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BANKRUPTCY TRUSTEE PROPERLY SUBSTITUTED FOR PLAINTIFF IN A PERSONAL INJURY ACTION, DESPITE PLAINTIFF’S FAILURE TO LIST THE ACTION AS AN ASSET IN HIS VOLUNTARY PETITION FOR CHAPTER 7 BANKRUPTCY (SECOND DEPT).

The Second Department determined the bankruptcy trustee was properly substituted, by the Bankruptcy Court, for plaintiff in a personal injury action, despite the fact that the action had not been listed as an asset when plaintiff filed a voluntary petition for chapter 7 bankruptcy:

The rule that a substitution cannot be made is grounded in Reynolds v Blue Cross of Northeastern N.Y., Inc. (210 AD2d 619). In that case, the plaintiffs commenced an action against the defendants to recover damages for personal injuries. Thereafter, the plaintiffs filed a voluntary petition for chapter 7 bankruptcy, and failed to list the action on the schedule of assets. After the plaintiffs were discharged from bankruptcy, the defendants moved to dismiss the complaint, alleging that the plaintiff lacked the capacity to sue. During the pendency of the motion, the plaintiffs moved in the Bankruptcy Court to reopen the bankruptcy proceeding and to have a successor trustee appointed. A successor trustee was appointed, and both the plaintiffs and the interim trustee opposed the defendants’ motion to dismiss. The Appellate Division, 3rd Department, determined that substitution was not available to cure the deficiency, on the ground that a party with no capacity to sue could not be replaced with one who had the capacity to sue, citing Matter of C & M Plastics (Collins) (168 AD2d 160, 161-162). However, in Matter of C & M Plastics (Collins), the proceeding in the Supreme Court was commenced after a bankruptcy petition was filed; therefore, in that case, the plaintiff did not have capacity to sue at the time of the commencement of the action.

Although subsequent cases have held that a substitution of the bankruptcy trustee for the plaintiff cannot be made, even if the plaintiff had the capacity to sue at the time the action or proceedings was commenced (see Rivera v Markowitz, 71 AD3d 449, 450; Pinto v Ancona, 262 AD2d 472), other cases have held that where a motion for substitution was made at the direction of a bankruptcy court, the motion should be granted, as a matter of comity (see Berry v Rampersad, 21 Misc 3d 851 [Sup Ct, Kings County]). … As a matter of comity, and in deference to the determination of the Bankruptcy Court, we agree with the Supreme Court’s determination to grant the plaintiff’s cross motion, inter alia, to substitute the bankruptcy trustee as the plaintiff, and to deny the defendants’ motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue, and thereupon, to dismiss the complaint. Fausset v Turner Constr. Co., 2019 NY Slip Op 08173, Second Dept 11-13-19

 

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PLAINTIFF COLLEGE SOCCER PLAYER ASSUMED THE RISK OF INJURY FROM BEING STRUCK IN THE HEAD BY A SOCCER BALL, SUFFERING A CONCUSSION, AND THEREAFTER BEING LEFT IN THE GAME, ALLEGEDLY EXACERBATING THE INJURY (SECOND DEPT).

The Second Department determined that plaintiff, a college soccer player, assumed the risk of injury caused by being struck in the head by a soccer ball:

As to the Molloy College defendants and the referee defendants, the plaintiff alleged that they were negligent in, among other things, not removing him from the match after he was struck in the head with the soccer ball in the 10th minute of the match. The plaintiff contended that, because he was left in the match after he sustained a concussion on the initial blow to the head, he was exposed to an increased risk of injury, which exacerbated or worsened his injuries or symptoms beyond the initial concussion. * * *

Under the circumstances of this case, the doctrine of primary assumption of risk is applicable and bars the plaintiff’s recovery against both the Molloy College defendants and the referee defendants. The evidence relied upon in support of the respective motions of the Molloy College defendants and the referee defendants demonstrated, prima facie, that they had no reason to believe that the plaintiff had sustained a concussion and that the plaintiff assumed the risks of any injuries to his head or brain stemming from being hit in the head by a soccer ball during the course of play by voluntarily participating in the soccer match … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether any actions or inactions on the part of the Molloy College defendants or the referee defendants unreasonably increased the risk of injury normally associated with playing soccer … . Calderone v College, 2019 NY Slip Op 08169, Second Dept 11-13-19

 

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CENTURY-OLD ELEVATOR MUST BE REPLACED, DESPITE THE COST AND DESPITE THE APPARENT FACT THAT ONLY ONE OF FOUR TENANTS USED THE ELEVATOR (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined the ruling by the NYS Department of Housing and Community Renewal (DHCR) ruling requiring the landlord to provide elevator service was not irrational and must be upheld. The century-old elevator needed replacement at a cost of $150,000. Apparently the building has four tenants, and only one used the elevator. The opinion is comprehensive and cannot be fairly summarized here:

DHCR in its 2017 determination interpreted its own regulations to require that if elevator service was required under the Loft Law, it was also required under the Rent Stabilization Code upon the transition of the building to rent stabilization. This interpretation by DHCR of its own regulations should be upheld to the extent it is rational and not an arbitrary and capricious reliance on the facts of the case … . Certain facts are unclear regarding if and when the elevator broke down, or when the landlord acted on a decision to terminate operations. However … that would seem not to matter under these circumstances. Since elevator service had been provided while the building was regulated as an interim multiple dwelling, that service had to be continued without regard to the economic ramifications. In this sense, the cost to the landlord is not a factor that would displace the regulatory requirements and would not support setting aside the DHCR determination. * * *

… [W]e cannot conclude that DHCR was arbitrary and capricious in its evaluation of the relevant facts or irrational in concluding that in whatever manner elevator service was terminated, that action in the absence of DHCR’s approval was inconsistent with rent stabilization, and that elevator service, as a required service, had to be restored. Matter of Leonard St. Props. Group, Ltd. v New York State Div. of Hous. & Community Renewal, 2019 NY Slip Op 08165, First Dept 11-12-19

 

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CLAIMANT COULD NOT SEEK COMPENSATION FOR PERIODIC FLOODING OF HIS LOT UNDER THE EMINENT DOMAIN PROCEDURE LAW; THERE WAS NO DE JURE TAKING BY THE CITY, AND THE CRITERIA FOR INVERSE CONDEMNATION WERE NOT MET (FIRST DEPT).

The First Department, reversing Supreme Court, determined claimant’s action for damages based upon the periodic flooding claimant’s lot, over which the city had an easement, should have been dismissed. Claimant alleged the city had appropriated the easement by causing flooding:

… Claimant filed a notice of claim pursuant to Eminent Domain Procedure Law (EDPL) § 503, asserting a claim for appropriation of an easement over its lot. In 2015, claimant alleged for the first time that the bridge construction was causing flooding of its property. In 2017, claimant submitted the appraisal at issue in this appeal, prepared by Cushman & Wakefield, which determined that during a 31-month period from November 2014 through May 2017, claimant’s property and the non-exclusive access easement became flooded after rainfall. It attributed the flooding to a drainage pipe in the access easement area that became blocked by cement during construction of the new bridge. The appraisal provides that subsequent to the discovery of the flooding, claimant leased out its property and received rental income. Claimant’s alleged flooding damages, as set forth in the appraisal, consist of reduced rental income and the inability to develop residential towers on the property. * * *

Because claimant’s property was not subject to a de jure taking by the City, it may not pursue a claim to recover just compensation or consequential damages resulting from the flooding in this eminent domain valuation proceeding … . * * *

“In a modern inverse condemnation action, an owner whose property has been taken de facto may sue the entity that took it to obtain just compensation, and if the action is successful the defendant has no choice in the matter — the compensation must be paid” … .

The claim here for inverse condemnation is legally flawed, since the interference with claimant’s property rights, as set forth in its own appraisal report, is not sufficiently permanent to constitute a de facto taking as a matter of law … . Matter of Willis Ave. Bridge Replacement, 2019 NY Slip Op 08162, First Dept 11-12-19

 

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DISCOVERY OF DEFENDANT’S SOURCE CODE, A TRADE SECRET, SHOULD HAVE BEEN ORDERED FOR “ATTORNEYS AND EXPERT EYES ONLY” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the discovery-production of defendant’s source code, a trade secret, should have been for “attorneys and expert eyes only.”

The production of defendants’ source code, which is a trade secret … , should have been ordered to be produced for “attorneys and expert eyes only” … . Plaintiffs’ assertion that they have the expertise to review and opine on the source code and should not be subjected to retaining an expert, does not support unfettered access to defendants’ confidential algorithm. BEC Capital, LLC v Bistrovic, 2019 NY Slip Op 08144, First Dept 11-12-19

 

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CHILD SUPPORT ARREARS PROPERLY AWARDED TO MOTHER, BUT THE AMOUNT SHOULD HAVE BEEN CALCULATED THROUGH THE HEARING DATE (FIRST DEPT).

The First Department noted that, although child support arrears were properly awarded to petitioner (mother), the amount of the arrears should have been calculated through the date of the hearing:

By submitting evidence that respondent [father] was delinquent in his support payments … , petitioner established prima facie that respondent willfully violated his child support obligations. Respondent failed to rebut this prima facie showing by presenting evidence of his inability to pay … . He testified to a loss of income but failed to provide evidence of either his lost employment or his efforts to find new employment  … . Further, contrary to respondent’s contention, whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness …  , particularly in light of his previous violations of his support obligations. …

Petitioner correctly argues that child support arrears accrued through the date of the hearing on remand, and should be included in the award of arrears, as required by Family Court Act § 459 and in the children’s best interests . Therefore, we remand for recalculation of the amount in arrears … . Matter of Eve S.P. v Steven N.S., 2019 NY Slip Op 08130, First Dept 11-12-19

 

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QUESTION OF FACT WHETHER LANDLORD KNEW OF THE DOG’S PRESENCE IN THE BUILDING AND WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, COMPLAINT AGAINST THE LANDLORD SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s dog-bite complaint against the landlord (New York City Housing Authority [NYCHA]) should not have been dismissed. Plaintiff alleged she was returning to her building after walking her dog when she was bitten by an unleashed pit bull owned by another resident of the building:

To hold a defendant landlord liable for injuries sustained in a dog bite incident, the plaintiff must establish the landlord’s knowledge of the dog’s presence, and its vicious propensities … . Knowledge of vicious propensities may be established by proof of prior acts of a similar kind of which the defendant had notice … .

Here, viewing the evidence in the light most favorable to plaintiff as the nonmoving party, the record presents triable issues of fact regarding NYCHA’s notice of the dog’s presence and its vicious propensities. NYCHA’s manager at the subject building testified that NYCHA had no knowledge of prior dog bite incidents. However, NYCHA’s internal records show that a dog bite occurred at the building about three months prior to the attack on plaintiff. While that internal document does not identify the dog or its owner involved in the prior attack and NYCHA’s manager stated that NYCHA does not keep records of complaints involving vicious animals, plaintiff testified that she had seen third-party defendant with the dog on several prior occasions, and that the dog acted aggressively … . Almodovar v New York City Hous. Auth., 2019 NY Slip Op 08129, First Dept 11-12-19

 

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MOTHER ENTITLED TO A HEARING ON WHETHER A CHANGE IN HER CIRCUMSTANCES WARRANTED A RETURN OF HER CHILDREN; CUSTODY OF THE CHILDREN HAD PREVIOUSLY BEEN AWARDED TO RESPONDENT (GREAT AUNT) (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother was entitled to a hearing on whether there had been a change of circumstances warranting the return of the custody of the children to her. Custody had previously been awarded to respondent (great aunt):

Inasmuch as there has been a prior judicial determination of extraordinary circumstances supporting the award of custody to respondent, “the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances” warranting an inquiry whether modification of custody or visitation is in the best interests of the children … . We agree with the mother that Family Court erred in granting respondent’s motion to dismiss the petitions at the close of the mother’s case on the ground that the mother failed to establish a sufficient change in circumstances since entry of the stipulated order … . At the time the prior order of custody and visitation was entered, the mother did not have a vehicle or employment, and she lived with a man who was prohibited by court order from having any contact with the subject children. The mother established that, at the time of the hearing, she owned a car, worked full-time, and no longer lived with or had a relationship with the aforementioned man. Indeed, in its oral decision dismissing the petitions, the court noted that the mother had “improved” herself and that it was “impressed” with her progress. Matter of Heinsler v Sero, 2019 NY Slip Op 08052, Fourth Dept 11-8-19

 

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SEIZURE OF DEFENDANT WAS BASED UPON AN ANONYMOUS TIP, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the relevant convictions, determined the police officer effectively seized defendant by blocking defendant’s car based upon an anonymous tip. The evidence seized from the car should have been suppressed:

The conviction of criminal possession of a weapon in the second degree arises from a police encounter during which an officer received information from an anonymous 911 call that drugs were being sold out of a vehicle. The officer arrived on the scene and observed a legally parked vehicle matching the description given by the anonymous caller and further observed defendant in a fully reclined position in the driver’s seat. The officer parked his patrol car alongside defendant’s vehicle in such a manner as to prevent defendant from driving away and, as the People stipulated in their post-hearing memorandum, the officer thereby effectively seized the vehicle. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure, and thus County Court erred in refusing to suppress both the tangible property seized, i.e., the weapon and marihuana found in the vehicle, and the statements defendant made to the police at the time of his arrest … . Based on the anonymous tip and defendant’s otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach the vehicle and make a common-law inquiry of its occupants ,,, . The officer did not make any “confirmatory observations” of the criminal behavior reported by the 911 caller … and therefore did not have “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” to justify the seizure … . People v Williams, 2019 NY Slip Op 08048, Fourth Dept 11-8-19

 

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THE WAIVER OF INDICTMENT IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE APPROXIMATE TIME OF EACH OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defective for failure state the approximate time of each offense:

A jurisdictionally valid waiver of indictment must contain, inter alia, the “approximate time” of each offense charged in the superior court information (SCI) … . That requirement is strictly enforced … . ” [S]ubstantial compliance will not be tolerated’ ” … . Here, the waiver of indictment does not contain the approximate time of the offense … . Inasmuch as the SCI also does not contain that information, we need not consider whether to adopt the so-called “single document” rule … . We therefore reverse the judgment, vacate the plea and waiver of indictment, and dismiss the SCI … . People v Denis, 2019 NY Slip Op 08047, Fourth Dept 11-8-19

 

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