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FAILURE TO PAY TAXES UNDER PROTEST PRECLUDES AN ACTION TO RECOVER THE PAYMENTS WHEN THE RELEVANT TAX RULE IS INVALIDATED (SECOND DEPT).

The Second Department determined plaintiff’s putative class action to have Nassau County disgorge fees collected pursuant to the Nassau County Administrative Code for tax map certification letters issued by the County Clerk for real estate closings was properly dismissed. It is not explicitly stated, but apparently the taxing rule under which the fees were collected had been invalidated at some point:

“The settled law is that the payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary” … . Where the payment is “necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused” … . “Further, where the payment of a tax or fee is based on a material mistake of fact, the payment may be recovered even if it was made without protest” … .

Here, it is undisputed that the plaintiff did not pay the fees under protest. Falk v Nassau County, 2019 NY Slip Op 06202, Second Dept 8-21-19

 

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DEFENDANT TRANSIT AUTHORITY’S NEGLIGENCE FURNISHED THE CONDITION FOR PLAINTIFF’S DECEDENT’S DEATH BUT WAS NOT THE CAUSE OF HIS DEATH, DEFENDANT’S MOTION TO SET ASIDE THE SUBSTANTIAL VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the substantial plaintiff’s verdict in this wrongful death case should have been set aside. It was alleged that the NYS Transit Authority was negligent in failing to make sure all passengers were off the subway train when the train reached the end of the line, requiring that it be repositioned in the relay tunnel. Plaintiff’s decedent, who was intoxicated, remained on the train. At some point he fell from the train in the relay tunnel and was killed:

… [V]iewing the evidence in the light most favorable to the plaintiffs, there is no valid line of reasoning and permissible inferences which could possibly lead rational people to conclude that the defendants’ alleged negligence was a proximate cause of the decedent’s injuries and death … . Even assuming that the defendants’ employees were negligent in failing to remove the decedent from the train before it was taken into the subject relay tunnel, the defendants’ negligence merely furnished the condition or occasion for the occurrence of the decedent’s fall from the train …  rather than being one of its proximate causes. While the record evidence supports the plaintiffs’ theory that the decedent was in the area between the two northernmost subway cars when he fell to the tracks below, the circumstances that led the decedent to be in that area, and the cause of the fall itself, remain unknown and, therefore, speculative … . Williams v New York City Tr. Auth., 2019 NY Slip Op 06187, Second Dept 8-21-19

 

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PLAINTIFF ALLEGED A NEW THEORY OF LIABILITY FOR THE FIRST TIME IN ANSWER TO DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION; SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S SUMMARY JUDGMENT MOTION AND SHOULD NOT HAVE ALLOWED PLAINTIFF TO AMEND THE COMPLAINT AND BILL OF PARTICULARS TO REFLECT THE NEW THEORY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s motion for summary judgment in this medical malpractice action should have been granted. Instead of answering the defendant’s expert opinion that the doctor’s actions were not the cause of the amniotic fluid embolism (AFE) which plaintiff alleged caused the death of plaintiff’s decedent, the plaintiff for the first time alleged the cause of death was septic shock, not AFE. Supreme Court erroneously denied defendant’s motion for summary judgment and allowed plaintiff to amend the complaint to allege the new theory:

… [T]he defendant met his prima facie burden as to proximate cause by submitting the affidavit of an expert in maternal fetal medicine, who opined that any delay in the decedent undergoing an abortion procedure from the second trimester to the third trimester did not cause her to develop AFE. In opposition, the plaintiff did not raise a triable issue of fact as to the defendant’s prima facie showing, but rather alleged, for the first time, a new theory of causation, claiming that the decedent died of septic shock, not AFE. “A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars” … . …

“[O]nce discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances” … . Here, the plaintiff failed to show special and extraordinary circumstances in seeking leave to amend the complaint and the bill of particulars in response to the defendant’s motion for summary judgment, three years after the commencement of the action and almost six months after the filing of the note of issue. The plaintiff offered no reasonable excuse for relying solely on the medical examiner’s report and for failing to explore his new theory of causation earlier in the proceedings … . Moreover, permitting the amendment at this late stage of the proceedings would prejudice the defendant. Anonymous v Gleason, 2019 NY Slip Op 06207, Second Dept 8-21-19

 

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PLAINTIFF WAS WALKING IN THE CROSSWALK WHEN SHE WAS STRUCK BY DEFENDANT’S BUS MAKING A RIGHT TURN; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was in the crosswalk when she was struck by defendant’s bus making a right turn:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit and a certified copy of the police accident report, which demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendants’ vehicle failed to yield the right-of-way and struck her … . In opposition, the defendants failed to raise a triable issue of fact as to as to whether there was a non-negligent explanation for striking the plaintiff.

Furthermore, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … . Rodriguez-Garcia v Bobby’s Bus Co., Inc., 2019 NY Slip Op 06221, Second Dept 8-21-19

 

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FIVE-DAY EXTENSION FOR A RESPONSE TO AN ANSWER SERVED BY MAIL DOES NOT APPLY TO THE SENDER’S 60-DAY PERIOD TO MOVE TO DISMISS (SECOND DEPT).

The Second Department determined serving the answer by mail did not increase to 65 days the statutory 60-day period for a motion to dismiss. The five-day “service by mail” extension applies to a response to service by mail, not to any time-periods which apply to the sender:

The Legislature did not intend CPLR 2103 (b) (2) as a means by which a party could, as a general matter, extend its own time to make a motion. Instead, the Legislature enacted the provision to give the party responding to service by mail the full amount of the “responding period” provided for the doing of an act … . * * *

In the situation presented here … a defendant will always have the statutory 60 days to move for dismissal under CPLR 3211 (e), regardless of how it chooses to serve its answer. There is no delay in the defendant’s time to make its motion due to papers being in transit, and there is no necessary intervening event between the defendant’s service of its answer and its ability to move under CPLR 3211 (e). We hold that CPLR 2103 (b) (2) does not give the defendant the option to extend that period by another five days, as the legislative intent behind CPLR 2103 (b) (2) was to give an additional five days to a responding party. HSBC Bank USA, N.A. v Maniatopoulos, 2019 NY Slip Op 06184 [175 AD3d 575], Second Dept 8-21-19

 

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THE NYC ADMINISTRATIVE RULES PLACING CERTAIN RESTRICTIONS ON EXPRESSIVE MATTER VENDORS IN CITY PARKS ARE VALID AND ENFORCEABLE (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Kapnick, determined that the restrictions placed on expressive matter vendors’ (EMV’s) use of public parks were valid and enforceable. “Expressive matter is defined as ‘materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment’ …”.

… DPR [NYC Department of Parks and Recreation] published proposed revisions to the rules applicable to EMVs. It held a public hearing, and based on comments at the hearing as well as written comments, revised the proposed rules. … Under the revised EMV Rules, while EMVs may sell in almost all City parks if they comply with certain requirements, they are restricted in Union Square Park, Battery Park, High Line Park, and portions of Central Park below 86th Street, where they may only sell their items, on a first-come, first-serve basis, in certain designated areas, and only one vendor is allowed to sell at each spot. The EMVs may always sell in the nonenumerated areas, including other City parks and sidewalks.  * * *

I. The EMV Rules do not conflict with the City Council’s legislative intent, as expressed in Local Law No. 33 of 1982. * * *

II. The EMV Rules do not violate vendors’ rights under the New York Constitution. * * *

III. Defendants are entitled to summary judgment dismissing the discrimination claims under the State and City Human Rights Law. * * *

IV. Supreme Court erred in granting plaintiffs leave to amend to add a separation of powers claim. * * * Dua v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 06154, First Dept 8-20-19

 

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DEFENDANT DOCTOR’S MOTION TO CHANGE THE VENUE OF THE MEDICAL MALPRACTICE ACTION FROM BRONX TO WESTCHESTER COUNTY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined defendant doctor’s (Goldstein’s) motion to change the venue of this medical malpractice action from Bronx to Westchester County should not have been granted. The majority held the burden was on Goldstein to demonstrate the need for a change of venue and that burden was not met:

Plaintiff commenced this medical malpractice action in Bronx County, alleging that defendants were negligent in rendering podiatric care and treatment to her between April and September 2016. Defendants moved and cross-moved to transfer venue to Westchester County. WestMed and Rye submitted an affidavit of their medical director averring that Dr. Goldstein was one of their employees in Westchester. Dr. Goldstein submitted an affidavit averring that he had offices in Bronx County and Westchester County. He indicated that Westchester County was where his principal place of business was located because that was where he spent the majority of his time. However, he also averred that he maintained privileges at St. Barnabas Hospital and supervised podiatric residents at two St. Barnabas Hospital clinics where approximately 150 patients per month were seen. He averred that in addition he saw approximately 20-25 patients per week at a Bronx Park Medical pavilion located at 2016 Bronxdale Avenue in the Bronx.

Plaintiff is suing not only Westmed Medical Group, P.C. and Rye Ambulatory Surgery Center, LLC, but Dr. Goldstein individually. Since Dr. Goldstein is a party to the lawsuit, venue is proper in the county where he may be said to reside. CPLR 503(a) provides that the place of trial “shall be in the county in which one of the parties resided when it was commenced,” and, insofar as relevant here, “[a] party resident in more than one county shall be deemed a resident of each such county” … . Dr. Goldstein may also be viewed as an individually-owned business, and thus a resident of any county in which he has a principal office (CPLR 503[d]). Thus, an individually-owned business, much as a partnership, may be deemed a resident of the county where it has its principal office, as well as any county in which the individual owner being sued resides … . Siegel notes that the “principal office” county is an alternative; venue may still be based on the residence of natural-born parties … .

Applying these principles, Dr. Goldstein’s affidavit, attesting to residency in Westchester County but devoid of supporting documentation of residency, was insufficient to prove that plaintiff’s designation of Bronx County as venue was improper … . Lividini v Goldstein, 2019 NY Slip Op 06150, Fourth Dept 8-20-19

 

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THE SOURCE CODE USED TO CONNECT DNA FROM THE MURDER SCENE TO THE DEFENDANT GENERATED A REPORT WHICH IMPLICATED THE DEFENDANT AND WAS THEREFORE TESTIMONIAL, HOWEVER, THE SOURCE CODE, AS A FORM OF ARTIFICIAL INTELLIGENCE, WAS NOT THE DECLARANT; THEREFORE THE FACT THAT DEFENDANT WAS NOT PROVIDED WITH THE SOURCE CODE DID NOT VIOLATE HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, over a concurrence, determined the evidence concerning the TrueAllele source code used to connect the DNA found at the murder scene to the defendant was testimonial, but the source code, as artificial intelligence, was not the declarant. Therefore the fact that the defendant was not provided with the source code (which was not requested by the defendant during the trial) did not deprive defendant of the right to confront the witnesses against him. Rather, the Third Department found, the witness who testified about how the source code was used in the DNA testing was the declarant. Defendant had raised the intriguing question whether the source code, as a form of artificial intelligence, was the actual declarant triggering the right of confrontation:

Cybergenetics was “acting in the role of assisting the police and prosecutors in developing evidence for use at trial” … . Also, the report reflects TrueAllele’s conclusions “upon review of the raw data associated with the testing” … . TrueAllele, by running at the source code’s direction, compared DNA found at the crime scene to that of defendant’s DNA and generated the report containing the likelihood ratios, which, in effect, implicates defendant in the murder; thus, it is clearly biased in favor of law enforcement … . Accordingly, application of the primary purpose test reveals that the TrueAllele report is testimonial in nature … .

Despite concluding that the TrueAllele report is testimonial, we do not find, given the particular facts of this case, that the source code, even through the medium of the computer, is a declarant. This is not to say that an artificial intelligence-type system could never be a declarant, nor is there little doubt that the report and likelihood ratios at issue were derived through distributed cognition between technology and humans … . Indeed, similar to many expert reports, the testimonial aspects of the TrueAllele report are formulated through a synergy and distributed cognition continuum between human and machine … , but this fact alone does not tip the scale so far as to transform the source code into a declarant. People v Wakefield, 2019 NY Slip Op 06143, Third Department, 8-15-19

 

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PLAINTIFF’S INJURIES WERE NOT CAUSED BY A DEFECT IN THE SCAFFOLD OR A FAILURE TO PROVIDE AN ADEQUATE SAFETY DEVICE, LABOR LAW 200, 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over an extensive two-justice dissent, determined that plaintiff’s Labor Law 200, 240 (1) and 241 (6) causes of action were properly dismissed. Plaintiff was injured attempting to enter a building through a window from a scaffold, a prohibited method of entry. There was evidence plaintiff dislocated his shoulder trying to pull himself up to the window, and there was (possibly conflicting) evidence plaintiff fell backwards onto the scaffold. The majority concluded that in either scenario the injury was not caused by a defect in the scaffold or a failure to provide an adequate safety device, and therefore was not compensable:

Plaintiff’s claim was correctly dismissed because defendants demonstrated as a matter of law that plaintiff’s injury was not proximately caused by a violation of section 240(1). Plaintiff’s own actions were the sole proximate cause of his injuries. Plaintiff conceded that scaffold stairs were available to him to descend several floors and reenter the building. Further, as already noted, he admitted during his deposition that he knew he was not supposed to climb through the [*5]window and that it would have been safer to use the scaffold stairs. On appeal, he essentially argues, inter alia, that reentry via the scaffold stairs would have taken more time and would have been an inconvenience. Plaintiff also admitted to unhooking his safety line in order to climb through the window cut-out. Under the circumstances, adequate safety devices were available for plaintiff’s use at the job site, and his own actions in unhooking his safety line and climbing through the window were the sole proximate cause of his injuries … .

Because plaintiff’s actions were the sole proximate cause of his injuries, the claims for common-law negligence and violation of Labor Law § 200 were also properly dismissed … .

Plaintiff also failed to raise an issue of fact as to a violation of the Industrial Code, as required to support the claim under Labor Law § 241(6) … . Industrial Code (12 NYCRR) § 23-1.7(d), which requires that an employer “not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition,” clearly does not include a crossbar, such as the one from which plaintiff allegedly slipped, because it is limited to “working surfaces.” While a scaffold platform on which workers stand and work would seemingly come within the provision, structural crossbars which simply hold the scaffold together are not working surfaces required for standing or walking … . Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 2019 NY Slip Op 06142, First Dept 8-13-19

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWELL WAS LAST INSPECTED OR CLEANED IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this slip and fall case. Plaintiff alleged a discarded metrocard was the cause of her slip and fall on a train station stairwell. The defendant did not demonstrate when the stairwell was last inspected or cleaned:

Defendant failed to establish its prima facie entitlement to judgment as a matter of law, in this action where plaintiff … alleges that he was injured when, while descending stairs in a subway station, he slipped and fell on a discarded Metrocard. Although the cleaner on duty in the station testified he was given a Cleaners Manual and a written cleaning schedule, evidencing that defendant had a “rational means for dealing with the problem” of strewn MetroCards on the stairwell of train stations, the cleaner conceded that he could not recall whether he had deviated from his usual work schedule on the date of plaintiff’s accident and he did not have an independent recollection of when the staircase was last cleaned or inspected prior to the accident … .

Because defendant did not establish its prima facie entitlement to summary judgment, the burden never shifted to plaintiff to establish how long the condition existed … . Carela v New York City Tr. Auth., 2019 NY Slip Op 06140, First Dept 8-13-19

 

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