, inter alia, the deposition testimony of the parties, which failed to eliminate all triable issues of fact as to whether the plaintiff exercised reasonable care while riding his bicycle. Further, although the plaintiff was not required to demonstrate his freedom from comparative fault to establish his entitlement to summary judgment on the issue of liability … , the plaintiff failed to eliminate triable issues of fact as to whether the defendant was negligent and, if so, whether any such negligence caused or contributed to the accident … . Flores v Rubenstein, 2019 NY Slip Op 06747, Second Dept 9-25-19

 

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THE DEFENDANT IN THIS SLIP AND FALL CASE, WHOSE ANSWER HAD BEEN STRUCK, SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE ON DAMAGES (FIRST DEPT).

The Second Department, reversing Supreme Court, determined that, although defendant’s answer in this slip and fall case had been struck, the defendant should not have been precluded from presenting evidence on damages:

… Supreme Court … struck the answer and scheduled an inquest on the issue of damages. At the inquest, following direct testimony by the plaintiff, the court denied defense counsel’s request to cross-examine the plaintiff, since the defendant’s answer had been stricken. The court awarded the plaintiff damages in the principal sum of $267,221.77. …

“[A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” … . “Accordingly, where a judgment against a defaulting defendant is sought by motion to the court, the defendant is entitled, at an inquest to determine damages, to cross-examine witnesses, give testimony, and offer proof in mitigation of damages” … . Here, since the Supreme Court did not provide such an opportunity to the defendant, we remit the matter to the Supreme Court, Queens County, for a new inquest on the issue of damages … . Dejesus v H.E. Broadway, Inc., 2019 NY Slip Op 06743, Second Dept 9-25-19

 

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AN INDIVIDUAL CORPORATE OFFICER, AS OPPOSED TO THE CORPORATION, CAN NOT BE HELD STRICTLY LIABLE FOR SEXUAL HARASSMENT UNDER THE NYC HUMAN RIGHTS LAW UNLESS THE OFFICER ENCOURAGED, CONDONED OR APPROVED THE SPECIFIC DISCRIMINATORY CONDUCT; COMPLAINT AGAINST THE CORPORATE OFFICER DISMISSED (FIRST DEPT).

The First Department, in full-fledged opinion by Justice Kern, over a two-justice dissent, reversing Supreme Court, determined that an individual corporate officer cannot be held strictly liable under the New York City Human Rights Law (HRL) for sexual discrimination unless the officer encouraged, condoned or approved the conduct. Here the plaintiff did not demonstrate the officer, Michael Bloomberg, was aware of the conduct by plaintiff’s supervisor (Ferris). The complaint against the officer was dismissed:

With respect to Mr. Bloomberg, the allegations in the complaint are as follows. Following Mr. Bloomberg’s example and leadership, Bloomberg L.P. bred a hostile work environment that led to the type of discrimination plaintiff experienced. Mr. Bloomberg was sued in a class action brought by female employees who alleged sexual harassment and creation of a hostile work environment while he was CEO of Bloomberg L.P. Mr. Bloomberg was also accused of condoning systemic top-down discrimination against female employees in a sexual harassment suit brought by the US Equal Employment Opportunity Commission on behalf of 58 female employees, not including the plaintiff. The complaint also cites various magazine articles and statements by public figures describing unsavory conduct and comments made by Mr. Bloomberg, directed at or regarding women other than plaintiff. * * *

… [W]we find that plaintiff’s City HRL claims must be dismissed as against Mr. Bloomberg because plaintiff has failed to sufficiently allege that Mr. Bloomberg is her employer for purposes of the City HRL. She has failed to allege that Mr. Bloomberg encouraged, condoned or approved the specific discriminatory conduct allegedly committed by Mr. Ferris. Doe v Bloomberg, L.P., 2019 NY Slip Op 06728, First Dept 9-24-19

 

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