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MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE JURY FOUND THE INJURY TO BE PERMANENT BUT DID NOT AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, DAMAGES FOR PAST PAIN AND SUFFERING TOO LOW, MAY HAVE BEEN AN IMPERMISSIBLE COMPROMISE VERDICT (SECOND DEPT)

The Second Department, reversing Supreme Court and granting a new trial, determined the jury’s damages verdict in this rear-end collision, traffic accident case should have been granted. The jury found that plaintiff suffered a permanent injury but did not award plaintiff with damages for future pain and suffering. The Second Department further determined the $12,500 verdict for past pain and suffering was too low:

A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence… . Here, the Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages for past pain and suffering and future pain and suffering, as the verdict with respect to those damages was contrary to the weight of the evidence. The jury’s determination that the plaintiff was not entitled to damages for future pain and suffering was inconsistent with the jury’s finding that his injuries were permanent in nature and were proximately caused by the accident … . Furthermore, whereas the jury was presented with conflicting evidence and theories as to the cause of the plaintiff’s injuries, and the jury’s award for past pain and suffering was inexplicably low, it appears that the verdict with respect to damages for past pain and suffering may have been the result of an impermissible compromise … . Avissato v McDaniel, 2019 NY Slip Op 00084, Second Dept 1-9-19

 

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DISCIPLINARY DETERMINATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT).

The Second Department annulled the disciplinary determination because the allegation that petitioner did not leave the yard when directed to do so was not supported by substantial evidence:

“A prison disciplinary determination must be supported by substantial evidence, meaning that in order to sustain a determination of guilt, a court must find that the disciplinary authorities have offered such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . A written misbehavior report made by an employee who observed an incident or ascertained the facts can constitute substantial evidence of an inmate’s misconduct so long as it is sufficiently relevant and probative … . Here, the record did not contain substantial evidence supporting the charges against the petitioner inasmuch as it failed to establish that the petitioner was one of the inmates who participated in the demonstration and refused to leave the yard when ordered to do so … . Matter of Johnson v Griffin, 2019 NY Slip Op 00123, Second Dept 1-9-19

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QUESTIONS OF FACT WERE RAISED ABOUT DEFENDANT CON ED’S AUTHORITY AND RESPONSIBILITIES IN THIS LABOR LAW 241 (6) AND 200 ACTION, IN PART BY THE TERMS OF A CONTRACT, CON ED’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS USING AN EXCAVATOR WHEN IT TIPPED OVER INTO A CREEK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Con Ed’s motion for summary judgment in this Labor Law 241 (6), Labor Law 200 and common law negligence action should not have been granted. Plaintiff was using an excavator in a narrow, sloped area when the excavator tipped over into a creek. The terms of a contract raised questions of fact about Con Ed’s supervisory authority and responsibilities:

Con Ed did not demonstrate, prima facie, that Industrial Code § 23-4.2(c), which requires supervision for certain excavation work, was inapplicable here, nor did it demonstrate, prima facie, that this regulation was not violated … . Further, Con Ed did not demonstrate, prima facie, that Industrial Code §§ 23-4.2(a) and 23-4.4(a), which require, inter alia, proper footing for certain work using excavators and similar equipment, were inapplicable here, or that these regulations were not violated in this case … . Con Ed also did not demonstrate, prima facie, that Industrial Code §§ 23-9.4(c), and 23-9.5(a), which require, inter alia, the use of shoring and/or temporary sheeting for certain excavation work, were inapplicable here, or that these regulations were not violated in this case … . Further, Con Ed did not show that any alleged violations of the aforementioned regulations did not constitute a proximate cause of the occurrence … . Any comparative negligence on the part of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6)  … . * * *

There are “two broad categories of actions that implicate the provisions of Labor Law § 200” … . The first category involves worker injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed … . In those circumstances, “[f]or liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time” … . “The second broad category of actions under Labor Law § 200 involves injuries occasioned by the use of dangerous or defective equipment at the job site” … . A property owner will be held liable under this category only if it possessed the authority to supervise or control the means and methods of the work … . The requisite supervision or control exists for Labor Law § 200 purposes when the property owner bears responsibility for the manner in which the work is performed … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right'” … . Moscati v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 00112, Second Dept 1-9-19

 

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CONTRACT RAISED QUESTIONS OF FACT WHETHER CONSTRUCTION MANAGER HAD SUFFICIENT AUTHORITY AND CONTROL TO BE HELD LIABLE FOR A FALL FROM A SCAFFOLD IN THIS LABOR LAW 200, 240 (1) AND 241 (6) ACTION (SECOND DEPT).

The Second Department determined there was a question fact whether defendant construction manager (Walsh) exercised sufficient supervision and control to be liable for plaintiff’s injury when he fell from a scaffold in this Labor Law 200, 240 (1) and 241 (6) action:

A construction manager of a work site is generally not responsible for injuries under Labor Law §§ 200, 240(1), or 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the plaintiff’s injury … . Here, a triable issue of fact exists as to whether Walsh had the authority to supervise or control the activity that brought about the plaintiff’s injury … . Among other things, in a “Project Management Services Proposal” agreement (hereinafter the agreement) entered into between Walsh and Bakers Dozen, Walsh agreed, inter alia, to provide certain services as “agent” of Bakers Dozen. The agreement further stated that, during the construction implementation phase, Walsh would “[i]ssue directives, clarifications and notices” and “monitor the site as required to maintain the progress of construction work.” Maurisaca v Bowery at Spring Partners, L.P., 2019 NY Slip Op 00109, Second Dept 1-9-19

 

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PLAINTIFF’S DECEDENT, WHO WAS DELIVERING MEALS ON WHEELS IN DEFENDANT’S BUILDING WHEN HE WAS ASSAULTED, ALLEGED THE ASSAILANT WAS AN INTRUDER WHO ENTERED THE BUILDING THROUGH A NEGLIGENTLY MAINTAINED ENTRANCE, THE LANDLORD’S DUTY TO PROTECT TENANTS EXTENDS TO GUESTS OF TENANTS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this third-party assault case, determined the personal injury and wrongful death action against the landlord should not have been dismissed. Plaintiff’s decedent was delivering “meals on wheels” in the building when he was assaulted, allegedly by an intruder who allegedly entered the building through a negligently maintained entrance:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm,’ including a third party’s foreseeable criminal conduct” … . This duty extends to the guests of a tenant … . A tenant or guest may recover damages, however, only on a showing that the landlord’s negligent conduct was a proximate cause of the injury… . “In premises security cases particularly, the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder” … .

Here, the defendant established its prima facie entitlement to judgment of a matter of law by presenting evidence that the lock on the only entrance to 341 Dumont Avenue was operable on the day of the incident … . In opposition, however, the plaintiffs raised triable issues of fact as to whether the decedent’s assailant was an intruder who entered the building through a negligently maintained entrance … . Aminova v New York City Hous. Auth., 2019 NY Slip Op 00083, Second Dept 1-9-19

 

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VERDICT IN THIS DOG BITE CASE WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE, EVIDENCE THAT THE DOG BIT PLAINTIFF’S FACE WHILE ATTEMPTING TO BITE THE FOOD IN PLAINTIFF’S HAND AND EVIDENCE THAT THE DOG ONLY BECAME RAMBUNCTIOUS AROUND FOOD SUPPORTED THE JURY’S CONCLUSION THAT THE DOG HAD NOT EXHIBITED VICIOUS PROPENSITIES (SECOND DEPT).

The Second Department determined the motion to set aside the verdict as against the weight of the evidence in this dog bite case was properly denied. Infant plaintiff was bitten in the face when the dog jumped and attempted to bite the food in plaintiff’s hand. The jury found that the dog did not have vicious propensities. The evidence that the dog only became excited and rambunctious around food supported the jury’s verdict:

Pursuant to CPLR 4404(a), a court may set aside a jury verdict as contrary to the weight of the evidence. A verdict is contrary to the weight of the evidence when ” the evidence so preponderate[d] in favor of the [movant] that [the verdict] could not have been reached on any fair interpretation of the evidence'” … . “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . The discretionary power to set aside a jury verdict must be exercised with considerable caution, “for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict”… . Additionally, in making this determination courts should keep in mind that “[i]t is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” … .

To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that ” the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities'” … . This knowledge may be established with evidence of “prior acts of a similar kind of which the owner had notice” … . However, “normal canine behavior” does not establish vicious propensities, and “rambunctious behavior will show awareness of a vicious propensity only if it is the very behavior that resulted in [a] plaintiff’s injury” … . M.B. v Hanson, 2019 NY Slip Op 00106, Second Dept 1-9-19

 

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE IN THIS FORECLOSURE PROCEEDING, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the plaintiff bank did not demonstrate compliance with the notice provisions of the mortgage in this foreclosure proceeding. Therefore plaintiff’s motion for summary judgment should not have been granted:

… [T]hose branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against [defendant], to strike his answer, and for the appointment of a referee to ascertain and compute the amount due should have been denied. The statements in the affidavit of the plaintiff’s employee that was submitted in support of the motion failed to establish, prima facie, that the affiant mailed the required notice of default to [defendant] by first-class mail on any particular date, or actually delivered such notice to the designated address if sent by other means, which was required by the terms of the mortgage as a condition precedent to foreclosure … . Wells Fargo Bank, N.A. v Sakizada, 2019 NY Slip Op 00162, Second Dept 1-9-19

 

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CALCULATION OF ENHANCED EARNING CAPACITY STEMMING FROM A DEGREE EARNED DURING MARRIAGE IN THE CONTEXT OF ALLOCATING MARITAL PROPERTY IN A DIVORCE PROCEEDING EXPLAINED (SECOND DEPT).

The Second Department determined Supreme Court property calculated the amount allocated to plaintiff wife for the enhanced earning capacity of defendant husband stemming from his MBA degree earned during the marriage:

The defendant’s MBA degree is marital property subject to equitable distribution in this case… . The value of the MBA degree is measured by the present value of the enhanced earning capacity which it affords the defendant … . The non-titled spouse is required to establish the value of the enhanced earning capacity and demonstrate that the non-titled spouse made a substantial contribution to the acquisition of the degree … .

Where a holder of an advanced degree has already embarked on his or her career and has acquired a history of actual earnings, the theoretical valuation method, which compares the average lifetime earnings of a college graduate against the average lifetime earnings of a person holding the relevant advanced degree, must be discarded in favor of a more pragmatic and individualized analysis based on the titled spouse’s remaining professional earning potential … . Actual earnings, projected over time, are a recognized proxy for the value of a person’s future earning capacity … . The valuation must be founded in economic reality … . Lynch v Lynch, 2019 NY Slip Op 00105, Second Dept 1-9-19

 

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INSUFFICIENT EVIDENCE DEFENDANT SEX OFFENDER WAIVED HIS PRESENCE AT THE SORA RISK ASSESSMENT HEARING, ISSUE CONSIDERED IN THE INTEREST OF JUSTICE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, exercising its interest of justice appellate jurisdiction, determined the evidence that defendant waived his presence at the SORA risk assessment hearing was insufficient. A new hearing was ordered:

A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing… . “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . Reliable hearsay evidence, such as an affidavit, is admissible to establish waiver … . Here, the sole “evidence” that the defendant waived the right to be present was the statement by the court that it was informed off-the-record by the New York City Police Department Sex Offender Monitoring Unit that the defendant resided at an address in Manhattan and that notice of the hearing was sent to that address and not returned as undeliverable. There was no evidence, hearsay or otherwise, that the defendant expressed a desire to forgo his presence at the hearing … . The fact that defense counsel had “no evidence to indicate” that the defendant did not receive notice of the hearing was not sufficient to indicate a waiver. People v Barney, 2019 NY Slip Op 00153, Second Dept 1-9-19

 

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JUDGE WAS NOT PRESENTED WITH ANY EXTRAORDINARY CIRCUMSTANCES JUSTIFYING, SUA SPONTE, DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT)

The Second Department, reversing Supreme Court, determined there was no basis for the judge’s, sua sponte, dismissal of the complaint in this foreclosure action:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … .

Administrative Order 548/10, issued by the Chief Administrative Judge on October 20, 2010, and amended by Administrative Order 431-11 [requiring confirmation of the accuracy of the execution and notarization of an affidavit of merit] … , was not in effect at the time the order of reference and the judgment of foreclosure and sale were issued …  . In this case, no substantial right of the defendant would have been affected by the substitution of a new affidavit of merit … . Accordingly, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint … . LaSalle Bank N.A. v Lopez, 2019 NY Slip Op 00104, Second Dept 1-9-19

 

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