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THE COMMISSIONER OF AGRICULTURE AND MARKETS PROPERLY ENFORCED A TOWN RESOLUTION WHICH PROHIBITED CONNECTING A WATER MAIN SERVICING AN AGRICULTURAL AREA TO A NEW RESIDENTIAL SUBDIVISION; THE DEVELOPERS WERE ‘INTERESTED PERSONS’ AND WERE PROPERLY ALLOWED TO INTERVENE IN THE COMMISSIONER’S ARTICLE 78 ACTION TO ENFORCE THE TOWN RESOLUTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, the Commissioner of Agriculture and Markets, had the authority to enforce a 2004 Town Board resolution which restricted the use of water provided by a water main to existing residential uses and agricultural uses. In 2016 the Town Board passed a resolution allowing a connection with the water main to service a new residential subdivision. The Commissioner brought an Article 78 proceeding to enforce the 2004 resolution and the developers of the residential subdivision were properly allowed to intervene:

Supreme Court did not abuse its discretion in permitting the developers to intervene. Petitioner may well be correct that the developers do not have standing to bring suit to challenge his determination, but “[t]he bases for permissive intervention are broader than they are for standing to originate the proceeding” … . The developers have property interests that will be impacted should petitioner succeed … and all share the view of the Town and respondent Town Supervisor that petitioner lacks authority to enforce restrictions on water main access that the Town Board later attempts to vitiate. In our view, this is sufficient to render them “interested persons” who can at least intervene with regard to that portion of the petition/complaint founded upon CPLR article 78 … . …

A local government enjoys broad autonomy under “the ‘home rule’ provision of the New York Constitution,” but that autonomy does not extend to actions “that conflict with the State Constitution or any general law” (…see NY Const, art IX, § 2 [c] [ii]; Municipal Home Rule Law § 10 [1]). Among the general laws of New York is Agriculture and Markets Law article 25-AA, which “was enacted upon a finding that many of the agricultural lands in New York state are in jeopardy of being lost for any agricultural purposes due to local land use regulations inhibiting farming, as well as various other deleterious side effects resulting from the extension of nonagricultural development into farm areas” … . …

Petitioner was … within his rights to order the Town to comply with the 2004 resolution following an investigation and, upon the Town’s failure to seek review of his determination and refusal to comply with it, commence the present enforcement litigation … . Matter of Ball v Town of Ballston, 2019 NY Slip Op 04519, Third Dept 6-6-19

 

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THE DEFENDANTS’ PAPERS, WHICH INCLUDED PLAINTIFF’S AND DEFENDANT SANTIAGO’S DEPOSITION TESTIMONY, DEMONSTRATED THERE WERE QUESTIONS OF FACT ABOUT THE EXISTENCE OF ICE ON THE DRIVEWAY AND SANTIAGO’S NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants, the property owners, were not entitled to summary judgment in this slip and fall case. The defendants submitted plaintiff’s deposition testimony that the ice formed sometime between the middle of the day on the 16th and 7 a.m. on the 17th when he fell. The property owner, Santiago, testified he saw no ice on the afternoon of the 16th and saw no ice when he returned to the property at 11 a.m. on the 17th. The defendants’ papers, therefore, demonstrated there were questions of fact:

In support of their motion, the defendants submitted the transcript of the deposition testimony of the plaintiff, who testified that on February 16, 2016, precipitation had fallen, that it stopped sometime after he picked up his children at their school at noon, that when he returned to the subject property, the driveway was not icy, and that the neighbor whom the defendants had retained to plow the driveway had done so after the precipitation stopped but did not apply any salt. The plaintiff also testified that, on February 17, 2016, at approximately 7:00 a.m., he slipped and fell on thick ice that was cloudy and dirty in appearance and which covered the entire driveway. He further testified that the ice started forming on February 16, 2016, either sometime in the middle of the day, or sometime between 9:00 p.m. and 7:00 a.m. the next day.

The defendants also submitted the transcript of the deposition testimony of the defendant Christian Santiago, who testified that the tenants did not have any responsibilities with respect to snow or ice removal from the driveway. He also testified that he visited the subject property to inspect ongoing renovation work in one of the apartments in the morning or early afternoon of February 16, 2016, that it was not snowing or raining at that time, and that he did not observe any ice on the driveway. Santiago further testified that, when he returned to the property the following day, at approximately 11:00 a.m. or noon, he observed a snowbank measuring anywhere from four-to-five feet or six-to-seven feet high at the end of the driveway created by the plow the day before, that he did not see any ice on the driveway, and that he noticed that there was salt on the concrete landing but not on the driveway. …

The defendants failed to submit any meterological data for either February 16 or 17, 2016, or evidence of the condition of the driveway subsequent to it being plowed by the neighbor or within a reasonable time prior to the incident … .

… [T]he evidence submitted by the defendants showed the existence of triable issues of fact and did not suffice to establish a prima facie case for summary judgment … . Ghent v Santiago, 2019 NY Slip Op 04362, Second Dept 6-5-19

 

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THE PRESUMPTION OF PROPER SERVICE CREATED BY THE PROCESS SERVER’S AFFIDAVIT WAS REBUTTED BY DEFENDANT’S AFFIDAVIT CLAIMING THAT THE PLACE WHERE SERVICE WAS MADE HAD NO CONNECTION WITH HIM OR HIS BUSINESS, SUPREME COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined Supreme Court should have held a hearing to determine whether the defendant corporation, Advanced, and its principal, Trimarco, were properly served with the summons and complaint. The presumption of proper service created by the process server’s affidavit was rebutted by Trimarco’s affidavit stating that the place where service was made, and any person at that location, had no connection to him or the business:

Trimarco submitted an affidavit in which he claimed that both he and Advanced were improperly served at a residence that he had “sold to an unrelated third party three years ago.” He further averred that, on the date service was purportedly made, he had no relationship with any person at [the residence], and no person at that address was authorized to accept service on behalf of Advanced. …

The Supreme Court should not have, in effect, denied that branch of the defendants’ motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment and dismiss the complaint without first conducting a hearing. “Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” … . “[W]here there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence” … .

With respect to service on Advanced, CPLR 311(a)(1) provides that personal service upon a corporation shall be made, among other ways, “to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.” Personal service on a corporation must be made to one of the persons authorized by the statute to accept service, and an attempt to serve such person by substitute service pursuant to CPLR 308(2) or (4) will be insufficient to acquire jurisdiction over the corporation … . …

With respect to service on Trimarco, CPLR 308(2) provides, in relevant part, that service may be made upon a natural person “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served.” Here, Trimarco’s detailed affidavit, in which he claimed that the address where service was made was not his actual place of business, dwelling place, or usual place of abode, was sufficient to rebut the presumption of proper service created by the plaintiff’s affidavit of service … . Finnegan v Trimarco, 2019 NY Slip Op 04361, Second Dept 6-5-19

 

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ALTHOUGH THE SUBCONTRACTOR HAD THE RIGHT FILE A SECOND MECHANIC’S LIEN, THE ACTION TO FORECLSOE ON THE LIEN RAISED THE SAME ISSUES THAT WERE RAISED IN A PRIOR BREACH OF CONTRACT AND UNJUST ENRICHMENT ACTION WHICH WAS DISMISSED, THE RES JUDICATA DOCTRINE PRECLUDED THE SECOND ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the subcontractor’s action seeking to foreclose a mechanic’s lien was precluded by the doctrine of res judicata, despite its being based on theories different from those raised in the prior action:

“Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action” … . ” [O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . Accordingly, “a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … .

While a subcontractor may have the right to file a second mechanic’s lien within the statutory time period, at least to cure an irregularity in a lien first filed, or to reassert a lien when the prior one has been lost by delay in its enforcement …, a second mechanic’s lien is not immune from the doctrine of res judicata. Although the plaintiff framed its causes of action in the 2014 action as breach of contract and unjust enrichment causes of action, and its cause of action in this action as one to foreclose a mechanic’s lien, these are merely different theories for the plaintiff’s cause of action to recover monies allegedly owed to it under the subcontract. County Wide Flooring, Corp. v Town of Huntington, 2019 NY Slip Op 04354, Second Dept 6-5-19

 

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THE GYM TEACHER TOLD THE STUDENTS TO RUN AROUND THE PERIMETER OF THE BUILDING; STUDENT PLAINTIFF TRIPPED AND FELL OVER A CHAIN WHICH, SHE ALLEGED, OTHER STUDENTS WERE JUMPING OVER AS THEY RAN; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION SLIP AND FALL CASE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined that the school district’s motion for summary judgment in this negligent supervision action was properly denied. The gym teacher told the students to run around the perimeter of the building and, according to the student-plaintiff, some students were jumping over a chain. The student-plaintiff attempted to jump over the chain when she tripped and fell:

The infant plaintiff testified at her deposition that the gym teacher did not instruct her not to jump over anything, and that approximately 20 students jumped over the chain before she attempted to do so. She initially did not know what the other students were jumping over, and she realized that they were jumping over the chain when she was approximately five feet away from it. The infant plaintiff was still jogging at that point. She did not see the chain until she was very close to it because the chain “blend[ed] in.” The gym teacher testified at his deposition that the students usually ran on a grassy area around the perimeter of a field. On the day of the accident, however, he instructed the infant plaintiff and her classmates to run around the perimeter of the school building because the grassy area was too wet and muddy. He had never before instructed that class to run around the perimeter of the building. The gym teacher also testified that he instructed the students to avoid the chain, that he ran behind the students, and that, when he reached the chain, he observed students running around it. …

… [T]the school district failed to demonstrate, prima facie, that it provided adequate supervision, or that a lack of adequate supervision was not a proximate cause of the infant plaintiff’s injuries … . B.T. v Bethpage Union Free Sch. Dist., 2019 NY Slip Op 04442, Second Dept 6-5-19

 

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LABOR LAW 200 CAUSE OF ACTION, PREMISED ON DEFENDANT’S AUTHORITY TO SUPERVISE OR CONTROL THE PERFORMANCE OF PLAINTIFF’S WORK, SHOULD NOT HAVE BEEN DISMISSED, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff was injured when he was attempting to move a light fixture. He was cutting sheetrock in the ceiling with an allegedly improper electric saw when it kicked back and injured him. The Labor Law 240 and 231 causes of action were properly dismissed because an elevation-related hazard was not alleged, nor was an Industrial Code violation:

“Where a plaintiff’s claims implicate the means and methods of the work, an owner or contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability. A defendant has the authority to control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, as supplemented by the plaintiff’s affidavit, the complaint states cognizable causes of action pursuant to Labor Law § 200 and to recover damages for common-law negligence. The plaintiff averred that on the day of the accident, Rapaport [the construction manager] , whom he knew as the “contractor,” directed the plaintiff to move an overhead light from one place in the ceiling to another and told him to use an electrical saw to cut the sheetrock in the ceiling. These allegations are sufficient to support the statutory and common-law negligence claims against the moving defendants, and the moving defendants’ documentary evidence does not utterly refute these allegations … . Soller v Dahan, 2019 NY Slip Op 04441, Second Dept 6-5-19

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION, AN ADMINISTRATIVE ORDER REQUIRING A FORECLOSURE AFFIRMATION AND A CERTIFICATE OF MERIT SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY, A STIPULATION AWARDING SUMMARY JUDGMENT TO THE BANK SHOULD NOT HAVE BEEN IGNORED, THE IMPROPER APPLICATION OF THE ADMINISTRATIVE ORDER RAISED A MATTER OF LAW THAT COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the plaintiff bank’s motion to vacate a dismissal of a foreclosure action should have been granted. Supreme Court had improperly applied an administrative order (AO 548/10) requiring a “Foreclosure Affirmation/Certificate of Merit” that was not in effect at the time the bank made its motion for summary judgment. The parties had entered a stipulation which awarded the bank summary judgment in return for waiver of its right to seek a deficiency judgment. The court noted that the improper retroactive application of AO 548/10 could be raised for the first time on appeal because it is a question of law that could not be avoided if it had been raised at the proper time:

“[A] court may vacate its own judgment for sufficient reason and in the interest of substantial justice”… . “A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … .

Here, equity and justice require vacatur of the dismissal order in the interests of substantial justice … . Countrywide Bank, FSB v Singh, 2019 NY Slip Op 04353, Second Dept 6-5-19

 

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THE MOVEMENT OF THE COMMON CARRIER’S VAN WAS NOT UNUSUAL OR VIOLENT, THE PERSONAL INJURY ACTION BROUGHT BY A PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined that the common carrier’s motion for summary judgment in this personal injury case should have been granted. Plaintiff alleged injury caused when defendant’s van hit an expansion joint in the highway:

“To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual [and] violent” … . There must be evidence that the movement of the vehicle was “of a different class than the jerks and jolts commonly experienced in city bus travel,'” and, therefore, attributable to the negligence of defendant … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law through its submission of the deposition testimony of the plaintiff, who testified that the van in which he was a passenger was constantly jostled up and down, and that when the van hit one of the expansion joints in the highway, he heard something in his neck snap. The plaintiff admitted that his body was not physically moving up and down, and that the bumps and jolts of the van were only putting pressure on his lower back. Thus, the evidence established that the movement of the van at issue was not unusual and violent … . Petrie v Golden Touch Transp. of NY, Inc., 2019 NY Slip Op 04431, Second Dept 6-5-19

 

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INHERITED PROPERTY WHICH HAD BEEN COMMINGLED WITH MARITAL PROPERTY SHOULD HAVE BEEN TREATED AS MARITAL PROPERTY AND DIVIDED EQUALLY (SECOND DEPT).

The Second Department determined in this divorce action that the inherited property which was commingled with marital should have been considered marital property and divided equally:

The proceeds from an inheritance are separate property (see Domestic Relations Law § 236[B][1][d][1]…). However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property … . This presumption may be overcome by evidence that the funds were deposited into the joint account as a matter of convenience, without the intention of creating a beneficial interest … .

Here, by depositing inherited funds into accounts titled jointly with the defendant, the plaintiff created the presumption that the funds were marital … . Moreover, the plaintiff failed to rebut the presumption that the funds were transmuted into marital property, as she failed to establish that the funds were deposited into the parties’ joint accounts only as a matter of convenience without the intention of creating a beneficial interest … . Candea v Candea, 2019 NY Slip Op 04349, Second Dept 6-5-10

 

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A DISMISSAL BASED UPON PLAINTIFF’S FAILURE TO APPEAR TO OPPOSE A MOTION TO DISMISS IS NOT A DETERMINATION ON THE MERITS AND THEREFORE HAS NO RES JUDICATA EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the prior dismissal of plaintiff’s action because the plaintiff failed to appear in opposition to defendants’ motion to dismiss was not a determination on the merits and therefore has no res judicata effect:

The plaintiff had commenced a prior action against, among others, the defendants, and the complaint in that action was dismissed insofar as asserted against them upon the plaintiff’s failure to appear in opposition to their motion to dismiss. An order entered upon a party’s default in appearing to oppose a motion to dismiss is not a determination on the merits … . Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply … . Accordingly, the doctrine of res judicata does not apply to bar the instant action … . Abdelfattah v Najar, 2019 NY Slip Op 04346, Second Dept 6-5-19

 

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