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DEFENDANT DOG OWNER’S ACKNOWLEDGMENT SHE HAD HEARD THAT ONE OF HER DOGS NIPPED A BOY IN A PRIOR INCIDENT WAS NOT ADMISSIBLE EVIDENCE OF THE FACTS OF THE INCIDENT; THEREFORE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this dog bite case should not have been granted. The plaintiffs relied on deposition testimony in which defendant acknowledged she had heard about a prior incident in which a boy was nipped by one of her dogs. Defendant’s statement was inadmissible hearsay:

Plaintiffs failed, however, to submit evidence in admissible form regarding the purported prior incident allegedly establishing the existence of the dogs’ vicious propensities. Instead, plaintiffs relied on defendant’s inadmissible hearsay testimony during her deposition about what she had heard from others regarding the purported prior incident, for which she was not present and about which she had no firsthand knowledge … . Such evidence is insufficient to meet plaintiffs’ burden on their motion for summary judgment … .

It is true that, “[i]f a party makes an admission, it is receivable even though knowledge of the fact was derived wholly from hearsay” … . If, however, the party merely admits that he or she heard that an event occurred in the manner stated, the party’s statement is “inadmissible as then it would only . . . amount[ ] to an admission that he [or she] had heard the statement which he [or she] repeated and not to an admission of the facts included in it”… . Here, defendant merely admitted that she had heard that the purported prior incident occurred in the manner stated by others, which is “in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement. Such evidence is clearly inadmissible” … . Christopher P. v Kathleen M.B., 2019 NY Slip Op 05894, Fourth Dept 7-31-19

 

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CONFLICTING TESTIMONY ABOUT WHETHER A CO-WORKER WAS HOLDING THE LADDER PLAINTIFF WAS USING PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).

The Second Department determined conflicting testimony concerning whether the ladder plaintiff was using was being held by a co-worker raised a question of fact in this Labor Law 240 (1) action:

… [T]he plaintiff submitted, among other things, a transcript of his deposition testimony and a transcript of a workers’ compensation board hearing, which included the testimony of the plaintiff and his coworker. The plaintiff testified at his deposition and at the hearing that the ladder shifted, causing him to lose his footing, and that nobody was holding the ladder at the time of the accident. His coworker gave a different account. The coworker testified that he was standing at the bottom of the ladder, holding it, when he felt the ladder jolt. Whether the ladder was being stabilized at the time of the accident presents a triable issue of fact … . Accordingly, “the plaintiff’s own submissions demonstrated that there are triable issues of fact as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide the plaintiff with proper protection proximately caused his injuries” … . Lozada v St. Patrick’s R C Church, 2019 NY Slip Op 05971, Second Dept 7-31-19

 

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EVIDENCE WAS SEIZED DURING A WARRANTLESS PAROLE SEARCH AT A TIME WHEN DEFENDANT’S POST RELEASE SUPERVISION (PRS) HAD BEEN IMPOSED ADMINISTRATIVELY, WHICH HAS SINCE BEEN FOUND UNCONSTITUTIONAL; BECAUSE THE LAW CONCERNING THE REQUIREMENT OF JUDICIAL IMPOSITION OF PRS IS NOW CLEAR, SUPPRESSING THE EVIDENCE WOULD HAVE NO DETERRENT EFFECT AND IS NOT THEREFORE NECESSARY (FOURTH DEPT).

The Fourth Department determined the ammunition seized during a warrantless parole search of defendant’s residence, and which was connected to a shooting, was not subject to suppression. At the time of the search, defendant’s post release supervision (PRS) had been imposed administratively and not by a judge–a procedure which has since been rendered invalid by statute. The Fourth Department held that, under these facts, the exclusionary rule, which usually requires suppression of the fruits of a warrantless search, would have no deterrent effect and need not be applied:

… [T]he improper conduct sought to be deterred by application of the exclusionary rule in this case is the unauthorized administrative imposition of PRS by a state entity rather than a sentencing judge. In that regard, defendant contends that the state criminal justice system disregarded the Second Circuit’s decision in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that the administrative imposition of PRS is unconstitutional … , and he contends that application of the exclusionary rule here is necessary to deter similar “misconduct” in the future. We reject that contention.

First, when the parole search took place, in 2007, the issue whether it is proper for the state to administratively impose PRS had not yet been settled … . Second, and more importantly, it is now settled as a matter of state statutory law that only a court may lawfully pronounce a term of PRS as a component of a sentence … and, consequently, all the relevant government actors are now well aware of the law. Under the circumstances, the deterrent effect of applying the exclusionary rule is marginal or nonexistent … . People v Lloyd, 2019 NY Slip Op 05855, Fourth Dept 7-31-19

 

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SUPREME COURT PROPERLY DISMISSED THE CLAIM THAT DEFENDANT VIOLATED THE RESTRICTIVE COVENANT CONCERNING THE HEIGHT OF HOUSES BECAUSE THE TERM ‘ONE AND A HALF STORIES’ WAS AMBIGUOUS AS TO HEIGHT; HOWEVER THE CLAIMS ALLEGING VIOLATION OF SETBACK RESTRICTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and ordering a new trial, determined defendant’s motion for a directed verdict dismissing claims that defendant had violated certain restrictive covenants when defendant’s house was constructed should not have been granted. The court noted that plaintiff did not prove defendant violated the covenant restricting the height of a house to one and a half stories. The use of the term “stories” was deemed ambiguous as a measure of height. However the proof demonstrated violations of the required setbacks and Supreme Court should not have dismissed those claims because other properties in the subdivision were in violation or because the house was already built:

… “[T]he words not more than one and one-half stories in height’ are ambiguous in scope,” and because the defendants, who were seeking to enforce the covenant, “failed to present . . . clear and convincing proof with respect to what number of feet constitutes a story in height,’ the scope of the covenant is uncertain, doubtful, or debatable,’ thus rendering it unenforceable as applied to plaintiff’s residence” … . …

Although the court determined that there was a violation of at least one of the covenants and restrictions here, it granted the motion on the ground that plaintiff could not seek equitable relief because she did not seek such relief against other property owners within the subdivision regarding their alleged violations of the same covenants and restrictions. That was error. Plaintiff is “entitled to ignore inoffensive violations of the restriction[s] without forfeiting [her] right to restrain others which [she] find[s] offensive” … . Moreover, the court’s reluctance to grant equitable relief where, as here, the house has already been built was not a valid basis for granting defendant’s motion. Defendant “proceeded with construction of the [house] with knowledge of the restrictive covenants and of plaintiff[‘s] intention to enforce them” … . Kleist v Stern, 2019 NY Slip Op 05888, Fourth Dept 7-31-19

 

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PLAINTIFF BANK WAS ENTITLED TO AN ORDER REQUIRING THE COUNTY CLERK TO RECORD A MORTGAGE, THE ORIGINAL OF WHICH HAD ALLEGEDLY BEEN LOST; AN ATTORNEY AFFIDAVIT IS AN APPROPRIATE VEHICLE FOR THE SUBMISSION OF DOCUMENTS IN ADMISSIBLE FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was entitled to an order requiring the county clerk to accept a copy of a mortgage for recording (the original allegedly had been lost and was never recorded). The Second Department further determined that an attorney affidavit was an appropriate vehicle for the submission of the documents to be recorded, which were in admissible form:

The plaintiff established its prima facie entitlement to judgment as a matter of law on the first cause of action, which sought an order directing the Suffolk County Clerk to accept a copy of the mortgage for recording. The County Clerk has a statutory duty that is ministerial in nature to record a written conveyance if it is duly acknowledged and accompanied by the proper fee (see Real Property Law §§ 290[3]; 291; County Law § 525[1]). “Accordingly, the Clerk does not have the authority to refuse to record a conveyance which satisfies the narrowly-drawn prerequisites set forth in the recording statute” … . Here, the copy of the mortgage submitted on the motion, which is notarized, was subject to recording … . Contrary to the Supreme Court’s determination, the complaint adequately stated a cause of action for this relief … , and the plaintiff’s failure to submit an affidavit of someone with personal knowledge of the facts was not fatal to the motion. The affidavit or affirmation of an attorney, even if he or she has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, e.g., documents and transcripts … . JPMorgan Chase Bank, N.A. v Wright, 2019 NY Slip Op 05966, Second Dept 7-31-19

 

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DEFENDANT’S SENTENCE REDUCED FROM 12 TO FIVE YEARS BASED UPON THE PLEA OFFERS, THE LACK OF PRIOR FELONY CONVICTIONS, DEFENDANT’S MENTAL HEALTH ISSUES, AND THE VICTIMS’ OPPOSITION TO INCARCERATION (FOURTH DEPT). ​

The Fourth Department reduced defendant’s sentence from 12 to five years, taking into account the plea offers of probation only and five years, the lack of any prior felony convictions, her mental health problems, and the victims’ opposition to incarceration:

… [T]he 12-year term of incarceration imposed on the count of burglary in the first degree is unduly harsh and severe. Before indictment, defendant was offered the opportunity to plead to a charge for which probation was a sentencing option. After indictment, she was offered the opportunity to plead guilty to the charges with a sentence promise of five years. At the time of the latter offer, all of the relevant facts were known to the court, including those related to defendant’s history of mental illness. The victims of the offenses were defendant’s parents, and they opposed a lengthy prison sentence, contending that she needed treatment not incarceration. Indeed, defendant’s mother stated at sentencing that her daughter needed mental health treatment and that “jail [was] not the answer.”

Moreover, all of defendant’s prior convictions, none of which were felonies, were committed within three years of these offenses and only after defendant began to suffer from significant mental health issues. Under the circumstances of this case, where no new facts were set forth during the nonjury trial and the victims were opposed to incarceration, we conclude that the sentence on the burglary count should be reduced to a determinate term of incarceration of five years … . People v Mccoy, 2019 NY Slip Op 05851, Fourth Dept 7-31-19

 

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FAILURE TO DISCLOSE THE SLIP AND FALL ACTION AS AN ASSET IN A BANKRUPTCY PROCEEDING DEPRIVED PLAINTIFF OF THE LEGAL CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the legal capacity to sue in this slip and fall case because the action was not listed as an asset in a prior bankruptcy proceeding:

“The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of the legal capacity to sue subsequently on that cause of action'” … .

Here, it is undisputed that the plaintiff did not disclose, in the bankruptcy petition that she filed in October 2015, the existence of the cause of action to recover damages for personal injuries that she had previously asserted against the defendant. The defendant established, prima facie, that when the petition was filed, the plaintiff knew or should have known of the existence of her cause of action, and the plaintiff failed to raise a triable issue of fact in opposition to that prima facie showing … . Jean-Paul v 67-30 Dartmouth St. Owners Corp., 2019 NY Slip Op 05965, Second Dept 7-31-19

 

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NEGLIGENCE, BREACH OF CONTRACT AND DISCRIMINATION CLAIMS BROUGHT BY A DISABLED FORMER POLICE OFFICER CONCERNING GENERAL MUNICIPAL LAW 207-c BENEFITS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department affirmed the grant of summary judgment to all defendants in this action by a disabled former police officer concerning claims for General Municipal Law 207-c benefits:

With respect to the City defendants, … we conclude that the court properly dismissed the negligence and gross negligence causes of action against them inasmuch as they were entitled to governmental function immunity based on the discretion they are afforded in administering payments of General Municipal Law § 207-c benefits … . Although plaintiff’s negligence and gross negligence causes of action involved the health care services that he was receiving, the City defendants were engaged in a governmental function because they were merely administering the payment of General Municipal Law § 207-c benefits, i.e., they did not actually provide plaintiff with health care services ;;; . Moreover, the City defendants were entitled to immunity inasmuch as the administration of section 207-c benefits involved the exercise of their discretion and the record establishes that the City defendants denied payment of the disputed claims for benefits after actually exercising this discretion … .

… Plaintiff was not a party to the contracts between [the remaining] defendants and City defendants, and therefore liability may be established where, inter alia, “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Here, the undisputed evidence established that the [defendants] did not have authority to deny payment of plaintiff’s claims for General Municipal Law § 207-c benefits. That authority rested, at all relevant times, with the City defendants. Thus, it cannot be said that these defendants launched any “instrument of harm” because they never made the decision to deny any of plaintiff’s claims for payment of medical care and treatment. …

… [W]e note that plaintiff, as a public employee, may not sue his employer under Title II of the ADA and the Rehabilitation Act, as plaintiff has done here … . Where, as here, plaintiff’s causes of action are “related to the terms, conditions and privileges of his employment[, i.e., his entitlement to benefits under General Municipal Law § 207-c, they] are covered by Title I” and not Title II of the ADA or the Rehabilitation Act … . Vassenelli v City of Syracuse, 2019 NY Slip Op 05878, Fourth Dept 7-31-19

 

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NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED IN THIS OUT-OF-STATE ASBESTOS-RELATED INSURANCE ACTION, THE NONPARTY HAD BEEN EMPLOYED BY THE INSURER AND MAY POSSESS RELEVANT KNOWLEDGE ABOUT HOW THE INSURANCE POLICIES WERE INTERPRETED AND ENFORCED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petition to quash a nonparty subpoena in this out-of-state asbestos-related insurance action should not have been granted:

“CPLR 3101 (a) (4) allows a party to obtain discovery from a nonparty, and provides that [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof’ ” … . The phrase “material and necessary” in CPLR 3101 “must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’ ” …

“An application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” … , and the burden is on the party seeking to quash a subpoena to make such a showing … . …

“[A] witness’s sworn denial of any relevant knowledge …” … is insufficient, standing alone, to establish that the discovery sought is utterly irrelevant to the action or that the subpoena, if honored, will obviously and inevitably fail to turn up relevant evidence  … . … [The nonparty’s] deposition testimony is … potentially relevant because she has personal knowledge of how [the insurer] interpreted and enforced similar “consent” provisions of other excess policies while she was employed by [the insurer]. Matter of Barber v Borgwarner, Inc., 2019 NY Slip Op 05850, Fourth Dept 7-31-19

 

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DEFENDANT, AN OUT OF POSSESSION LESSEE, WAS NOT AN ‘OWNER’ WITHIN THE MEANING OF LABOR LAW 240 (1) OR 241 (6) AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant M & M was not a property owner in the context of Labor Law 240 (1) or 241 (6) and therefore was entitled to summary judgment. The Fourth Department noted that an issue on which Supreme Court reserved decision is not appealable:

For purposes of Labor Law §§ 240 (1) and 241 (6) liability, “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a [party] who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit’ ” … . ” [The owner] is the party who, as a practical matter, has the right to hire or fire subcontractors and to insist that proper safety practices are followed’ ” … . “The key factor in determining whether a non-titleholder is an owner’ is the right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control’ ” … .

Here, M and M met its initial burden of establishing that it was not an owner for purposes of Labor Law §§ 240 (1) and 241 (6) because its submissions established that “it was an out-of-possession lessee of the property [that] neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to plaintiff’s injuries’ ” … . Thompson v M & M Forwarding of Buffalo, N.Y., Inc., 2019 NY Slip Op 05875, Fourth Dept 7-31-19

 

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